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GST
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2023 (6) TMI 232
Seeking defreezing of Bank Account of petitioner - more than one year has already elapsed since the date of the letter (order of attachment) and therefore, in terms of Section 83(2) of the CGST Act, the said order has ceased to operate - HELD THAT:- The present petition is disposed of by declaring that the order pursuant to which the communication dated 10.03.2021 was issued, is no longer operative by virtue of Section 83(2) of the CGST Act. The concerned bank will not interdict the operation of the bank account of the petitioner on the basis of the communication dated 10.03.2021 - It is clarified that this order will not affect any other order(s) that may have been passed, which have not been placed on record. However, if there are any such orders, the same would be immediately communicated to the petitioner. Petition disposed off.
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2023 (6) TMI 231
Correction of mistakes in (FORM GSTR-3B) returns - erroneous typing of liability for tax under the Central Goods and Services Tax Act, 2017 as ₹32,33,36,855/- instead of ₹3,23,36,855/- - HELD THAT:- The petitioner clarified the reasons for the mismatch by a communication dated 18.01.2023. Thereafter respondents scheduled a personal hearing on 20.04.2023 and the petitioner was afforded a personal hearing on that date. The petitioner also filed an additional submission dated 27.04.2023 explaining the reasons for reversing the excess amount of ITC - Notwithstanding the explanation provided by the petitioner, respondent no. 1 issued a show cause notice dated 12.05.2023 raising an aggregate demand of ₹55,39,99,352/- as mentioned in the intimation dated 19.12.2022. Surely, if there is an inadvertent or typographical erro....... + More
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2023 (6) TMI 230
Maintainability of petition - availability of alternative remedy of appeal - requirement of compliance with the pre-deposit - time limitation - HELD THAT:- The petitioner had filed the writ petition under Article 226 of the Constitution of India, in M/s Classic Decorators v. Assistant Commissioner, CGST Division Ors. [ 2023 (2) TMI 235 - DELHI HIGH COURT] , impugning the order in original passed by the Adjudicating Authority. The said petition was disposed of on 31.01.2023 on the ground that the petitioner has an equally efficacious alternate remedy. This Court had also observed that, prima facie, the petitioner s contention that the order-in-original is barred by limitation is merited. The amount of pre-deposit required is 7.5% of the total demand, which is not a large sum. There is no averment that the requirement of pre-deposit....... + More
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2023 (6) TMI 229
Seeking release of the goods seized by the police on Supardari - concealment of goods in the vehicles which were without any bill - evasion of payment of tax in connivance with officials of Excise and Taxation Department - HELD THAT:- A perusal of the impugned order would show that the trial Court has accepted the application on the premises that the applicant claims himself to be the owner of the goods which in fact is an incorrect observation inasmuch as there is no specific averment as regards ownership of goods in the application made by the respondent for release of the articles on supardari. In any case, it goes without saying that the articles some of which would be of semi-perishable nature ought to be released on supardari lest the value of the same may be drastically diminished. Since, no person has come forward to stake ....... + More
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2023 (6) TMI 228
Levy of GST - duty free shops at various airports - Petitioner submitted that, they state that they are a subsidiary of a Malaysian company which has a long experience in running such shops throughout the world. The petitioner had taken on lease the premises within the precincts of the fourth respondent under an agreement dated 05.04.2017. - HELD THAT:- It is brought to the notice of this Court that the issue has been set at rest and is no longer res integra, in the light of the judgment of the Hon'ble Supreme Court in COMMISSIONER OF CGST AND CENTRAL EXCISE MUMBAI EAST VERSUS FLEMINGO TRAVEL RETAIL LTD [ 2023 (4) TMI 613 - SUPREME COURT] , wherein the Hon'ble Supreme Court has held that Duty Free Shops, whether in the arrival or departure terminals, being outside the customs frontiers of India, cannot be saddled with ....... + More
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Income Tax
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2023 (6) TMI 224
Addition on account of low GP rate - GP rate in year under consideration[ 2015 - 16] was 0.41% as compared to GP rate of 8.59% in A. Y. 2014 - 15 - sole ground/allegation taken by AO for enhancing GP rate from 0.41% to 1% of turnover is that there was significant rise in the turnover of jewellery segment but the GP rate was reduced abnormally - HELD THAT:- It is a well accepted principle tax jurisprudence that the Assessing Officer cannot sit on the arm chair of a businessman assessee to replace his business strategy by his own whims and fancies. When the assessee took decision to reduce GP rate with an intention to fetch high turnover resulting into increase in the total net profit and under this strategy the assessee under took turnover of 34 times in comparison to the immediately preceding year taking sky high increase in the turnov....... + More
