TMI Tax Updates - e-Newsletter
April 29, 2021
Case Laws in this Newsletter:
GST
Income Tax
Customs
Corporate Laws
Securities / SEBI
Insolvency & Bankruptcy
Central Excise
CST, VAT & Sales Tax
Indian Laws
Highlights / Catch Notes
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GST:
Levy of CGST and SGST - Supply of branded packaged rice or not - There are no error in the view of the authorities. Firstly, the conclusions of these authorities are based on assessment of materials on record. Secondly, the seizure of sizable quantity of packaged branded rice was an indication of the petitioner dealing in such product. Thirdly, the tax is not demanded on rice stored and seized but on the quantity of rice already supplied which was assessed from the bill books and invoices seized from the premises of the petitioner-company. - HC
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Income Tax:
TDS credit u/s 199 - The subscription amount is the income of M/s.Sun TV Network Limited and as such, the same is taxable in the hands of M/s.Sun TV Network Limited. The levy of tax on the respondent – assessee would amount to double taxation. - As rightly contended by the learned senior counsel appearing for the respondent, since the amended provision Rule 37BA(2)(i) came into effect only on 01.11.2011, the same is not applicable to the cases on hand. Appellate Tribunal was right in holding that the assessee is eligible for TDS credit. - HC
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Income Tax:
Levy of penalty u/s 271 (1) (c) - there is no substance in the contention of the learned counsel for the appellant in claiming that the said amendment has been applied retrospectively. Interestingly, the learned counsel for the appellant has tried to take shelter that the words "Who has not previously been assessed under this Act" which was a part of the Explanation 3 to Section 271(1)(C) prior to 01.04.2003 and omitted thereafter stating that he was an existing assessee even prior to the amendment and therefore the amended explanation was not applicable to him. However, this point has already been dealt with and clarified and needs no further elaboration. - HC
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Income Tax:
Penalty imposed u/s 271AAB - Defective notice - The Tribunal, has verbatim reproduced the penalty notice and we find that the notice is absolutely vague and none of the irrelevant portions had been struck off nor the relevant portions had been marked or indicated. Hence, the Tribunal is right in observing that the penalty could not have been levied based on such defective notice and more particularly, when the assessee has been strenuously canvassing the jurisdictional issue from the inception. - HC
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Income Tax:
Validity of reopening of assessment u/s 147 - assessment order had been passed on the amalgamating company - notice u/s.148 of the Act dated 30/03/2016 was issued in the name of (non-existent entity) PHL Holdings Pvt. Ltd. and hence CIT(A) has rightly quashed the same. - AT
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Income Tax:
Correct head of income - The provisions of section 56 of the I.T.Act states that in case the property and equipment are let out and if the rent receivable are inseparable, then only the rent shall be taxable as “income from other sources”. In other words, if letting out of property is separable from letting out of other assets, as in the instant case, then the rent for house property is taxable u/s 22 of the I.T.Act, whereas, rent for other assets is taxable either u/s 28 of the I.T.Act as profits and gains of business or profession or u/s 56 of the I.T.Act as income from other sources, as the case may be. - AT
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Income Tax:
Validity of reopening of assessment u/s 147 - basis of client code modification - Merely, there were client codes modifications carried out by the broker cannot the basis to draw an inference against the assessee. In fact, in the case of client code modification the code of the other party is entered at the place of the assessee. - AT
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Income Tax:
Reopening of assessment u/s 147 - AY 2005-06 - non granting the approval u/s 10(23C)(vi) - the reopening merely on the basis of that the assessee has not got approval u/s 10(23C)(vi) is not justified. - AT
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Income Tax:
On a conjoint reading of section 80-IC(7) read with section 80-IA(5), it can safely be gathered that for the purpose of determining the quantum of deduction under section 80-IC the profits and gains of the eligible business shall be treated as the only stream of income of the assessee during the previous year relevant to the initial assessment year and also for every subsequent assessment year. - AT
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Customs:
Quantum of penalty u/s 112(b) of the Customs Act - Smuggling - Gold Jewellery - Role of the petitioner in the act of smuggling the gold and currency notes is quite apparent and established from plethora of materials, which have been duly and satisfactorily proved on the strength of the documentary as well as oral evidence as required by the law. - the petitioner has been rightly and unfailingly been held liable for committing the act in total contravention of law and hence, imposing of the penalty is found justifiable - HC
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SEBI:
Offence under SEBI - complainant foisting vicarious liability upon the accused No.1 - criminal breach of trust of the complainant and sold its shares to their own Company - The accused with dishonest intention have committed criminal breach of trust, deceived the complainant and have committed the act of cheating against it. In view thereof, the complainant succeeds. - HC
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Central Excise:
Rebate of central excise duty - time limitation - in view of the well settled position of law that the procedural requirement cannot defeat the substantial right of the party ,as in absence of shipping bill, insistence on the shipment certificate was inevitable. Therefore, obtaining of the shipment certificate was the very fundamental requirement on the part of the petitioner. Soon after getting the copy of the shipment certificate, it has chosen to file the rebate claim with all requisite documents - claim cannot be rejected on the ground of period of limitation - HC
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VAT:
Reopening of assessment - applicability of time limitation - Exemption from levy of Entry Tax - The reopening of the assessment for the year prior to 2012-13 is beyond the period of 3 years as contemplated under Section 5 (6) of Entry Tax Act and the same would not come within the purview of the said provision and there is no power vested with the authorities to reopen an assessment carried out three years prior to the said date of issuance of notice - all the assessments which have been carried out are bad in law. - HC
Notifications
Customs-
G.S.R. 295(E) - dated
27-4-2021
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ADD
Corrigendum - Notification No. 24/2021-Customs (ADD), dated the 26th April, 2021
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28/2021 - dated
27-4-2021
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ADD
Seeks to impose definitive anti-dumping duty on imports of Toluene Di-isocyanate (TDI) having isomer content in the ratio of 80:20, originating in or exported from European Union, Saudi Arabia, Chinese Taipei and UAE, for a period of 5 years from the date of imposition of provisional ADD, i.e. 2nd Dec, 2020.
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27/2021 - dated
27-4-2021
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ADD
Seeks to rescinds Notification No. 43/2020-Customs (ADD), dated the 2nd December, 2020
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26/2021 - dated
27-4-2021
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ADD
Seeks to impose definitive anti-dumping duty on import of 1-phenyl-3-methyl-5-Pyrazolone originating in or exported from China PR for a period of 5 years from the date of imposition of provisional ADD, i.e. 9th June, 2020.
Income Tax-
39/2021 - dated
27-4-2021
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IT
Amendment in Notification No. 85/2020, dated the 27th October, 2020
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38/2021 - dated
27-4-2021
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IT
Modification of Notification Nos. 93/2020 dated the 31st December, 2020, No. 10/2021 dated the 27th February, 2021 and No. 20/2021 dated the 31st March, 2021
Circulars / Instructions / Orders
News
Case Laws:
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GST
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2021 (4) TMI 1137
Levy of CGST and SGST - Supply of branded packaged rice or not - assessment based on quantity of rice found in the godown - HELD THAT:- The officials of GST department had carried out a surprise visit to the premises of the petitioner- company from where several incriminating documents and sizable quantity of packaged rice were seized. The invoices and other sales details established that for the period under consideration, the petitioner had supplied rice in packages of 25 kg each which carried the brand name Aahar Normal, Aahar Gold or Aahar Premium. Sizable quantity of such packaged branded rice was also seized from the premises. It was on the basis of such materials that the adjudicating authority came to the conclusion that the petitioner was engaged in supply of packaged branded rice. The Appellate authority confirmed the finding of the adjudicating authority and dismissed the Appeal of the petitioner. The authorities did not accept the petitioner’s ground of the seized rice being only for the internal use and purposes.
