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GST
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2023 (6) TMI 290
Constitutional Validity of section 13(8)(b) and section 8(2) of the Integrated Goods and Services Tax Act, 2017 - Intra-state day - Export of services - Intermediary Services - Constitutional validity of provisions for determination of place of supply - Zero rated supply - HELD THAT:- The matters have been placed before us pursuant to an administrative order dated 19th May, 2023, of the then Hon ble The Acting Chief Justice in accordance with the Rules, for pronouncement of the final judgment for disposing of the matters. Considering the views taken by our learned brother Hon ble Shri. Justice G.S.Kulkarni and one of us (Abhay Ahuja, J.) [ 2023 (4) TMI 821 - BOMBAY HIGH COURT] , we hold the provisions of Section 13(8)(b) and Section 8(2) of the IGST to be legal, valid and constitutional. Petition dismissed.
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2023 (6) TMI 248
Seeking grant of Anticipatory bail - running of fake firms based on forged and fictitious documents - HELD THAT:- The Hon ble Supreme Court in the case of SUMITHA PRADEEP VERSUS ARUN KUMAR C.K ANR. [ 2022 (10) TMI 1177 - SUPREME COURT] , held that merely because custodial interrogation was not required by itself could not be a ground to grant anticipatory bail. The first and the foremost thing the Court hearing the anticipatory bail application is to consider is the prima facie case against the accused. In the instant case, a perusal of the affidavits of the State dated 2.3.2023 and 27.03.2023 would show the manner in which the investigation was conducted and the specific role played by the petitioner. In fact he and his co-accused had set up a fictitious firm/companies and thereby cheated the government of crores of rupees. Thus,....... + More
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2023 (6) TMI 289
Provisional attachment of Bank Accounts of petitioner - HELD THAT:- The petitioner has shown readiness and willingness to pay up the demand of Input Tax Credit raised by the authorities although without prejudice to the rights and contentions of the petitioner in the future adjudicatory proceedings, which may commence. According to learned Assistant Government Pleader and as stated above, summons under section 70(1) of the Central Goods and Services Tax Act, 2017 and under section 7091) of the Gujarat Goods and Services Tax Act, 2017, is issued. This aspect is fortified by the petitioner also. In view of the position arising where the petitioner would be paying within span of 15 equal monthly installments the tax demanded, order dated 30.11.2022 provisionally attaching Current Bank Account No. 045361900003074 of the petitioner he....... + More
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2023 (6) TMI 288
Availment of irregular input tax credit - fake invoices - opportunity of personal hearing was availed of or not - violation of principles of natural justice - HELD THAT:- A perusal of the impugned orders would indicate that the petitioner had been issued with notices and also reminders for personal hearing. The orders of the respondent would also indicate that the petitioner has neither filed a reply online nor submit a manual reply. Despite the fact that he was given several opportunities to put forth his objections, the opportunity of personal hearing which was afforded has not been availed off by the petitioner. The petitioner has failed to prove that they complied with the condition eligible to claim input tax credit as per Section 16(2) of the Act on the purchase made from M/s.Star Agencies. The impugned orders set out the fake in....... + More
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2023 (6) TMI 287
Cancellation of GST registration of petitioner - non-filing of more than six consecutive return - HELD THAT:- Given the fact that the petitioner has already invoked the statutory remedy of appeal against the aforementioned impugned order of the State Tax Circle-Q Jammu and which appeal is still pending adjudication before the appellate authority of the Deputy Commissioner (Appeal) II Jammu, as has been disclosed in the said order dated 16.03.2023 of deciding the petitioner s representation, we are not inclined to grant indulgence on merits to the case of the petitioner in this writ petition. However, it is deemed proper to direct the appellate authority of the Deputy Commissioner (Appeal) II, Jammu to dispose of the petitioner s pending appeal without further loss of time. Said appellate authority are directed to hear and decide the....... + More
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Income Tax
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2023 (6) TMI 282
Foreign Tax Credit (FTC) - claim denied due to delay in filing of Form No.67 beyond the prescribed time limit u/s 139(1) - assessee had filed his US Income Return and paid the taxes accordingly. While filing the Indian Income Tax Return, the assessee disclosed the above aforementioned foreign income and claimed Foreign Tax Credit which was paid in USA - HELD THAT:- We find an identical issue had come in the case of Baburao Atluri [ 2022 (12) TMI 525 - ITAT HYDERABAD] while deciding the issue in favour of the assessee held requirements of Rule 128 for claiming FTC is that Form 67 is to be submitted by assessee before filing of the returns. In our view, this requirement cannot be treated as mandatory, rather it is directory in nature. This is because, Rule 128(9) does not provide for disallowance of FTC in case of delay in filing Form N....... + More
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2023 (6) TMI 281
Misc. income earned - estimation of 10% of the total Misc. receipts as normal business income and not as shipping income u/s. 115 VI - HELD THAT:- There is no material available on record to hold that the misc. income earned by the assessee is also from the core activity of the shipping business. The misc. receipts generated on the activities carried out by the assessee on shore repairs of tugs with the help of qualifying ships, transport of bunkers, charter, etc. were not dredging activities which form the core activity of the assessee company as well as these activities could not be taken us incidental activity as prescribed in Rule 11 R of the Income Tax Rules. No other option than to confirm the order passed by the Ld. CIT(A) who has fairly estimated 10% of the misc. receipts as taxable income of the assessee. Thus the findings ....... + More
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2023 (6) TMI 280