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2023 (6) TMI 223
Validity of re-assessment - as argued notice u/s 143(2) was not issued by the AO - whether curable u/s 292BB? - HELD THAT:- From the contents of the Assessment Order, it appears that the show cause notice was represented and the assessee s case was validly assessed though mentioning of the Section 143(2) was not there on record. Yet, opportunity of representing the assessee was given during the assessment proceedings. Prima facie, from the assessment order, it appears that notice u/s 143(2) of the Act was issued to the assessee and the observations of the CIT(A) needs no interference. Hence, ground no.1 is dismissed. Cash seized during the course of search - onus to prove - HELD THAT:- AO has not doubted the books of accounts which was produced before the AO on 18.12.2013 during the course of assessment proceedings. On the contrar....... + More
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2023 (6) TMI 222
Delay in filing the Misc. Applications by 887 days - HELD THAT:- Though the Hon ble Supreme Court has extended the period of limitation till 28.02.2022, the Ld. DR could not explain the delay from 14.09.2019 till 15.03.2020 (date from which Covid-19 restrictions were imposed) and from 28.02.2022 till the filing of present Misc. Applications which is 05.08.2022. Despite the extension granted by the Hon ble Supreme Court, the Revenue has filed the Misc. Application after five months from the period of extension granted and also six months after the original order dated 14.09.2019 was passed. Therefore, the delay in present Misc. Applications cannot be condoned.
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2023 (6) TMI 221
Disallowance of prior period expenses - CIT-A allowed claim - HELD THAT:- We find that the ld. AO had not doubted the genuineness of prior period expenditure and prior period income while making the disallowance on net basis. There is no change in tax rates in the year under consideration and earlier year. Further, we find that the assessee has been incurring continuously huge losses. Hence it would not make any difference with regard to allowability of expenditure in one year or the other. See National Cooperative Consumers Federation of India Ltd case [ 2012 (9) TMI 433 - ITAT, DELHI] - No infirmity in the order of the ld. CIT(A) granting relief to the assessee. Decided against revenue. Disallowance on account of extraordinary items written off - expenditure incurred on abandoned project - CIT(A) granted relief to the assesse....... + More
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2023 (6) TMI 220
Validity of the notice issued u/s. 143(2) - statutory time limit to issue notice - notice after expiry of six months from the end of the financial year - HELD THAT:- As per the proviso to section 143(2), no notice shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished. In the present case, the assessee has filed his return of income for the AY 2019-20 (FY-2018-19) on 18/08/2019 and the notice U/s. 143(2) ought to have been served on or before 30/09/2020. Whereas the AO has issued notice u/s. 143(2) on 12/10/2020 after expiry of six months from the end of the financial year (FY 2019-20) in which the return is furnished. It therefore, in our considered view, attracts the proviso to section 143(2) in which case the assessment made based on such notice becomes void....... + More
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2023 (6) TMI 219
Revision u/s 263 - long term capital gains returned by the assessee with a direction to AO to re-do the same by referring to the valuation of the property to DVO and also to reclassify the income as business income instead of long term capital gains as returned by the assessee and after giving an opportunity of hearing to the assessee - HELD THAT:- In the instant case, the assessee has not disputed the value of the estate as per the Stamp Valuation Authority but has preferred to adopt sale consideration actually received at Rs. 6,34,23,000/- as against the value of the Stamp Valuation Authority for the purpose of computing Capital gains. It is also admitted that the AO has not looked into these aspects while framing the assessment u/s. 143(3) r.w.s 144C(3) of the Act. Since the Ld. AO has failed to cause any enquiry on the above i....... + More
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2023 (6) TMI 218
Disallowing 50% of depreciation on vehicle - vehicle was registered in the second half of the relevant previous year - HELD THAT:- We find force in the argument of AR that since the assessee had paid for the entire purchase cost and had vehicle in its possession before 30.09.2014 and simply because the registration was done on 22.11.2014, the assessee cannot be denied the benefit of depreciation for the full year. We find support in the decision of National Thermal Power Corporation Ltd. [ 2012 (10) TMI 720 - DELHI HIGH COURT ] wherein as held that used or the purposes of the business would include the asset which is kept ready for use but actually not put to use. Before us, Revenue has not pointed to any contrary binding decision in its support. In such a situation, we hold that assessee is entitled for deprecation for entire year. Direct the AO to allow the claim of depreciation for the entire year. Thus the ground of assessee is allowed.