There are no error in the view of the authorities. Firstly, the conclusions of these authorities are based on assessment of materials on record. Secondly, the seizure of sizable quantity of packaged branded rice was an indication of the petitioner dealing in such product. Thirdly, the tax is not demanded on rice stored and seized but on the quantity of rice already supplied which was assessed from the bill books and invoices seized from the premises of the petitioner-company. Further, the petitioner’s defence that the quantity of rice lying in the godowns was merely for internal use was also not backed by any evidence. Close to three thousand bags of rice were found lying in the godown. The petitioner’s bare contention that it was not meant for supply but only for internal purposes of grading the rice or part of the stock was lying because of quality disputes, was not backed by any evidence and was therefore correctly not accepted by the authorities. Lastly, the petitioner’s contention that the brand was not a registered brand and therefore the petitioner had no liability to pay tax also was rightly not accepted - The brand names under which the petitioner was selling the rice may not have been registered, nevertheless it could lead to an actionable claim in a court of law. In order to avoid inviting liability of tax, the petitioner had to forgone such actionable claim which also the authorities found the petitioner had not done.
Petition dismissed.
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Income Tax
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2021 (4) TMI 1140
TDS credit u/s 199 - AO disallowed the assessee's claim on credit of TDS on the ground that the Subscription Charges were not offered to tax in the return of income - assessee contended that it is only a collection agent for M/s.Sun TV Network Limited and that the corresponding subscription income derived from pay channels stood accounted/offered as income in the hands of M/s.Sun TV Network Limited - AO held that the TDS credit relevant to subscription charges could not be allowed in the assessee's hands in view of proviso 1 & 2 to Section 199 of the Income Tax Act - assessee strenuously contended that the amounts received by them from various Cable Operators cannot be construed as their income, but represents the income of their principal viz., M/s.Sun TV Network Limited - HELD THAT:- As per Section 199(2), credit for TDS can be allowed only when the corresponding income is offered for taxation in the year in which such TDS is claimed and deduction of TDS was allowed without the corresponding income being declared in the Profit and Loss Account.
As per the Agreement entered into between the respondent and M/s.Sun TV Network Limited and for practical purposes, the invoices were raised by them on various Cable Operators and the TDS certificates were issued by the payers (i.e.) the Cable Operators in the name of the respondent – assessee, the respondent is entitled to claim the credit for the TDS certificates. Merely because the income has been offered and processed in the hands of M/s.Sun TV Network Limited, credit for TDS deducted in the name of the respondent – assessee cannot be denied. It is not in dispute that the respondent – assessee has remitted the entire gross amount received from the Cable Operators to M/s.Sun TV Network Limited.
The amount remitted by the respondent to M/s.Sun TV Network Limited includes the amount of TDS deducted by the Cable Operators at the time of payment made by them to the assessee - in lieu of the services rendered by the respondent – assessee, they are entitled to receive the fixed commission.
Since tax has already been deducted and paid to the Government at the time of making collections, the assessee is entitled to get credit of the same while receiving the commission income. M/s.Sun TV Network Limited had engaged the services of the respondent for collection of Subscription Charges against the commission. However, the Cable Operators, at the time of payment of subscription, deducted the tax at source and remitted the remaining amount to the assessee. The subscription collected by the assessee cannot be construed as its income and hence, the same is not taxable in the hands of the assessee. Further, the amounts collected by the assessee are credited to separate account viz., “Subscription Charges”. The said account was debited at the end of the Financial Year when the amounts are paid to M/s.Sun TV Network Limited. Since the subscription collected by the assessee from various Cable Operators are not the income of the assessee, the same were not shown in the Profit and Loss Account. The subscription amount is the income of M/s.Sun TV Network Limited and as such, the same is taxable in the hands of M/s.Sun TV Network Limited. The levy of tax on the respondent – assessee would amount to double taxation.
As rightly contended by the learned senior counsel appearing for the respondent, since the amended provision Rule 37BA(2)(i) came into effect only on 01.11.2011, the same is not applicable to the cases on hand. Appellate Tribunal was right in holding that the assessee is eligible for TDS credit.
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2021 (4) TMI 1139
Levy of penalty u/s 271 (1) (c) - Appellant has not established reasonable cause for the non submission of the returns within the time prescribed u/s 153(1) - Scope of amendment to Explanation 3 to Section 271(1)(c) - whether the Income Tax Appellate Tribunal was correct in upholding the orders of the Assessing Officer who in fact had 'allegedly' given retrospective effect to Explanation 3 to Section 271(1)(c)? - HELD THAT:- It is not the case of the appellant that he had filed the Income Tax Returns for all the three years namely 1999-2000, 2000- 2001 and 2001-2002 within the specified period as mentioned in sub section 1 of Section 153 of Income Tax Act. As such the due dates for filing these returns were 31.10.1999, 31.10.2000 and 31.10.2001 respectively. While this being so, these returns were filed on 07.04.2005, 15.06.2005 and 19.12.2005 respectively for the assessment years. These filing of returns were also subsequent to the issue of notice dated 23.12.2004 under Section 148 of the Act after the survey under Section 133-A of the Act. It is also pertinent to mention that the survey under Section 133 A of the Act was conducted subsequent to which the audit of accounts was completed and the consequent Income Tax Returns were filed. Explanation 3 to Section 271(1)(C) is categorical as to where concealment of income can be deemed. Moreover, in the instant case the Income Tax Appellate Tribunal observation is significant.
It is not also the case of the appellant that the Income Tax Returns were filed before the amendment to Explanation 3 to Section 271(1)(c) was brought in. Therefore, there is no substance in the contention of the learned counsel for the appellant in claiming that the said amendment has been applied retrospectively. Interestingly, the learned counsel for the appellant has tried to take shelter that the words "Who has not previously been assessed under this Act" which was a part of the Explanation 3 to Section 271(1)(C) prior to 01.04.2003 and omitted thereafter stating that he was an existing assessee even prior to the amendment and therefore the amended explanation was not applicable to him. However, this point has already been dealt with and clarified and needs no further elaboration. Appeal dismissed.
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2021 (4) TMI 1127
Validity of reopening of assessment u/s 147 - assessment order had been passed on the amalgamating company - HELD THAT:- As the notice u/s.148 of the Act dated 30/03/2016 was issued in the name of non-existent entity and re-assessment was also framed in the name of non-existent entity.
In view of the aforesaid observations and on the facts and circumstances of the instant case and the judicial precedents relied upon hereinabove, we hold that notice u/s.148 of the Act dated 30/03/2016 was issued in the name of (non-existent entity) PHL Holdings Pvt. Ltd. and hence CIT(A) has rightly quashed the same. We affirm the same. Appeal of the Revenue is dismissed.
