TMI Tax Updates - e-Newsletter
May 29, 2019
Case Laws in this Newsletter:
GST
Income Tax
Customs
Corporate Laws
Securities / SEBI
Insolvency & Bankruptcy
FEMA
PMLA
Service Tax
Central Excise
CST, VAT & Sales Tax
Highlights / Catch Notes
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GST:
Filing of manual applications for refund - On or before the next date of hearing, the provisional refund due to the Petitioners in terms of Rule 91 of the CGST Rules will be paid to each of them.
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Income Tax:
Prohibition of Benami Property Transactions (Conditions of services of Members of Adjudicating Authority) Rules, 2019
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Income Tax:
Addition u/s 68 - the additional ground raised by the assessee that addition cannot be made u/s 68 of the Act on the basis of the bank statement is rejected.
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Income Tax:
Capital gain computation - transfer of agriculture land by the assessee through an irrevocable general power of attorney - there was no transfer of the land upon the execution of power of attorney in favor of the party - The provision of section 45 of the Act requires to tax the income in the year of transfer of the property.
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Income Tax:
TDS u/s 194C or 194J - Payments to various fields agent for conducting research surveys, data compilation and translation etc. - assessee has duly deducted income-tax at source u/s. 194C - No TDS liability u/s 194J
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Income Tax:
Scrutiny Assessment u/s 143(3) after direction of DRP u/s. 144C - time barred assessment - The final assessment order has been passed after the end of one month from the date of receipt of the directions of the DRP by the is void ab initio and liable to be quashed.
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Income Tax:
Computation of capital gain on sale of property - valuation - the property in question cannot be valued as has been directed by the ld CIT in view of the litigations underway and also the fact that the property is in the possession of the tenants.
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Customs:
Unconditional release of goods - period of limitation for issue of notice - the phrase ‘given’ employed in sub-section(2) of Section 110 under clause (a) of Section 124 within six months of the seizure of the goods does not refer to service of notice.
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Customs:
Valuation of imported goods - rejected of declared value - the appellant has accepted the enhanced value and paid the differential duty, but only for the reasons that the consignment was incurring a heavy demurrage and detention charge by the custodian - Since provision of rule 14 not complied with, value cannot be rejected.
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FEMA:
It is true that the respondent has made many allegations of malpractices. But the cases are not decided on the basis of allegation. In the final order, the matters are to be decided on the basis of fact, evidence and legal issues on record. The assumption, presumption and perception have no place in the statute, particularly, when the statute is a Special Act.
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IBC:
Overriding effect of IBC over PMLA - as the ‘Prevention of Money Laundering Act, 2002’ or provisions therein relates to ‘proceeds of crime’, Section 14 of the ‘I&B Code’ is not applicable to such proceeding.
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PMLA:
Offence under PMLA - Provisional Attachment Order - Recording of reason to believe under the said provision is not a formality rather it is the duty of the authorized officer to record the valid reason to believe.
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Service Tax:
Extended period of limitation - The benefit of the proviso to Section 73(1) could be taken only when there was an explicit averment in the show cause notice that there was suppression of facts with an intent to evade payment of duty.
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Service Tax:
Jurisdiction - appellant’s jurisdictional Service Tax Authorities at Noida - In the absence of any finding to the effect that Noida office was registered office, there are no merits in the findings of the Adjudicating Authority
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Service Tax:
No demand can be confirmed by comparing the ST-3 return figures with balance sheet figures, in the absence of any evidence to the contrary that income in the balance sheet, if excess, reflects the providing of taxable services
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Service Tax:
Levy of service tax on TDR / Transfer of land development rights - as the appellant has not acquired any land development right from DCPC, then how the appellant can transfer development right of third party.
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Service Tax:
Classification of services - demand of service tax was confirmed on the ground that consideration was received in cash and invoices do not contain VAT amount it has to be held that the same was a service - such argument not acceptable without identification of nature of service.
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Central Excise:
CENVAT Credit - reduction of credit towards debit notes issued against Quality difference - Once it is not disputed that the entire quantity for which the invoice was raised, was received by the appellant and used in the manufacture, they are eligible for cenvat credit on the entire excise duty paid on inputs received and used.
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Central Excise:
CENVAT Credit - input services - The appellants are entitled for the Cenvat Credit on the maintenance services provided by Tata Motors Ltd. in respect of maintenance activities in respect of Tata Vendor Park
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VAT:
Issuance of Form 'F' - Stock transfer - there is no justification for the Respondents to deny the Petitioner the F forms for the consignment of its own goods sent by it to Bhiwadi for job work.
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VAT:
Rejection of C-Forms - Territorial Jurisdiction - The argument for the Delhi VAT authorities that the Haryana authorities had the power or somehow could retrospectively cancel the C Forms, is rejected. If it is stated that no power exists to cancel a C Form retrospectively, no authority at least in Delhi can give effect to such order.
Articles
Notifications
Circulars / Instructions / Orders
News
Case Laws:
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GST
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2019 (5) TMI 1510
Filing of manual applications for refund - Constitution of Refund Approval Committee for considering high value refunds - HELD THAT:- The Court is informed that the RAC has since been reconstituted and a new set of officers have been nominated as RAC. They are: Mr.Vinay Kumar, Spl. Commissioner/Chairperson; Ms.Sonika Singh, Spl. Commissioner; Mr.Saumyaketu Mishra, Joint Commissioner and Ward Incharge concerned, Member Secretary. The Court is informed that of the above 4 officers Ms.Sonika Singh is already on leave for 19 days till 7th June 2019 (effectively till 9th June 2019) and Mr.Vinay Kumar is on election duty at the 15th Balaghat parliamentary constituency. This effectively means that even though the RAC has been reconstituted it cannot function at all for some time. Mr. S.B.Shashank, Chairperson and Mr. Rajesh Goel, Addl. Commissioner who were part of the RAC when it met on 10th May 2019 will remain present in Court on the next date. They are permitted to file, by that date, their individual affidavits explaining why they should not be proceeded against for disobedience of the orders of this Court. Mr. H. Rajesh Prasad, Commissioner, VAT will remain personally present before the Court on the next date. He will by the next date file an affidavit explaining on what basis he has constituted and re-constituted the RAC and how it can possibly supplant the officer concerned who is statutorily empowered to pass orders of refund under the CGST Act and Rules. On or before the next date of hearing, the provisional refund due to the Petitioners in W.P. (C) Nos. 13881 of 2018 and 194 of 2019 in terms of Rule 91 of the CGST Rules will be paid to each of them. Since Smt.. Sonika Singh is stated to be on leave and at present out of India, Mr. H.Rajesh Prasad will ensure that a copy of this order is immediately communicated to her by e-mail and she is apprised that as soon as she returns from leave she is required to file an affidavit explaining her conduct. List on 29th May 2019.
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2019 (5) TMI 1509
Permission for withdrawal of Advance Ruling application - adjustment of Service Tax which has been paid on mobilization advances in Pre-GST regime - HELD THAT:- The applicant has not filed the revised application but requested to permit them to withdraw the application quoting the reason that the advance ruling can not be sought in respect of transitional matters. The application filed by the Applicant for advance ruling is disposed off as withdrawn.
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Income Tax
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2019 (5) TMI 1508
Power of Central Government u/s 85 86 - Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 - to promulgate the impugned Notifications, pursuant to which the subject proceedings have been initiated against the petitioner, prior to the said Act itself coming into force and that the same are consequently without the sanction of law? - whether notifications issued making them effective prior to 01.04.2016 are ultravirus? - Grant of interim relief - Seeking stay of the operation - HELD THAT:- Until further orders, operation of the impugned order is stayed. The petitioners are free to prosecute respondent and proceed further in accordance with law, subject to the final decision of this matter.
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2019 (5) TMI 1507
Monetary limit - maintainability of appeal - applicant permission to withdraw the appeal in the light of the circular dated 11th July, 2018 - HELD THAT:- From the facts noted hereinabove, it is evident that on account of inadvertent error, despite the fact that the captioned appeal was covered by paragraph 5 of the above referred CBDT circular, the tax appeal came to be withdrawn. The application, therefore, requires consideration and the appeal deserves to be restored. For the foregoing reasons, the application succeeds and is, accordingly, allowed.
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2019 (5) TMI 1506
Computation of capital gain on sale of property - valuation - disputed property in the possession of tenants - CIT(A) directed the AO to adopt market value the property - AO did not receive the valuation report from the DVO till the date of order and the value of the property was ascertained on the basis of ready reckoner rates - whether Assessing Officer was justified in referring the matter to the Valuation officer u/s 50C? - HELD THAT:- the development of the said property has not even started till date due to the litigations going on. - the director of the company Shri. Jaikishan Awtani have not got any convenience of the property in his favour till date. The possession of the property still with the tenants and the assessee. The purhcaser director having no authority to collect the rent from the tenants. In other words even after elapse of 23 years, the status of the property is same. Thus in such a scenario the valuation done by the valuation officer on the basis of development method by considering the developmental potential and by considering the built up area rate analyzed /sale and ready flat available in the nearby locality was totally wrong and against the principle of method of valuation of the immovable properties. We are quite convince with the arguments of Ld. AR that the said property which is occupied by the tenants should be valued on the basis of capitalization rental method and not any other method. See SIR MOHD. YUSUF TRUST VERSUS ACIT-18 (1) , MUMBAI [ 2019 (3) TMI 1455 - ITAT MUMBAI] Thus we hold that the property in question cannot be valued as has been directed by the ld CIT in view of the litigations underway and also the fact that the property is in the possession of the tenants. Accordingly, we set aside the order of CIT(A) and direct the AO delete the disallowances. - Appeal of the assessee is allowed.
