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GST
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2023 (5) TMI 1125
Provisional attachment of cash-credit facility - Section 83 of the CGST Act - HELD THAT:- It is found from the record of the case that even the petitioner has been paying GST from the said cash-credit account - Be that as it may, it is held by this Court that cashcredit facility is not a debt and therefore, it cannot be made attachable. This Court is bound by the above-stated precedent. Efficacious and speedy remedy in the statute - HELD THAT:- The issue as to whether relief under writ jurisdiction should be granted in a case where there is alternative statutory remedy was called upon for determination before the Hon ble Supreme Court in relation Section 13 and Section 17 of the SARFAESI Act. In MARDIA CHEMICALS LTD. VERSUS UNION OF INDIA [ 2004 (4) TMI 294 - SUPREME COURT ] , it was observed by the Hon ble Supreme Court whi....... + More
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2023 (5) TMI 1124
Maintainability of petition - appealable order or not - availability of equally efficacious alternative statutory remedy - Rejection of Refund claim - It is not the case of the petitioner that the authority, which has passed the order lacks jurisdiction or that the order impugned is passed in violation of principal of natural justice - HELD THAT:- The vires of any of the provision of GST Act 2017 is also not called in question in this petition. That being the position, this petition cannot be entertained. Accordingly, this petition is dismissed - The petitioner is at liberty to avail alternative statutory remedy available under Section 107 of the 2017 Act.
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2023 (5) TMI 1123
Refund of tax paid on inputs - services rendered to McDonald s USA, its holding company, under the Service Agreement without payment of Integrated Goods and Services Tax - intermediary services or not - place of supply of services. Whether the petitioner is an intermediary within the meaning of Section 2(13) of the IGST Act in respect of services rendered under the Service Agreement? HELD THAT:- The petitioner is liable to pay an initial franchisee fee for each restaurant operated or franchised by it. In addition, it is also liable to pay royalty equal to 5% of the gross sales from the operation of all restaurants on a monthly basis. There is no controversy regarding the payments made by the petitioner to McDonald s USA under the MLA - It is material to note that the scope of services as mentioned in the Service Agreement, read....... + More
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2023 (5) TMI 1122
Levy of tax and penalty - E-way Bill lost its validity without any finding of evasion of tax - Section 129(1) and (3) of CGST Act - HELD THAT:- Since the petitioner has an alternative remedy of an appeal which he has already availed of in terms of Section 107 of the JGST Act by filing the same manually which is being kept dormant by the Department, this writ application is disposed off with a direction to the Joint Commissioner (Appeals), Dhanbad Division, Dhanbad to dispose of the appeal preferred by the petitioner manually expeditiously and preferably within a period of eight weeks from the date of receipt/ production of a copy of this order, since it has been submitted by the learned counsel for the petitioner that the memo of appeal submitted manually contains all the grounds on which he has assailed the impugned order dated 19.02........ + More
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2023 (5) TMI 1121
Maintainability of petition - availability of statutory remedy of appeal - non-constitution of the Tribunal - recovery of GST alongwith penalty - ex-parte order - non-application of mind - HELD THAT:- The petitioner is desirous of availing statutory remedy of appeal against the impugned order before the Appellate Tribunal under Section 112 of the Bihar Goods and Services Tax Act - However, due to non-constitution of the Tribunal, the petitioner is deprived of his statutory remedy under Sub-Section (8) and Sub-Section (9) of Section 112 of the B.G.S.T. Act. Under the circumstances, the petitioner is also prevented from availing the benefit of stay of recovery of balance amount of tax in terms of Section 112 (8) and (9) of the B.G.S.T Act upon deposit of the amounts as contemplated under Sub-section (8) of Section 112. The responde....... + More
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Income Tax
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2023 (5) TMI 1118
Transfer u/s 127 - Power to transfer case under Faceless Assessment Scheme - assessments of the petitioners transferred to the Central Circle without sanction of the Central Board of Direct Taxes ( CBDT ) - HELD THAT:- Almost all the High Courts have held that transfer under Section 127 of the Act for the purpose of coordinated investigation is a sufficient reason for passing of such an administrative order. Consequently, it is settled law that a transfer order under Section 127 of the Act does not affect any fundamental or legal right of an assessee and the Courts ordinarily refrain from interfering with exercise of such power. Whether Central Circle jurisdiction is not confined to search cases only? - Central Charge is also conferred with jurisdiction over non-search case where coordinated investigation is required. The Circul....... + More
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2023 (5) TMI 1112
Estimation of profit - Disallowance of expenses (operational cost and administrative expenses) for want of complete documents - HELD THAT:- CIT(A) goes to prove that since the assessee company has merged with Exterio and Interio Pvt. Ltd by the order passed by the Hon ble Bombay High Court which was subsequently merged with Azura Projects Pvt. Ltd by NCLT despite numerous opportunities the assessee company could not produce the complete evidence so the ld CIT(A) proceeded to assess the profit of the company qua the receipt in question @3% on the basis of profit earned by it in the earlier years i.e. FY 2008-09 to 2010-11, wherein, profit was @2.27%, 3.85% and 3.26% respectively, which was subject to verification by the AO. Moreover, the ld CIT(A) proceeded to estimate the percentage of profit after rejecting the books of account of the assessee. CIT(A) has taken a plausible view in the interest of justice and fair play. Decided against revenue.
