TMI Tax Updates - e-Newsletter
July 12, 2023

Case Laws in this Newsletter:

GST Income Tax Customs PMLA Central Excise CST, VAT & Sales Tax

Articles

1. THE CHANGES IN TAXATION OF INCOME FROM A REIT – WHAT IT MEANS FOR INVESTORS

   By: Dhanush Thonaparthi

2. Rejection of Appeal is invalid if vehicle breaks down and new e-way bill prepared post interception

   By: Bimal jain

3. Supply of pumps along with their installation for a sewerage treatment plant is a works contract service

   By: Bimal jain

News

1. RBI & Fintech: The Road Ahead (Keynote address delivered by Deputy Governor T Rabi Sankar, Reserve Bank of India - July 7, 2023 - at the Moneycontrol India Startup Conclave in Bengaluru)

Notifications

GST - States

1. S.O. 49/P.A.5/2017/S.9/2023 - dated 17-6-2023 - Punjab SGST

Amendment in Notification No. S.O.28/P.A.5/2017/S.9/2017, dated the 30th June, 2017

2. S.O. 48/P.A.5/2017/S.11/2023 - dated 17-6-2023 - Punjab SGST

Amendment in Notification No. S.O.18/P.A.5/2017/S.11/2017, dated the 30th June, 2017

3. S.O. 47/P.A.5/2017/S.11/2023 - dated 17-6-2023 - Punjab SGST

Amendment in Notification No. S.O.18 /P.A.5 /2017 /S.11 / 2017 dated the 30th June, 2017

4. S.O. 46/P.A.5/2017/S.9 and 15/2023 - dated 17-6-2023 - Punjab SGST

Amendment in Notification No. S.O.16/P.A.5/2017/ S.9/2017, dated the 30th June, 2017

5. S.O. 45/P.A.5/2017/S.9/2023 - dated 17-6-2023 - Punjab SGST

Amendment in Notification No. S.O. 35/P.A.5/2017/S.9/ 2017, dated the 30th June, 2017

6. S.O. 44/P.A.5/2017/S.9,11,15 and 148/2023 - dated 17-6-2023 - Punjab SGST

Amendment in Notification No. S.O 37/P.A.5/ 2017/S.11/2017, dated the 30th June, 2017

Highlights / Catch Notes

GST

• Allahabad High Court: Valid E-Way Bill and Tax Invoice Protect Against Unnecessary Goods Detention and Litigation.

  Case-Laws - SC : Detention of goods alongwith vehicle - generation of two e-way bills - It was held by Allahabad High Court that in the case in hand once the valid document i.e. e-way bill and tax invoice, builty was accompanying with the goods, therefore the authorities ought not to have drag the petitioner in an unnecessary litigation. - Decision of HC sustained. - SC
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• Court Allows Advocate to Observe Statement Recording from Visible Distance, Ensuring No Influence or Participation.

  Case-Laws - HC : Prayer for recording of petitioner’s statement in the presence of his Advocate - The petitioner’s Advocate are allowed to remain present at a visible, but not at an audible distance at the the time of recording of the petitioner’s statement - HC
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Income Tax

• High Court Upholds Special Audit Order u/s 142(2A) of Income Tax Act; Assessee Had Fair Hearing Opportunity.

  Case-Laws - SC : Special audit u/s 142(2A) - scope of satisfaction recorded by the AO - reasonable opportunity provided to assessee or not? - As per HC essential mandate of Section 142(2A) requires an opportunity of hearing, which in the present case has been met - Decision of the High Court against the assessee sustained. - SC
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• Court Allows Petitioner to Challenge Faceless Assessment; Permits Appeal and Potential Waiver of Pre-Deposit Requirement.

  Case-Laws - SC : Validity of faceless assessment - allegation of the petitioner that it did not have the opportunity of being heard by the assessing officer - Liberty granted to the petitioner herein to avail the remedy of filing a statutory appellate remedy. In the event, the petitioner avails such a remedy and is under an obligation to make a pre-deposit before the said authority, an application may be made seeking waiver or reduction in the deposit to be made, as the case may be. - SC
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• High Court Orders Tax Department to Refund Excess TDS Interest u/ss 201(1A) and 244A to Affected Party.