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2021 (4) TMI 1126
Ex-parte order u/s. 144 of the Act without providing proper opportunity to the assessee of being heard and made certain additions - HELD THAT:- As find merit in the submissions of the Ld. DR. AO had posted the case on several occasions. However, none appeared on behalf of the assessee before the Ld. AO on the given dates of hearing and even before the Ld. CIT(A) the assessee could not improve his case. Hence, the Ld. Revenue Authorities were left with no other option except to pass orders based on the material available on record.
No much strength in the arguments advanced by the ld. AR. However, considering the prayer and the submissions of the Ld. AR and the nature of issues involved in the appeal, in the interest of justice, hereby remit the matter back to the file of Ld. AO for de-novo consideration thereby providing one more opportunity to the assessee of being heard. At the same breath, I also hereby caution the assessee to promptly co-operate before the Ld. Revenue Authorities in their proceedings failing which the Ld. Revenue Authorities shall be at liberty to pass appropriate Orders in accordance with law and merits based on the materials on the record. It is ordered accordingly.
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2021 (4) TMI 1125
Delayed employee's contribution towards Provident Fund - amount paid beyond the due date as specified in the Provident Fund Act.- HELD THAT:- As decided in GUJARAT STATE ROAD TRANSPORT CORPORATION [2014 (1) TMI 502 - GUJARAT HIGH COURT] the assessee has not credit the employees' Contribution to the employees' account in the relevant fund or funds on or before the due date mentioned in the Explanation to section 36(1)(va), the assessee shall not be entitled to deduction of such amount in computing the income referred in section 28
Also decided in M/S MERCHEM LIMITED [2015 (9) TMI 560 - KERALA HIGH COURT] since the assessee had admittedly not paid the remittance of the employees' contribution to the provident fund and ESI within the dates prescribed under the respective Act, the assessee was not entitled to deduction U/s. 43B of the amounts deducted thereunder for and on behalf of the employees. - Decided against assessee.
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2021 (4) TMI 1122
Sundry creditors addition - HELD THAT:- We notice herein as well that the CIT(A) has followed the very detailed discussion as already held in the preceding AYs since based on the seized material only. We thus follow judicial consistency to affirm CIT(A)'s findings in the instant second AY 2006-07 as well.
Unexplained liability - HELD THAT:- It emerges during the course of hearing that the impugned sum represents three alleged promissory notes; all dated 18.03.2009 in the names of Shri J.N. Chandra Reddy, J. Madhumalathi and J.N. Shanthi involving sum of ₹ 5 lakhs in former two cases and ₹ 2 lakhs in the last instance; respectively.
We notice that the search in question had found and seized those original promissory notes than photocopies thereof which sufficiently indicates that the corresponding loan transactions had not been completed as the original documents in such a case is supposed to be with the creditor only. Coupled with this, Ms. Biswas fails to rebut that the learned lower authorities have added the loan amounts only whose source; going by the contents of the seized documents, ought not to be treated ass assessee's unexplained income since the same belongs to the named third parties only. We also wish to clarify here that the Revenue has failed to pinpoint any payment from assessee's side for the promissory note(s) in issue. We thus direct the Assessing Officer to delete the impugned addition.
Adding an amount representing borrowals from Shri G. Shoban Babu and interest thereof - HELD THAT:- As lower authorities have themselves identified source of impugned loan in other words that the sum indicates that repayment of the very sum to Shri Shoban Babu only. This repayment of principle sum does not represent diversion of assessee's alleged unexplained income in other words. We also accept Revenue's stand supporting impugned addition at the same time and direct the Assessing Officer to restrict the impugned addition only to the extent of interest payment component from the assessee's side made to Shri Shoban Babu. He shall further ensure that the assessee is granted telescoping benefit of the corresponding unaccounted receipts amount of ₹ 30 lakhs in AY 2005-06 & sundry creditors addition against the unaccounted interest payment addition in the impugned assessment year 2010-11 as per law. Necessary computation shall follow. This last appeal is partly accepted in foregoing terms.
Unexplained cash credits - HELD THAT:- The assessee's only stand in tune with her pleadings throughout is that the impugned sum represents past savings only. Mr. Ramakrishnan fails to rebut the clinching fact that this assessee has not even filed her cash flow statement so as to explain source of the amount in issue. We thus confirm the impugned addition
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2021 (4) TMI 1134
Computation of deduction u/s 10A - tribunal held that the travelling expenditure incurred in foreign currency is to be reduced from the total turnover also for the purpose of computation of deduction - HELD THAT:- As decided in M/S. SRA SYSTEMS LTD. [2021 (3) TMI 977 - MADRAS HIGH COURT] when the object of the formula is to arrive at the profit from export business, expenses excluded from export turnover have to be excluded from total turnover also. Otherwise any other interpretation makes the formula unworkable and absurd.
Hence, we are satisfied that such deduction shall be allowed from the total turnover in same proportion as well. Decided in favour of the assessee.
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2021 (4) TMI 1121
Correct head of income - Rental income earned by the assessee from letting out of property - taxable under the head income from house property OR income from other sources - HELD THAT:- It is clearly seen from the perusal of the lease agreements that the rental income, both from property as well as equipment let out by the assessee, are separately identifiable in the lease agreements. It is also clear that the letting out of building as well as letting out of equipment are separable. The leasing of factory premises have given rise to major receipt of rental income and leasing of equipment is only incidental and both are clearly separable. Almost 85% of the total rent receipts is on account of leasing factory premises and leasing of equipment is only of minor items such as Cranes, Aircompressor, power generator etc.
The provisions of section 56 of the I.T.Act states that in case the property and equipment are let out and if the rent receivable are inseparable, then only the rent shall be taxable as “income from other sources”. In other words, if letting out of property is separable from letting out of other assets, as in the instant case, then the rent for house property is taxable u/s 22 of the I.T.Act, whereas, rent for other assets is taxable either u/s 28 of the I.T.Act as profits and gains of business or profession or u/s 56 of the I.T.Act as income from other sources, as the case may be.
We hold that the rental income earned by the assessee from letting out of property is taxable under the head income from house property and not income from other sources, for the following reasons :-
(i) the assessee is the owner of the property in terms of section 22 of the I.T.Act.
(ii) the rental income on lease of factory premises is taxable under the head house property in view of the judgment of the Hon’ble jurisdictional High Court in the case of D.R.Puttanna Sons Private Limited [1986 (7) TMI 73 - KARNATAKA HIGH COURT]
(iii) the rental income earned by the assessee from property and from equipment are separable in the facts of the given cases. Accordingly, the provisions of section 56 is not applicable in respect of income received from leasing of property, namely, factory building.
Appeals filed by the assessee are allowed.
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2021 (4) TMI 1131
Penalty imposed u/s 271AAB - Defective notice - Non specification of clear charge - HELD THAT:- As rightly pointed out by the assessee, Section 271AAB of the Act, which deals with penalty consists of three contingencies. Therefore, the Assessing Officer should point out to the assessee as to under which of the three clauses, he chooses to proceed against the assessee so as to enable the assessee to give an effective reply. Since the same has not been mentioned, the assessee has been denied reasonable opportunity to put forth their submissions.