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2023 (5) TMI 1111
Provision made to Shahenshah Scheme - whether contingent liability and therefore not allowable for deduction? - HELD THAT:- Co-ordinate Bench of Tribunal, while deciding identical issue in assessee s own case for A.Y. 2006-07 has given a finding that the provision created by the assessee is on a scientific basis. Before us, no distinguishing feature in the facts of the case under consideration and that of earlier years has been pointed by Revenue. Revenue has also not placed any material to demonstrate that the order in assessee s own case for earlier years has been set aside/stayed/overruled by higher judicial forum. No reason to interfere with the order of CIT(A) and thus the grounds of Revenue is dismissed.
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2023 (5) TMI 1110
Addition u/s 68 - sales made by the assessee to five parties assessed as income of the assessee - CIT-A deleted addition - HELD THAT:- No infirmity in the order passed by the Ld.CIT(A) in holding that the sales cannot be added u/s 68 unless they are proved as bogus on the basis of some reliable evidences. Decided against revenue.
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2023 (5) TMI 1109
Penalty order u/s. 271(1)(c) - assessee has not disclosed the capital gain earned on account of the JDA - HELD THAT:- Admittedly the assessee has not disclosed the capital gain arose to him on account of the JDA in ROI/assessment proceedings. In fact as rightly pointed out by the Ld.DR that the assessee has not disclosed the capital gain in any of the two assessment years. Disclosure of the capital gain at the appellate stage - Having failed to disclose the capital gain in the assessment year and filing the return of income disclosing capital gain and paying the due taxes, CIT(A) had issued the enhancement notice to assessee. The additions were admitted by the assessee and thereafter the ld.CIT(A) had made the addition in the hands of the assessee. The disclosure of the capital gain at the appellate stage, was thus not voluntary ....... + More
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2023 (5) TMI 1108
Addition on account of house hold drawings - assessee being a senior citizen was living at his own house with his wife with no other liabilities - HELD THAT:- The details of expenses mentioned elsewhere appears to be very reasonable as the expenses relating to electricity, gas, telephone were paid by account payee cheque also the medical expenses have been paid by cheque and no adverse inference have been drawn in respect of this detail. AO has simply estimated the expenses whereas the assessee has furnished the actual details, therefore, considering the age of the assessee no merit in the addition made by the AO - Appeal of the assessee allowed.
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2023 (5) TMI 1107
Assessment u/s 153A - Addition u/s 68 - assessee neither furnished any explanation nor the party to the agreement responded to the summons issued by the AO - CIT (A) deleted the addition on the ground that the transaction of forfeited amount was accounted for by the assessee in the books of accounts and the agreement referred to by AO is not incriminating material found during search operation - HELD THAT:- Since the assessment year under consideration is a completed assessment year, any addition/disallowance ought to have been made by AO on the basis of /evidence as such incriminating material/evidence as found during the search proceedings including CIT Vs. Kabul Chawla [ 2015 (9) TMI 80 - DELHI HIGH COURT ] - additions made by AO is not sustainable and deserve to be deleted as the addition had been made during the regular course of ....... + More
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2023 (5) TMI 1106
Nature of receipts - treatment to toll charges during the project construction - capital receipt or revenue receipts - HELD THAT:- As during the construction of the 6 lane toll road, assessee was not free to utilize the toll receipts but was obliged to use the toll receipts in construction of the project as per the overriding obligation under the Concession Agreement and Escrow Agreement and assessee had in fact utilized the toll receipts in the project construction - toll receipts received during the period of project construction were inextricably linked to the project because it was mandatorily required to be used for the construction of the project - thus correctly treated as capital receipts and held that assessee had rightly reduced the same from the cost of project. Decided against revenue. Addition of interest income on fix....... + More
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2023 (5) TMI 1105
Rectification of mistake u/s 154 - salary income - denying the HRA Exemption claimed u/s 10(13) - taxing the perquisites value twice - HELD THAT:- On going through the Paper Book filed by the assessee in Form 16 in which the value of perquisite u/s 17(2) has been added into the income of the assessee whereas it has been twice considered by the CPC which is wrong. Therefore, the addition is to be deleted. In Form 16, the employer has also given exemption u/s 10(13A) for HRA and employer has also granted deduction under Chapter VI A out of which part is breakup of LIC premium, unit linked insurance plan, housing loan principal repayment and employee PF has also been allowed under section 80C. Without rejecting the Form No. 16 by the revenue authorities they are bound to accept the income/exemption/deductions and other contents th....... + More
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2023 (5) TMI 1104
Capital gain - JDA - transfer of capital asset u/s 2(47) - HELD THAT:- What is given is not possession contemplated u/s. 53A of the Transfer of Property Act and that it is merely a license to enter the property for the purpose of carrying out development. Invocation of the provisions of Sec.2(47)(v) on the basis of clause 1.1 of the JDA, in our view was not proper. Obligation cast on the Transferee(developer) to possession in the present is traced to the joint development agreement which is in the nature of permissive possession and not possession in part performance of agreement for sale. There is no document by which the revenue can come to the conclusion that there was delivery of possession. The mere fact that development of the property cannot be done without possession, cannot be the basis to come to a conclusion that, poss....... + More