  Case-Laws - SC : Refund of interest amount payable u/s 201(1A) - interest u/s 244A - Excessive deduction of TDS on the direction of Department - Decision of the High Court directing the department to refund the amount of interest sustained - SC
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• High Court Quashes Prosecution for Late TDS Deposit; Notice Issued After Deposit Made, Violating Sections 276B and 278B.

  Case-Laws - HC : Prosecution u/s 276B and 278B - delay in depositing the TDS amount in the Central Government - The petitioner claims that the notice to deposit the amount was issued on 14.11.2017 on the basis of the sanction order dated 11.12.2017 and before issuance of the notice, the amount was deposited with interest. The notice for prosecution of sanction was issued after the amount had been deposited by the petitioner with interest. - The cognizance order passed in Complaint Case is set aside. - HC
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• Editorial Services Payment Not Taxable as Fee for Included Service in India Due to Lack of Skill Transfer.

  Case-Laws - AT : Income chargeable to tax as FIS in India - Fee for included service - The e-publishing work in the nature of editorial services comprising of page composition, language polishing, indexing, correcting faulty grammar and punctuation etc. sub-contracted to the assessee involves technical expertise, however, such expertise is not transferred by the assessee which can be independently applied by SPi India in future on its own without recourse to the assessee. - The impugned payment is not in relation to any services which make available any technical skill or know-how etc. to SPi India - Not chargeable to tax as FIS in India - AT
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• Court Rejects Capital Gains Deduction Claim for Interest on Loan u/s 48; Property Was Gifted, Not Purchased.

  Case-Laws - AT : Computation of capital gains - Cost of Acquistion - Deduction u/s 48 - Interest paid on loan taken for settlement of arbitration award in favor of family members - The contention raised by assessee that it is the deduction claimed due to cost of acquisition rejected, since there is no cost incurred for acquisition, as the property had been gifted to the assessee by his parents. - AT
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• Assessing Officers Must Justify Higher Disallowance u/s 14A; Rule 8D Not Automatic Without Satisfaction.

  Case-Laws - AT : Disallowance u/s 14A - Mandation of recording satisfaction - suo motu disallowance made by assessee - where suo motu disallowance has been made, the Assessing Officer is required to form ‘satisfaction’ in terms of Section 14A of the Act for higher disallowance which has not been made and thus the formula provided for quantification of disallowance under Rule 8D would not automatically apply.Disallowance cannot exceed the actual expenditure incurred in relation to the earning of the exempt income - AT
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• Section 56(2)(viib) and Fair Market Value: Share Premium Valuation via DCF Requires Certification by Experts, Not Adjusted by Assessing Officer.

  Case-Laws - AT : Addition u/s 56(2)(viib) - issue of shares at premium - Determination of fair market value - The very purpose of certification of DCF valuation by a merchant banker or chartered accountant is to ensure that the valuation is fair and reasonable. Such valuation is to be done by an expert of the subject only, which an assessing officer is not expected to be. The said rule provides that such valuation shall be the fair market value for the purpose of this section based on DCF Method. The Rule nowhere permits the AO to make any adjustment therein. - AT
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• TPO's Order Invalidated: Exceeded Time Limit u/s 153, Taxpayer No Longer Eligible Assessee u/s 144C(15)(b).

  Case-Laws - AT : Validity of order u/s 92CA (3) on the ground of limitation as contemplated u/s 153 - As the order of the Ld. TPO is barred by limitation, there is no variation to the income of the assessee pursuance to the reference made the Ld. TPO. Accordingly, assessee does not qualify to be an eligible assessee u/s 144C(15)(b). Thus, the moment the order of the TPO is quashed the assessee ceases to be an ‘eligible assessee’. Therefore, in that circumstances the time limit for completion of the assessment reverts back to 21 months. - AT
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• Car Parking Rental Income Qualifies for Deduction u/s 80-IAB as Essential to SEZ Business Operations.