Allowability of expenses of selling expenses as revenue expenditure - contention of the assessee that such expenditure is not connected with the construction, hence allowable as revenue expenditure in terms of AS-7 - HELD THAT:- As relying on PUMA REALTORS PVT. LTD. [ 2018 (11) TMI 1618 - ITAT DELHI] and Pragnya Crest Properties (P) Ltd [ 2020 (4) TMI 224 - ITAT BANGALORE] as held the action of the Revenue Authorities in rejecting the assessee's accounting method, without assigning any reason is not justified. The accounting method followed by the assessee and thereby excluding the indirect expenses such as office employees salary, administrative expenses and marketing selling expenses is as per the recognized principles of accountings and as such the claim of the assessee deserves to be allowed. We hold accordingly. The addit....... + More
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2023 (6) TMI 279
Unexplained cash deposit to his bank account - HELD THAT:- We are unable to see any logic or valid basis to deny said cash flow statement which is supported by the financial and books of accounts of earlier as well as present financial period under consideration. The basis taken by the ld. CIT(A) for upholding the part addition of Rs. 12,40,000/- is not sustainable and justified as when an authority is taking care of average withdrawals of Rs. 4.5 lakh per month then the withdrawal Rs. 38 lakh gets supports as the total withdrawals during eight months and ten days comes to 37.5 lakh which is near to the claimed amount. The assessee is also found to be fair enough in showing the sufficient drawings of Rs. 26,35,980/- and Rs. 2,46,122/- during the period from the 01.04.2016 to 30.12.2016 leaving cash balance of Rs. 5,18,559/- therefor....... + More
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2023 (6) TMI 278
Validity of assessment order passed u/s 143(3) - status of assessee - AO had issued notice as a Local Authority and the assessment has been framed in the name of Artificial Juridical person - HELD THAT:- The assessee has filed various written submissions. The submissions of the assessee are that the assessee is a local authority. The case of the assessee was picked up for scrutiny assessment. The objections of the assessee are that as per the provisions of U.P. Sugar Cane (Regulation of Supply Purchase) Act, 1953, the assessee is neither authorized to do any business/profession or any other activity with profit motive, nor it is doing any such activity as contemplated u/s 28 of the I.T. Act. The assessee had filed its return of income as a Local Authority . Assessment was framed in the status of Artificial Juridical person ........ + More
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2023 (6) TMI 277
Validity of reopening of assessment - jurisdiction of notice issuing authority - whether notice wrongly issued by DCIT, Circle 3(1), Haridwar, whereas, the jurisdiction of the assessee lies with ITO, Ward-2(2), Muzaffarnagar? - HELD THAT:- As following the proposition rendered in the case of PCIT vs. Mohd. Rizwan[ 2017 (3) TMI 1792 - ALLAHABAD HIGH COURT] no hesitation to held that the AO having jurisdiction over the assessee is only validly entitle to initiate reassessment proceeding u/s. 147 of the Act and to issue notice u/s. 148 of the Act and consequent thereof is eligible to pass reassessment order on conclusion of proceedings. Since in the present case AO who is issued notice u/s. 148 was not having jurisdiction over the assessee and the AO having jurisdiction over the assessee i.e. ITO Ward 2(2) Muzaffarnagar not issued any....... + More
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2023 (6) TMI 276
Scrutiny assessment - Disallowance of expenses - assessment beyond the issue for which the case was selected for scrutiny - submissions of assessee that the case of the assessee was taken for limited scrutiny and the AO traversed beyond its jurisdiction - HELD THAT:- There is no dispute with regard to the fact that the case of the assessee was selected for limited scrutiny assessment in respect of issue of remuneration paid by the firm. AO while framing the assessment disallowed the expenses claimed by the assessee. It is the case of the assessee that while disallowing the expenses the Assessing Authority traversed beyond its jurisdiction. DR could not controvert the fact that the case was selected for scrutiny in respect of remuneration paid by the firm and it was not to verify the correctness of the claim related to the expense....... + More
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2023 (6) TMI 275
TP Adjustment - TO after applying the Profit Split Method had made the upward addition to the income of the assessee - Interest on delayed trade receivables - international transaction referred by the assessee in form 3CB was only linear agency services with Maxicon containers line Pte Ltd for which the assessee had shown the revenue - HELD THAT:- When though the assessee was carrying the composite business and the profit of the linear agency services and the corresponding expenditure can be worked out with precision, then it is easy for the lower authority to compare the prices charged by the assessee from its AE, with the other comparable company carrying the same/similarly situated activities with the unrelated parties. The above-mentioned aspect has not been considered by both the lower authorities. In the light of the above we ....... + More
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2023 (6) TMI 274
Validity of reopening of assessment - taxability of the receipts from the transfer of the development rights - validity of second assessment order - HELD THAT:- The assessee in its appeal against the first assessment order passed u/s 147 r.w.s. 143(3) had challenged the taxability of the receipts from the transfer of the development rights before the learned CIT(A). Assessee also challenged the reference to DVO to determine the actual sale consideration of properties. Therefore, the second assessment order passed under section 147 r.w.s. 143(3) is clearly in contravention of the provisions of the aforesaid proviso to section 147 since it reassesses the income which was the subject matter of the appeal before CIT(A). We find that the Hon ble jurisdictional High Court in ICICI Bank Ltd [ 2011 (11) TMI 304 - BOMBAY HIGH COURT] held....... + More
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2023 (6) TMI 273
Disallowance of the pre operative expenses - assessee being a limited liability partnership firm incorporated on 08.12.2017 for which the trading operation commenced from 01.01.2018 - assessee is said to have carried out its business only for 3 months and had filed its return of income declaring loss during the impugned year - HELD THAT:- No deviation in the business carried out by the assessee firm which is akin to that of the earlier firms which name has been changed to that of the assessee s. The lower authorities have not disputed the fact that there was no change in the business subsequent to the name change. The impugned expenses claimed by the assessee pertains to the business expenses and not the preoperative expenses alleged by the lower authorities. As decided in case of Maruti Insurance Pvt. Ltd. [ 2021 (4) TMI 875....... + More
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2023 (6) TMI 272