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2023 (6) TMI 217
Penalty u/s. 271(1)(c) - cash payment in excess of Rs. 20,000 u/s 40A - payment in cash was made for hospital bills as the hospitals did not accept payment through cheques - HELD THAT:- AO was not correct and justified in holding that the assessee has not furnished accurate particulars of income and hence, concealed particulars of income and liable to be imposition of penalty u/s. 271(1)(c) of the Act on account of furnishing of inaccurate particular of income particularly in a peculiar situation in the present case that the assessee has disclosed and recorded entire amount of claim incurred on medical emergencies under commercial expediency in the books of accounts of assessee. As decided in Reliance Petroproducts (P) Ltd [ 2010 (3) TMI 80 - SUPREME COURT] merely because the claim of assessee was not accepted for not found to be a....... + More
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2023 (6) TMI 216
Addition u/s 14A r.w.r. 8D - HELD THAT:- No hesitation in confirming the order passed by the Ld. CIT(A) who deleted the addition of interest expenditure u/s 8D(2)(ii). Administrative expenses under Rule 8D (2)(iii) - Disallowance made under Rule 8D(2)(iii) at 0.5% of the average value of investments made by the assessee, which earned only exempt income is liable to be disallowed u/s. 14A after excluding the investments which earned taxable income. Thus the disallowance to be made under Rule 8D(2)(iii) works out to Rs. 7,53,382/- only, however the assessee already disallowed a sum of Rs. 28,78,876/-, therefore no further disallowance is to be made on this account. Disallowance u/s. 14A read with Rule 8D while computing book profit under section 115JB - HELD THAT:- Recently, the Supreme Court of India in the case of Atria Power....... + More
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2023 (6) TMI 215
Bogus purchases - reason for treating the purchases as non-genuine is the assessee has not produced PAN number, no address proof, no counter-signed ledger account - HELD THAT:- The assessee in fact filed copy of TIN of the supplier to prove the identity and existence of business concern. Therefore, in our view simply because the assessee has not filed PAN, copy of ITR, these purchases cannot be treated as non-genuine. In the case of Shri Kalyan Singh the only ground on which the addition was sustained by the ld. CIT (Appeals) was that the assessee has not deducted the TDS, even though the assessee has furnished copy of ledger account in the books of the assessee company, copy of vouchers and bank statements, copy of ledger for the financial year 2010-11, copy of vouchers and ledger details in respect of the work done by the vendors........ + More
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2023 (6) TMI 214
Disallowance u/s 14A r.w. Rule 8D - whether assessee has not earned any exempt income? - HELD THAT:- AO has clearly stated that the assessee has not earned from equity investments which would yield exempt dividend income and the dividend income earned by the assessee is NIL. Thus, it is clear that the assessee has not earned any exempt income in the relevant assessment year under appeal against the investments. As relying on M/S CHETTINAD LOGISTICS PVT. LTD. [ 2018 (7) TMI 567 - SC ORDER] held that when there was no dividend income earned in the relevant assessment year, the disallowance made by the Assessing Officer in view of the provisions of section 14A r.w.r. 8D was completely contrary to the provisions of that section as Rule 8D only provides for a method to determine the amount of expenditure incurred in relation to income, which does not form part of total income of the assessee. Also confirmed by SC [ 2018 (7) TMI 567 - SC ORDER] - Decided against revenue.
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2023 (6) TMI 213
Disallowance of provision for warranty created in excess of 2.14% of the sales - HELD THAT:- As relying on assessee own case [ 2023 (4) TMI 1053 - KARNATAKA HIGH COURT] we direct the AO to grant deduction of provision for warranty as claimed in the return of income. It is ordered accordingly.