  Case-Laws - AT : Allowability of the deduction u/s 80-IAB with regard to car parking rental - nexus with the business carried on by the assessee - The provision of car parking services is essential part of carrying out the business of development, operation and maintenance of SEZ - the income from car parking rental would squarely qualify for deduction u/s 80IAB - AT
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• Unexplained Expenditure u/s 69C Deleted Due to Lack of Evidence in Angadia Cash Transfer Case.

  Case-Laws - AT : Unexplained expenditure u/s 69C - Addition relating to cash transferred through Angadias - Reliability of WhatsApp chat between employees and son-in-law of CMD - it could be a private and independent transaction, unconnected with the assessee company. Accordingly, AO could not have made this addition without bringing any material on record to show that the assessee company’s funds have been used for execution of this transaction and further the transaction has actually been executed. - Additions deleted - AT
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• Interest-Free Loan from Friend in Dubai Not Deemed Income u/s 68; Formal Agreement Not Required.

  Case-Laws - AT : Addition of unsecured loan u/s 68 - interest free unsecured loan received from a close friend in Dubai to fund ongoing project with a condition that amount will be refunded once revenue is generated from the project - As the assessee discharged primary onus with regard to identity, genuineness as well as creditworthiness of creditor. - the allegation of the revenue that there is no formal agreement, repayment schedule cannot be the basis for treating the credit of loan as deemed income of the assessee u/s 68 - AT
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• Appeal Dismissed: Assessee Agrees to Additions on Sales Discrepancies; No Coercion or Undue Influence Claimed.

  Case-Laws - AT : Additions towards Difference in receipts/sales which the assessee has agreed - If assessee has agreed for the difference, then there is no reason for the assessee to file this appeal unless assessee proves that acceptance was on account of coercion, threat, undue influence. In this case, the assessee has not alleged that there was any coercion, threat, undue influence. In these facts and circumstances of the case, this ground of the assessee is dismissed. - AT
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• Subscription Charges Not "Royalty" u/s 9(1)(vi) of Income Tax Act and India-USA DTAA Article 12(3.

  Case-Laws - AT : Income accued in India - taxability of subscription charges received by the assessee as “Royalty” - the income earned by way of CAS fee are squarely applicable to the subscription revenue received from customers of PUBS division for sale of journal also, and accordingly PUBS fee also does not qualify as 'Royalty' in terms of section 9(1)(vi) of the Act as well as Article 12(3) of the India-USA DTAA.” - AT
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• CA Firm Can't Use MSMED Act for Fee Recovery from Income Tax Department for Section 142(2A) Special Audits.

  Case-Laws - HC : Fee payable to CA Firms, for Special Audits directed u/s 142(2A) - CA Firm registered as MSME - Recovery of fees due from the Income Tax Department invoking the provisions of MSMED Act - Nomination of the Special Auditor by the IT Department - IT Department cannot be termed as a ‘buyer’ when it is nominating the accountant for conducting a Special Audit and neither can the CA Firm be termed as a ‘supplier’. The remuneration payable to the accountant cannot also be termed as ‘consideration’ as the Special Audit is a statutory duty being performed by the accountant for and on behalf of the AO. - HC
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Customs

• Adjudicating Authority's Non-Compliance with Tribunal Directions Leads to Legal Errors in CESTAT Kolkata Case.

  Case-Laws - HC : Failure on the part of Adjudicating Authority to follow the direction of Tribunal in Remand back Proceedings [2022 (8) TMI 11 - CESTAT KOLKATA] - the adjudicating authority was bound to carry the aforesaid order of the Tribunal in its letter and spirit and the impugned order-in-original is not only a factual error it is a jurisdictional error and error in law - HC
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• CHA Penalized for Misdeclaration; Individual Partner's Separate Penalty Overturned Based on Established Legal Principle.

  Case-Laws - AT : Levy of penalty on CHA - aiding and abetting the importer in the importation of three consignments of misdeclared goods including shoes, alkaline batteries and wooden strips/beads - It is a settled proposition of law that once a partnership is penalized, its partners cannot be penalized separately for the same offence - the penalty imposed on the Appellant 2 is not sustainable and liable to be set aside. - AT
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Central Excise

• Court Rejects Technical Glitch Claim for Late Payment Under SVLDRS, Emphasizes Adherence to Deadline Requirements.