Penalty u/s. 271B - penalty imposed for failure to get accounts audited and to furnish a report of such audit as required u/s. 44AB - Scope of reasonable cause for the failure as provided u/s. 273B - HELD THAT:- As submitted that assessee is dealing in retail trading of building material on commission basis. The impugned year is the first year wherein his gross receipts/turnover exceeded the threshold prescribed u/s. 44AB of the Act and was under a bonafide belief that there was no requirement of any audit in this respect. Subsequently, assessee got the accounts audited in respect of his share transaction and obtained the report as required u/s. 44AB - assessee has furnished an affidavit to state that he was not in the knowledge of the share transactions in his name as the same was done by his broker. Considering a reasonable cause ....... + More
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2023 (6) TMI 271
Penalty u/s. 271(1)(c) - defective notice u/s 274 - scope of vagueness - HELD THAT:- Vagueness regarding the charge for which penalty is to be levied continued to be there in the mind of Assessing Officer right through from recording of satisfaction to levy of penalty. In penal proceedings there is no scope of vagueness. The assessee against whom penalty proceedings are initiated has to be made aware in absolute terms the charges for which the penalty proceedings are initiated. The notice vide which charges for levy of penalty are communicated to the assessee should be unambiguous. As decided in the case of Mohd. Farhan A. Shaikh [ 2021 (3) TMI 608 - BOMBAY HIGH COURT ] has held that mere defect in the notice would vitiate penalty proceedings. In the instant case, vagueness of charge is not only confined to the notice, even in the o....... + More
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2023 (6) TMI 270
Validity of assessment Order framed on Non quoting the mandatory document identification number ( DIN ) - AO communicated the DIN after the expiry of 15 days - Whether, the subsequent communication issued by the Assessing Officer generating the DIN in respect of the assessment order will satisfy the conditions of CBDT Circular No. 19/2019 dated 14.08.2019 and cure the deficiency in issuing the assessment order manually without generating the DIN ? - HELD THAT:- Paragraph 3 of the circular carves out certain exceptions to paragraph 2 by providing that under certain exceptional circumstances, enumerated in clause (i) to (v) of paragraph 3, the communication may be issued manually but only after recording reasons in writing not only in the file and with prior written approval of the Chief Commissioner/Director General of Income-tax, but, ....... + More
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2023 (6) TMI 269
Validity of reopening of assessment - notice issued in name of deceased assessee - whether curable defect u/s 292BB? - HELD THAT:- Where notice seeking to reopen assessment was issued in name of deceased assessee, since she could not have participated in reassessment proceedings, provisions of section 292BB were not applicable to assessee s case and as a consequence, impugned reassessment proceedings deserved to be quashed. It is pertinent to mention that in said judgement their Lordship speaking for Hon ble jurisdictional High Court referred to its earlier judgement in the case of Vipin Walia [ 2016 (2) TMI 524 - DELHI HIGH COURT] held that the provision of section 292BB of the Act does not come in to play to rescue the reassessment proceedings in favour of the revenue. Decided in favour of assessee.
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2023 (6) TMI 268
TDS u/s 195 - Disallowance of reimbursement of mobilization and demobilization expenses - HELD THAT:- Delhi High Court [ 2010 (3) TMI 167 - DELHI HIGH COURT] has clearly and categorically held that the assessee was not liable to deduct tax at source u/s 195(1) in respect of mobilization and demobilization costs reimbursed to the holding company, hence, cannot be treated as assessee in default. Further observations of the Delhi High Court - The assessment proceedings in VOAMC are reopened and the final view taken is that the VOAMC is assessable to tax, the assessee herein would also be treated as assessee in default , which would attract the consequence provided under section 40(a)(i). has been quashed and set aside by the Hon ble Supreme Court [ 2023 (5) TMI 586 - SC ORDER] while deciding the SLP filed by the assessee.. Thu....... + More
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2023 (6) TMI 267
Revision u/s 263 - validity of AO's order accepting the cash sales and resultant declaration of profits under the PMGKY Scheme - HELD THAT:- Matter relating to cash sales has been duly enquired into by the AO, specific queries has been raised from time to time, and after taking into consideration the submissions of the assessee, specific show-cause has been issued by the AO which shows due verification and application of mind by the AO, and thereafter, taking into considerations the directions of the Additional CIT who has again applied his mind and issued specific directions u/s 144A which takes into consideration the declaration of profits on cash sales and payment of taxes under the PMGKY Scheme besides other things, the assessment order has been passed by the AO. We therefore find that the matter has been thoroughly examin....... + More
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2023 (6) TMI 266
Disallowance of expenses of diesel charges and loading unloading charges - as argued these expenses are properly supported by bills and vouchers and such expenses are allowed in earlier years - HELD THAT:- Assessee has made a statement before the lower authority that these expenses are incurred during the course of business and considering the nature of the business of the assessee, he could not substantiate the said expenses with supporting evidences. AO has disallowed the expenses from the first day of financial year to the date of survey for the reason that the expenses have been subsequently booked post the date of survey but the expenses for the rest of the year have been allowed by the AO. We re unable to appreciate the view taken by the Assessing Officer that no expenses / the expenses incurred from first day of financial yea....... + More
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2023 (6) TMI 265
TDS u/s 194H - non deduction of TDS on consultancy fees, commission payment and payment to HUF - HELD THAT:- The recipients have shown these receipts as their income. AO not disputed about the nature of expenses and their incurrence for the purpose of their business, his only grievance was that the assessee has not deducted the TDS while making the payments. All these payments are covered by the decision of the Hon ble Supreme Court in the case of Hindustan Cocacola [ 2007 (8) TMI 12 - SUPREME COURT] therefore, we allow the appeals of the assessee in both the years and delete the disallowances. Decided in favour of assessee.