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2019 (5) TMI 1505
Scrutiny Assessment u/s 143(3) after direction of DRP u/s. 144C - TP Adjustment - time barred assessment - final assessment order has been passed after the end of one month from the date of receipt of the directions of the DRP - HELD THAT:- Provisions of section 144C(13) of the IT Act 1961 provides that the Assessing Officer is required to pass the final assessment order within 30 days from the end of the month in which the directions passed by the DRP is received by the A.O. However, in the present case, the order has been passed after the end of one month from the date of receipt of directions of the Ld. DRP by the A.O., he submitted that the A.O. received the directions of the Ld. DRP on June 17, 2010. The last date permissible under the Act to pass the final assessment order was accordingly July 30, 2010. However, the final assessment order was passed on August 27, 2010, which is beyond the limitation period stipulated under the Act. Thus, the order of the AO is voidab- initio, and liable to be quashed as the final assessment order is time barred. The final assessment order has been passed after the end of one month from the date of receipt of the directions of the DRP by the Assessing Officer. Therefore, order passed by the Assessing Officer is void ab initio and liable to be quashed as the final assessment order is time barred. Since the assessment records were not produced being not readily available, therefore, we give liberty to the revenue to file miscellaneous application for recalling of this order as per law in case the revenue is able to show that the dates given by the assessee on the basis of certified copies obtained from the department are contrary to facts on record. - Decided in favour of assessee.
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2019 (5) TMI 1504
Bogus purchases - unproved purchases and commission for getting the accommodation entries - HELD THAT:- CIT(A) has ignored the chain of original documents for import of diamonds by Sh. Praveen Jain/Nilesh Parmar group available with tax authorities in collected seized material at the time of search as per the disclosure of said facts by Nilesh Parmar in his affidavit for retraction of the statement made u/s 132(4) of the Act being clinching evidence of procurement of diamonds from importers for making the genuine supplies from the same by M/s Mohit International to the assessee. CIT(A) has wrongly the addition by treating conclusive general admission description in the relevant extract of the statements u/s 132(4) of the Act of Praveen Kumar Jain prop, of M/s Mohit International provided to the assessee which was recorded on the back of the assessee without providing an opportunity of confronting cross-examination of the concerned persons to the assessee and has not adjudicating the question of evidential value of the said recorded statement u/s. 132(4) of Sh. Praveen Jain / Nilesh Parmar without any incriminating material found in their possession or control at the time of search, which is the basis of addition. Therefore, in our considered opinion and in the interest of justice, the issues raised in the appeal are set aside to the file of the AO for fresh consideration, after giving adequate opportunity of being heard to the assessee.
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2019 (5) TMI 1503
Assessment u/s 153C - non-issuance of notice u/s 143(2)/142(1) and not supplying the seized the material u/s 153C - Revision u/s 263 unchallenged - HELD THAT:- Since the assessee failed to challenge the order u/s 263 of the Act, therefore, non-issuance of notice u/s 143(2)/142(1) and not supplying the seized the material u/s 153C of the Act has no consequences being the order passed by AO has already been set aside by Commissioner by virtue of order dated 04.03.2017 wherein the Commissioner has invoked the provisions u/s 263. Further, we noticed that the AO accorded the opportunity of being heard to the assessee by virtue of notice dated 01.03.2016 which has been mentioned in para no. 7 of the assessment order. We also noticed that the assessee nowhere represented before the AO seeking any legal relief. CIT(A) has rightly recorded the finding on the legal issue which is not liable to be interfere with at this appellate stage. Accordingly, this issue is decided in favour of the revenue against the assessee. Unexplained cash credit u/s 68 - HELD THAT:- It is not in dispute that the amount in sum of ₹ 2,34,52,668/- was credited with the account of the assessee. The assessee nowhere explained the said amount before the AO as well as before the CIT(A). It is incumbent upon the assessee to prove his claim by adducing the sufficient evidence on record. The assessee nowhere produced any cogent and convincing evidence on the file even before us. The facts are not distinguishable at this stage also. We find no ground to interfere with the finding of the CIT(A) on the issues, therefore, we confirm the finding of the CIT(A) on these issues and decide these issues in favour of the revenue against the assessee.
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2019 (5) TMI 1502
TDS u/s 194C or 194J - short deduction of tds - Payments to various fields agent for conducting research surveys, data compilation and translation etc. - additions u/s 40(a)(ia) - HELD THAT:- Respectfully following the aforesaid decision(s) of tribunal in assesses own case in preceding years viz. AY 2005-06 to 2011-12 [ 2018 (7) TMI 1973 - ITAT MUMBAI] , [ 2014 (2) TMI 1355 - ITAT MUMBAI] , [ 2012 (7) TMI 614 - ITAT MUMBAI] , [ 2016 (2) TMI 1147 - ITAT MUMBAI] , [ 2016 (7) TMI 1394 - ITAT MUMBAI] with a view to maintain judicial discipline and also to maintain consistency as outlined by Hon ble Supreme Court in the case of Radhasoami Satsang v. CIT [ 1991 (11) TMI 2 - SUPREME COURT] we decide this issue in favour of the assessee by holding that keeping in view factual matrix of the case, no disallowance u/s 40(a)(ia) of the 1961 Act is warranted in the instant case after observing that the assessee has duly deducted income-tax at source u/s. 194C of the 1961 Act on payments made by the assessee to field agents for conducting research surveys, data compilation and translation etc.. Thus, Revenue fails in this appeal.
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2019 (5) TMI 1501
Disallowance of expenditure on account of payment of commission - allowable business expenditure - CIT A has deleted disallowance - HELD THAT:- Evidences in form of emails exchanged between customers and certain specific employees of recipient of commission in which various customers have communicated for placing purchase orders, for resolving supply and payment issues by referring to earlier meeting and communication with such persons. Such evidences were also produced before learned assessing officer however those were ignored. Assessee also submitted name of employees and supported it with copies of salary slips of various employees of recipient of commission. Further telephone number mentioned in various purchase orders were also matched with telephone number of commission recipient. CIT A referred to various evidences furnished by assessee to support that services have in fact been rendered by these parties to assessee for which payment of commission has been made. CIT A held that commission agent has contacted customers on behalf of appellant by using advertisement material etc. Such services were being provided since financial year 2007 08 and learned assessing officer has accepted these payments Payment of commission made to M/s Action Udyog CIT A noted that that these party is actually acted as a trader which purchased shoes from appellant and for which payment made to appellant by it. Such items were sold by this entity to customers at same price for which it was paid fixed profit at rate of 8% of turnover in terms of agreement dated 1/4/2009 - evidences placed by assessee for commission paid to A S Marketing have been considered by assessing officer for making disallowance with respect to payment of commission to this party. Therefore it is submitted that it is not a payment of commission to commission agent but sale of goods at fixed percentage of profit. CIT A has deleted disallowance after considering facts of case placed before him by assessee as well as reasons recorded by assessing Officer in making disallowances. Learned CIT A further made certain enquiries and based on which he deleted disallowance. Therefore we do not find any infirmity in order of learned CIT A in deleting disallowance -Decided in favour of assessee Disallowance u/s 14A - HELD THAT:- Provisions of section 14 A applies as soon as assessee earns an exempt income. It is an altogether a different aspect that whether assessee has incurred any expenditure or not, which is required to be tested subsequently, but provisions of section 14 A triggers as and when assessee earns exempt income. As it is a fact that disallowance cannot exceed exempt income, therefore without going into merits of fact whether assessing officer has recorded satisfaction or not, we direct learned assessing officer to restrict disallowance u/s 14 A of income tax act to extent of INR 1 759/ only. To his proposition, AR also agreed. - Decided partly in favour of assessee in part.
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2019 (5) TMI 1500
Penalty u/s 158BFA(2) - Claim of the Appellant is that the order imposing penalty is barred by limitation - HELD THAT:- The penalty order u/s 158BFA should have been passed within six months from the end of the month in which order of the Tribunal dated 03.08.2007 was received by the concerned authority. However, in the instant case, the penalty order is dated 19.05.2011, which in our considered view is beyond the limitation period as prescribed in section 158BFA(3)(c) of the Act. Penalty order is held to be barred by limitation and, therefore, quashed. - Decided in favour of assessee.
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2019 (5) TMI 1499
Capital gain computation - transfer of agriculture land by the assessee through an irrevocable general power of attorney - Transfer u/s 2(47) - As per the assessee, the transfer of the land through the POA is a valid transfer - AO considered the sale deed as a transfer instrument which was executed on 19-04-2012. Thus the AO invoked the provision of section 50C and accordingly took the sale value as the valuation made by the valuation authority to compute the STCG - HELD THAT:- As relying on SURAJ LAMP INDUSTRIES PVT. LTD. VERSUS STATE OF HARYANA ANOTHER [ 2011 (10) TMI 8 - SUPREME COURT] there remains no doubt that the transfer of property based on the POA is not a valid transfer. Any agreement or arrangement enabling the transfer or enjoyment of the property will be treated as a transfer to compute the capital gain. Thus from the above provision, it appears that power of attorney shall also be treated as a transfer for working out the capital gain tax. Respectfully following the judgment of the Hon ble Supreme Court in the case of Suraj Lamp Industries Pvt. Ltd. (Supra), we hold that there was no transfer of the land upon the execution of power of attorney in favor of the party. Thus the transaction for the transfer of property has not been affected in the assessment years 2010-11 and 2012-13 as claimed by the assessee upon the execution of power of attorney. Accordingly, we decide the issue against the assessee. There was no transfer of the impugned property in the year under consideration as alleged by the AO. It is because the sale deed was registered as admitted by the AO on 19 April 2012 i.e. financial year 2012-13 corresponding to assessment year 2013- 14. Hence there cannot be any addition to the total income of the assessee on account of capital gain for the year under consideration. The provision of section 45 of the Act requires to tax the income in the year of transfer of the property. Capital gain income on the sale of the land cannot be taxed in the year under consideration. Accordingly, we reverse the order of the ld. CIT-A and direct the AO to delete the addition made him. Hence the ground of appeal of the Revenue is partly allowed.