The Tribunal, has verbatim reproduced the penalty notice and we find that the notice is absolutely vague and none of the irrelevant portions had been struck off nor the relevant portions had been marked or indicated. Hence, the Tribunal is right in observing that the penalty could not have been levied based on such defective notice and more particularly, when the assessee has been strenuously canvassing the jurisdictional issue from the inception.
The decisions of the Karnataka High Court in the cases of Manjunatha Cotton and Ginning Factory [2013 (7) TMI 620 - KARNATAKA HIGH COURT]and SSA's Emerald Meadows [2015 (11) TMI 1620 - KARNATAKA HIGH COURT] and the decision of this Court in the case of Babuji Jacob [2020 (12) TMI 574 - MADRAS HIGH COURT] clearly support our above conclusion. For all the above reasons, we find no grounds to interfere with the common order passed by the Tribunal. - Decided in favour of assessee.
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2021 (4) TMI 1118
Validity of reopening of assessment u/s 147 - basis of client code modification - HELD THAT:- We note that the Hon’ble Punjab and Haryana High Court has decided the issue in favour of the Revenue in the case of Shri Rakesh Gupta [2018 (5) TMI 445 - PUNJAB AND HARYANA HIGH COURT]] which was reopened under section 147 of the Act based on the same investigation report Income Tax Department. In view of the above, we do not find any merit in the case of the assessee. Accordingly we uphold the reopening made by the AO under section 147.
Addition on account of client code modification done by the broker to shift the profit - HELD THAT:- Admittedly client codes were modified of the assessee as per the information received from the investigation wing. However, the first question that arises whether such client codes were modified at the instance of the assessee or there was some punching error at the end of the share broker. It is because the stock exchange permits the share broker to rectify the mistakes occurred while punching the data. If that be so, then there cannot be any fault which can be attributed to the assessee for the mistakes committed by the share broker.
The client code modifications give rise to the doubt/ suspicion which requires detailed investigations from the parties concerned to reveal the truth.
Merely, there were client codes modifications carried out by the broker cannot the basis to draw an inference against the assessee. In fact, in the case of client code modification the code of the other party is entered at the place of the assessee.
Thus the other party also required to be investigated whether the other party was involved in such transaction. Besides this other corroborative evidence has to be brought on record suggesting that there was the exchange of cash among the parties involved in such client code modification transaction. But we note that no such exercise has been carried out by the authorities below. As such there is no whisper in the order of the authorities below that there was the cash transfer between the parties for transferring the income of the assessee to the other party.
Thus in the absence of such verification/examination carried out by the authorities below, we are not inclined to uphold their findings. We are not inclined to uphold the findings of the authorities below. We direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is allowed.
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2021 (4) TMI 1116
Approval u/s 10(23C) rejected - since the assessee is having mixed nature of educational/other object clauses, it is not eligible for the impugned approval - impugned objects do not fall solely in the category of “educational purposes” and its trustees enjoyed unchecked extraordinary powers - HELD THAT:- There can hardly be any dispute that section 10(23C)(vi) of the Act entitles the assessee to claim exemption relief when it receives any income on behalf of any university or other educational institution existing solely for educational than profitable purposes. We wish to observe here that Revenue’s emphasis is on assessee’s original clauses in its trust deed dated 19/11/1997 that the same also include some of the non-educational purposes as well.
There is further no issue that as per the learned coordinate bench’s discussion that assessee had in fact set up educational institutions in the years 1998-99 imparting education in various recognized colleges, namely, Roland Institute of Computer and Management Studies, Roland Supriya Junior college, Roland Junior College and Roland Institute of Technology. Coming to assessment years before i.e. AYs 2005-06 and 2007-08 to 2012-12, the assessee has placed on record its corresponding income and expenditure accounts indicating figures; after application of income (assessment year wise, surplus application) - all these assessment years except AY 2011-12 have seen more application than receipts since there is nothing left after considering accumulation, revenue expenditure and development heads in assessee’s case. Relevant records indicate that AY 2011-12’s positive figure of ₹ 5,00,504/- is indeed less than the permissible 15% limit of gross receipts of ₹ 8,20,08,082/-; coming to ₹ 12,30,121/-. We thus observe that the assessee has applied and has utilizsed its gross receipts only for educational purposes as per the detailed evidence forming part of the case file.
Whether the clinching statutory expression employed in section 10(23C)(vi) “existing solely for educational purposes” has to be read in isolation or in complete sense i.e. “ any university or college existing solely for educational purposes and not for purposes of profit”? - In our considered opinion, we ought to read this statutory provision as a whole only than in piece-meal. This is for the reason that the legislature has itself made it clear that the institution concerned has to exist only for educational and not for profit purposes. We wish to repeat that the department; in such a cases has to pin point the material against taxpayer before us which could suggest even an iota of material that it has ever existed for deriving profits or the object clauses reveal such an element therein.
Whether CCIT has rightly held that assessee’s trustees had unbridled powers and they had also received payments from the former? - We make it clear that there is no such condition in section 10(23C)(vi) of the Act qua the internal day to day running of an institution set up solely for carrying out educational activities. Hon’ble apex court’s decision Commissioner of Customs (Imports) Vs. M/s Dilip Kumar and Company, [2018 (7) TMI 1826 - SUPREME COURT] has settled the law that only stricter interpretation needs to be applied both in taxing as well as a deduction provision.
Mr. Goutham’s concluding argument sought to highlight the fact that the assessee’s have paid rent as well to its twin trustees in the impugned AYs which deserves to be taken as an undue benefit. The said rental payments are found @ ₹ 1.87 per sq.ft. and much less than that paid to unrelated party i.e. Shri Sushil Kumar @ ₹ 2.20 in AY 2005-06 and ₹ 2 per sq.ft in AY 2006-07. We thus decline all these Revenue’s arguments alleging that assessee’s twin trustees have derived undue benefit from the educational activities carried out in all these AYs. The CCIT’s all impugned orders under challenge in first set of 14 appeals are held as not sustainable in the eyes of law. The same stand reversed therefore. These two assessees’ corresponding appeals seeking section 10(23C)(vi) approval are allowed as necessary corollary ordered accordingly.
In view of the foregoing discussion as well as taking into consideration learned coordinate bench’s decision in AY 2014-15 (supra) we allow the assessees’ claim of section 10(23C)(vi) relief approval raised.
Reopening of assessment u/s 147 - AY 2005-06 - non granting the approval u/s 10(23C)(vi) - HELD THAT:- The assessee demonstrated that there is no escapement of income, as the assessee followed the provision for accumulation of income u/s 11 of the Act. We also observe that once registration granted by the revenue department to the assessee u/s 12AA on 15/01/2003 BY CIT, Bhubneswar and it has not been withdrawn, then if the assessee is complying the other provisions of the Act, it cannot be held as there is any escapement of income . In this case, merely not granting the approval u/s 10(23C)(vi) does not amount to escapement of income as per the decision cited by the assessee as quoted supra.