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2023 (6) TMI 212
Disallowance of reversal of amount received as bank guarantees and interest for earlier years - HELD THAT:- There is no dispute to the fact that the assessee is carrying on Government of India mission working on behalf of the Government of India. The contracts have been executed under the policy in directions of Government of India. The assessee being custodian of the Government money such money into the hands of assessee cannot be termed as income at any stage. CIT(A) was not in error in giving the finding that appellant is merely custodian of the money received from encashment of bank guarantee and that the assessee has rightly treated the amount receive on encashment of bank guarantee during financial year as a liability along with the interest is liability. However, he failed to appreciate that the directions of the ministry bei....... + More
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2023 (6) TMI 211
Correct head of income - lease rental income received from letting out of school building along with infrastructure and other amenities - income from other source or income from house property - HELD THAT:- The issue involved in this appeal is, the assessee declared the income earned from letting of school building with amenities under the Head income from House Properties from A.Y. 2009-10. This issue was decided by the Ld.CIT(A) and ITAT in favour of the assessee till A.Y.2012-13. We decidethe issue of taxability of income under the Head Income from House property .
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2023 (6) TMI 210
TP adjustment - quantum of adjustments made in respect of corporate guarantee - HELD THAT:- Respectfully following the decision of the Tribunal in assessees s own case [ 2021 (3) TMI 1162 - ITAT PUNE ] we set-aside the order of the lower authorities and direct the AO/TPO for computing the ALP transactions of corporate guarantee by adopting 0.5% of the corporate guarantee as guarantee fees plus actual expenditure incurred in furnishing such guarantee. Considering Performance Guarantee and Corporate Guarantee separately - HELD THAT:- This issue is covered by the decision of this Tribunal in assessee s own case for assessment year 2015-16 [ 2023 (2) TMI 568 - ITAT PUNE ] as well as earlier years also, wherein, this Tribunal following the earlier order of this Tribunal in assessee s own case for the assessment years 2013-14 [ 2021 (11....... + More
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2023 (6) TMI 209
Revision u/s 263 - as per CIT large share premium received against allotment of shares have not been enquired into on the touchstone of Section 56(2)(viib) by AO - HELD THAT:- The chargeability of deemed income arising from transactions between holding and subsidiary or vice versa militates against the solemn object of Section 56(2)(viib) - the extent of inquiry on the purported credibility of premium charged does not really matter as no prejudice can possibly result from the outcome of such inquiry. Thus, the condition for applicability of Section 263 for inquiry into the transactions between to interwoven holding and subsidiary company is of no consequence. We also affirmatively note the decision of SMC Bench in the case of KBC India Pvt. Ltd. ..[ 2022 (11) TMI 1362 - ITAT DELHI] where it was observed that Section 56(2)(viib) cou....... + More
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2023 (6) TMI 208
Short deduction of TDS - TDS at 10% u/s 194I or at 2% u/s 194C - Common Area Maintenance charges (CAM) paid - HELD THAT:- CAM charges paid by the assessee or not for land used or area allotted simplicitor. These are the charges for various common services provided to various lessees. As relying on CONNAUGHT PLAZA RESTAURANTS P. LTD. case [ 2022 (1) TMI 409 - ITAT DELHI] and M/S AERO CLUB [ 2023 (3) TMI 101 - ITAT DELHI] CAM charges paid by the assessee are liable for TDS only at 2% u/s 194C of the Act and not at 10% u/s 194I of the Act. Grounds raised by the assessee on this issue are allowed.