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2019 (5) TMI 1498
Addition u/s 68 - amount was credited in the books of account of the assessee and he failed to discharge the onus cast upon him -HELD THAT:- As in the case of Sudhir Kumar Sharma (HUF) vs CIT [ 2014 (7) TMI 47 - PUNJAB HARYANA HIGH COURT] has held that where in respect of huge amount of cash deposited in bank, assessee failed to give list of persons who advanced cash to him along with their confirmations in respect of huge amount of cash deposited in its bank account, the Assessing Officer was justified in adding the said amount to assessee s taxable income u/s 68 of the Act. We find the SLP filed by the assessee against the said order of the Hon'ble High court was dismissed by the Hon'ble Supreme Court [ 2016 (5) TMI 928 - SC ORDER] Hon'ble Delhi High Court in the case of CIT vs. D.K. Garg, [ 2017 (8) TMI 450 - DELHI HIGH COURT] has held that where the assessee, an accommodation entry provider, was unable to explain all sources of deposits and corresponding payments, he would not be entitled to benefit of peak credit. In other words, the entire bank deposits added by the Assessing Officer were confirmed. Therefore, the additional ground raised by the assessee that addition cannot be made u/s 68 of the Act on the basis of the bank statement is rejected. Argument of the assessee that only commission @ 0.5% should be added and not the entire deposits is concerned, we find the Assessing Officer, while making the addition has followed his order for assessment year 2004-05 in assessee s own case. The ld.CIT(A) has upheld the action of the Assessing Officer by following the order of his predecessor in assessee s own case. We find when the matter travelled to the Tribunal, the Tribunal for assessment years 2003-04 and 2004-05 [ 2013 (10) TMI 1522 - ITAT DELHI] and [ 2013 (12) TMI 133 - ITAT DELHI] has restored the issue to the file of the Assessing Officer with certain directions. Respectfully following the decision of the Tribunal in assessee s own case for assessment years 2003-04 and 2004-05, we restore the issue to the file of the Assessing Officer for adjudication of the issue afresh in the light of the direction of the Tribunal and in accordance with law, after giving due opportunity of being heard to the assessee. Grounds raised by the assessee are accordingly partly allowed for statistical purposes.
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2019 (5) TMI 1497
Penalty u/s 271(1)(c) - Addition u/s 68 - HELD THAT:- As quantum proceeding has been set aside by the Hon ble ITAT in the assessee s own case for the A.Y.2009-10 [ 2015 (9) TMI 1651 - ITAT MUMBAI] and the issue has been remanded before the AO, therefore, in the said circumstances, the penalty is not liable in sustainable in the eyes of law. As the quantum is nowhere in existence, therefore, the penalty has no leg to stand. - Decided in favour of assessee.
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2019 (5) TMI 1496
Addition u/s 14A read with rule 8D - assessee has not claimed any income as exempt under section 10 and therefore the provisions of section 14A r.w.r. 8D are not applicable - HELD THAT:- We find from the perusal of the record that during the year the assessee has not claimed any exempt income under section 10(35) of the Act but instead reduced the same from the interest claimed under section 36(1)(iii) of the Act and only net claim of interest was made. The said position has been accepted by the Revenue itself in A.Y. 2009-10 and 2010- 11 in the assessment proceedings as is clear from the perusal of assessment orders placed before us. We are in agreement with the contentions of the Ld. A.R. that the provisions of section 14A are not applicable if income is not claimed as exempt. The case of the assessee is squarely covered by the decisions of Credit Lyonnais vs. ACIT [ 2016 (3) TMI 735 - BOMBAY HIGH COURT] and CIT vs. Cortech Energy P. Ltd. [ 2014 (3) TMI 856 - GUJARAT HIGH COURT] . - Decided in favour of assessee. Addition u/s 14A while calculating book profit under section 115JB of the Act - HELD THAT:- Any disallowance made under section 14A read with rule 8D is not to be considered in the computation of book profit under clause (f) of explanation 1 of section 115JB of the Act as section 115JB is a separate code in itself. The case of the assessee is squarely covered by the decision of ACIT vs. Vireet Investment (P) Ltd. [ 2017 (6) TMI 1124 - ITAT DELHI] and Everest Kanto Cylinder Ltd. vs. ACIT [ 2015 (12) TMI 683 - ITAT MUMBAI] . We would like to point out that this is the position of law that even if there is a disallowance under section 14A read with rule 8D the same is not to be considered for the purpose of computing book profit but in the present case since we have deleted the disallowance under section 14A read with rule 8D, therefore, this ground of the assessee is automatically allowed. Interest assessment - Ultimate cost of borrowing would be the gross interest expenses as neted off by interest income earned from deployment of such borrowed funds - CIT(A) held that the ultimate cost of borrowing would be the gross interest expense as netted off by the interest income earned from deployment of borrowed funds and it would be immaterial whether the interest income has been assessed as income from other sources or as business income and accordingly directed the AO to compute the overall cost of borrowed funds by reducing the interest income from the gross interest expense - HELD THAT:- CIT(A) has taken a very reasoned and possible view of the issue and we do not find any reason to interfere in the same. Moreover, the Ld. D.R. has failed to bring any new facts or materials before us to take a different view than what has been taken by the Ld. CIT(A). Accordingly, we uphold the order of Ld. CIT(A) by dismissing the appeal of the Revenue.
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Customs
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2019 (5) TMI 1477
Benefit of N/N. 25/2001-Cus dated 1st March 2001 - Exemption from Gold and Silver produced out of Copper Anode Slime (CAS) after export of such CAS out of India for toll smelting and toll processing - HELD THAT:- Since one aspect of the matter viz., that no permission of the RBI is required, stands clarified, it is now for the Respondents to take a decision on whether the Petitioner should be granted exemption in relation to the gold/silver that it seeks to import in accordance with notification No. 25/2001-30 Cus dated 1st March 2001. The Court finds justification in the plea of the Petitioner that Respondents should not deny the exemption only because the period of one year in terms of the said notification for completing the import has already been crossed. Had the Petitioner been issued a proper clarification in reasonable time then it could have completed the exercise by now. It is directed that subject to the Petitioner ensuring that the actual import of the gold/silver extracted from the CAS that was exported on 10th October 2017 is now completed within 60 days from today and in any event not later than 31st July 2019, the Respondents will take a decision on whether the Petitioner should be granted exemption in terms of notification No.25/2001-Cus. - Petition disposed off.
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2019 (5) TMI 1476
Levy of penalty on CHA - negligence - tribunal confirmed the penalty - mis-declaration of weight and proportionate value of the Synthetic Diamond Powder - aiding/ abetting in evasion of duty by misdeclaring lesser quality in carats in five out of eight Bills of Entry - HELD THAT:- Tribunal observed that, when it is so then it is a case of negligence on the part of the appellant. When there is a negligence then we find the justification of levy of the penalty - CESTAT found that, the CHA is not an expert in the carats viz-a-viz grams and levy of penalty is on higher side, therefore reduced the penalty - order of tribunal confirmed. Appeal dismissed.
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2019 (5) TMI 1475
Time limitation - Release of seized goods - studded gold jewellery - SCN was not served on each of the Petitioners within the mandatory period under Section 124 of the Customs Act, 1962 - HELD THAT:- The Court is not at this point examining the allegations made in each of the petitions since the short question that arises is whether within a period of 6 months from the date of the seizure of the gold/jewellery, SCNs, as required by law, were served on each of the Petitioners. In each of the petitions the positive case of the Petitioners is that no such SCN was served on either of them within the mandatory period. This Court on 26th April 2019 directed that the original file related to issuance of show cause notice and connected documents shall be placed before the Court on the next date of hearing. Shri Harpreet Singh, learned Senior Standing Counsel informs the Court that the original file pertaining to both the matters is available with him. The original file does not contain the original of either of the acknowledgements which have been enclosed with the counter-affidavit of the Respondents. Since there is a failure as on date to produce any convincing proof of the Petitioners having been served with the SCN, within the time stipulated the Court directs the release to Shri Ram Chandra of the 2 gold bars of 2000 grams seized from him (as per the appraisement report which is at Annexure A and part of the relied upon documents No.3 mentioned in the SCN dated 19th June 2018). Petition disposed off. List on 30th October 2019.
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2019 (5) TMI 1474
Release of seized goods - main ground on which such release is sought is that the mandatory requirement of Section 110 read with 124 of the Customs Act, 1962 i.e. that a show cause notice should have been issued to the Petitioner within six months of such seizure had not been complied with - time limitation - HELD THAT:- With the Petitioner not having been able to persuade this Court about the Respondents failure to serve him the SCN on or before 28th October 2013, the Court is not inclined to entertain the writ petition. This order however will not preclude the Petitioner from urging all the contentions available to him in accordance with law in the proceedings pursuant to the impugned SCN, except of course that it has not been served on him. Petition dismissed.
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2019 (5) TMI 1473
Unconditional release of goods - period of limitation for issue of notice - foreign currency - non compliance of Section 124(a) of the Customs Act, 1962 - HELD THAT:- Section 124(a) of the Act contemplates for issue of show cause notice before confiscation of goods etc., Section 110 of the Act deals with seizure of goods, documents and things. Sub-Section(2) of Section 110 envisages that where any goods are seized under subsection (1) and no notice in respect thereof is given under clause (a) of Section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized. Modes for service of notice are provided under Section 153 of the Act. Clause (b) of Section 153(1) provides, by a registered post or speed post or courier with acknowledgement due, delivered to the person for whom it is issued or to his authorized representative, if any, at his last known place of business or residence. As per Clause(e), by affixing it in some conspicuous place at the last known place of business or residence of the person to whom it is issued and if such mode is not practicable for any reason, then, by affixing a copy thereof on the notice board of the office or uploading on the official website, if any; The notice was issued and the same was sent through speed post on 29.8.2018 but the same was returned unserved. No exception can be found with the issue and service of notice on the petitioner. It is also significant to note that the phrase given employed in sub-section(2) of Section 110 under clause (a) of Section 124 within six months of the seizure of the goods does not refer to service of notice. However, as aforesaid, there is sufficient service of notice as contemplated under Section 153 of the Act. Hence, the petitioner cannot raise any dispute relating to failure to issue show cause notice as contemplated under the Act. Petition disposed off.