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2023 (5) TMI 1103
Denial of foreign tax paid - assessee furnished the statement in Form 67 with a delay - effect of overriding provisions - HELD THAT:- We find from Article 25(2)(a) of the DTAA that where a resident of India derives income which, in accordance with the provisions of the convention, may be taxed in the United States, India shall allow as a deduction from the tax on the income of the resident an amount equal to the income tax paid, paid in the United States, whether directly or by deduction. In view of this provision over riding the provisions of the Act, according to us, Rule 128(9) of the Rules has to be read down in conformity thereof. Rule 128(9) of the Rules cannot be read in isolation. Rules must be read in the context of the Act and the DTAA impacting the rights, liabilities and disabilities of the parties. We allow the appea....... + More
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2023 (5) TMI 1102
Assessment u/s 153A - incriminating material found in search or not? - HELD THAT:- As settled position of law says that in search cases no incriminating material is unearthed during the search, AO cannot assess or reassess taking into consideration the other material in respect of completed assessments/unabated assessments. No error having been committed by the ld. CIT(A) in accepting the plea of the Assessee that there is no incriminating document which was seized in the course of search relating to the addition sought to be made on account of the capital gain so arising on account of compulsory acquisition, the land is already accepted and reflected in the return of income filed by the assessee in the all the past years and even the assessee is doing so consistently. Therefore, the jurisdictional requirement of Section 153A of the Act was not satisfied in this case. Decided against revenue.
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2023 (5) TMI 1101
TP Adjustment - Interest on delayed receivables - assessee is having some receivables outstanding from the AE and imputed interest @8% after considering 30 days grace period as per the terms of payment allowed by the assessee to its AE - HELD THAT:- Average realization period of the assessee is (-)47 days which would mean that on an average, the realization happens well before the due date. We also notice that only two instances where there has been a marginal delay of 60 days and 26 days. Considering the nominal delay in the realization period and the overall average realization period being well before the grace period, in our view, there is no requirement to charge any interest towards receivables and, therefore, we hold that the TP adjustment made in this regard should be deleted. This ground is allowed in favour of the assessee. ....... + More
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2023 (5) TMI 1100
Additions towards Bogus purchases - Estimation of profit - companies are engaged in providing accommodation entries or sending bogus foreign remittances to entities based in Hong Kong and UAE in guise of bogus import purchases - HELD THAT:- CIT- A has correctly considered that the purchases from these parties is genuine when part of purchases from the same parties is not disputed, even otherwise, even if it is held that the purchases from these parties are bogus, then also, the proper course would be to determine the profit arising from the purchases by looking at corresponding sales and what amount of gross profit is earned on alleged bogus purchases. If the alleged bogus purchases show gross profit higher than the regular gross profit shown by the assessee, no further addition is required to be made in the hands of the assessee. T....... + More
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2023 (5) TMI 1099
Addition u/s 56(2)(x) - deemed sale consideration - stamp duty valuation of property being higher than the transaction value - assessee is claiming, stamp duty valuation of the flat as on the date of the agreement as deemed sale consideration for the purpose of section 56(2)(x)(b) invoking the first second proviso to the said section - HELD THAT:- In the instant case, the son of the assessee has been allotted the concerned flat on 22.11.2010 and the assessee has become co-owner of the said property. The assessee has filed copy of the registered Deed which indicates that a cheque was paid in respect of the allotment of the property on 11.11.2010. The assessee has also filed a copy of bank statement of Shri Ashish Modi from which it is seen that the said payment has been withdrawn from his bank account on 23.11.2010. As far as t....... + More
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2023 (5) TMI 1098
Stay on recovery of outstanding demand - demand arises because of treatment given to the gain derived by the assessee from sale of compulsory convertible preference shares (CCPS) as short term capital gain - assessee is a non-resident individual - HELD THAT:- As in the case of DIT vs. Mitsubishi Corporation [ 2021 (9) TMI 875 - SUPREME COURT] we find substantial merit in the submissions of assessee that interest u/s. 234B is not leviable as the assessee is a non-resident and tax has been withheld on the gain derived. So, if the interest component is removed, balance tax demand works out to Rs. 248,35,14,727/-. Whereas, the assessee has paid tax by way of TDS amounting to Rs.153,23,33,751/-, which covers more than 50% of the disputed tax liability of the assessee. Therefore assessee cannot be directed to pay any further amount out o....... + More
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2023 (5) TMI 1117
Reopening of assessment - order u/s 148A(d) - Appeal against appealable order - Single Bench had dismissed the writ petition on the ground that during the pendency of the writ petition, an order under Section 147 passed, which is an appealable order - HELD THAT:- It is true that the assessee had filed the writ petition only on 16th March, 2023. However, in the interregnum, the Assessing Officer has not passed the order u/s 147 - such an order was passed during the pendency of the writ petition presumably on the ground that no interim order was in force in the writ petition. The opportunity afforded at the first instance should be an effective opportunity because the power of reopening of an assessment is a power, which is to be sparingly used for adequate reasons. Therefore, we are convinced to hold that there has been violation o....... + More
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2023 (5) TMI 1097