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2023 (6) TMI 207
Validity of Reopening of assessment - reason to belief - Bogus share transactions - independent application of mind by AO v/s borrowed satisfaction - certain information from Investigation Cell where statement of President Anand Rathi Commodities recorded there were client code modifications of transactions in which there was no physical delivery of the goods on NSEL platform and that the said scam was investigated by DDIT(Inv) - HELD THAT:- The basis of the belief should be discernible from the material on record, which was available with the Assessing Officer, when he recorded reason and there should be a link or close nexus between material obtained and formation of belief. From the perusal of the reasons recorded by the Assessing Officer, it is noticed that the Assessing Officer though, has given a detailed description of inform....... + More
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2023 (6) TMI 227
Method of apportionment of common expenditure - AO s computation of income from agricultural activity and income from trading activity was modified - Tribunal justification in holding that common expenditure for own production and sale of seeds and trading in other seeds can be apportioned between both on the basis of Cost of Goods Sold (CoGS) as against the turnover of each for arriving at profits - HELD THAT:- According to the Tribunal, view taken by CIT(A) was a reasonable one and cannot be termed as perverse. More so, in view of the seasonal nature of the business carried out by the assessee and the short shelf life of the seeds, Tribunal has held that it is imperative for the assessee to take into account the quantity of unsold seeds at the end of the year and the need to re-validate their further utility and to take them into sto....... + More
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2023 (6) TMI 206
TP adjustment - IT and Management Support Charges - HELD THAT:- Tribunal in assessee s own case for AY 2014-15 [ 2022 (3) TMI 1528 - ITAT BANGALORE] had restored an identical issue to the TPO to determine the ALP of the IT and Management support charges. Payment of IT support services and management support services are pertaining to the agreement and is binding for AY 2014-15 and also for the relevant assessment year. Restore this issue to the file of the TPO so that consistency can be maintained. TPO is directed to examine the issue afresh by taking into account the evidences filed by the assessee in support of its contention that it was in receipt of services from it AEs for making the above said IT and management support services payments. Ground allowed for statistical purposes.
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2023 (6) TMI 226
Assessment u/s 153A - Assessee claimed that the AO had not given copies of the seized materials extracted from the hard disk and the pen drive - violation of the principles of natural justice - ITAT has noted in the impugned order that the AO has simply reproduced the appraisal report and has not undertaken any analysis of the seized materials. Even the hard disk with the working copy was not seen by the AO. The seized material had neither been opened nor examined. The expert report also failed to point out that the software was hardware specific . HELD THAT:- In the impugned order the ITAT has concluded that the CIT(A) was right in holding that the additions made in the all three AYs was in total violation of the principles of natural justice and that the additions have been made clearly on estimate basis. With there bein....... + More
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2023 (6) TMI 205
Penalty u/s 271(1)(c) - TP adjustment for US and non US transactions - HELD THAT:- As rightly observed by Commissioner (Appeals), the entire TP adjustment was due to change in filter and comparables by the TPO. There cannot be any doubt that application of filters and selection of comparables are highly debatable issues. Therefore, in respect of additions made on such issues, the assessee cannot be accused of furnishing inaccurate particulars of income or concealing income. Therefore,Commissioner (Appeals) was justified in deleting the penalty imposed in respect of addition made on account of TP adjustment. Disallowance of provision of doubtful debts - On perusing the computation of income filed by the assessee along with return of income, prima facie, we are convinced that the assessee has itself disallowed the amount in dispu....... + More
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2023 (6) TMI 225
Stay petition - garnishee proceeding - two appeals have been preferred by the petitioner, one against the intimation u/s 143(1) and the second one against the order passed u/s 154 - petitioner has not paid the outstanding dues as per the intimation as rectified - HELD THAT:- From Stay petition, we find that the same has been filed u/s 220(6) of the Act, as per which provision such a petition is required to be filed before the assessing officer. An appellate authority which is competent to hear an appeal has also the power to grant interim relief relatable to the appeal. Power to grant stay is incidental and ancillary to the power to entertain an appeal. Notwithstanding wrong mentioning of the provision, we are of the view that since an application has been filed by the petitioner before the 4th respondent appellate authority, th....... + More
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2023 (6) TMI 204