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2019 (5) TMI 1472
Valuation of imported goods - rejected of declared value - Mis-declaration of value of the imported goods - the item declared as Drill machine-I (600 pcs.) was actually concrete Vibrator to two different sizes i.e. 300 Pcs of 1 meter and other 300 Pcs. of 1.5 meter - seizure u/s 10 of the Customs Act, 1962 - Department has not produced any record of contemporaneous import or even the price data from the National Import Data Bank being maintained by the Customs Department. HELD THAT:- The assessing authority has rejected the transaction value on the ground of mis-decloaration regarding drill machine-I. The assessing officer has also concluded that the assessable value appeared to be low and the value was enhanced item wise - the assessing officer has enhanced the declared value on the ground that those are not inconsonance with the current market price of similar goods being sold in the Indian market. However, the adjudication order does not indicate as to how and where the market survey has been conducted and also how the transaction value has been rejected without following the Valuation Rules. It is a fact that the appellant has accepted the enhanced value and paid the differential duty, but only for the reasons that the consignment was incurring a heavy demurrage and detention charge by the custodian. Therefore, the acceptance of enhancement of the price by the department is not at their own volition but under compulsion so as to avoid heavy demurrage and detention charges - If any transaction value is to be rejected by the assessing officer it has to be done under the provisions of Section 14 of the Customs Act read with Customs Valuation Rule 2007. No such exercise has been undertaken by the adjudicating authority and also by learned Commissioner (Appeals), while passing the impugned order. Appeal allowed - decided in favor of appellant.
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Corporate Laws
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2019 (5) TMI 1495
Restoration of name of Petitioner Company in the name of the Register of Companies - HELD THAT:- The Counsel for the Appellant referred to Judgement of the Hon ble High Court of Delhi in INDIAN EXPLOSIVES LTD. VERSUS REGISTRAR OF COMPANIES [ 2010 (4) TMI 1185 - DELHI HIGH COURT ] where the Petitioner had Arbitration Award in its favour against Company which had been struck off and it became impossible for the Petitioner to execute the Award and restoration was sought. The Hon ble High Court referred to another matter decided by the High Court of Madhya Pradesh where it was observed that when suit is pending and is being contested, it is proper to direct restoration of the name of Company, if it is removed. It would be appropriate to restore the name of the Company to the Register of Companies leaving all questions open for the Appellant and Respondents to dispute in the Writ Petition for final adjudication by the Hon ble the High Court - Striking off of the name of the Company would create difficulties for the Appellant to pursue its remedies before the High Court and in the facts of the matter, when litigation was pending, the name of the Company should not have been struck off. The name of the Appellant Company shall be restored in the Register of Companies to its original status subject to conditions imposed.
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2019 (5) TMI 1494
Restoration of name of appellant company in the Registrar of Companies - HELD THAT:- The NCLT considered the documents placed before it and made the observations regarding these documents and held that it can be seen from the audited balance sheets, the bank Statements and all other documents brought on record by the Appellant Company that it was neither carrying on any business nor in operation when its name was struck off by the register of companies. NCLT inferred that there is no just reason to restore the Company s name on Register of Companies - there are no reason to differ from NCLT. There is no substance in this appeal. Appeal dismissed - decided against appellant.
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2019 (5) TMI 1471
Restoration of name of Company Shaila Real Estate Developers Pvt Ltd in the Register of Companies - HELD THAT:- The NCLT took note of the appeal which was filed before it and the NCLT observed that ROC has not made any adverse observations or objections except praying that the statutory required documents need to be complied with. There is no dispute that STK 7 was issued on 30.6.2017 after issue of STK 5. The appellant has not filed the copy of the STK 5. The number and date of STK5 is referred in STK 7. STK5 is published and the notice gives chance to the concerned company to still show cause. In the present matter NCLT has observed the fact that ROC followed due process to strike off the name of the company, was not disputed. When ROC issued notices to the appellant, the appellant never responded. As such the subsequent efforts to show that the appellant was in business or in operation or that it has property was never taken up with the ROC to find any fault of the action taken by ROC. The appellant has pointed out an agreement of sale of 2010 but there is no supporting sale deed to show that the transaction was even completed and property has been purchased by the company. NCLT has already observed that nothing is shown as carrying out work on any such land. In fact nothing is shown indicating possession and use of any such land. Merely showing an agreement of sale of 2010 which was before 2011 till when the earlier returns were filed would not be enough - We are not impressed by pointing out by such old sale agreement, and balance sheet now prepared when Company has been struck off. The appellant has not made out a case to show that the appellant was in business or that the company was in operation, when the company was struck off or that there is any just ground why the name of the company should be restored. Appeal dismissed - decided against appellant.
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Securities / SEBI
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2019 (5) TMI 1470
Illegal recovery of fee by the SEBI - seeking refund of the principal amount and also interest accrued on it - as urged that the deposit was made by the appellant under protest and since the appellant had succeeded in his claim the principal amount was liable to be refunded alongwith interest - appellant did not claim the relief of interest while seeking the refund of fee liability - HELD THAT:- The appellant before the Tribunal had prayed for refund of fee liability. No refund for interest was claimed. The appellant did not claim the relief of interest even before the Supreme Court. In the second round of litigation, the appellant cannot now claim the relief of interest. The claim of interest flows from the same cause of action, namely, the refund of fee liability. In view of the aforesaid, since the appellant did not claim the relief of interest while seeking the refund of fee liability, the appellant is now barred by principle of Order II Rule 2 of CPC from claiming the refund of interest. In the light of the aforesaid, it is not necessary for the Court to dwell on the decisions cited by the learned counsel for the respondent on the question of res judicata and constructive res judicata . The claim of interest was rightly rejected by the respondent.
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Insolvency & Bankruptcy
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2019 (5) TMI 1469
Taking over the godowns/properties of the Corporate Debtor, including its plant, machinery, mortgaged properties and stocks of grain etc. - Section 14 of the Insolvency Bankruptcy Code, 2016 - HELD THAT:- Since the respondent no.1/Bank has also expressed its willingness to the IRP/RP taking control of all the assets, including the perishable assets of the corporate debtor, there is no real contest in the present case - DRAT was not powerless to modify its own order whereby the two court commissioners had been appointed to take over control of the assets of the petitioner/corporate debtor. In the facts of the case, the learned DRAT should have recalled its order so that the IRP/RP could take over the assets of the corporate debtor in the exercise of its mandate under the Insolvency Bankruptcy Code, 2016. The appointment of the two Court Commissioners vide order dated 15.11.2018 is recalled - impugned order set aside - the IRP/RP is directed to act in exercise of the power vested in it by the Insolvency Bankruptcy Code, 2016. Petition disposed off.
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2019 (5) TMI 1468
Attachment of properties - release of attached assets of the Corporate Debtor - overriding effect of IBC over PMLA - declaration of Moratorium for prohibiting some of the action - HELD THAT:- Section 14 is not applicable to the criminal proceeding or any penal action taken pursuant to the criminal proceeding or any act having essence of crime or crime proceeds. The object of the Prevention of Money Laundering Act, 2002 is to prevent the money laundering and to provide confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto. The Prevention of Money-Laundering Act, 2002 relates to proceeds of crime and the offence relates to money-laundering resulting confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto. Thus, as the Prevention of Money Laundering Act, 2002 or provisions therein relates to proceeds of crime , Section 14 of the I B Code is not applicable to such proceeding. Imposition of penalty - HELD THAT:- The offence of money-laundering is punishable with rigorous imprisonment which is not less than three years and has nothing to do with the Corporate Debtor . It will be applicable to the individual which may include the Ex-Directors and Shareholders of the Corporate Debtor and they cannot be given protection from the Prevention of Money Laundering Act, 2002 and such individual cannot take any advantage of Section 14 of the I B Code - This apart, the attachments were made by the Deputy Director of Directorate of Enforcement much prior to initiation of the Corporate Insolvency Resolution Process , therefore, the Resolution Professional cannot derive any advantage out of Section 14. As the Prevention of Money Laundering Act, 2002 relates to different fields of penal action of proceeds of crime , it invokes simultaneously with the I B Code , having no overriding effect of one Act over the other including the I B Code , there are no merits in this appeal. Appeal dismissed.
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FEMA
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2019 (5) TMI 1467
Monetary limit for prosecution of FERA issues - Petitioner on trial for the offences under Section 18(2) r/w Section 18(3) of Foreign Exchange Regulation Act, 1973 and under Section 56 of Foreign Exchange Regulation Act, 1973 - Quashing of revisional court s order - pleas urged in this petition are that in view of the Circular of 5th July, 2001 issued under Section 56 of FERA, there can be no prosecution if the amount involved is less than ₹2 crores - HELD THAT:- Since evidence of three witnesses out of six, has been already recorded and the case is now fixed in this month before the trial court for recording of the remaining evidence, therefore, the legality of the impugned order is not required to be tested, as the trial of the case has fairly progressed and existence of Circular of 5th July, 2001 is yet to be established. Moreover, the submissions advanced on behalf of petitioner are required to be considered, after the evidence is led in this case. Accordingly, this petition and the application are disposed of with liberty to petitioner to urge the pleas taken herein before the trial court at the stage of final arguments. It is made clear that this Court has not expressed any opinion on the merits of the case, lest it may prejudice either side before trial court.