  Case-Laws - HC : SVLDRS - failure to deposit the amount within the stipulated time period - So far as the alleged technical glitch, as highlighted by the learned counsel for the petitioner, is concerned, when, the other similarly situated declarants have made the payment online, then, accepting the said plea is not justifiable - HC
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Case Laws:

• GST

• 2023 (7) TMI 418
  Detention of goods alongwith vehicle - generation of two e-way bills - goods was in transit and the delivery was not taken - It was held by Allahabad High Court that In the case in hand once the valid document i.e. e-way bill and tax invoice, builty was accompanying with the goods, therefore the authorities ought not to have drag the petitioner in an unnecessary litigation. HELD THAT:- This Court is of the opinion that there is no infirmity in the judgment of the High Court, which is correctly appreciated. SLP dismissed.

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• 2023 (7) TMI 417
  Prayer for recording of petitioner s statement in the presence of his Advocate, at a visible but not audible distance, during his interrogation - HELD THAT:- Learned Special Public Prosecutor appearing for the respondent nos. 2 and 3 state that the respondent nos. 2 and 3 have no objection to the presence of the petitioner s Advocate, at the time of recording of the petitioner s statement, provided that he is at a visible distance, but not at an audible distance. The petitioner s Advocate are allowed to remain present at a visible, but not at an audible distance at the the time of recording of the petitioner s statement - petition allowed.

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• Income Tax

• 2023 (7) TMI 416
  Reopening of assessment u/s 147 - deduction u/s 80IB(10) denied - As per HC as during the course of scrutiny assessment AO had examined the claim for deduction u/s 80IB(10) in detail, therefore, merely because he did not examine such claim from the angle of clauses (e) and (f) thereof, would not be a valid ground for reopening the assessment as it would amount to a mere change of opinion . HELDTHAT:- In terms of Circular No. 17/2019 dated 08.08.2019 issued by Government of India, Ministry of Finance, Department of Revenue, Central Board Direct Taxes, Judicial Section, since the amount of tax involved is low, we are not inclined to interfere with the impugned order. SLP dismissed.

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• 2023 (7) TMI 415
  Characterization of income - security deposit paid in lieu of lease agreement - in B/S shown as assets, as receivables - security deposit given by original assessee, was given to one entity which subsequently amalgamated with the assessee - concurrent nature of the findings - unforeseen circumstances as sealing of the premises on account of non-conforming user by directions of the Supreme Court through the Monitoring Committee, the premises could not be used - HC was un-persuaded with the argument that the amount could be treated as a revenue expenditure merely because it was paid in the course of a dispute. Clearly, the character of the amount was of a capital nature and remained so; all that the assessee did was to agree that it would not claim a refund out of Rs. 10.58 crores, agreeing to forgo Rs. 5.8 crores -HELD THAT:- No reason to interfere with the order impugned in this petition. The special leave petition is, accordingly, dismissed.

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• 2023 (7) TMI 414
  Settlement Commission - Applications for settlement u/s 245D rejected - Procedure on receipt of application - as decided by HC in the case on hand, the Settlement Commission was not satisfied that there was a true and full disclosure, there is no scope for any interference under Article 226 of the Constitution of India - HELD THAT:- SLP dismissed.

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• 2023 (7) TMI 413
  Special audit u/s 142(2A) - scope of satisfaction recorded by the AO - reasonable opportunity provided to assessee or not? - As per HC essential mandate of Section 142(2A) requires an opportunity of hearing, which in the present case has been met - HELD THAT:- This Court is of the opinion that the impugned order does not call for interference. The special leave petition is accordingly dismissed.