Respectfully following the above judgement we therefore, hold that the reopening merely on the basis of that the assessee has not got approval u/s 10(23C)(vi) is not justified. Another contention of the assessee is that there is no new material brought on record by the AO to reopen the assessment. He also contended that the objections were filed before the AO for the reasons recorded for reopening of the case which have not been disposed off, which is against the ratio laid down by the Hon'ble Supreme Court in the case of GKN Driveshafts (India) Ltd., Vs. ITO . [2002 (11) TMI 7 - SUPREME COURT] - After careful consideration of the submissions from both the sides, we are of the view that the AO has not followed direction of the Hon’ble Jurisdictional High Court for passing the order within the stipulated time. In this regard, we find substance in the submission of the ld. AR that the orders passed by the AO is time barred.
We conclude on the basis of material available on record that the AO has not passed the order as per the provisions of the law and not followed the law laid in this regard; therefore, the Hon’ble Supreme Court as quoted supra the order passed is not valid and accordingly, we annul the assessment orders passed by the AO in all the three years under consideration - Reopening of assessments in AYs 2005-06 to 2007-08 are held as not sustainable in law and the same are hereby quashed.
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2021 (4) TMI 1115
Reopening of assessment u/s 147- Deduction of section 80-IC - validity of the jurisdiction assumed by the Assessing Officer for reopening the assessee's case under section 147 - assessee argued no failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment for the year in question - HELD THAT:- Admittedly, as provided in the "first proviso" to section 147, where any assessment under sub-section (3) of section 143 or section 147 had been made for the relevant assessment year, then, inter alia, unless any income chargeable to tax had escaped assessment by reason of the failure on the part of the assessee to disclose fully and truly all facts necessary for his assessment, its case cannot be reopened after the expiry of four years from the end of the relevant assessment year.
Undisputedly, the return of income of the assessee for the year in question was earlier neither subjected to an assessment under section 143(3) nor under section 147 of the Act. Accordingly, we are of the considered view that in the absence of any assessment having earlier been framed in the case of the assessee under sub-section (3) of section 143 or section 147, the contention of the learned authorised representative challenging the validity of the jurisdiction assumed by the Assessing Officer in the backdrop of the "first proviso" to section 147 does not merit acceptance, and is accordingly rejected.
Mere "change of opinion" on the part of a successor Assessing Officer as against that arrived at by his predecessor, on the same set of facts - As the return of income of the assessee for the year in question was earlier processed under section 143(1) of the Act and was not subjected to any regular assessment under section 143(3) or section 147 of the Act, thus, there was no occasion for the Assessing Officer to have formed any "opinion" on the issue pertaining to quantification of the assessee's claim for deduction under section 80-IC. In sum and substance, in the absence of any formation of "opinion" by the Assessing Officer on any earlier occasion, the claim of the assessee that the assessee's case was reopened on the basis of a "change of opinion" is beyond comprehension. We, thus, being of the considered view that as on no earlier occasion there had been formation of any "opinion" by the Assessing Officer as regards the quantification of the assessee's claim for deduction under section 80-IC of the Act, thus, its contention that the subsequent reopening of its case was backed by a mere "change of opinion", being devoid of any logic cannot be accepted, and is accordingly rejected.
In the absence of any fresh tangible material coming to the notice of the Assessing Officer after issuing of the intimation under section 143(1), the reopening of the assessee's case could not have been validly done - On a perusal of the aforesaid "reasons to believe", we find, that there is no whisper of any fresh tangible material that had came to the possession of the Assessing Officer subsequent to the issuance of the intimation under section 143(1) of the Act. In fact, the Assessing Officer holding a conviction that the quantification of deduction under section 80-IC being fallacious had resulted to allowing of excess claim of deduction therein raised by the assessee, had thus, for withdrawing such excess part of deduction so allowed taken recourse to proceedings under section 147 of the Act. At this stage, we may herein observe that though an intimation issued under section 143(1) cannot be equated with an "assessment", the same, however, cannot lead to a conclusion that the requirements of section 147 can be dispensed with when the finality of an intimation under section 143(1) is sought to be disturbed.
Thus in the backdrop of the facts involved in the case before us, the assumption of jurisdiction by the Assessing Officer under section 147 in the absence of any tangible material coming to her possession subsequent to the accepting of the return of income under section 143(1) of the Act, is nothing short of an arbitrary exercise of powers conferred under section 147 - See ORIENT CRAFT LTD. [2013 (1) TMI 177 - DELHI HIGH COURT]
Entitlement for deduction under section 80-IC(7) read with section 80-IA(5) - As the assessment year 2007-08, as rightly observed by the Assessing Officer, is the initial assessment year within the meaning of section 80-IC of the Act, we shall now deal with the observations of the lower authorities that on a conjoint perusal of section 80-IC(7) read with section 80-IA(5) of the Act, the losses suffered by the eligible unit of the assessee in the assessment year 2007-08 were liable to be "set-off" against the profits of the said eligible unit for the year in question, i. e., the assessment year 2008-09, as a result whereof the assessee's entitlement for deduction under section 80-IC was to be restricted to an amount of ₹ 10,85,588. On a perusal of sub-section (7) to section 80-IC, we find that the same as an enabling section imports the provisions of sub-section (5) of section 80-IA, which, thus, are to be read for the purpose of quantifying the assessee's entitlement for deduction under section 80-IC
On a conjoint reading of section 80-IC(7) read with section 80-IA(5), it can safely be gathered that for the purpose of determining the quantum of deduction under section 80-IC the profits and gains of the eligible business shall be treated as the only stream of income of the assessee during the previous year relevant to the initial assessment year and also for every subsequent assessment year. Accordingly, in the backdrop of our aforesaid deliberations, we find no infirmity in the view taken by the Assessing Officer who had rightly observed that the losses suffered by the eligible unit in the assessment year 2007-08, i. e., the initial assessment year could only have been "set off" against the profit of the said eligible unit for the year in question, i. e., the assessment year 2008-09, as a result whereof the assessee's entitlement towards deduction under the aforesaid statutory provision, i. e., section 80-IC was to be restricted to an amount of ₹ 10,85,588.
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2021 (4) TMI 1114
TP Adjustment - international transaction of AMP and adjustment on account of the same - HELD THAT:- As relying on ow case [2020 (8) TMI 130 - ITAT DELHI] we hold that no international transaction of AMP exist in the case of assessee. Hence, we delete the adjustment made on account of the AMP transaction. Corresponding grounds raised by the assessee are accordingly allowed. Accordingly, the appeal of the assessee is allowed.
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Customs
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2021 (4) TMI 1133
Direction to release the consignments in question upon remittance of enhanced duty as quantified - Multifunction Devices [MFDs] - prohibited goods or not - HELD THAT:- Reliance placed in the case of THE COMMISSIONER OF CUSTOMS (GR. 5) , THE ADDITIONAL COMMISSIONER OF CUSTOMS (GR. 5) , THE DEPUTY COMMISSIONER OF CUSTOMS (GR. 5) , VERSUS M/S. BEST MEGA INTERNATIONAL, THE DIRECTOR GENERAL OF FOREIGN TRADE AND ADDITIONAL SECRETARY TO THE GOVERNMENT OF INDIA [2021 (3) TMI 696 - MADRAS HIGH COURT] where on similar issue, appellant, Customs Department is directed to consider the applications filed by the respondent/writ petitioners for provisional release and pass orders on merits and in accordance with law within a period of four weeks from the date of receipt of a copy of this judgment.