Assessment u/s 153C - Period of limitation - date of recording of satisfaction - satisfaction recorded in searched person and the person other than the searched person - Scope of amended provisions of section 153C - HELD THAT:- As decided in own case [ 2022 (2) TMI 1270 - ITAT DELHI] once the amended provisions of sections 153A and 153C are applicable in respect of search and seizure operation initiated u/s 132 or requisition made u/s 132A post 01.04.2017, the provisions of sections 153A and 153C would be applicable to the same set of assessment years, both in case of the searched person and the person other than the searched person. In case of other person u/s 153C starting point for computation of the block period would be the date from on which based on the seized documents, notice is issued to the other person - As further he....... + More
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2023 (5) TMI 1096
Nature of liability - Adhoc provisions on account of contingent liabilities or ascertained liabilities - CIT-A deleted the addition - HELD THAT:- AO has erred in holding provision for unsettled claims as contingent liability. We find that ld. CIT (A) has passed correct order which does not need any interference from us. The liability in this regard is duly ascertained. Hence, this ground raised by the Revenue is dismissed. Disallowance for provision for IBNR claims as contingent liability - CIT-A deleted the addition - HELD THAT:- We find that ld. CIT (A) has taken correct decision, which does not need any interference on our part. The case law from Kolkata Bench of ITAT in the case of DCIT vs. National Insurance Co. Ltd [ 2011 (10) TMI 669 - ITAT KOLKATA] duly holds that these are ascertained liabilities. Hence, we uphold the order of ld. CIT (A). Decided against revenue.
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2023 (5) TMI 1116
Assessment order based on an earlier assessment order passed in an entity going by the name Caruna Bal Vikas [ CBV] - The contention being that AO in passing the impugned assessment order has extracted only a part of the reassessment order passed in the case of CBV - petitioner, says that the reassessment order as it stands today, is intact, although CBV has preferred an appeal qua the same - HELD THAT:- As the petitioner is entitled to seek a direction that while disposing of the appeal, respondent no. 2 should consider the entirety of the reassessment order passed in the matter concerning CBV, and the judgments that the petitioner has relied upon. One of the judgments as adverted to, in this context, has been passed in the matter of Director of Income Tax vs. Society for Development Alternatives [ 2012 (1) TMI 77 - DELHI HIGH CO....... + More
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2023 (5) TMI 1115
Reopening of assessment - validity of order passed u/s 148A(d) - reopening on new set of facts - giving less than three days time to the assessee to respond - as alleged show cause notice u/s 148A(b) issued and subsequently corrigendum was issued with a different allegation alleging that the assessee had entered into bogus transactions with a different person than the person who was named in show cause notice - HELD THAT:- The chain of events have been set out to show that there has been violation of principle of natural justice at different stages of the matter. The reopening of an assessment is a very serious matter and if such power is resorted to the assessee is entitled to an adequate opportunity to put forth their submissions. In the order passed u/s 148A(d) names of 12 companies have been mentioned which was never the alleg....... + More
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2023 (5) TMI 1095
Unexplained cash deposits - HELD THAT:- As assessee need to be given one more opportunity to adduce evidence from Shri Indrajeet Chaterjee that after withdrawal of amount he has deposited the same in assessee s/proprietary bank account as contended by assessee even though we are aware that assessee has changed the source of income from sale of cattle etc - set aside the impugned order of Ld. CIT(A) and restore the appeal back to the file of Ld. CIT(A) to decide afresh the issue as observed . Unexplained cash credit - HELD THAT:- As the source of Rs.9.60 Lakhs stands proved and since its nature of transaction is loan as noted by AO in his remand report, it cannot be taxed. And since AO has accepted that Rs.10 Lakhs has been offered by assessee as income in his remand report as well as the fact that assessee has offered the same for....... + More
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2023 (5) TMI 1094
Assessment u/s 153A - validity of granting the approval u/s 153D - HELD THAT:- It is not mentioned in the approval that what is the amount of determination of income in each assessment year of each assessee. Approval was granted within 24 hours of proposal. Approval have been granted on the same day on 22.12.2017 despite the fact that A.O. was having his office at Jabalpur and JCIT was holding his Office at Bhopal in which there is a significant distance. Not humanly possible to look into assessment records as well as draft assessment orders thereon and apply its own mind objectively by a senior designated authority involving such complex matters and grant approval as contemplated under section 153D - Not mentioned as to how the draft order and assessment record, if any, have been received by JCIT, if he has gone through the assessm....... + More
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2023 (5) TMI 1093
Validity of assessment order passed u/s 143(3) - scope of provisions of section 153(1) - period of limitations - due date for completing the assessment would be 60 days - HELD THAT:- As no information was sought by the Indian Tax Authorities from MRA after the receipt of information on 14.07.2015 qua the assessee herein. Hence the due date for completing the assessment would be 60 days from 14.07.2015 as per the proviso to Explanation 1 to Section 153 of the Act, which would be 12.09.2015. We hold that the assessment order passed u/s 143(3) of the Act in the case of the assessee ought to be passed on or before 12.09.2015 in view of the provisions of section 153(1) read with Explanation 1 and proviso to the said explanation. The assessment order, having been passed on 30.03.2016 is clearly beyond the time limit of 12.09.2015 and hence we have no hesitation to conclude that the assessment order is time barred and bad in law. Decided against revenue.