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2023 (6) TMI 264
Disallowance of deduction u/s 80P - assessee filed return of income belatedly for beyond prescribed time limit - HELD THAT:- As decided in Veerappampalayam Primary Agricultural Cooperative Credit Society Limited case [ 2021 (4) TMI 1169 - MADRAS HIGH COURT] the date of filing of the return of income would be apparent on the face of return and upon a perusal thereof, it would be clear as to whether the return is a valid return, having been filed within the statutory time limit, or a belated one. This is mechanical exercise and one that can be carried out by the CPC, very much within the scope of Section 143(1)(a)(ii) of the Act. AR submitted that Section 143(1)(a)(v) which was introduced on 01.04.2021 cannot be applicable in A.Y. 2019-20 in the present assessee s case as the AO does not have power related to Chapter-VIA Part-C wher....... + More
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2023 (6) TMI 263
Disallowance of car expenses - Expenses incurred by a Private Limited company towards personal use by the two Directors - HELD THAT:- As decided in DCIT vs. Haryana Oxygen Ltd. [ 1999 (12) TMI 107 - ITAT DELHI-D] the use of cars by directors-employees of a company cannot be characterized as user for non-business purpose and, hence, no part of such car expenses can be disallowed. As in Sayaji Iron and Engineering Company [ 2001 (7) TMI 70 - GUJARAT HIGH COURT] has held that once the directors of the assessee company are entitled to use the vehicles of the company for personal use as per the terms and conditions of their appointment, it cannot be said that there was a personal use of cars. Also further held that such user of vehicles by the employees of the company cannot even be considered as non-business user . There are innum....... + More
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2023 (6) TMI 262
Penalty u/s. 271(l)(c) - revised return of income in which the assessee disclosed details of sale of immovable properties - Whether revised return was filed pursuant to notice under section 143(2) issued by the Department ? - HELD THAT:- The revised return of income, in which the assessee disclosed details of sale of immovable properties was not in pursuance to notice issued by the Department u/s 143(2) as on perusal of notices issued by the Department, it is seen that the query regarding the sale of immovable properties was enquired into for the first time by the Department vide notice dated 30-06-2016, whereas the assessee had already filed revised return of income on 31-10-2015. Also in the notice dated 31-08-2015, there is no mention regarding sale of immovable properties by the assessee, and hence, it cannot be inferred that th....... + More
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2023 (6) TMI 261
Validity of reopening of assessment u/s 147 - assessment beyond a period of 4 years - mandation of recording satisfaction - HELD THAT:- From a reading of the reasons for belief of escaping the income and reopening of the assessment which are reproduced hereinabove, it is not possible for us to decipher that the AO has recorded that there was any failure on the part of the assessee to disclose fully and truly all the material facts. AO is conspicuously silent on the above said aspect. Once the AO has not mentioned that the assessee has failed to disclose fully and truly all material facts, necessary for completion of the assessment, the re-opening cannot be made in the eyes of law and we are in agreement with the decision cited by AR in the case of Bhor Industries [ 2003 (2) TMI 8 - BOMBAY HIGH COURT] and PCIT Vs. Lanco Hills[ 2022....... + More
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2023 (6) TMI 260
Revision u/s 263 - determination of ALP of transactions to TPO - non reference of matter of determination of ALP to the TPO by AO - HELD THAT:- In the instant case, we notice that the Instruction no.3/16 issued by CBDT mandates that the AO should refer the matter of determination of ALP of international transactions to TPO. As per paragraph 3.2 of the Instruction, the AO is required to refer the matter of determination of ALP of international transactions to the TPO after obtaining approval from PCIT/CIT, if the return of income of the assessee has been selected under T.P risk parameter. AO, in the instant case, did not refer the matter of determination of ALP to the TPO as per the mandatory requirement of Instruction No.3/2016. As per clause (c) of Explanation 2 to sec. 263, the order passed without complying with the instru....... + More
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2023 (6) TMI 259
Exemption u/s 11 denied - grants received by the assessee - HELD THAT:- Grants were given to the assessee for implementation of various infrastructure schemes. That the grants received by the assessee/state agency did not belong to the assessee. The grants did not form corpus of the assessee nor it was income of the assessee u/s 11 of the Act. Such grants were not the donations or voluntary contribution u/s 12 of the Act. It has also been held time and again that the entries in the books of accounts do not decide the nature of the receipts. The assessee was not authorized to utilize the said grants for any other purposes other than for which such grants were received by the assessee. The unutilized grants have been refunded back by the assessee to the Government. The assessee has also furnished the details of the funds received by t....... + More
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2023 (6) TMI 258
TP adjustment - global/regional management overhead allocation fee - HELD THAT:- Considering the similarity of the issue and view taken in the earlier assessment years [ 2021 (10) TMI 1382 - ITAT HYDERABAD] and [ 2022 (12) TMI 457 - ITAT HYDERABAD] by a Co-ordinate Bench, we are of the considered opinion that the interest of justice would be met by restoring this issue to the file of the learned Assessing Officer in view of the need for the assessee to file the additional documentary evidence in support of their claim. Interest on trade receivable - Ends of justice would be met by accepting the interest rate on similar foreign currency receivables/advances as LIBOR+200 points. We direct the AO / learned TPO to adopt the same. Grounds are partly allowed accordingly.