Following the decision, writ appeals are allowed on the same lines - decided against Revenue.
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2021 (4) TMI 1130
Quantum of penalty u/s 112(b) of the Customs Act - Smuggling - Gold Jewellery - Foreign Currency - Motor Vehicle - requirement of separate show cause notice before enhancement of penalty from ₹ 1 lakhs to ₹ 10 lakhs at the revisional stage - HELD THAT:- On completing inquiry, a show cause notice had been issued by the DRI being DRI/ AZU ND14/19 on 28.01.2014 proposing confiscation of gold and foreign currency of USD 10,000/- and motor vehicle and also for the imposition of penalty. This was adjudicated by the adjudicating authority in order in original by an elaborate discussion of entire materials. When the appeal was preferred against the order in original, the Commissioner of Customs (Appeals) under section 128A had reduced the penalty from ₹ 10 lakhs to ₹ 1 lakhs, against which the revision application under section 129DD of the Customs Act was preferred where the DRI approached for revision of the said order in appeal - Sub-section (5) of section 129DD precludes passing of order of enhancing any penalty or fine in lieu of confiscation or confiscation of goods of greater value, unless while passing order under section 128A, the appellate authority has enhanced any penalty or fine in lieu of confiscation or has confiscated goods of greater value. However, if the Appellate authority has not enhanced as provided under sub-section 5(a), issuance of notice to the person affected by the proposed order, is insisted within one year from the date of the order sought to be annulled or modified.
The order sought to be modified was of the Appellate Authority being Commissioner of Customs (Appeals) dated 20.01.2016 as the application for revision was preferred by the respondent No.2 under section 129DD of the Act, before the Principal Commissioner & Ex Officio Additional Secretary to Government of India on 30.11.2018. The petitioner was served with the notices thrice on 04.09.2018, 01.10.2018 and on 30.10.2018/ 06.11.2018. Grievance sought is made by the petitioner of nonservice of show cause notice, although he had admitted of receipt of one notice of hearing on dated 23.10.2018 which is within the prescribed period under sub-section 5(b) of section 129DD of the Customs Act. There may not be any formal show cause notice, this notice of the revisional authority would be sufficient compliance under the law - Even otherwise, this revision being a continuance of original order, there could not have been a need for a separate issuance of the show cause notice in a literal sense at the time of the matter having travelled to the revisional authority. The challenge made by the petitioner and the issues raised of non-issuance of the show cause notice merit no assistance, inasmuch as, aggrieved by the order in appeal of the appellate authority that the department had chosen to question it before the revisional authority. It was in continuity that this litigation had eventually culminated into revival of the order of penalty of ₹ 10 lakhs.
Role of the petitioner in the act of smuggling the gold and currency notes is quite apparent and established from plethora of materials, which have been duly and satisfactorily proved on the strength of the documentary as well as oral evidence as required by the law. The entire conspiracy hinges around his relationship with Jagdishbhai at Sharjah and from the admissible and conclusive evidence recorded by the respondent, the petitioner has been rightly and unfailingly been held liable for committing the act in total contravention of law and hence, imposing of the penalty is found justifiable - Petition dismissed - decided against petitioner.
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Corporate Laws
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2021 (4) TMI 1136
Winding up of company - name of company struck off u/s 248 of Companies Act - award of costs and expenses to the petitioners, incurred by them for filing the winding up petition - HELD THAT:- From a reading of Sub-Section (8) of Section 248, it is clear that Section 248 in no manner will affect the powers of this Tribunal to wind up the Company, the name of which has been struck off from the Register of Companies. Therefore, even after removal of the name of the Company from the Register of Companies this Tribunal can proceed with the petition for winding up under Section 271 of the Companies Act, 2013 - It also appears from the record that the Company got struck off on 29.08.2018 due to non-filing of Statutory Returns since 2001. Hence the criteria fixed under Section 271 (d), that the Company failed to file Financial Statements or Annual Returns for immediately preceding five consecutive years is fulfilled.
The submission of the Petitioners that the Company is in the state of dormancy and its assets are lying is to be considered and that no purpose will be served if the same is kept unattended to. However, the submission of the Respondent No.1 regarding his spending some amount in connection with security arrangements, up keeping of records etc., he should be compensated for the same has force. Hence, while disposing of the property, he should be given a preference to buy the property, for such value that should be mutually agreed to by the Petitioners and Respondent No.1.
The Provisional Liquidator is permitted to initiate appropriate action in accordance with extant provisions of Companies Act, to take custody or control of all the properties, effects and actionable claims to which Company is or appears to be entitled to and take such steps and measures, as may be necessary, to protect and preserve the properties of the Respondent No.1 Company and to avoid misuse of its property - Application disposed off.
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Securities / SEBI
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2021 (4) TMI 1138
Offence under SEBI - complainant foisting vicarious liability upon the accused No.1 - criminal breach of trust of the complainant and sold its shares to their own Company - HELD THAT:- After applying a ratio laid down by the Hon’ble Supreme Court in the case of Iridium India Telecom Ltd. [2010 (10) TMI 85 - SUPREME COURT] it is clear that, the accused No.1-Morgan is a necessary party for proper adjudication of the complaint. It is to be noted here that, the Letter of Pledge (Agreement) dated 7th March, 2000 is executed by the Authorized Signatory of the complaint on behalf of it, in favour of the accused No.1 company and therefore also impleadment of Morgan (A-No.1) is necessary for proper adjudication of the present complaint. The contention that, the accused No.1 is being foisted with vicarious liability, is the defence and a specious plea raised by the said accused. The accused No.1 will have to prove the said defence at the time of trial by leading cogent and plausible evidence in that behalf. The aforestated deliberation leads to draw an irresistible conclusion that, the accused No.1 company is a necessary and relevant party to the said complaint and it cannot be dropped from the present proceedings at its inception.
The accused with dishonest intention have committed criminal breach of trust, deceived the complainant and have committed the act of cheating against it. In view thereof, the complainant succeeds.
In view of the statement made by the complainant in the present proceedings that, the complainant hereinafter will not pursue application of Section 15-HA of the SEBI Act in the said complaint, Section 15-HA of SEBI Act is dropped from the Order dated 22nd March, 2017 passed below Exh-1 in CC No.56/SW/2011. The Order dated 22nd March, 2017 passed by the learned Magistrate is modified to that extent only.
In view of the above, Writ Petition filed by the complainant are allowed.
The present complaint filed in the month of February, 2011 by the complainant, is pending on the file of learned Metropolitan Magistrate, Railway Mobile Court, Andheri, Mumbai for last more than 10 years. In view thereof, learned Magistrate seized of the said complaint is directed to expedite hearing of the said complaint and to make an endeavour to dispose off the same within a period of one year from the date of receipt of present Order. It is needless to mention that, the period during which the smooth functioning of the concerned Court is paralyzed or affected due to the present pandemic situation, will be excluded from computation of the said period of one year.
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Insolvency & Bankruptcy
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2021 (4) TMI 1128
Approval of Resolution Plan - Section 30(6) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Resolution Applicant takes over the Corporate Debtor with all its assets and liabilities as specified in the Resolution Plan subject to orders passed herein. As already indicated the Resolution Plan has been approved by the CoC in its meeting held on 20.11.2020 with 100% votes.