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2019 (5) TMI 1466
Status of BCCI as a company - Adjudication proceedings against BCCI - Transactions done in violations of the provisions of FEMA 1999 - illegal funds were transferred between BCCI and CSA - HELD THAT:- BCCI was neither a Body Corporate nor a firm nor an association of individuals, but only an Association of Associations, registered as a society under the Tamil Nadu Societies Registration Act and therefore, BCCI could not be qualified to be treated as company as per the explanation for a company provided under section 42 of FEMA 1999. BCCI is not a company as admitted by all parties, but only an Association registered as a Society. Prima facie, there is force in the submission of learned counsel appearing on behalf of appellant nos. 2 to 11 and it appears that at this stage, being an important legal issue, the same is left for argument at the final hearing of appeals. BCCI is included as a person within the meaning of Section-42 of the Act and if contravention provisions of the Act. At the best, at present BCCI may be asked to pre-deposit the penalties on their behalf at this stage without prejudice till the said important legal issue is finally decided. Whether the funds transferred by BCCI to the CSA account was in the nature of Capital Accounts Transaction or Current Account ? - HELD THAT:- It is not the case of the respondent or of the Adjudicating Authority that any of the remittances or transactions made by BCCI to CSA were prohibited or restricted by The Foreign Exchange Management (Current Account Transactions) Rules 2000 . As urgued on behalf of appellants that none of the remittances were prohibited by the above said rules and the remittances made by BCCI to CSA were permissible current account transactions. Counsel for respondent does not dispute that if the transactions fall under current account, the permission of RBI is not necessary. This issue at this stage cannot be finally concluded at this interim stage, however, prima facie, find force in argument of the appellant. Prima facie, at this stage the penalties imposed by the Adjudication Authorities, they are dispensed with to deposit the same with the respondent in the light of important issue to be argued at the final hearing of the appeals. As submitted by all the appellants that the remittances made by BCCI to CSA were not Capital Account Transaction , but, Current Account Transaction . The erroneous reasonings are given in the impugned order while coming to the conclusion that the remittances made by the BCCI to CSA were Capital Account Transactions wherein the Adjudicating Authority holds that the remittances made by the BCCI to CSA were contingent liability. In para 17.13 of the impugned order concludes that BCCI by making remittances to the CSA had created a contingent liability and therefore the transactions were not Current Account Transactions prima facie but Capital Account Transactions . Thus, the finding of the Adjudicating Authority prima facie cannot be accepted at this stage as holding of the IPL 2 was a certain event, as per the agreement dated 30/03/2009 the arrangement between BCCI and CSA was cost plus fees arrangement. It is true that the respondent has made many allegations of malpractices. But the cases are not decided on the basis of allegation. In the final order, the matters are to be decided on the basis of fact, evidence and legal issues on record. The assumption, presumption and perception have no place in the statute, particularly, when the statute is a Special Act. Without expressing any final conclusion on the issues raised by the appellants, as mentioned above and without prejudice, this Tribunal is of the view that the stay applications filed by the appellants are disposed of with the following directions:- i) Without prejudice, BCCI is directed to deposit ₹ 10 crores against total penalty amount imposed with the respondent by way of Bank Guarantee on its behalf as well as on behalf of appellant nos. 2 to 9 within four weeks from today. ii) As far as appellant nos. 2 to 9 are concerned, the issue of individual penalty imposed by the Adjudicating Authority will be considered at the time of final hearing of appeal. The prayer made by appellant nos. 10 and 11 of their interim applications is allowed without any condition in view of the grounds made in their appeals. iii) The BG shall be furnished to the satisfaction of respondent initially for a period of six months as this Tribunal is hopeful that all the appeals will be decided by the said time, otherwise the same shall be renewed for a further period of six months after the expiry date.
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PMLA
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2019 (5) TMI 1465
Offence under PMLA - Retention of property after search - seeking release of jewellery, which was seized during the search operation of 22.09.2014 conducted on the respondents herein - HELD THAT:- Admittedly the respondents herein are not party to the proceedings initiated against the husband/father of the respondents herein respectively. We are also of the view that the appellants have not sought any extension under Section 20(3) of the PMLA for further retention of the jewellery. Learned ASG submits that a notice was issued subsequently and the effect of which would be decided by the Single Judge. We are prima facie satisfied that no prejudice in any manner will be caused to the appellant if the jewellery is released, for the reason that before the Single Judge, the respondents have volunteered to furnish a fixed deposit receipts in the amount ₹ 1,23,22,317/- and ₹ 29,64,387/- respectively and also furnish an undertaking that they would not transfer, part with or encumber in any manner or alienate jewellery returned to them and this undertaking has been accepted by the Court. We are informed that the undertaking has been furnished. Additionally, we direct the Department to take pictures of the jewellery in the presence of the respondents herein and the pictures would be duly signed by both the parties for the purposes of proper identification. The jewellery would be returned to the respondents against a proper receipt to be issued by the appellants. Appeal dismissed.
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2019 (5) TMI 1464
Offence under PMLA - Retention of records and property post search - HELD THAT:- It is clear from the reading of Sections 17 to 21 that outer limit upto the date for deciding the application for retention of property within the meaning of sub-section 4 of Section 21 is 180 days from the date of seizure of any property or records. The said period is not extendable. The person concerned/aggrieved party of such order, is entitled to file the appeal under Section 26 of the Act. The same shall be heard and after giving an opportunity of being heard, the appellant Tribunal shall pass the order either to confirm the order of retention or to modify or setting aside the same. Where the Adjudicating Authority decides by an order confirm the retention under Sub-section (1) of Section 17 or Section 18 for the purpose of continuation during investigation for a period not exceeding ninety days under this Act before the Competent Court, or under the corresponding law of any other countries as the case may be under Subsection (3) (a) of Section 8 may take necessary action within the time prescribed. In failure to do so under this Act, all the proceedings, seizures/frozen under Section 17 would be lapsed ipso facto. If a particular thing is to be done in a particular manner, it must be done in that manner only and none other. The provisions of section 8 (3) (a) provides that the attachment or retention of property or record seized shall continue during the investigation for a period not exceeding ninety days. It is admitted position that no prosecution complaint has been filed against the Appellant herein. The properties and records of the Appellant were seized only for the purpose of investigation. The period of 90 days as prescribed under section 8 (3) (a) has already elapsed as more than an year has been expired. No prosecution complaint has been filed by the respondent against the appellants. The said fact has been admitted by the learned counsel for the respondent. The impugned order in the above said matter was passed on 5.9.2017 for retention of property. Admittedly, no prosecution complaint has been filed within the period of ninety days from the date of passing the retention order. More than one half year has been passed. As per settled law, the retention order lapses after the expiry of ninety days. The appeal is accordingly disposed of by setting aside the impugned order in respect of the appellant. However, the documents already retained by the ED, copies of the same be handed over to the appellant, who is otherwise entitled to receive the copies under Subsection 2 of Section 21 of PMLA.
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2019 (5) TMI 1463
Offence under PMLA - Provisional Attachment Order - recording of reason to believe - money belongs to the Appellant is a public money - HELD THAT:- The Appellant is not holdings any funds of any of the defendant/respondent. The mortgage properties are admittedly not derived from criminal activities or proceed of crime. The scope of the PMLA is to punishing the accused person and not to punish the innocent person who is not involved in the crime within the meaning of Section 2 (v) read with Section 3 of the Act. The appellant is not charge sheeted nor any prosecution complaint has been filed against the appellant. The appellants have also no objection if the borrowers properties which were acquired from proceed of crime be dealt by the respondent in any manner. There is no nexus whatsoever, between the alleged crime and the appellant who is mortgagee of the properties and is a victim of the fraud and is innocent party. The definition of proceed of crime as per Section (u) of the Act comprises of the property which is derived or obtained as a result of criminal activities. The mortgaged properties are not acquired from proceed of crime. The scheme of the Act is such that is cannot apply to a transaction of the nature as in the present case against the appellant. Money of appellant is a public money and its right under SARFAESI cannot be taken away by the attachment order, in case the attachment continues against the mortgage property, in all matters the economy of the country would suffer. In the present case as the money belongs to the Appellant it is public money. The appellant has the right to property under the Constitution of India. The property of the appellant cannot be attached or confiscated if there is no illegality in the title of the appellant and there is no charge of money laundering against the appellant. The mortgage of property is the transfer under the transfer of property act. Under Section 8(1), upon receipt of a Complaint U/s 5(5) of the Act, if this Hon'ble Authority has reason to believe that any person has committed an offence under section 3 or is in possession of proceeds of crime, he may serve a notice of not less than thirty days on such person calling upon him to indicate the sources of his income, earning or assets, out of which or by means of which he has acquired the property attached U/s 5(1) of the Act. Provisional attachment order in the present case is bad as no valid reason to believe pertaining to appellant herein has been recorded within the meaning of the provision of Section-5(1) of the Act. Recording of reason to believe under the said provision is not a formality rather it is the duty of the authorized officer to record the valid reason to believe. As far as reason of believe within the meaning of Section 8(1) is concerned, if the Adjudicating Authority chooses to record the same, it must be recorded after having gone through the entire material and copy of complaint and provisional attachment order, the same shall have to be satisfied fully with the mandatory condition as to whether the person-concerned has committed the offence within the meaning of Section 3 of the Act or not or is in possession of proceed of crime. Only than, the notice under section 8(1) is to be issued, otherwise notice is to be declared as invalid. In the present case, copy of reason to believe has not been filed. Counsel for the respondent submits that reason to believe is not required prior to the order of passing the provisional attachment order. The attachment order shows that after recording the facts, the IO has just used the expression by repetition of language of section 5(1) in the provisional attachment order. The Authorised Officer must be aware that due to fixed period of 180 days, normally the person concerned is not allowed to cross-examination of the complaint and other witnesses. Till the provisional attachment order is passed, no notice of appearance is served and till the concluding of the said proceedings, the proceedings are conducted ex-parte . The notice is served after attachment alongwith the copy of provisional attachment and other material and copy of complaint. Thus, it is virtually not possible for any party to discharge the burden of proof unless he knows the nature allegations. No valid findings with the properties mortgaged with the appellant to who is the financial institution and possession of the proceeds of crime or the same is likely to be concealed, transferred or dealt with in any manner as the said properties are already mortgaged with the appellant. Adjudicating Authority failed to apply its mind at the time of issue of the Show Cause Notice ( SCN ). No reason to believe can be discerned from the SCN, or the order dated 29.06.2018 accompanying the SCN under Section 8 of the PMLA, as to how there was reason to believe that the Appellant was in possession of proceeds of crime . Adjudicating Authority, in its discussions, did not even consider the reply of the Appellant, let alone discuss it. Appeal is allowed. The impugned order with regard to attached property (which is mortgaged with the appellant) is set-aside with regard to the appellant (as the attachment on face of it was bad and contrary to law).