Business expenditure u/s 37(1) - effect of treatment of expenditure by the assessee in its books of accounts - HELD THAT:- AO has nowhere denied that expenditure in question has been incurred for the purpose of the business. He has also not denied that those expenses are routine in nature and same would generally be classified as revenue Expenditure as per the provisions of the Act. The business of the assessee has already been set up and assessee has commenced providing digital services to its customers. The revenue from the same as also been recognised in books of accounts and offered for the tax. In such circumstances, the expenses which are incurred for running the business are revenue expenditure for the purpose of income tax irrespective of the treatment of the same by the assessee in its books of accounts. DR could not subst....... + More
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2023 (6) TMI 203
Disallowance towards Debenture Redemption Premium paid to HDFC AMC and included in Work-in-Progress of Aurora Project - Whether the premium on redemption of debentures, which is akin to payment of interest is eligible for capitalization in work-in-progress? - HELD THAT:- It is not disputed by the Revenue that the loan from Central Bank of India and other group concerns were taken specifically for Aurora Project . The fresh loan taken for repayment of the earlier loans which were undisputedly for the purpose of business, would for all intent and purpose be considered as loan for the purpose of business to the extent they are utilized for repayment of earlier loans or infused as fresh funds for the current business of the assessee. We deem it appropriate to restore this issue back to the file of AO for the limited purpose to examin....... + More
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Customs
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2023 (6) TMI 202
Seeking condonation of delay in filing the appeal - Sufficient reasons for delay was given or not - appeal was returned as defective - valuation of the goods imported by the respondent from related foreign suppliers - HELD THAT:- The impugned order indicates that the learned Tribunal examined the explanation provided by the Revenue and found the delay to be unjustified - Much of the reasons for the delay were attributed to inter-departmental communication. Further, part of the delay was also sought to be explained on the ground that the Revenue had written letters to the Registry of the learned CESTAT attempting to ascertain the status of the appeal. The learned CESTAT, after examining the said letters found, on the basis of the communications dated 23.11.2020 and 17.12.2020, that the Deputy Commissioner of Customs (Review) had admi....... + More
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2023 (6) TMI 201
Revocation of Customs Broker License - forfeiture of Security Deposit - levy of penalty - IGST refund frauds - exporters could not be found at all physically at their registered premises - untraceable exporters - violation of Regulation 10(n) of CBLR, 2018 - HELD THAT:- The Tribunal has examined the scope of these obligations in the case of M/S Anax Air Services Pvt Limited vs Commissioner of Customs, (Airport and General), New Delhi [ 2022 (1) TMI 115 - CESTAT NEW DELHI ] - It is found that physical verification of the business premises is not an obligation cast upon the CB, under Rule 10(n) of CBLR, 2018. The Tribunal in the above said Order further examined the reliability of these documents issued by various Government agencies and analyzed the scope of the Custom Broker in relying on these documents to fulfill their obligations....... + More
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2023 (6) TMI 200
Classification of imported goods - Ultrasonic Cleaner - misdeclaration of description and value of the goods - change of classification from declared CTH 84239020 to CTH 90610010 - rejection of declared value - HELD THAT:- No reason has been given in the Impugned order for rejecting the transaction value except stating that the goods were miss-classified. It is settled law that miss classification of the goods cannot be the reason for rejection of the declared value which is determine on the transaction value between the supplier of the goods and the receiver in the course of international trade. Hon'ble Supreme Court has consistently held that the proper reason for rejection of the transaction value needs to be recorded. It is not even the case that these Ultrasonic Cleaners were not complete or sold in the market for addition ....... + More
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2023 (6) TMI 199
Re-import of goods - Claim of exemption from customs duty - Whether the original export was under the claim of refund of IGST - Benefit of Notification No.45/2017-Cus dated 30.06.2017 - contravention of the provisions of Sections 12, 17 and 46 of the Customs Act or not - It is the case of the appellant that at the time of export, they had wrongly mentioned that the export is being made for refund of IGST, wherein there was no claim for refund made - HELD THAT:- It is an admitted fact that the appellant neither claimed refund at any point of time, nor any such refund was granted to them. This fact has also been confirmed by the Revenue. There is no basis for issue of show cause notice dated 22.08.2019, wherein, it was alleged that the goods were exported under claim for refund of Integrated G.S. tax paid on export goods. Hence, under....... + More
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Corporate Laws