In K. Sashidhar v. Indian Overseas Bank & Others [2019 (2) TMI 1043 - SUPREME COURT] the Hon’ble Apex Court held that if the CoC had approved the Resolution Plan with requisite percent of voting share, then as per section 30(6) of the Code, it is imperative for the Resolution Professional to submit the same to the Adjudicating Authority (NCLT). On receipt of such a proposal, the Adjudicating Authority is required to satisfy itself that the Resolution Plan as approved by CoC meets the requirements specified in Section 30(2). The Hon’ble Court observed that the role of the NCLT is ‘no more and no less’. The Hon’ble Court further held that the discretion of the Adjudicating Authority is circumscribed by Section 31 and is limited to scrutiny of the Resolution Plan “as approved” by the requisite percent of voting share of financial creditors. Even in that enquiry, the grounds on which the Adjudicating Authority can reject the Resolution Plan is in reference to matters specified in Section 30(2) when the Resolution Plan does not conform to the stated requirements.
The Resolution Plan as approved by the CoC under Section 30(4) of the Code meets the requirements of Section 30(2) of the Code and Regulations 37 and 38 of the Regulations. The Resolution Plan is not in contravention of any of the provisions of Section 29A of the Code and is in accordance with law. The same needs to be approved as provided under Section 31 of the Code - application allowed.
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2021 (4) TMI 1124
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - existence of debt and dispute or not - Financial Creditors or not - NPA - time limitation - HELD THAT:- It is seen that there is no dispute that the Corporate Debtor has taken Credit facilities from the Financial Creditor on 28.10.2011. It is also not disputed that the Corporate Debtor has secured Credit Facilities by equitable mortgage of immovable property. The filing of the proceeding before the DRT in 2018 under SARFAESI Act 2002 are also not disputed. The contention of the Corporate Debtor is that the Application is hit by law of limitation as the Financial Creditor has declared the loan account as NPA on different dates i.e. on 05.12.2017 and 04.04.2018.
In the instant case the loan account was classified as NPA in two different dates i.e. on 05.12.2017 and 04.04.2018 and the Application was filed on 04.12.2020, even though the two dates are considered as the default date the Application is filed well within the time of 3 years. Therefore, the contention of the Corporate Debtor regarding limitation has no legs to stand.
It is clear that when the adjudicating authority is satisfied that a default has occurred the Application must be admitted unless it is incomplete. In this case, the Application is complete in all respects as there is default on the part of the Corporate Debtor. Therefore, as per Section 7(5)(a) of the code, the present application filed under Section 7 of the I&B Code,2016 deserves to be admitted against the Corporate Debtor - Petition admitted - moratorium declared.
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2021 (4) TMI 1123
Condonation of delay in filing appeal - limitation prescribed under the ‘General Laws or Special Laws’ whether condonable or not - HELD THAT:- Hon’ble Supreme Court in Mobilox Innovations Private Limited v Kirusa Software Private Limited [2017 (9) TMI 1270 - SUPREME COURT] to the effect that ‘an appeal then can be filed to the Appellant Tribunal under section 61 of the Act within 30 days of the order of the Adjudicating Authority with in extension of 15 days and no more’, coupled with the decision of Hon’ble Supreme Court in Assistant Commissioner (CT) (LTU) , Kakinada & ors V Glaxo Smith Kline Consumer Health Care Limited [2020 (5) TMI 149 - SUPREME COURT].
Application not maintainable in the eye of Law, especially when the Applicant/Appellant himself had mentioned in the ‘List of Dates and Events’ of the instant Appeal that it received a mail on 07.09.2018 from the employer Shri. Ravindra Gnanamukhi that the matter was admitted by the Adjudicating Authority and certainly, this aspect being an adverse one to it.
Application dismissed.
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2021 (4) TMI 1120
Maintainability of application - initiation of CIRP - Corporate DEbtor failed to make repayment of its dues - Operational Creditor - existence of debt and dispute or not - HELD THAT:- It is apparent from the record that parties have filed the consent terms dated 24.10.2019. However, Corporate Debtor failed to honor the said consent term and further expressed its inability to pay the said debt - This Adjudicating Authority is further satisfied that the Operational Creditor has proved its case by placing evidence that default has occurred for which the Corporate Debtor was liable to pay. The Operational Creditor has also placed on record of proof of sending notices to the Respondent/Corporate Debtor for their appearance and for making submissions also along with the requirements as stipulated under the provisions of the IB Code, 2016 for the purpose of initiating Corporate Insolvency Resolution Process. In these circumstances, having satisfied with the submissions made by the Petitioner/Operational Creditor, this Adjudicating Authority is inclined to admit the instant Application.
Application admitted - moratorium declared.
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2021 (4) TMI 1119
Stay on proceedings till the completion of CIRP - Order passed during moratorium, is sought to be stayed - Section 14(1)(a) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- In the present Applications, order dated 06.12.2019 was passed during moratorium. The Ld. ADJ-1 has failed to appreciate Section 238 and Section 14 of IBC, 2016 and the binding pronouncements of the Hon'ble Supreme Court. It is evident that the said order of the Ld. ADJ-1 is a nullity in law and ipso facto, ab-initio void and non-est.
Application allowed.
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2021 (4) TMI 1117
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - existence of dispute or not - time limitation - HELD THAT:- The registered office of the Respondent Corporate Debtor is situated in Jaipur and therefore this Adjudicating Authority has jurisdiction to entertain and try this Application - The first default has occurred on 14.09.2016 which continued till 26.08.2019 and it is an admitted fact that the last payment was made 17.08.2019, hence the debt is not time barred and the Application is filed within the period of limitation.
The application in Form 5 is complete; no payment of the unpaid operational debt of ₹ 69,39,639.20/- has been made and demand notice in Form No. 4 was duly served on the Corporate Debtor through registered post but no reply was received by the Operational Creditor. The Applicant has filed an affidavit under Section 9(3)(b) of the Code to the effect that there is no notice given by the Respondent relating to dispute of the unpaid operational debt - Application admitted - moratorium declared.
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Central Excise
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2021 (4) TMI 1135
Rebate of central excise duty - time limitation - Rule 18 of the Central Excise Rules, 2002 - case of petitioner is that his is a case of return of pre-deposit and of the Central Excise duty paid by the petitioner on any excisable goods and for such return of pre-deposit the petitioner is not required to file any formal refund claim under section 11B of the Central Excise Act - HELD THAT:- This Court, at length, considered section 11B of the Act to hold that the person claiming refund of excise duty and interest, has to make an application for refund of such duty and interest to the authority enumerated therein before the expiry of one year from the relevant date in such form and manner as may be prescribed - The relevant date is defined in Explanation (A) and Explanation (B). The date on which the Tribunal allowed the appeal preferred by the petitioner which in the case before the High Court was 07.08.2007 and hence, therefore, within one year from the date of allowing the appeal by the Tribunal, the petitioner needed to prefer the claim for refund of excise duty in a prescribed form.