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2023 (5) TMI 1120
Reopening of assessment u/s 147 - scope of enactment of Section 148A - benefit of relaxation/extension under the Taxation and Other Laws (Relaxation And Amendment of Certain Provisions) Act' (TOLA) 2020 - As directed by HC[ 2023 (2) TMI 1081 - ALLAHABAD HIGH COURT] reassessment proceedings initiated with the notice u/s148 (deemed to be notice u/s148-A), issued between 01.04.2021 and 30.06.2021, cannot be conducted by giving benefit of relaxation/extension under TOLA 2020 upto 30.03.2021, and the time limit prescribed in Section 149 (1)(b) (as substituted w.e.f. 01.04.2021) cannot be counted by giving such relaxation from 30.03.2020 onwards to the revenue. Also proceedings where the first proviso to Section 149(1)(b) is attracted, benefit of TOLA' 2020 will not be available to the revenue. HELD THAT:- Issue notice returnable on 10.07.2023. In the meantime, the impugned judgment and order passed by the High Court is ordered to be stayed.
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2023 (5) TMI 1092
Revision u/s 263 - As per CIT AO without making enquiry allowed the expenses which are not allowable in nature as a business expenditure - HELD THAT:- No evidence or material coming from assessee to substantiate that the AO has made any enquiry with respect to the twin-expenses noted by PCIT. No query having been raised by AO with respect to impugned twin-expenses claimed by assessee. AR is not able to demonstrate as to how the AO has enquired or verified the impugned claim of expenses made by assessee. No hesitation in observing that the present case perfectly fits in Explanation 2 to section 263, as re-produced earlier, according to which an order passed by the AO is deemed to be erroneous if (a) the order is passed without making inquiries or verification which should have been made; or (b) the order is passed allowing any relief without inquiring into the claim. Being so, we uphold the impugned revision-order Decided against assessee.
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2023 (5) TMI 1091
Trading addition in Baddi unit - assessee maintained complete books of accounts as as rejected by the Ld. AO u/s 145(3) - HELD THAT:- Tribunal in its order for AY 2003-04 held that the assessee had maintained complete books which were produced before the statutory auditors as well as the Ld. AO. Therefore, the books of account could not have been rejected u/S145(3). no decline in GP rate as compared to the immediately preceding year. No justifiable reason has been brought on record to apply NP ratio on declared sales in Baddi unit. The impugned addition has rightly been deleted by the Ld. CIT(A). We, therefore, reject this ground of the Revenue. Disallowance of expenses debited to P L account - expenses are not verifiable for want of bills, vouchers etc. - HELD THAT:- The assessee has stated that month wise details of expenses wer....... + More
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2023 (5) TMI 1114
Reopening of assessment - order u/s 148A(d) - Appeal against appealable order - HELD THAT:- In view of the admitted position that final assessment order under Section 147 has already passed which is not the subject mater of challenge in this writ petition and further that the order under Section 147 of the Act is an appealable order, we are not inclined to entertain this writ petition and accordingly this writ petition is dismissed. However, dismissal of this writ petition will have no impact if the appeal is filed by the petitioner against the aforesaid order under Section 147 of the Act, if so aggrieved. If the appeal is filed by the petitioner against the aforesaid order under Section 147 of the Act within 30 days from date, the same shall be considered on merits and the Appellate Authority concerned shall not raise the point of limitation.
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2023 (5) TMI 1113
On-money transaction - seized documents carry receipt of on-money in relation to the previous assessment years - ITAT deleted addition - HELD THAT:- Appellate authority as well as the Tribunal concurrently found that there was total dearth of evidence to come to conclusion that there was on-money transaction and that on such count it would not entitle the assessing officer to make addition in the income. The material in the nature of loose papers were not reliable, it was observed. More particularly, it was not related to the Assessment Year 2015-2016 and nothing was there to show that the on-money was received in respect of sale of units/flats recognised to be the sale of assessment year concerned. The findings of the appellate authority and Tribunal are based on ground of absence of evidence. The decision is based on appreciation of evidence. No substantial question of law.
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2023 (5) TMI 1119
Exemption/ deduction u/s 54 - Purchase of land with superstructure - After demolishing the existing superstructure, the appellant assessee constructed a residential house - as per HC [ 2018 (8) TMI 864 - MADRAS HIGH COURT] it is not a requisite of Section 54 that construction could not have commenced prior to the date of transfer of the asset resulting in capital gain. If the amount of capital gain is greater than the cost of the new house, the difference between the amount of capital gain and the cost of the new asset is to be charged u/s 45 as the income of the previous year - HELD THAT:- As stated that the tax amount involved in the present case is less than Rs. 2 crores and in view of the Circular No. 17 of 2019 dated 08.08.2019, the present petition need not be decided due to low tax effect. We dispose of the present Special Leave Petition, leaving the question of law open. Pending application(s), if any, shall stand disposed of.