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2019 (5) TMI 1462
Offence under PMLA - no Provisional Attachment Order confirmed within 180 days as prescribed under the Act - HELD THAT:- In the present case in terms of Section 5 (1) of the PMLA no Provisional Attachment Order has been confirmed within 180 days as prescribed under the Act which is mandatory from the date of the issuance of the provisional attachment order i.e. 28th March, 2018 bearing No. 08/2018, as such the provisional attachment order was expired on 24.09.2018 and after the expiry of the such period the provisional attachment order is not to be confirmed and the Adjudicating Authority was having no option but to return the file to the complainant, with directions for release of the properties attached. No adjournment during the proceedings for adjournment of hearing was sought by the counsel of the appellants as alleged. Section 5 (1) mandates that properties cannot be attached for more than 180 days, otherwise such proceedings are entitled to be dropped, as the prescribed period of time is mandated in the statute itself. It is a Special Act. The Section 5(1) has to be construed strictly. The said period of time cannot be extended under any circumstances. The prescribed period of time stipulated in the section of any statutes cannot be extended under any circumstances. In the present case, under section-5 provides that the judgement proceeding shall be completed within 180 days. The same has not happened despite of the direction issued by the Hon ble Court, therefore, the attachment does not exist. The impugned order has been passed without application of mind. Thus, the same is set-aside. The provisional attachment order is also quashed by allowing the present appeals. Admittedly, the FIR/ RC was registered on 23rd September, 2003. The case of appellants was that after filing the charge sheet the Act of PMLA cannot be invoked as such whole exercise is without jurisdiction. The said fact was not mentioned in ECIR. Reasons to believe are not produced. It was the duty of the authorised officer to mention the date of registering the FIR. This Tribunal does not wish to express any opinion as to whether it is deliberately done or it was due to mistake as the provisions of schedule offences were incorporated only on 1.6.2009. It is pertinent to mention that the appellants have raised many other issues, however, this Tribunal has since decided the main issue in hand, therefore, there is no need to discuss the other issues.
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2019 (5) TMI 1461
Offence under PMLA - Retention of property - application filed by the Enforcement Directorate - Respondent and allowing the Respondent to retain the documents/digital devices till finalization of the case - HELD THAT:- It is clear from the reading of Sections 17 to 21 that outer limit upto the date for deciding the application for retention of property within the meaning of sub-section 4 of Section 21 is 180 days from the date of seizure of any property or records. The said period is not extendable. The person concerned/aggrieved party of such order, is entitled to file the appeal under Section 26 of the Act. The same shall be heard and after giving an opportunity of being heard, the appellant Tribunal shall pass the order either to confirm the order of retention or to modify or setting aside the same. Where the Adjudicating Authority decides by an order confirm the retention under Sub-section (1) of Section 17 or Section 18 for the purpose of continuation during investigation for a period not exceeding ninety days under this Act before the Competent Court, or under the corresponding law of any other countries as the case may be under Sub-section (3) (a) of Section 8 may take necessary action within the time prescribed. In failure to do so under this Act, all the proceedings, seizures/frozen under Section 17 would be lapsed ipso facto. If a particular thing is to be done in a particular manner, it must be done in that manner only and none other. Reliance in this regard is also placed on a judgements in the cases of Dipak Babaria and another vs. State of Gujarat [ 2015 (8) TMI 775 - SUPREME COURT] and J. Jayalalitha Anr vs State of Karnataka Ors [ 2013 (9) TMI 1182 - SUPREME COURT] The provisions of section 8 (3) (a) provides that the attachment or retention of property or record seized shall continue during the investigation for a period not exceeding ninety days. No prosecution complaint has been filed against the appellant herein. The properties and records of the appellant were seized only for the purpose of investigation. The period of 90 days as prescribed under section 8 (3) (a) has already expired. No prosecution complaint has been filed by the respondent against the appellant. The said fact has been admitted by the learned counsel for the respondent. Appeal is liable to be allowed in view of the mandatory provision as the retention order lapses. The properties retained by the respondent shall be returned to the appellant within next two weeks from today. In the interest of justice, equity and fair play, the respondent is allowed to retain the photocopies of records seized/print of the electronic items and copy of hard disks, if so required, before returning the same to the appellant. The counsel for the respondent states that the respondent may rely upon the documents and materials before the Special Court. This Tribunal does not express any opinion in this regard, the same, if necessary, may be relied upon in accordance with law.
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Service Tax
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2019 (5) TMI 1493
Classification of services - sale of the construction material to the Government Department as also to various private parties - Works Contract service or not - HELD THAT:- The Commissioner (Appeals) has accepted the fact that the appellant raised invoices for sale of the construction material. However, he has observed that since the consideration was received in cash and invoices do not contain VAT amount it has to be held that the same was a service. We find no merits in the above reasoning of the Revenue. As explained, sale of building material does not invite VAT. Nevertheless same remain State subject. On the other hand, Revenue have also not established as to which service taxable under the Act stands provided by the appellant - As such, no service tax is required to be confirmed against the appellant in respect of sale of building material to private parties - Accordingly demand of ₹ 5,29,556/- confirmed against them on the said ground is set aside alongwith setting aside of penalty. Imposition of penalty - demand under the category of Construction of Residential Complex - HELD THAT:- Admittedly the said construction was for U.P. Avas Evam Vikas Parishad. Service tax was deposited by the appellant alongwith interest even before issuance of the show cause notice in which case no notice should have been issued to them in terms of the provision of Section 73(3) of Finance Act, 1994 - also the said services having been provided for Government body, there could be a bona fide belief on the part of the assessee not to pay any tax on the sale, Revenue has not adduced any evidence to show that such non-payment was with any mala fide intention - the penalty imposition on the said ground is not justified. Appeal disposed off.
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2019 (5) TMI 1492
Short payment of service tax - contention made by the appellant that short payment of Service Tax has been calculated on the invoice value of the services provided by them to their service recipient, though the entire amount of invoice has not been realized by them has not been substantiated by the appellant - HELD THAT:- The contention made by the appellant are not legally sustainable as no evidence has been adduced before us in support of these claims. It is also a matter of record that the required service tax return ST 3 has not been filed in time and thereby violating the provisions of section 70 of the Finance Act, 1994 read with Rule 7 of Service Tax Rules. Appeal is without any merits and is dismissed.
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2019 (5) TMI 1491
Clearing Forwarding Agents Services - scope of SCN - Extended period of limitation - penalty - HELD THAT:- It is seen that the appellant had not disputed the fact of providing of services and have simplicitor submitted that the show cause notice issued to them is vague inasmuch as the category of services provided by them has not been specified - As it is not the appellant s case that the services provided by them were excluded from the areena of service tax or the same were exempted under any particular Notification, there are no merits in their case. Extended period of limitation - HELD THAT:- As the negative list era was introduced in 2012 itself there could be a bona fide belief on the part of the appellant to entertain a belief that the services provided by them are not taxable. In the absence of any evidence to the contrary indicating any mala fide on the part of the appellant,the longer period of limitation is not available to the Revenue - the demand is set aside on the issue of time bar. As a part of the demand may fall within the limitation period, the Original Adjudicating Authority is directed to re-quantify the same to whom matter is being remanded. Penalty - HELD THAT:- In the absence of mala fide on the part of the appellant the imposition of penalty upon them is not justified - penalty set aside. Appeal allowed by way of remand.
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2019 (5) TMI 1490
Levy of service tax on TDR - Transfer of land development rights - demand of service tax for the consideration received for transferring land development rights - SCN alleges that the appellant has acquired land development right from M/s DLF Commercial Projects Corporations and further transferred those rights to various parties, therefore, the appellant is liable to pay service tax - HELD THAT:- The decision in the case of DLF COMMERCIAL PROJECTS CORPORATIONS VERSUS COMMISSIONER OF SERVICE TAX, GURUGRAM [ 2019 (5) TMI 1299 - CESTAT CHANDIGARH] wherein it has been held that they have not transferred any development right to the appellant in question, therefore, no service tax is payable. Thus, as the appellant has not acquired any land development right from DCPC, then how the appellant can transfer development right of third party. The show cause notice is based on incorrect facts that the appellant has acquired land development right from DLF Commercial Project Corporations which were later transferred to various parties by the appellant, therefore, the appellant is liable to pay service tax. In fact, the appellant has not acquired any development right on the basis of the facts placed before us and as per the agreements relied upon by the revenue in the show cause notice, therefore, the question of transfer of development right by the appellant does not arises. Appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1489
Franchise services - promotion or marketing of the logo/brand/marks of the franchisee - recovery of service tax - HELD THAT:- In similar circumstances Hon ble Kolkata High Court in the case of SOURAV GANGULY VERSUS UNION OF INDIA OTHERS [ 2016 (7) TMI 237 - CALCUTTA HIGH COURT ] has held that service tax was not payable by Shri Sourav Ganguly - Tribunal in the case of Shri Karan Sharma Vs Commissioner of Service Tax-Meerut-I [2018 (4) TMI 111 - CESTAT ALLAHABAD] has held that service tax was not payable by the appellant in the said case law placed in similar circumstances relying on the ruling by Hon ble Kolkata High Court in the case of Shri Sourav Ganguly. Appeal dismissed - decided against Revenue.