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2023 (6) TMI 196
Sanction of scheme of Amalgamation - Section 230-232 of Companies Act - HELD THAT:- As per Section 230(9) of the Companies Act, 2013, the Tribunal may dispense with the calling of a meeting of creditors or class of creditors, where such creditors or class of creditors, having at least ninety per cent value, agree and confirm, by way of affidavit, to the scheme of compromise or arrangement. As the Appellant/Transferor Company No-1 is a closely held family company and sole unsecured creditor, had conceded to the scheme of Amalgamation by way of affidavit, therefore, in terms of section 230(9) of the Companies Act, 2013 the meeting of sole unsecured creditor of Appellant/Transferor Company Appellant No-1 could have been dispensed with by the Tribunal and as such, there are merit in the averments of the Appellant . It is noted that T....... + More
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Securities / SEBI
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2023 (6) TMI 195
Offence under SEBI - person responsible for the commission of the offence - person responsible for the carrying out the business - liability of director - allegation of Fraudulent and Unfair Trade Practices - Additional Session Judge set aside the summoning order qua the Respondent No. 1 while observing that the Complaint filed did not contain any material to suggest that the Respondent No. 1 herein was responsible for the carrying out the business of IHIL - HELD THAT:- It is now trite law that a Director cannot ipso facto, simply by virtue of being the director of a Company, be arraigned as an Accused by the SEBI [Refer to: SEBI v. Gaurav Varshney [ 2016 (7) TMI 642 - SUPREME COURT] . By virtue of being a juristic person the acts attributed to a Company are attributed to the officers at the helm of affairs. Every person r....... + More
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Insolvency & Bankruptcy
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2023 (6) TMI 194
Fraudulent/wrongful trading - related party transaction of not - Lands sold at a Higher Amount than at which, the same was purchased - intent of defrauding its Creditors - HELD THAT:- The expression Party to the carrying on business, indicates taking positive steps, in carrying on company s business, in a fraudulent manner. The intent to defraud, is to be judged, by its effect on a Person, who is the object of conduct, in question - A preponderance of probability suffices, but the degree of probability must be such that the Tribunal, is satisfied and further that under Section 66 of the I B Code, 2016, it is not essential to attract that there ought to be a Debtor and a Creditor relationship. It must be borne in mind that for proving a Fraudulent Trading needs meeting the High Standard of Proof, which is attached to a Fraudulent I....... + More
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Service Tax
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2023 (6) TMI 193
Recovery of service tax alongwith interest and penalty - suppression of value of freight paid, hire charges, warranty charges and site formation and clearance services - benefit of exemption under Notification No. 17/2005-S.T. dated 07.06.2005 - extended period of limitation under Section 73(1) of the Finance Act, 1994 - HELD THAT:- There cannot be any dispute that the first Show Cause Notice, which was issued based on the audit objections, did consider all the relevant facts and thus, the concerned authority of the Department was very much aware of the relevant facts. Hence, while issuing the second Show Cause Notice, the very same facts could not be held as suppression of facts by the appellant as these facts were very much in the possession / knowledge of the authorities. The decision of the Hon ble Apex Court in the case of NI....... + More
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Central Excise
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2023 (6) TMI 192
Area Based Exemption - conclusion as reached is perverse for non-consideration of the evidence or not - CESTAT has taken into consideration the materials available on record or not - power of the High Court, to interfere with an order passed by an Appellate Tribunal - section 35G of Act, 1944. HELD THAT:- It is well settled that the power of the High Court under section 35G of Act, 1944 to interfere with an order passed by an Appellate Tribunal is very limited and the same can be done, only when the Court is satisfied that the case involves substantial questions of law - Finding of facts reached by an Appellate Tribunal cannot be interfered or reversed in an appeal under section 35G of the Act 1944 without coming to a conclusion that the said finding of fact is either perverse or not based on materials on record. The word Perverse....... + More
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2023 (6) TMI 191
SSI Exemption - independent units or not - clubbing of clearances - four units have been created on paper without having proper manufacturing facilities - units manufacturing Gears, Gear Boxes and parts thereof - evasion of duty - N/N. 8/2003-CE dated 01.03.2003 - HELD THAT:- The proprietor of the above said four units are related to each by blood i.e they are blood relatives as admitted by them in their respective statements recorded by the department. Further it is also admitted facts on records that out of four units, three units did not have all the machines required to manufacture of Gears, Gear Boxes and Parts thereof. Whereas, the fourth unit i.e M/s Omkar Technolgies did not have any machinery installed in his shed. These facts have also been admitted by the proprietor of the above said four units as well as Shri Suresh J. Pate....... + More