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2023 (6) TMI 257
Unexplained money u/s 69A - cash deposits during demonetisation period by invoking the provisions of section 115BBE - HELD THAT:- Since the addition made u/s 69A of the Act has already been deleted by the ld. CIT(Appeals), wherein AO has wrongly invoked the provisions of section 115BB therefore, Grounds become infructuous as already decided in favour of the assessee by the ld. CIT(Appeals). Miscellaneous income - AO confronted the assessee to explain the nature of the said miscellaneous income, but could not get satisfactory reply, as a result of which, treated it as income from other sources - HELD THAT:- Miscellaneous income mainly constitutes grant received from the West Bengal Government for various activities as per its registered bye-laws. No reason to treat any of the element of miscellaneous income enumerated above as inco....... + More
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2023 (6) TMI 286
Reopening of assessment u/s 147 - non-independent application of mind by AO - information which has been provided to the petitioner under the Right to Information Act relied upon - claim of CSR expenses made by the petitioner - HELD THAT: Information which has been provided to the petitioner under the Right to Information Act and from the details which are provided it has been emerged that the AO (ACIT) circle 1(1) (1) has objected to the audit objections raised by the JCIT (Audit) on the issue of claim of CSR expenses for AY 2017-18 recording of reasons for Assessment Year 2016-17 for the same issue does not amount to application of an independent mind and therefore, also it cannot be said that any independent application of mind reflects in recording of reasons for Assessment Year 2016-17 when reasons for AY 2017-18 are held to be in....... + More
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2023 (6) TMI 285
Assessment u/s 144B - petitioner's claim is that they have not been served with the prior notice and have been prevented them from putting forth their case - HELD THAT:- This statement appears to be incorrect in the light of the proof of mail communications submitted by the learned counsel for the respondent where every proceedings has been communicated under the cover of a letter/e- mail, to which the orders were attached. Therefore, prima facie, the contention of the appellant appears to be incorrect. As per petitioner they have not been served with the provisions of Section 144 (B) (7) relating to the real time alert - Section 144 (B) (10) defining a real time alert. Therefore, the real time alerts could be in the form of a SMS or an update on the mobile app or by way of an E-Mail to the registered e-mail address. In t....... + More
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2023 (6) TMI 284
Maintainability of appeal - assessment completed as per Section 143(3) - alternate remedy in the form of an appeal u/s 246A - During the search, certain incriminating materials relating to the petitioner firm and other dealers were seized by the respondent and based on this search, it was found that the group had been using a customized software, called 'J PACK' solely for the purpose of recording the unaccounted gold and cash transactions - HELD THAT:- As rightly pointed out by respondent, a mere perusal of the impugned assessment order would clearly show that the authority below has taken into consideration the defenses raised by the petitioner herein and on a comparison of the ledger of the petitioner with the ledger maintained by M/S.Mohanlal Jewelers (P) Ltd, the nexus between the two has been set out in the tabulated stat....... + More
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2023 (6) TMI 283
Reopening of assessment u/s 147 - Allowability of expenditure as revenue or capital - expenditure of Rs. 6.01 crores as amount paid to Madhya Pradesh Electricity Board (MEPB) for the line/bay charges - AO was of the view that the expenditure incurred was for the creation of capital assets - CIT(A) allowed the claim as revenue expenditure - HELD THAT:- This Court is of the view that the amount paid by the assessee to the Madhya Pradesh Electricity Board for bay lines has been rightly taken to be the revenue expenditure. Similar benefit had been extended to the assessee for the assessment year 1992-1993 and 2004-2005. This expenditure has been rightly claimed by the assessee as per the provisions of the Income Tax Act. There was no reason for re-opening and initiating proceedings under Section 147/148 of the Act. The Tribunal has rightly allowed the appeal of the assessee by appreciating the facts in the right perspective. Decided against revenue.