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2019 (5) TMI 1488
Validity of SCN - Works contract service - Demand of service tax - HELD THAT:- The learned Commissioner (Appeals) has not relied on the decision in the case of MS DEORA ELECTRIC WORKS VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE SERVICE TAX- ALLAHABAD [ 2017 (10) TMI 84 - CESTAT ALLAHABAD ] and given his independent finding on the basis of fact and law. Therefore, the said ground raised by revenue is not sustainable. Further, the other ground raised by revenue which is in respect of finding by Original Authority and the same has been adjudicated by learned Commissioner (Appeals) and since the finding of learned Commissioner (Appeals) has not been challenged on the basis of any infirmity in the same the other ground also does not sustain. Appeal dismissed - decided against Revenue.
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2019 (5) TMI 1487
Development Supply of Content - non-payment of service tax - suppression of facts or not - HELD THAT:- It is well settled law that no demand can be confirmed by comparing the ST-3 return figures with balance sheet figures, in the absence of any evidence to the contrary that income in the balance sheet, if excess, reflects the providing of taxable services. It is the revenue who is making the allegations and as such, the onus to prove said allegation lies very heavily upon the revenue. Inasmuch as, the same has not been done, there are no merits in the Revenue's appeal. Appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1486
Refund of service tax - Works Contract Service and Manpower Service - reverse charge mechanism - HELD THAT:- As per Rule 2(1)(d) of Central Excise Rules, 1994 read with Notification No.30/2012-ST dated 20.06.2012, if manpower supply and works contract services are provided by an individual or hindu undivided family or partnership firm then the recipient has to pay service tax provided that the recipient is business entity registered as Body Corporate. It is very clear that all the grounds raised by Revenue have been dealt with by learned Commissioner (Appeals) and Revenue could not raise any ground to counter the findings of learned Commissioner (Appeals) - appeal dismissed - decided against Revenue.
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2019 (5) TMI 1485
SSI exemption - claim of SSI Exemption upto ₹ 10 lakhs - Renting of immovable property - association of person (AOP) - clubbing of consideration - crossing over of threshold limit - HELD THAT:- Though in respect of one property, there are joint owner but each joint owner is independent in respect of ownership of respective shares, therefore, whatsoever consideration received by an individual, it is the subject matter of taxation in respect of that individual person either as per income tax or as per service tax. Rental income of other co-joint owner cannot be considered. Receipt of rental income by every individual is only subject to liability of service tax - If the value is below thresh-hold exemption limit in case of any individual, the same will not be taxable being exempted under Notification No. 06/05-ST dated 01.03.2005. At the same time in case of any individual person if the thresh-hold limit exceed in financial year, the same will be liable for service tax. The issue decided in the case of SAROJBEN KHUSALCHAND OTHERS VERSUS C.S.T. -SERVICE TAX - AHMEDABAD [ 2017 (5) TMI 240 - CESTAT AHMEDABAD ] where it was held that the ownership of the Property and providing of taxable renting of immovable Property by the four appellants in this case is in their individual capacity and, therefore, their tax liability should have been determined by considering their individual rental receipts and not collective one. Service tax liability do not arise - appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1484
Jurisdiction - appellant s jurisdictional Service Tax Authorities at Noida, after initiation of proceedings, confirmed the Service Tax demand in respect of the entire construction activities done by the appellant at various places like Maharashtra, Pune Delhi, etc. - case of appellant is that the Commissioner of Service Tax, Noida, has jurisdiction only for Noida and could not have confirmed the demand of Service Tax in respect of other places like Maharashtra, Pune Delhi, etc. - HELD THAT:- The jurisdiction of a Commissioner to raise and confirm the Service Tax is limited only to an assessee falling within its jurisdiction. It was accordingly observed that inasmuch as Noida premises were registered only for the services being offered from Noida and the same was not a centralized registration, the confirmation of demand in respect of the activities undertaken at other places was not in accordance with law. Inasmuch as, the Commissioner had not examined the jurisdictional aspect, the matter was remanded to him. There is neither any observations by the Adjudicating Authority nor any findings to the effect that registration at Noida was a Centralized registration, covering all the activities being provided by them at other places. Even in terms of the order referred to and relied upon by the Adjudicating Authority, it is the Commissioner in whose territorial jurisdiction, the registered office of the service provider is located, has the jurisdiction to decide. It is the assessee s case that Noida office is not their registered office and the registration granted to them was only for the services to be provided from Noida. In the absence of any finding to the effect that Noida office was registered office, there are no merits in the findings of the Adjudicating Authority - As such, we once again are constraint to set aside the impugned order and remand the matter to Adjudicating Authority for fresh decision on all the points including the point of jurisdiction, after verifying the factual positions - appeal allowed by way of remand.
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2019 (5) TMI 1483
Levy of service tax - travelling expenses charges during the course of providing the service of architect - HELD THAT:- The issue is covered by the judgments of M/S. SWAMINATHAN ASSOCIATES VERSUS THE COMMISSIONER OF G.S.T. CENTRAL EXCISE, COIMBATORE COMMISSIONERATE [ 2019 (1) TMI 1430 - CESTAT CHENNAI] wherein the Tribunal relies on the Hon ble Supreme Court Judgment in the case of UNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. [ 2018 (3) TMI 357 - SUPREME COURT] . In that case it was held that the service tax on visiting charges is not payable in the case of Architect Service. Demand set aside - appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1482
Levy of service tax - amount of discount allowed to its customers - inadvertent credit in its books of account - turnover achieved through the main contractor - demand of service tax alongwith penalty - extended period of limitation. Discount allowed to customers - HELD THAT:- Revenue have not brought any evidence on record to disbelieve the books of account of the appellant. The auditor of the appellant, by certificate dated 11th November, 2014, have certified that the appellant have allowed discounts to their customers/clients and service tax will be charged on the net amount of the bill after allowing said discount - the learned Commissioner have erred in dis-regarding the said certificate, without recording any reason - demand set aside. Charge of service tax from the appellant as a subcontractor - HELD THAT:- This issue is decided by Hon ble Patna High Court in the case of HINDUSTAN DORR-OLIVER LTD. AND ANOTHER VERSUS UNION OF INDIA AND OTHERS [ 1989 (9) TMI 355 - PATNA HIGH COURT] , wherein the Hon'ble High Court in the matter of sales tax under similar facts and circumstances of works contract, were the main contractor had claimed deduction of the turnover achieved through the subcontractor, on the ground that the subcontractor is also registered with the Department and have paid tax on such turnover. The Hon'ble High Court held that in the case of works contract there is one transaction, one sale. The work may be done either by the main contractor or through the subcontractor. Service tax being the other part of the same type of transaction, there cannot be two services and/or two transfers of service - demand set aside. Credit made inadvertently in the books of account - HELD THAT:- It has been demonstrated that in the service receipt account, the accountant inadvertently made two journal entries on date 31st March, 2011, for making adjustment of Cenvat credit adjustment . Thus it is evident that the said credits, which have inflated the service receipt amount, are not actually the amounts pursuant to rendering of the service and are arising from erroneous entries by the accountant - demand set aside. Demand set aside - appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1460
Application for early hearing - Taxability - receipt of consideration towards the services of their employee provided in abroad - reverse charge mechanism in terms of section 66A of the Finance Act, 1994 - HELD THAT:- Early Hearing application is allowed. Appeal to be listed on 13/06/2019 along with appeal nos. ST/10767/2016 ST/10680/2018.
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2019 (5) TMI 1459
Levy of service tax - man power recruitment and supply agency service - common facility such as staff etc. used on sharing basis by two sister concerns of the same group companies - HELD THAT:- This issue is no longer res integra as in the similar facts in the case of M/S ARVIND MILLS LTD VERSUS COMMISSIONER OF SERVICE TAX [ 2013 (10) TMI 821 - CESTAT AHMEDABAD] wherein it was held that common staff used on sharing basis by two group companies does not amount to provision of service, accordingly, demand of service tax were dropped. Appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1458
Extended period of limitation - Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded - suppression of fats or not - whether the extended period of limitation for issuance of a show cause notice under the proviso to Section 73(1) of the Finance Act, 1994 could have been invoked in the facts and circumstances of the case? HELD THAT:- In the present case it needs to be noted that notice merely mentions that the extended period of five years was being invoked as the assessee suppressed the facts from the department. The show cause notice does not allege that the suppression was with an intention to evade payment of Service Tax. It was, therefore, pleaded by the Appellant in reply to the show cause notice that the extended period of limitation could not be invoked. This plea is also mentioned in paragraph 10 of the impugned order - This has, however, not been considered by the Adjudicating Authority in the impugned Order. The Commissioner completely failed to appreciate that the extended period of five years could have been invoked only when the appellant suppressed facts with an intent to evade payment of Service Tax. All that has been observed by the Commissioner is that Cenvat Credit in respect of Goods and Transport Services was wrongly taken by the Appellant. This would not be sufficient to attract the extended period of limitation. The benefit of the proviso to Section 73(1) could be taken only when there was an explicit averment in the show cause notice that there was suppression of facts with an intent to evade payment of duty. In the absence of such an averment, the extended period of limitation could not have been invoked. Appeal allowed - decided in favor of appellant.