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• 2023 (7) TMI 412
  Validity of faceless assessment - allegation of the petitioner that it did not have the opportunity of being heard by the assessing officer before the impugned assessment order was passed and the statutory procedure as regards making of the assessment order, was not followed - HELD THAT:- The impugned order categorically states that the petitioner herein could avail the statutory remedy of appeal against the order of assessment in accordance with law. In the circumstances, we are not inclined to interfere in the matter. - In the circumstances, we reserve liberty to the petitioner herein to avail the remedy of filing a statutory appellate remedy. In the event, the petitioner avails such a remedy and is under an obligation to make a pre-deposit before the said authority, an application may be made seeking waiver or reduction in the deposit to be made, as the case may be. In the circumstances, liberty is reserved to the petitioner to make a representation to the competent authority not to take any coercive action till the statutory appeal is filed.

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• 2023 (7) TMI 411
  Benami transaction - Beneficial owner of property - Provisional attachment order - scope of Amendment Act of 2016 - Amendment to Prohibition of Benami Property Transactions Act, 1988 as amended by the Benami Transactions (Prohibition) Amendment Act, 2016 - HELD THAT:- The issue raised in these petitions is squarely covered by the judgment of this Court in Union of India Anr. vs. Ganpati Dealcom Pvt. Ltd. [ 2022 (8) TMI 1047 - SUPREME COURT] as held Section 2 (9) (A) and Section 2 (9) (C) are substantive provisions creating the offence of benami transaction. These two provisions are significantly and substantially wider than the definition of benami transaction under Section 2 (a) of the unamended 1988 Act. Therefore, Section 2 (9) (A) and Section 2 (9) (C) can only have effect prospectively. Central Government has notified the date of coming into force of the Amendment Act of 2016 as 01.11.2016. Therefore, these two provisions cannot be applied to a transaction which took place prior to 01.11.2016. As petitioners contends that review of the said judgment is pending. Since as of now the issue stands covered by the judgment in the case of Ganpati Dealcom Pvt. Ltd.(supra), we dismiss these special leave petitions for the same reasons and ground. Delay condoned. Liberty to the petitioners to approach this Court again by filing a fresh petition in case the review petition(s) is allowed, is kept reserved.

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• 2023 (7) TMI 410
  Refund of interest amount payable u/s 201(1A) - interest u/s 244A - Excessive deduction of TDS on the direction of Department - as aggrieved despite the orders passed by the AO and allowing TDS credit in favour of the petitioner the respondents No.1 and 2 have not refunded the amount of interest - As per HC reasons assigned by the Revenue to decline refund of the interest u/s 201(1A) recovered from respondent No.3-NHAI on behalf of the petitioner is untenable, as after detailed scrutiny, the respondent No.2 found that the petitioner was assessed at loss and therefore, allowed the TDS credit in its favour. The TDS was refunded to the petitioner in accordance with law.Respondent Nos.1 and 2 are directed to refund the interest amount collected under Section 201(1A) of the Act from respondent No.3 on behalf of the petitioner together with interest u/s 244A HELD THAT:- We are not inclined to interfere with the impugned judgment and order of the High Court. The special leave petitions are dismissed.

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• 2023 (7) TMI 409
  Prosecution u/s 276B and 278B - delay in depositing the TDS amount in the Central Government - as relying upon CBDT guideline issued in F No. 285/90/2008/IT(Inv.-I)/05 dated 24.04.2008 assessee submitted that there was no criminality on the part of the petitioner as the amount had been credited in the account of interest before issuance of notice - whether the petitioner has made out its case u/s 278AA? - A specific plea has been taken that as a result of restructuring the debt by IARC, petitioner no. 1 had lost all control over utilization of its fund and payments to be made. HELD THAT:- As due restrictions were put in place by TRA agreement, the petitioner no. 1 was not in a position to take instant and prompt decision as all payments have to be rectified by IARC. Department has not taken any stand on this and controverted this part of the averment made in the petition in its counter affidavit. As argued on behalf of the Department that this is a subject where it can be considered at the stage of trial, but the question for consideration will arise only when there is denial of the said plea of reasonable cause. The petitioner claims that the notice to deposit the amount was issued on 14.11.2017 on the basis of the sanction order dated 11.12.2017 and before issuance of the notice, the amount was deposited with interest. The notice for prosecution of sanction was issued after the amount had been deposited by the petitioner with interest. Thus find force in the submission advanced on behalf of the petitioner that there was belated service of notice and there was sufficient cause which prevented the petitioner to deposit the TDS amount within the stipulated time. Accordingly, the cognizance order passed in Complaint Case is set aside. Decided in favour of assessee.