The Court held that the payment made by the petitioner was towards the excise duty without protest and that can never be considered as pre-deposit. If any payment is made as the pre-condition for exercise of the statutory right, it can be termed as pre-deposit. However, it cannot be equated with voluntary deposit of excise duty paid even during the course of investigation and prior to show cause notice or adjudication, to assert that it is pre-deposit of payment of duty, which was intended to prevent the incidence of interest and liability accruing from the non-payment of duty and, hence, it cannot be termed as deposit. The Court held that payment made by the petitioner towards excise duty can never partake the character of pre-deposit, as mentioned in section 35F of the Act. Therefore, contention that the amounts were paid involuntarily and, therefore, are deemed to be under protest and should be considered as deposits needed to be rejected.
In the instant case, in view of the well settled position of law that the procedural requirement cannot defeat the substantial right of the party ,as in absence of shipping bill, insistence on the shipment certificate was inevitable. Therefore, obtaining of the shipment certificate was the very fundamental requirement on the part of the petitioner. Soon after getting the copy of the shipment certificate, it has chosen to file the rebate claim with all requisite documents and, therefore, the same ought not to have been rejected on the ground of limitation. The view adopted by the Revisional Authority of the department of being bound by the period of limitation, despite there being a specific provision of paragraph No.2.4 of the CBEC Manual, which is a circumstance as held by the Court in COSMONAUT CHEMICALS VERSUS UNION OF INDIA [2008 (7) TMI 228 - HIGH COURT GUJARAT] to mitigate an warranted hardship resulting from reading the provision of limitation in absolute terms - Even while considering the provision of acceptance of claim by the Authority when sole responsibility of supply of document is of the department, the fact remains that overall requirement is of furnishing of particular documents and in absence thereof, to deny the entertainment of such rebate claim and, therefore, waiting for the shipping bill to be delivered by the department cannot in any manner be held against the petitioner. More so, when the amendment has come on 01.03.2016 by way of Notification No.18 of and the claim is of the year 2010 and, therefore also, this being a subsequent change applying the period of limitation of one year at a later date; the decision of Cosmonaut Chemicals and also of other High Court would need to be regarded.
The order whereby the claim of the petitioner has been rejected on the ground of being barred by the law of limitation under section 11B of the Act is quashed and set aside - petition allowed - decided in favor of petitioner.
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CST, VAT & Sales Tax
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2021 (4) TMI 1132
Validity of assessment order - random selection for detailed scrutiny under Section 22(3) of the Act coupled with an inspection conducted by the Enforcement Wing Officials - inter-State sales being treated as local sales for the reason that in the C Form Declaration produced by the appellant and issued by the purchasing dealer, the seal of the check post was not available - reversal of the input tax credit under Section 19(5)(c) of the Act to the tune of ₹ 54,09,521/- on the ground that though the check post seal was available to prove the movement of goods, no Form C Declaration was produced by the appellant - difference noticed on stock reconciliation during inspection.
Stock difference - HELD THAT:- Liberty granted to the appellant to file an appeal on the said issue before the Appellate Deputy Commissioner (CT) (North), Chennai-6.
Form C Declarations are available, but do not contain the seal of the check post - HELD THAT:- If the Assessing Officer is of the opinion that such Form C Declarations are defective, the same can be returned to the appellant. Of-course, the appellant cannot now procure the seal from the check post. But, the appellant can establish the genuineness of the transaction and movement of goods if one opportunity is granted.
Where the check post seal is not available - HELD THAT:- The Assessing Officer can make a departmental verification, as, at the relevant point of time, they were stated to have been computerized and the Assessing Officer can make due verification and the appellant can be directed to produce other contemporaneous documents to substantiate their plea. However, to avail such an opportunity, this Court is of the view that the appellant should be put on terms.
The writ appeal is partly allowed and part matter on remand.
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2021 (4) TMI 1129
Reopening of assessment - applicability of time limitation - Exemption from levy of Entry Tax - agricultural produce - amendment to Entry No.5 brought about on 01.10.2013 - prospective or retrospective - issuance of notice under Section 5(4) of the Karnataka Tax on Entry of Goods Act, 1979 - validity of assessment carried out on the various dates.
Whether the amendment to Entry No.5 brought about on 01.10.2013 is prospective or retrospective? - HELD THAT:- The notification substituting Sl.No.5 which was issued on 01.10.2013 categorically states that the said notification would come into effect from 02.10.2013. When the amendment itself says so there cannot be any interpretation of the said provision by the respondent – officers - the amendment to Entry 5 brought about on 01.10.2013 is prospective in nature and would come into effect only from 02.10.2013.
Whether a notice under Section 5(4) of the Karnataka Tax on Entry of Goods Act, 1979 can be treated as issued under Section 6 of the Act? - HELD THAT:- In the present case, it is not that the returns have not been filed or the details not furnished. The authorities had called upon the petitioner to provide further details in respect of the declaration furnished and have also issued a proposition notice. Thus, it cannot be said that any notice under Section 6 of the Act had been issued for escaped assessment bringing the case of the petitioner under the fold of Section 6 - Section 6 would not attracted in the present case.
At least until the amendment to Entry 5 is made, the respondent officer could not have changed the stand to impose any entry tax on the goods of the petitioner since it is the respondents themselves who had indicated the goods of the petitioner not amenable to such tax. The present issue being one relating to a period prior to coming into force of the amendment, the effect of the amendment is not required to be considered in the present matter.
Whether in the present case, a notice issued under Section 5(4) on 02.01.2017 was barred by period of limitation fixed under Section 5(6) of the Act and if so, whether the assessment carried out on the various dates is valid and sustainable? - HELD THAT:- In the present case, the assessment for the years 2008-09 to 2012-13 have been sought to be reopened. The reopening of the assessment for the year prior to 2012-13 is beyond the period of 3 years as contemplated under Section 5 (6) of Entry Tax Act and the same would not come within the purview of the said provision and there is no power vested with the authorities to reopen an assessment carried out three years prior to the said date of issuance of notice - all the assessments which have been carried out are bad in law.
Petition allowed.
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Indian Laws
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2021 (4) TMI 1113
Concealment of documents - false statements - in what circumstances and categories of cases, a criminal proceeding may be quashed either in exercise of the extraordinary powers of the High Court Under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court Under Section 482 Code of Criminal Procedure? - HELD THAT:- It is settled that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.
The issue involved in the matter under consideration is not a case in which the criminal trial should have been short-circuited. The High Court was not justified in quashing the criminal proceedings in exercise of its inherent jurisdiction. The High Court has primarily adverted on two circumstances, (i) that it was a case of termination of agreement to sell on account of an alleged breach of the contract and (ii) the fact that the arbitral proceedings have been initiated at the instance of the Appellants. Both the alleged circumstances noticed by the High Court, in our view, are unsustainable in law. The facts narrated in the present complaint/FIR/charge-sheet indeed reveal the commercial transaction but that is hardly a reason for holding that the offence of cheating would elude from such transaction - So far as initiation of arbitral proceedings is concerned, there is no correlation with the criminal proceedings. That apart, the High Court has not even looked into the charge-sheet filed against 2nd Respondent which was on record to reach at the conclusion that any criminal offence as stated is prima facie being made out and veracity of it indeed be examined in the course of criminal trial.
Appeal allowed.
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