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Customs
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2023 (5) TMI 1089
Refund of Special Additional Duty (SAD) - rejection on the ground that the claims should have been filed within one year from the payment of duty, but here the claims were filed after one year - N/N. 102/2007-Cus. dated 14.09.2007 - Applicability of time limit as specified in Section 27 of the Customs Act 1962 - HELD THAT:- It is seen that in the absence of section 27 of the Customs Act being made applicable to notification No.102/2007-Customs dated 14.9.2007, the said provisions would not automatically apply to a claim of refund under the notification. On the same lines a clarification has also been given for the payment of interest in the circular. This being so in the absence of section 27 being made applicable in the said notification, the time limit prescribed in the section would not be automatically applicable to refunds under t....... + More
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2023 (5) TMI 1088
100% EOU - Joint filing of import documents by the EOU / EPZ unit and the domestic leasing company - Warehousing of goods imported for use in the units, from payment of Customs duties - duty exemption under Notification No. 52/2003-Cus dated 31.3.2003 - extended period of limitation - HELD THAT:- The Circular No. 88/95-Cus dated 1.8.1995 makes it clear that the Exim policy seeks to facilitate EOU s who would like to source capital goods from leasing companies. Since imports by a leasing company for supply to EOU s do not qualify for the exemption, a facility has been provided by the Exim policy for the domestic leasing company to jointly file the import documents along with the EOU to enable the import of the capital goods free of duty. Consequently, the bond for fulfilment of the conditions of the exemption notification has also to be....... + More
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2023 (5) TMI 1072
Provisional release of the gold seized from the factory/warehouse - unaccompanied baggage - main contention of the respondent-Review Petitioner is that the quantity of 25299.68 grams gold jewellery was imported as baggage and that the requirement of filing of a B/E, which emanates from Section 46(1) of the Customs Act, in Chapter VII thereof, does not apply to baggage, in view of Section 44 - HELD THAT:- There were positive findings of fact, by the learned Tribunal, that the imported jewellery had been appraised and found to be the same as the jewellery which had earlier been exported - in exercise of the jurisdiction vested in us by Section 130 of the Customs Act, we could not revisit these findings, absent perversity, which we did not find to exist. Save and except for the consignment of 25299.68 grams forming subject matter of the p....... + More
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2023 (5) TMI 1090
Levy of penalty under Section 112(a) of the Customs Act, 1962 - Import confectionary items - Evasion of customs duty by under-invoicing the goods and mis-declaring the transaction value and the retail sales price - clearance of goods on the basis of false invoices reflecting values, which were lower than the real consideration paid by the importer for the said goods - HELD THAT:- The contention that no penalty can be levied against the appellant since other co-noticees have settled the liability before the Settlement Commission is insubstantial. The show cause notices were issued to several persons. The fact that other co-noticees had approached the Settlement Commission and had settled their liability cannot absolve the appellant of its liability under the Customs Act. The appellant had full opportunity to approach the Settlement Comm....... + More
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2023 (5) TMI 1087
Smuggling - two gold pieces of rectangular bar and one irregular shaped piece of gold of foreign origin along with the Indian currency - cogent reason of any reasonable belief with the DRI Officers to opine the recovered gold to be a foreign origin or not - burden to prove - invocation of Section 123 of the Customs Act, 1962 - Absolute Confiscation - penalty. Whether Section 123 of the Customs Act, 1962 is invocable in the given set of circumstances? - HELD THAT:- The burden of proof shifts under Section 123, when (a) there must be goods to which the section applies; (b) the goods must have been seized; and (c) the seizure must be under a reasonable belief that they are smuggled goods - in the present case, at the time of interception and preparing of Panchanama about recovery of gold from the appellant, in his statement, as was r....... + More
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2023 (5) TMI 1086
Levy of penalty u/s 112(a) of Customs Act, 1962, and u/s 114AA of Customs Act, 1962 - mis-declaration of imported goods - allegation that import export code (EC) had been procured illicitly - HELD THAT:- It is on record that bill of entry had not been filed under section 46 of Customs Act, 1962 for imported of the said goods. Accordingly, scope for invoking of section 111(m) of Customs Act, 1962 for confiscation of goods arising from misdeclaration and, in the absence of documents available on record, the ingredients for invoking of section 114AA of Customs Act, 1962 did not exist. All documents available till then are limited to those mandated by section 30 of Customs Act, 1962 upon carrier of goods. Penalties are not imposable on the presumption that goods are likely to be misdeclared or to be attempted to be cleared against false de....... + More
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Corporate Laws
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2023 (5) TMI 1085
Seeking secured creditor of Malhotra Steel (Bombay) Ltd., (in liquidation) to deposit towards workers dues - at what point the workmen become entitled to distribution of sale proceeds? - HELD THAT:- Recourse to Sections 529 and 529A of the Act, 1956 becomes imperative. A conjoint reading of the provisions contained in Section 529 and 529A, would indicate that a secured creditor has the option to realise his security or relinquish his security. If the secured creditor exercises the option to realise his security, he is entitled to do so in a proceedings other than the winding up proceedings. The workmen of the company in winding up also acquire the status of secured creditors. Where a company is in liquidation, a statutory charge is created in favour of workmen in respect of dues over the security of every secured creditor and this char....... + More
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Insolvency & Bankruptcy