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• 2023 (7) TMI 408
  Revision u/s 263 - assessee obtained registration u/s 12A and u/s 80(G)(5)(vi) - whether the amount, which, to begin with, was given by one of the trustees in the form of unsecured loans, and which was later on converted to contribution, should have formed the basis for exercising revisional powers? - ITAT recorded that the AO had considered the response of the respondent/assessee and then taken a view in the matter - HELD THAT:- For exercise of powers u/s 263 it is well established that, not only the order passed by the AO would have to be categorised as erroneous, but it also has to be prejudicial to the interests of the revenue. As noted above, CIT(E) simply took recourse to the provisions of Section 263 of the Act because the AO had acted in a hurried and hasty manner. It is not in dispute that in the previous AYs, i.e., 2006-07, 2007-08, 2009-10, 2010-11 and 2011-12, the Tribunal has allowed the appeal of the respondent/assessee pertaining to the issue concerning denial of exemption under Section 11 of the Act on account of purported violation of provisions of Section 13(1)(c), read with Section 13(3) of the Act. Although Appellant says that the appeal was not preferred to this court against the order of the Tribunal because of low tax effect, it was not stated why was the revenue not alert, as it claims now, in exercising powers under Section 263 of the Act. no substantial question of law arises for consideration in the present appeal. No substantial question of law.

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• 2023 (7) TMI 407
  Addition of long term capital gain - addition invoking provisions of Section 50C - Section 50C retrospective or prospective effect - CIT(A) deleted the addition holding that the amendment to Section 50Cis retrospective and allowed benefit of sale consideration as per agreement to sell in which sale consideration was lesser than the value adopted by the stamp valuation authority - HELD THAT:- As decided in Dharamshibhai Sonani [ 2016 (9) TMI 1259 - ITAT AHMEDABAD] provisos to Section 50C being effective from 1st April 2003 - This is precisely what the learned counsel has prayed for. In his detailed written submissions, he has made out of a strong case for the amendment to Section 50C being treated as retrospective and with effect from 1st April 2003. The plea of the assessee is indeed well taken and deserves acceptance. Also see Amit Bansal [ 2018 (11) TMI 1699 - ITAT DELHI] We decline to interfere with the findings of the ld. CIT(A). - Decided against revenue.

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• 2023 (7) TMI 406
  Income chargeable to tax as FIS in India - Taxability of sub-contracting charges received by the assessee under the provisions of India-USA DTAA - scope of make available clause - HELD THAT:- The statement of work though not titled as an agreement clearly sets out the obligation of both the parties, overview of the work to be performed by the assessee and the effective date to be 1st January, 2018. The contention of the lower authorities that the assessee has failed to produce an agreement between the parties for rendition of services does not hold good. The assessee has also submitted copies of invoices raised by the assessee on a sample basis before the lower authorities during the assessment proceedings. Hence the contention of the Revenue that the assessee could not produce any other documentary evidence regarding the services provided also does not stand correct. The make available clause is satisfied when the person acquiring the services is enabled to apply the technology independently in the future without the assistance of the service provider. The fact that the provision of the service may require technical/consultancy input by the person providing the service does not per se mean that technical knowledge, skills etc. are made available to the person availing the service. There has to be a transfer of the technical knowledge, experience, skill, know-how or processes or a technical plan or technical design from the service provider to the service recipient and the same should remain with the service recipient even after rendering of the services has come to an end. The e-publishing work in the nature of editorial services comprising of page composition, language polishing, indexing, correcting faulty grammar and punctuation etc. sub-contracted to the assessee involves technical expertise, however, such expertise is not transferred by the assessee which can be independently applied by SPi India in future on its own without recourse to the assessee. The impugned payment is not in relation to any services which make available any technical skill or know-how etc. to SPi India. Thus we are of the view that the sub-contracting charges received by the assessee does not satisfy the make available condition as envisaged under Article 12(4) of the India-USA DTAA and hence are not chargeable to tax as FIS in India in the hands of the assessee. Accordingly, all the grounds of appeal are decided in favour of the assessee.