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2023 (6) TMI 256
Inflated agricultural production of grapes - CIT(A) deleted addition - whether CIT-A has failed to consider the draft plan which showed that there was inflation of agricultural income by the assessee? - HELD THAT:- As during the course of search proceedings a list of 30 parties were found from M/s Nana Shelke (General manager of Vineyard operation) wherein it was alleged that the grapes were purchased at inflated rates from these 30 parties. Assessee s name has not been mentioned anywhere in the list. The assessee explained during the course of assessment proceedings that he had cultivated high quality of grapes where were used in manufacturing of high premium wines. In their respective statement the both the employees as discussed supra had provided the data available with them without considering the fact that the new plantatio....... + More
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2023 (6) TMI 255
Treatment to sale proceeds of land TDR - whether be apart of the project undertaken or be treated independently of the total project for the computation of the income? - HELD THAT:- As assessee has entered into an agreement to develop the slum rehabilitation scheme as per which assessee has acquired the land from M/s. Bombay Industrial Corporation and entered into multipartite agreement with SRA and different tenements. No doubt assessee has transferred the land to SRA and surrendered all the rights over the property.Assessee had a basic obligation to construct the building and receive TDR on the portion of land on which the construction is completed in the ratio of 1:1 on TDR and construction TDR in the ratio of 1:1.33. It is fact on record that the construction agreement received by the assessee is to construct the building as per....... + More
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Customs
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2023 (6) TMI 254
Revocation of the Customs Broker License - forfeiture of security deposit - levy of penalty - Detention of goods - Smuggling - import of of E-waste from Dubai to JNPT - mis-declaration of goods as Electric Arc Welding Machines Bill of Entry covering import had been presented in the name of importer without actual knowledge of the proprietor of the firm - violation of the Regulations of CBLR, 2018 - HELD THAT:- Though it is an admitted fact that someone had imported e-waste by mis-declaring the goods as Electric Arc Welding Machines, the Department has not made any allegation that the Customs Broker or any of their staff were aware about the mis-declaration at any point of time till it was brought to their notice during investigation and due to that reason, no show-cause notice was issued under Section 124 of the Customs Act, 1962. ....... + More
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2023 (6) TMI 253
Classification of imported goods - Precision Agri Spray Equipment, Charger and Smart Battery - to be classifiable under Customs Tariff Item 8424 8200 or under CTH 8804? - HELD THAT:- The department has not considered the submissions made by the appellant in the appeal memorandum filed before the Tribunal. Further, it is surprising that how can a Shed Officer posted in the port of import without a detailed examination of goods, either by taking the assistance of technical expert or chartered engineer, can certify about a product and on the basis of such certification, the department will proceed against the importer for confirmation of duty demand or for confiscation of the goods. Since the issue requires a detailed examination by an expert or specialist in the concerned field, the appeal is required to be allowed by way of remand to th....... + More
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Insolvency & Bankruptcy
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2023 (6) TMI 252
Insufficient stamped agreement - reference of matter to arbitration - non-joinder of the Special Purpose Vehicle (SPV), namely Orissa Steel Expressway Private Limited, which a party to the Option Agreement containing the arbitration clause - Corporate Insolvency Resolution Process (CIRP) commenced on March 30, 2017, that is, after the Option Right accrued in favour of the petitioner on January 13, 2017 - exercise of option - HELD THAT:- From the definitions as provided in the Option Agreement itself, there cannot be any doubt that the agreement, under Clause 10(a), was to be effective from the date of execution and was to remain in full force and effect until the earlier of three contingencies. It is undisputed that out of the three contingencies, the first, being expiration of the Option Period, was the earliest, since there was no se....... + More
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2023 (6) TMI 251
Initiation of CIRP - Period of limitation - Operational Creditors - date of default in payment of the dues for supply of Isobutanol by the operational creditor to the corporate debtor - period specified under section 10-A of the IBC or not - pre-existing dispute regarding the poor quality of the material supplied to the corporate debtor - dishonouring of the LC discounting by the South Indian Bank - negligence of the corporate debtor. Whether the date of default in payment of the dues for supply of Isobutanol by the operational creditor to the corporate debtor is in the period specified under section 10-A of the IBC? - HELD THAT:- The HSS Agreement, which was signed on 15.1.2020 after the creation of LC on 13.1.2020, says that the date of payment would be as given in the invoice. Further, the invoice (attached at pg. 102 of appeal....... + More
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FEMA
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2023 (6) TMI 250
Constitutional validity of Section 37A of FEMA Act - order of the Competent Authority affirming seizure by the Authorised Officer - Seeking consequential prayers of quashment of seizure order u/s 37A(1) and confirmation order of such seizure under Section 37A(3) of the Act - reason for seizure was on the ground that the respondent/Directorate of Enforcement found during the course of investigation that no agreement or legal basis was available for remitting the money by the petitioner. Royalty was not a part of the product cost. No work order or purchase order was placed. No intellectual property rights were received. Based upon the impugned seizure, seizure order was passed on 29th April 2022 invoking Section 37A(1) of the Act. Whether the writ petition would be maintainable on the prayer that is sought i.e., to hold Section 37A....... + More
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2023 (6) TMI 249
Offence under FEMA - Investigation initiated under FEMA Act initiated - maintainability of the present writ petitions - complainant and Adjudicating Authority being officers of the same rank - As alleged that the Petitioners received foreign direct investment from three foreign companies and one Non-Resident Indian as consideration for issuance of shares in exchange for such investment in M/s Teleonto Tecnologies Pvt. Ltd. - HELD THAT:- Supreme Court has time and again reiterated that a writ petition is not maintainable when an efficacious alternative remedy is available. It is only in certain limited circumstances that a writ petition can be entertained, despite there being an alternative remedy. Petitioners have raised only two issues which need consideration by this Court to decide the maintainability of the writ petition. It....... + More