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Central Excise
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2019 (5) TMI 1481
CENVAT Credit - input services - services filed in relation to maintenance of Vendor Park maintained by M/s Tata motors ltd where their factory is located - HELD THAT:- The appellants are entitled for the Cenvat Credit on the maintenance services provided by Tata Motors Ltd. in respect of maintenance activities in respect of Tata Vendor Park - reliance placed on the decision of the Tribunal in the case of CUMMINS TECHNOLOGIES INDIA PVT LTD VERSUS C.G.S.T. C.E., INDORE [ 2019 (2) TMI 1231 - CESTAT NEW DELHI] wherein credit was denied for similar services provided by M/s AKVN in respect of such common services where it was held that maintenance charges are also the eligible inputs - credit allowed - appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1480
CENVAT Credit - input services - GTA services availed for clearances of goods from factory to the depot - HELD THAT:- The issue is squarely covered by decision of tribunal in the case of where it was held that HAWKINS COOKERS LTD. VERSUS CCE, MUMBAI-III [ 2017 (9) TMI 1371 - CESTAT MUMBAI] where it was held that credit is allowed - appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1479
CENVAT Credit - inputs - crude menthol - It appeared to Revenue that provisions of Sub-rule (3) of Rule 11 of Cenvat Credit Rules, 2004 would be applicable as on 01.03.2008 and as a result, appellant were not eligible to avail Cenvat Credit of ₹ 95,51,299/- involved in the goods in-process and balance Cenvat Credit would lapse - Principles of natural justice - HELD THAT:- The Original Authority has denied said Cenvat Credit for appellant having not informed the Department about the receipt of duty paid final products back into the factory where as there is no such requirement under said Rule 16. Further the burden of proof is on Revenue to establish that the duty paid goods returned to the factory are subjected to such processes which did not amount to manufacture to deny the Cenvat Credit. The directions of this Tribunal were to disallow such Cenvant Credit which has gone into final product which has been cleared to home consumption without payment of duty in view of said Notification No. 04/2008-CE dated 01.03.2008. The Original Authority did not establish any quantity of final product to have been cleared for home consumption without payment of duty. Appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1457
Validity of assessment order - it requires to be noticed that the impugned order is a common order passed in the aforementioned appeal as well as the appeal of the co-noticees - HELD THAT:- Two of the appeals filed by the co-noticees in this Court being Customs Appeal Nos. 181/2019 and 184/2019 by Mr. Rohit Agarwal as well as Genex Foods (P) Ltd. were allowed by this Court by a detailed order dated 15th May 2019 setting aside the impugned orders dated 5th June 2018 and 21st February 2019 of the CESTAT and restoring the appeals to the file of CESTAT for a fresh consideration uninfluenced by the aforementioned two orders. Appeal restored to the file of the CESTAT for a fresh decision in accordance with law - appeal allowed.
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2019 (5) TMI 1456
Captive consumption - N/N. 67/1995-CE - Time limitation - HELD THAT:- The appellants have manufactured trolleys which were being used by them for packing of various motor vehicle parts for further transportation. As such, the trolleys crossed the factory gate and were cleared by the appellant. In such a scenario, it cannot be said that the same were captively consumed and were exempted under Notification No.67/1995-CE. Time Limitation - HELD THAT:- In the absence of any evidence to the contrary, no malafide can be attributed to them. As such, we hold that the extended period of limitation would not be available to the revenue - we set aside that part of the demand which is hit by the bar of limitation, being beyond the normal period and direct the Original Adjudicating Authority to re-quantify the demand falling within the limitation period only in respect of trolleys manufactured by them. The appellant s plea is that they would be entitled to Cenvat credit of duty paid on the inputs used in the manufacture of the said trolleys. The appellant is at liberty to substantiate the plea by production of evidences before the Original Adjudicating Authority to whom the matter is being remanded for re-quantification of demand falling within the limitation period. Penalty - HELD THAT:- It is already held that there is no malafide on the assessee s part, there are no reasons to impose penalty upon him - penalty set aside. Appeal allowed by way of remand.
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2019 (5) TMI 1455
Valuation - for some un-used excess cylinder appellant have raised debit notes towards liquidator damages to the buyers - demand of duty on value of the debit notes considering the same as extra consideration towards supply of finished goods - HELD THAT:- Though the CA certificate was produced before the lower authority, the books of account such as parties ledger, profit-loss account, balance sheet etc. were not produced, for this reason the lower authority has not accepted the CA certificate - We agree with the lower authority that merely with the CA certificate it cannot be established that the amount of debit notes was not recovered. The matter needs to be re-considered for verification of the facts that whether the appellant has cancelled the debit notes and consequently no amount was recovered by them from the buyers - Appeal allowed by way of remand.
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2019 (5) TMI 1454
CENVAT Credit - reduction of credit towards debit notes issued against Quality difference - price of the input supplied has been reduced as compared to the price charged on the invoices and debit notes were issued - HELD THAT:- The debit notes was raised not for the quantity difference but for the inferior quality of the material. Once it is not disputed that the entire quantity for which the invoice was raised, was received by the appellant and used in the manufacture, they are eligible for cenvat credit on the entire excise duty paid on inputs received and used. Accordingly, only due to quality difference the debit notes raised by the appellant Cenvat credit, cannot be denied. The CENVAT credit was wrongly denied by the lower authority - Appeal allowed - decided in favor of appellant.
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CST, VAT & Sales Tax
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2019 (5) TMI 1478
Issuance of Refund Orders - Respondents informs the Court that the refund orders cannot be issued because the concerned VATO is on election duty - HELD THAT:- The Court is constrained to direct that the Commissioner (VAT) will himself issue the necessary orders to ensure that the refund amount is paid to the Petitioner on or before 27th May, 2019. The Court will not accept the excuse that either the VATO or the Joint Commissioner is on election duty , or even that the matter had to be placed before the Refund Approval Committee for that purpose. If the Commissioner (VAT) does not comply with this order, he will remain personally present in Court on the next date of hearing. List on 29th May, 2019.
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2019 (5) TMI 1453
Filing of Forms F for the year 2012-13 in respect of its own goods sent to its Bhiwadi factory for job work - HELD THAT:- The difficulty faced by the Petitioner is not of its doing. It is a systemic fault that has prevented F Forms being issued to the Petitioner. It was incumbent upon the Department to have facilitated the Petitioner furnishing the relevant details in the online returns filed by it. If there was in fact at the relevant time no column provided which would enable the Petitioner to indicate the dispatch of its own goods to Bhiwadi for job work, it was not open to the Respondents to deny the Petitioner the F forms corresponding to that dispatch of goods. In other words, there is no justification for the Respondents to deny the Petitioner the F forms for the consignment of its own goods sent by it to Bhiwadi for job work. The Respondents are directed now to issue F forms to the Petitioner for the year 2012-13 in relation to its own goods in the value of ₹ 6,59,85,266 sent by it to its Bhiwadi factory for job work - Petition disposed off.
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2019 (5) TMI 1452
Issuance of already determined refund for the Assessment Year 2002-03, 2005-06, 2007-08 and 2016-17 along with interest - delay in sanction refund due to some technical glitch - HELD THAT:- The Court sees no reason why on account of a technical glitch in the system, the refund due to an Assessee should be delayed. It must be remembered that every day s delay would mean interest payable on the refund amount under Section 244-A of the Act. With the refund amount running into crore of rupees, the interest amount would obviously be several lacs of rupees, and all of this is coming out of the exchequer needlessly on account of such glitches in the system. The Respondents will now release the refund amounts that have already been processed and approved in favour of the Petitioner not later than 31st May, 2019. The interest amount due, as of 31st March, 2019 on the aforementioned sums should be credited to the account of the Petitioner positively on or before 30th June, 2019. Petition disposed off.
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2019 (5) TMI 1451
Jurisdiction - Power of Review - Section 74B (5) of the Delhi Value Added Tax Act, 2004 - ground on which such review power was exercised was that in the original assessment certain C forms furnished by Paras Enterprises of Panipat, Haryana formed the basis of the claim for refund - HELD THAT:- Learned counsel for the Respondents is prepared to withdraw the impugned orders, subject to the Petitioner appearing before the AVATO and being heard afresh in respect of the assessments for the period in question. The impugned order dated 29th January 2018 passed by the AVATO is hereby set aside.
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2019 (5) TMI 1450
Delay in sanction of refund - Relief with regard to payment of interest @ 24% per annum - HELD THAT:- While dealing with the issue of interest Section 55(3) is relevant, which prescribes that the refund has to be made within a period of 120 days from the date of such sales, Admittedly, the date of sale and the payment of vat tax, are the factors which would be in the knowledge of the department. The refund, therefore, should have certainly been made within a period of 120 days from the date of sales, inasmuch as, element of sale necessarily is accompanied with an element of deposit of tax. Equally clear is the provision with regard to the rate of interest. If the payment is delayed by three months beyond 120 days prescribed, it has to be @ 24% per annum simple interest - Admittedly, the rate of interest in the present case, which would apply is @ 24 %. The order impugned also does not in so many words clearly reflect the rate, which has been applied for purposes of calculating the amount, which the petitioner is held entitled to receive. Mr. Amit Gupta, learned counsel for the respondents stated that the rate applied was @ 18%. The order impugned dated 22.08.2017, in so may ways is not totally in accord with the obligation cast upon the respondents in terms of Section 55 of the Act in regard to the determination of the amount, as also the rate of interest applicable for payment of interest - Impugned order set aside - appeal disposed off.
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2019 (5) TMI 1449
Principles of natural justice - petitioners/Revenue submits that the Tribunal failed to consider the classification of electrical meter vis-a-vis certificate of registration issued to the assessee under the Central Sales Tax Act, 1956 for the generation and distribution of electricity - Whether the order of the KAT, Bengaluru, set aside the Appel late Order passed under sections 10(b), 10A(1) read with section 9(2) of the CST Act by the FAA and LVO, is in accordance with law? HELD THAT:- We are not convinced by the arguments advanced by the learned counsel for the petitioners/Revenue. No exception can be found with the finding of the Tribunal. In the circumstances, we are of the considered opinion that no question of law arises for our consideration in these revision petitions - revision petition dismissed.
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