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• 2023 (7) TMI 405
  Computation of capital gains - Cost of Acquistion - Deduction u/s 48 - Interest paid on loan taken for settlement of arbitration award in favor of family members - Disallowance of interest - capital asset sold during the accounting year was specifically gifted to the appellant for payment of compensation to the other legal heir by way of family arrangement and deductible as cost of acquisition from the sale value - HELD THAT:- We are in conformity with the orders of the revenue authorities that this payment of interest has nothing to do with LTCG on the sale of the said capital asset and therefore such payment of interest cannot be claimed as deduction from the value of LTCG u/sec. 48. We do not agree with the contention raised by assessee that it is the deduction claimed due to cost of acquisition since there is no cost incurred for acquisition, as the property had been gifted to the assessee by his parents. None of the heads of expenses for computation of capital gains as defined u/sec. 48 is applicable in the case of the assessee. The deduction of interest paid is neither related to cost of acquisition, cost of improvement or cost of transfer of asset sold. We do not find any infirmity with the findings of the ld. CIT(A) which is hereby upheld. Ground No.1 of the assessee s appeal is dismissed.

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• 2023 (7) TMI 404
  Exemption u/s 11 / 12 - claim denied as activities were fees based and the activities were not charitable in nature - assessee is registered u/s 12AA of the Income Tax Act. Its main activity was to render services to the members in relation to the trade, commerce or business for fees / subscription from members - AO held that the activities of the assessee would fall under last limb of Sec. 2(15) i.e., advancement of object of general public utility and therefore, the proviso therein would apply to the case of the assessee - HELD THAT:- We find that the activities of the assessee are fees based activities. The objects of the assessee would fall under last limb i.e., advancement of objects of any other general public utility. We concur with the rival submissions that the cited case of Ahmedabad Urban Development Authority [ 2022 (10) TMI 948 - SUPREME COURT] as held noted that the conclusions arrived at by way of this judgment, neither precludes any of the assessees (whether statutory, or non-statutory) advancing objects of general public utility, from claiming exemption, nor the taxing authorities from denying exemption, in the future, if the receipts of the relevant year exceed the quantitative limit. The assessing authorities must on a yearly basis, scrutinize the record to discern whether the nature of the assessee s activities amount to trade, commerce or business based on its receipts and income (i.e., whether the amounts charged are on cost basis, or significantly higher). If it is found that they are in the nature of trade, commerce or business , then it must be examined whether the quantified limit (as amended from time to time) in proviso to section 2(15), has been breached, thus disentitling them to exemption. Therefore, the case of the assessee has to be analyzed at the threshold of above adjudication of Hon ble Supreme Court. For the said purpose, we set aside the impugned order and restore the assessment back to the file of Ld. AO for adjudication de novo in the light of above judgment. The assessee is directed to substantiate its stand. The appeal stand allowed for statistical purposes.

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• 2023 (7) TMI 403
  Addition u/s 56(2)(viib) - issue of shares at premium - Determination of fair market value - DCF v/s NAV method of valuation of shares - unverified data supplied by assessee - DCF method was rejected by the AO after finding discrepancies in the basis of valuation adopting different method of calculation of share in the Fair Market Value - HELD THAT:- The assessee has obtained the method for DCF for as calculating the FMV of share. In assessment order without finding any lacuna, the ld. AO has changed the method from DCF to NAV. The very purpose of certification of DCF valuation by a merchant banker or chartered accountant is to ensure that the valuation is fair and reasonable. Such valuation is to be done by an expert of the subject only, which an assessing officer is not expected to be. The said rule provides that such valuation shall be the fair market value for the purpose of this section based on DCF Method. The Rule nowhere permits the AO to make any adjustment therein. AO has rejected the DCF method due to unverified data supplied assessee. But the impugned order is not coming under same factual matrix of the case Agro Portfolio Private Ltd [ 2018 (5) TMI 1088 - ITAT DELHI] - AO was not able to establish about any dispute about the correctness of data as supplied by the assessee to merchant banker. The ld. AO had not taken any technical support related to valuation of the share of assessee in impugned assessment year. The data in valuation is basis of projection which was calculated by the Merchant Banker/ Chartered Accountant. The change of method of valuation is not in accordance with the relevant provisions of the Act and the Rules stated above. Accordingly, we uphold the findings of the ld. CIT(A) and set aside the addition made by the ld. AO. Accordingly, grounds taken by the revenue in this respect are dismissed.