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PMLA
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2023 (6) TMI 247
Remand application - Money Laundering - operation of the large scale Havala racket in international cricket betting through U.K. based website - HELD THAT:- The grounds as observed for rejection of remand application is noting the medical condition of the accused on record, as was perused of the medical check up certificate issued by the Medical Officer of VS hospital, Ahmedabad and accordingly, it was observed that the blood pressure of the accused was very high. No other medical condition was noted to suggest any imminent danger to the life of the respondent. No such ailment or illness has been noted which would not permit the respondent to face the custodial interrogation. The only observation is of the applicant suffering from blood pressure which is noted to be high. However that medical condition of the respondent could be taken ....... + More
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Service Tax
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2023 (6) TMI 246
Classification of services - construction of residential houses - to be classified as Construction of Complex Services or not - abatement under the Notification No. 1/2006-ST dated 01.03.2006 - extended period of limitation. HELD THAT:- The Hon ble Apex court in the case of CCE vs. Larsen Toubro Limited [ 2015 (8) TMI 749 - SUPREME COURT] has settled the issue relating to works contract service which includes supply of material and labour for consideration and the same is taxable only from 01.06.2007 - even for the period after 01.006.2007, various decisions of the Tribunal have consistently held that the composite contract or works contract service even after 01.06.2007 cannot be taxed under Construction of Complex Service under Section 65 (105) (zzh) read with Section 65 (30a) of the Finance Act, 1994. Similarly, in the case....... + More
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2023 (6) TMI 245
Levy of Service Tax - Commercial Training or Coaching Service or not - training courses in the field of Hotel and Catering Management and are awarding certificates to the trainees on completion of said courses - levy of service tax on Arts and Craft course imparted by the appellant - HELD THAT:- The appellant though contends that they are not imparting the course of Hotel and Catering Management has not been able to adduce any evidence as to the income shown in the table is derived from business other than commercial training and coaching services. The details of document as to whether the fees is collected by the appellant or the Arts Science College is not clear. So also it is argued by the appellant that SRM Deemed University was formed and some of the institutions including the appellant, are now under the aegis of the Deemed Uni....... + More
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2023 (6) TMI 244
Seeking withdrawal of appeal - Refund of unutilized cenvat credit of service tax paid - input services received and entirely used in the export of ITS Services under Rule 5 of the Cenvat Credit Rules, 2004 read with Notification No. 27/2012-CE (NT) dated 18.06.2012 - Rejection on the ground that since refund includes rebate of duty, the rebate claims have to be filed within a period of one year as per under Section 11B of Central Excise Act, 1944 read with Section 83 of Finance Act, 1994. HELD THAT:- From the bare reading of provision of first proviso to Section 86(1) of Finance Act, 1994, it appeared that the appeal in respect of the orders passed by the FAA shall lie before the Central Government (Revisional Authority) in the form of a revision application and not before the Hon ble Appellate Tribunal. However, appellant stated th....... + More
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2023 (6) TMI 243
Levy of Service Tax - Business Auxiliary Services - reimbursement of advertisement charges from M/s. Maruti Udyog Ltd, and M/s. Sundaram Finance Ltd, for various promotional activities - HELD THAT:- The very same issue was analysed by the Tribunal in the case of M/S. ROHAN MOTORS LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, DEHRADUN [ 2020 (12) TMI 1014 - CESTAT NEW DELHI] where it was held that the appellant purchases vehicles form MUL and sells the same to the buyers. It is clear from the agreement that the appellant works on a principal to principal basis and not as an agent of MUL. This is for the reason that the agreement itself provides that the appellant has to undertake certain sales promotion activities as well. The carrying out of such activities by the appellant is for the mutual benefit of the business of the appellant ....... + More
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2023 (6) TMI 242
CENVAT Credit - input services - Appellant has taken credit for services used in their Visakhapatnam Plant - Appellant has utilized this Cenvat Credit by transferring the Cenvat Credit by way of ISD challans mainly to their Bhilai unit and also to some other units - principle of prorata distribution of Cenvat Credit followed or not. Whether the Appellant is eligible for Cenvat credit taken by them for the input services received by them in their Visakhapatnam unit which has ultimately resulted in coming into existence of their immovable property? - HELD THAT:- The issue is no more res integra. The Hon ble High Court of Punjab Haryana in the case of COMMISSIONER CENTRAL EXCISE COMMISSIONERATE, DELHI-III VERSUS M/S BELLSONICA AUTO COMPONENTS INDIA P. LTD. [ 2015 (7) TMI 930 - PUNJAB HARYANA HIGH COURT] has held that The land w....... + More
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2023 (6) TMI 241
Levy of Service tax - Banking and Other Financial Services or not - fees paid to foreign banks for the External Commercial borrowings under the Reverse Charge mechanism - HELD THAT:- In the show cause notice, it is alleged that such banks and financial institutions do not have an office or permanent establishment in India. The respondent has given detailed break up of the demand raised in SCN as well as the table in the grounds of appeal. The table which is reproduced in para 7 above will demonstrate that such financial institutions have a permanent establishment in India. Some amounts relate to the period prior to 18.04.2006 which is before the introduction of Section 66A of the Finance Act, 1994 and therefore not taxable under reverse charge mechanism. From the details furnished by the Ld. Counsel in the synopsis it is found that ....... + More
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2023 (6) TMI 240