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2023 (5) TMI 1084
Seeking permission for appointment of Board of Directors of the Corporate Debtor - HELD THAT:- The Application is not opposed by the SRA and it is stated that the appointment of Board of Directors to the Corporate Debtor is the step, which is essential for taking various regulatory actions as part of general corporate compliances under law - the prayer is allowed. Seeking for exclusion of time prayed for in the Application from 16.11.2022 till the Company Appeal (AT) (Insolvency) Nos. 129 130 of 2023 is decided - HELD THAT:- SRA is entitled for exclusion of period from 16.11.2022 till 03.03.2023, when this Tribunal in the present Appeal passed an order declining the interim relief as prayed by the MC Lenders. IA Nos.2028-2029 is thus allowed, excluding the period from 16.11.2022 till 03.03.2023. As undertaken by the SRA, the IA ....... + More
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2023 (5) TMI 1083
Territorial Jurisdiction for consideration of section 7 application - territorial jurisdiction of the NCLT, Mumbai to consider the application - can lender can take proceedings relating to a dispute in any other courts, apart from courts in England, with jurisdiction to the extent allowed by law and the lender bank is also allowed to take concurrent proceedings in any number of jurisdictions? - HELD THAT:- A plain reading of the provision relating to jurisdiction makes it abundantly clear that clause 35.1 in the Loan Facility Agreement dated 17.11.2011 is for the benefit of the lender Punjab National Bank (International) Limited, and wherein clause 35.1(c) stipulates that the lender shall not be prevented from taking proceedings relating to a dispute in any other Courts than the courts of England and also that the lender is empowered t....... + More
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2023 (5) TMI 1082
Implementation of the approved Resolution Plan - exclusion of three years and nine months (after resolution plan approved) - no interim order passed by the Hon ble Supreme Court staying the implementation of the Plan - HELD THAT:- Even before approval of the Resolution Plan by the CoC, the issue of ineligibility of Resolution Applicant was raised and against the order of the Adjudicating Authority, declaring the Resolution Applicant eligible, Appeals were filed by Punjab National Bank and RBL Bank, which Appeals were withdrawn on 23.03.2018 by an order of the Appellate Tribunal. Thereafter, Plan was approved on 18.04.2018. After approval of the Plan by the Adjudicating Authority, again a set of litigation was initiated by the Lenders, including the SBI. Four Appeals were filed challenging the Plan approval order. In the Appeal, which w....... + More
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Service Tax
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2023 (5) TMI 1081
CENVAT Credit - providing taxable as well as exempted services - non-maintenance of separate records - contravention of Rule 6 (3) of Cenvat Credit Rules, 2004 - availment of credit of input services utilized in the execution of works contract service. HELD THAT:- The appellant has filed/submitted ST-3 returns for the period April to September 2009, in which they have certainly shown the amount received towards exempted services other than export in respect of Industrial or Commercial Construction Service and nil in respect of Residential Construction Service and Works Contract Service. However, on going through the ST-3 returns for the period 2009-2010, we do not find any such declaration on the part of the appellant. The appellant claimed that they have not availed Cenvat credit, either on inputs or on input services, in respect o....... + More
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2023 (5) TMI 1080
Recovery of Service tax with interest and penalty - levy of service tax on the amount deducted by the appellant from the vendors towards liquidated damages as they failed to supply the goods/execute the work within the stipulated time - HELD THAT:- For the period prior to 01.07.2012 collection of amount towards liquidated damages was not included in any of the specified taxable services under any of the clauses of sub-section (105) of section 65 of the Finance Act, 1994. Thus, no service tax could have been levied on the amount of liquidated damages so collected. In M/S SOUTH EASTERN COALFIELDS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, RAIPUR [ 2020 (12) TMI 912 - CESTAT NEW DELHI] , the Tribunal held that liquidated damages recovered on account of breach or non-performance of contract are not consideration in view....... + More
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Central Excise
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2023 (5) TMI 1079
CENVAT Credit - Distribution of CENVAT Credit - input services attributable to the final product on a pro-rata basis proportionate to the turnover of each unit between the manufacturing plants of Parle Biscuits and its contract manufacturing units, including the appellant - rule 7(d) of the CENVAT Rules - HELD THT:- A Division Bench of the Tribunal while hearing Excise Appeal No. 52692 of 2019, Excise Appeal No. 52693 of 2019 and Excise Appeal No. 52694 of 2019 expressed reservations about the proposition of law laid down by the Division Bench in SUNBELL ALLOYS CO OF INDIA LTD MACHSONS PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE CUSTOMS [ 2014 (2) TMI 297 - CESTAT MUMBAI] and also noticed that a Division Bench of the Tribunal in COLGATE PALMOLIVE (INDIA) LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE [ 2011 (2) TMI 57 - CESTAT MUMBA....... + More
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2023 (5) TMI 1078
Default in paying Central Excise duty on monthly basis as per Rule 8 of Central Excise Rules, 2002 - contravention of Rule 8 (3A) of CER - HELD THAT:- The Rule 8(3A) in terms of which revenue has asked for recovery of the amounts paid by the appellant from their cenvat credit account have been quashed by the Hon ble High Court of Gujarat in case of INDSUR GLOBAL LTD. VERSUS UNION OF INDIA 2 [ 2014 (12) TMI 585 - GUJARAT HIGH COURT] observing that the condition contained in sub-rule (3A) of Rule 8 for payment of duty without utilizing the Cenvat credit till an assessee pays the outstanding amount including interest is declared unconstitutional. Therefore, the portion without utilizing the Cenvat credit of sub-rule (3A) of Rule 8 of the Central Excise Rules, 2002, shall be rendered invalid. Thus, there are no merits in the appeal filed by the revenue - appeal dismissed.