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2023 (6) TMI 198
Classification of goods - printed graphics with pictures, printed plastic and PVC sheets, printed graphics, injected graphics, screen graphics with printed pictures, printed on plastic films with logo design brand etc. - to be classifiable under Chapter Heading 4901 of Central Excise Tariff Act, 1985 or not - HELD THAT:- The adjudicating authority has examined the issue on classification and has observed that the Products of Printing Industry excepting the glow sign items would properly be classifiable under Chapter subheading No. 4901.90 in terms of Note 2 of Section VII of CET and also in terms of Note 2 of Chapter 49 of Central Excise Tariff. The Tariff rate was Nil during 2001-02 and 2002-03, for the products under Chapter sub-heading No. 4901.90. Therefore, the printing of logo and designs on plastics by the noticee (exce....... + More
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2023 (6) TMI 190
Classification of goods - Bituminized Hessain Tape - Rot-proofed Bituminized Hessian Cloth mixed with Copper Napthalate, Bituminized Cotton Tape - to be classified under the sub-heading 5909 of Central Excise Tariff Act, 1985 or under Chapter Heading 5906.90? - applicability of N/N. 175/86 dated 01/03/86 - Suppression of facts - time limitation - HELD THAT:- The issue is no more Resintegra. On similar facts and circumstances, the Hon ble Supreme Court in CCE., NAVI MUMBAI VERSUS AMAR BITUMEN ALLIED PRODUCTS PVT. LTD. [ 2006 (8) TMI 187 - SUPREME COURT ] has upheld the classification of the impugned goods under the chapter heading 5909 . Consequently, the benefit of Notification No.175/86 dated 01.03.1986 was also allowed. In the present case also the goods are exclusively used for industrial purpose and accordingly the goods are ....... + More
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2023 (6) TMI 189
Applicability of Rule 8 (3A) of Central Excise Rules, 2002 - demand of duty which has already been paid by the appellant by way of utilizing CENVAT Credit at the time of clearance of the goods in the prescribed manner - HELD THAT:- The issue is no longer Res Integra and Hon ble Gujrat High Court as in the case of Indsur Globe [ 2014 (12) TMI 585 - GUJARAT HIGH COURT] quashed the said rule, holding that 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. Hon ble Bombay High Court has in the case of TWENTY FIRST CENTURY WIRES RODS LTD., AND M/....... + More
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2023 (6) TMI 197
Refund claim - refund rejected as filed beyond the period of limitation - present refund has been filed by the appellant claiming that they have debited the amount for which they have filed the refund claim as directed by the Superintendent - HELD THAT:- Both the authorities have held that the refund claim is barred by limitation. The view expressed by the authorities is in line with the decision of the Hon ble Apex Court in case of Sansera Engineering Pvt Ltd [ 2022 (12) TMI 49 - SUPREME COURT ] where it was held that In the present case, as the respective claims were beyond the period of limitation of one year from the relevant date, the same are rightly rejected by the appropriate authority and the same are rightly confirmed by the High Court. We see no reason to interfere with the impugned judgment and order passed by the High Court. There are no merits in the appeal filed by the appellant - appeal dismissed.
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CST, VAT & Sales Tax
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2023 (6) TMI 188
Availment of irregular Input Tax Credit (ITC) - evasion of tax - forged and fabricated invoices against bogus purchases to credit bogus ITC - grant of registration certificate only for resale of nuts and bolts and HR sheets but illegal trading in iron and steel also done - HELD THAT:- Section 57 of the Act provides for imposition of penalty for issuance of false invoice. Section 58 of the Act provides for imposition of penalty for using a false registration number. A perusal of both the above provisions leaves no manner of doubt that the allegations levelled in the FIR in question are squarely covered and fall under the exclusive purview of the Act - It would be pertinent to note here that the Act is a complete Code in itself and there is no provision provided in the Act for the registration of an FIR. The Act only provides for imposit....... + More
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2023 (6) TMI 187
Validity of assessment order - impugned order passed by the first respondent, as barred by limitation and the same came to be passed without giving any opportunity to the petitioner - principles of natural justice - HELD THAT:- A Full Bench of the Composite High Court for the State of Telangana and the State of Andhra Pradesh in ECIL, after referring to the judgments of (i) The Kerala Education Bill, 1957 [ 1958 (5) TMI 47 - SUPREME COURT ]; (ii) Minerva Mills vs. Union of India [ 1980 (7) TMI 262 - SUPREME COURT ]; and (iii) L. Chandra Kumar vs. Union of India [ 1997 (3) TMI 90 - SUPREME COURT ], held that writ jurisdiction conferred upon the High Court under Article 226 of the Constitution of India is part of the inviolable basic structure of the Constitution and any law which seeks to take away or restrict the jurisdiction o....... + More