Levy of service tax - management, maintenance or repair service - site formation and clearance, excavation and earthmoving and demolition service - extended period for demand of tax - imposition of penalty. Management, maintenance or repair service - HELD THAT:- It is found that the Commissioner of Service Tax, Chennai has exempted all the Services provided in relation to repair of roads carried out for various Government Departments and local authorities, but relying on the decision of the Tribunal in the case of LARSEN TOUBRO LTD. (ECC DIVISION) VERSUS COMMISSIONER OF CENTRAL EXCISE, HYDERABAD [ 2009 (12) TMI 461 - CESTAT, BANGALORE] ], it has been held that exemption from payment of Service Tax under maintenance or repair service (MRS) is available only for repair / re-laying of public roads and infrastructure facilities are p....... + More
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2023 (6) TMI 239
Recovery of CENVAT Credit wrongly availed alongwith interest and penalty - input service or not - dredging service - case of Revenue is that the dredging service is not required by the Appellant for providing the output service and consequently, there was no direct nexus between the dredging service and output port services. HELD THAT:- In case of Adani Port SEZ Ltd. [ 2015 (12) TMI 1060 - CESTAT AHMEDABAD ], it was held that any service used by a service provider for providing Port Service in any manner, is eligible for credit. The definition of input service by way of means and includes also amplify the scope of the same. Further, the definition also mentions certain specific services. The definition also includes services used in relation to activities relating to business . These further enlarge the scope of the inpu....... + More
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Central Excise
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2023 (6) TMI 237
Transfer of Credit - Merger of two units - transfer of CENVAT credit which was lying in Plant I, which was earlier an EOU unit to their merged DTA unit - Department alleged that as there is no transfer of capital goods / inputs as required under the sub-rule (3) of Rule 10 and the CENVAT credit lying unutilized in the accounts of the earlier EOU cannot be transferred to the merged DTA Unit - Rule 10 of CENVAT Credit Rules, 2004 - HELD THAT:- There are nothing in Rule 10 which disallows transfer of CENVAT credit in the manner alleged by department. So also there is no dispute that the credit availed by the EOU which has been transferred is ineligible. The very same issue was considered by the Tribunal in the case of Technocraft Industries [ 2018 (12) TMI 8 - CESTAT MUMBAI ] where it was held that denial of carry forward of accumulate....... + More
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2023 (6) TMI 236
CENVAT Credit - inputs - TMT Cutting, Square Cobble, MRM Rolls Spoils, Misrolls End cutting, Scrap Melting Scrap - manufacture of their final products MS Flat/Bar, MS Channel, MS Round, MS Angle, MS Ribbed Bar etc - Department s contention is that the Appellant is only a Rolling Mill and does not have furnace for melting of such waste and scrap and hence they could not have used these scrap as inputs to manufacture their finished goods namely hot rolled products - suppression of facts - extended period of limitation. HELD THAT:- As per Rule 3 of Cenvat Credit Rules 2004, any manufacturer can avail credit of duty paid on any goods (excepting light diesel oil, high speed diesel oil and motor spirit) treating the same as input if those goods are used in or in relation to manufacture of their final products. Thus for the purpose....... + More
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2023 (6) TMI 235
Demand of differential duty in terms of 7th Proviso to Rule 9 of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 - compounded levy - differential duty has to be paid only during the period of default on the highest number of machines installed/operated based on the amended provisions or as contended by the Revenue to be calculated in terms of proviso 7 of Rule 9 of PPM (CDCD) Rules, 2008 for the entire financial year as it stood prior to 27.2.2010? HELD THAT:- The learned Commissioner vide para 24.4 of the impugned order has categorically referred to Board Clarifications, and has calculated differential duty at para 26 taking into consideration the PPM (CDCD) Rules, 2008 as amended and the Board s clarification given vide letter F.No.341/109/2008-TRU dated 27.7.2009 and Letter No.81/17/200....... + More
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2023 (6) TMI 238
Requirement of sanction u/s 197 from the Central Government before prosecuting the applicants for the offence punishable under Section 504 of the Indian Penal Code - Allegation of corruption against the revenue officer - Abetting the manufacturer in evasion of duty of excise - HELD THAT:- A bare reading of Section 197 lays down that, no court can take cognizance of any offence alleged to have been committed by a person who is or was a Judge, or Magistrate or a Public Servant not removable of his office save by or with the sanction of the government, while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the appropriate Union or the State Government - In order to avail the benefit of Section 197, it is required to be established that the offence mentioned therein must be committed b....... + More
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CST, VAT & Sales Tax
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2023 (6) TMI 234
Interpretation of statute - term gross turnover as contained in the Composition Scheme 2006 - Composition Scheme for Gem and Stones, 2006 - exclusion of export amount from gross turnover for calculation of Composition Amount - N/N. F.12(63)FD/Tax/2005-37 dated 06.05.2006. HELD THAT:- From the conjoint reading of notification dated 06.05.2006 and Section 5 of RVAT Act, it is abundantly clear that the composition amount as envisaged under the Composition Scheme 2006 is levied so that assessee can discharge his/her tax liability by paying a lump sum amount / composition amount. The Composition Scheme 2006 was introduced with a beneficial purpose with the objective to streamline/simplify the tax paying process and to reduce the otherwise rigorous and complex compliance with respect to tax return. Thus, composition amount paid by the a....... + More
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2023 (6) TMI 233
Penalty under Section 76(9) of the RVAT Act - Contrary views for same offence - in the case of the petitioner against whom the demand has been restored while in case of the driver, the appeal filed by the Department has been dismissed for the same offence - production of VAT 47, an afterthought - HELD THAT:- It is undisputed that for the same offence, the penalty imposed upon the driver under Section 76(9) of the RVAT Act has been set aside. Further, as per settled position of law, penalty is not to be applied automatically in each case. To invoke penal provision, the Revenue has to necessarily conduct investigation, afford opportunity of defence/hearing to the assessee and inspect/analyse the documents. The same are sine qua non for imposition of penalty. Imposition of penalty can never be said to be automatic or per se. The foundatio....... + More