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2023 (5) TMI 1077
Refund claim - nexus of specific inputs with its different rates to the manufacture of export goods cleared under various A.R.E. 1 (not established) - non-maintenance of records in a proper manner facilitating the possible co-relation of specific inputs to specific Outputs, as required under Rule 5 of Cenvat Credit Rules, 2002 - no sufficient corroborative evidence was available on records to link the input - HELD THAT:- Tribunal while remanding the matter to original authority has held that the appellant is entitled to the refund of the accumulated credit which shall be quantified by the authority below, after looking into their records for which purposes we remand the matter to the original adjudicating authority. In the remand proceedings appellant submitted all the documents required for verification and quantification. All th....... + More
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2023 (5) TMI 1076
CENVAT/MODVAT Credit - waste and scrap of various items cleared - remanding duty on clearance of various types of waste and scrap under Rule 3 (5A) of Cenvat Credit Rules, 2004 - HELD THAT:- The issue is no longer res integra. In the Appellant s own case COMMISSIONER OF C. EX. S.T. (LTU) , MUMBAI VERSUS AMBUJA CEMENT LTD. [ 2015 (10) TMI 1781 - CESTAT MUMBAI ] the issue has been settled and it was held that the issue is covered by the decision of the Hon'ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS WEST COAST INDUSTRIAL GASES LTD. [ 2003 (4) TMI 110 - SUPREME COURT ] read with Board's Circular No. 721/37/2003- CX., dated 6-6-2003. Following the said decision of the Hon'ble Supreme Court and the circular, I dismiss the appeal of the Revenue. In case of PANASONIC CARBON INDIA CO. LTD. ....... + More
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2023 (5) TMI 1075
Use of Brand name of others - Simultaneous availment of SSI exemption benefit under Notification No. 8/2003-CE dated 01.03.2003 and CENVAT Credit - branded goods manufactured by the Assessee and cleared as well as goods processed by it as job worker and cleared under brand name of others, against which duty had been paid and CENVAT Credits had been availed. HELD THAT:- The law is not static and it changes with the changing need of time and the judgment of the Hon'ble Supreme Court, in view of operation of Article 141 of the Constitution of India, is the law of land. In the said COMMISSIONER OF CENTRAL EXCISE, CHENNAI VERSUS M/S. NEBULAE HEALTH CARE LTD. [ 2015 (11) TMI 95 - SUPREME COURT] , while distinguishing other judgments including COMMISSIONER OF C. EX., AHMEDABAD VERSUS RAMESH FOOD PRODUCTS [ 2004 (11) TMI 103 - SUPRE....... + More
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CST, VAT & Sales Tax
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2023 (5) TMI 1074
Delayed Service of SCN - whether the impugned order dated 03.02.2020 (Annexure P-4), which was served upon the petitioner on 29.12.2021 i.e. after 22 months, would render the revisional order without jurisdiction? HELD THAT:- This aspect has already been considered by Hon ble the Supreme Court in STATE OF ANDHRA PRADESH VERSUS KHETMAL PAREKH M. RAMAKISHTAIAH AND CO. [ 1994 (2) TMI 260 - SUPREME COURT] . In that case, the Andhra Pradesh High Court had allowed the revision filed by the assessee on the ground that the Deputy Commissioner had passed the said order on 06.01.1973, but it was served on the assessee only on 21.11.1973. The High Court had accepted the submission of the assessee that the order, which was served beyond the period of limitation, could not have been passed before expiry of limitation on 06.01.1973. The ord....... + More
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Indian Laws
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2023 (5) TMI 1073
Rejection of Technical Bids of petitioner - rejection on the ground that the Unique Document Identification Number (UDIN) is not generated in the balance-sheet - HELD THAT:- The bidders were required to submit the audited balance-sheet and profit and loss account statement, apart from the Chartered Accountant s certificate to establish the minimum turnover required of Rs.5.00 Crores on an average for the post three years. The Technical Evaluation Committee which evaluates the bids of all the bidders undertakes the said exercise by sitting in its office. The Technical Evaluation Committee, therefore, is entitled to require the bidders to submit duly authenticated documents, which could be relied upon and verified, if necessary, from its own office. The Technical Evaluation Committee is not expected to run around and gather informatio....... + More