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• 2023 (7) TMI 402
  Unexplained cash deposit - unexplained and undisclosed sales consideration - HELD THAT:- AO made addition by taking view that no explanation of evidence was furnished by assessee against such cash deposit in bank. CIT(A) deleted the addition by taking view that AO made double addition, which includes addition on account of cash deposit in HDFC bank, which has been upheld by him. CIT(A) categorically held that the addition of Rs. 10.00 lakhs is a duplication of addition which is covered by addition of Rs. 11.29 lakhs. We find that the ld CIT(A) granted relief to the assessee on verification of facts and evidences. No contrary facts or evidence is brought to our notice to take the other view that addition of Rs. 10 lakhs was not a part of addition of Rs. 11.29 lakhs. Thus, we affirm the order of Ld. CIT(A). In the result, ground No.1 of the appeal is dismissed. Unexplained time deposit - Assessee has not filed any submission or explanation during assessment - HELD THAT:- As before CIT(A) the assessee filed detailed written submission including the source of time deposit, received on account of sale of immovable property, initially time deposit was made in HDFC bank and later on the amount was transferred to State Bank of Mysore and it was reinvested / rotated twice. CIT(A) on appreciation on the submission and evidence and found that making addition is a result of clear mistake committed by AO. The original investment was only Rs. 90.00 lakhs which was rotated twice. Similarly, the assessee also explained the FDR with Bank of Baroda and maturity amount was received back in the financial year itself out of which Rs. 90.00 lakhs was transferred to State Bank of Mysore for short term time deposit and with HDFC Bank. The original source of such time deposit was sale proceed of plots of land. The Ld. CIT(A) noted that initially assessee received Rs. 1.50 cores, out of which the assessee invested in short term FDR of Bank of Baroda to the tune of Rs. 1.498 crore and the maturity proceed were received back in first week of October, 2010. It was also noted that the assessee transferred Rs. 90.00 lakhs to the State Bank of Mysore for investment in short term deposit. The assessee also transferred Rs. 45 lakhs to another bank account with HDFC Bank. Thus, addition of Rs. 1.49 crores is stand explained and deleted accordingly. For other addition CIT(A) recorded that from the chart submitted by assessee that it is clearly explained that maturity amount of Rs. 90 lakhs FDR with Bank of Baroda was transferred to Bank of Mysore and it was rotated twice and assessee received maturity amount of Rs. 92.92 lakhs and Rs. 92.99 lakhs respectively. CIT(A) held that the Assessing Officer wrongly considered this investment and maturity as a separate investment and made addition of Rs. 2,73,91,415/- (90,00,000 + 90,92,107 + 92,99,308), which is clear mistake by assessing officer. We find that Ld. CIT(A) deleted both the additions on appreciation of submission and evidence.Grounds No.2 3 of Revenue are dismissed. Addition on account of advance given to Samuria Textile . - AO made addition which was advanced by assessee to various parties by taking view that assessee has not given any explanation or evidence to substantiate such transaction - HELD THAT:- As before Ld. CIT(A) the assessee explained the source of advance and the identity of persons. CIT(A) granted relief to the extent of Rs. 55.00 lakhs, advanced to Samuria Textile by taking view that the advances were given through account payee cheque to a firm wherein the son of assessee is also a partner. Thus, the identity of recipient was proved. The source of fund was from the sale proceed of land which is already taxed as a capital gain. Therefore, Ld. CIT(A) held that either source of investment or application of income, can be taxed. CIT(A) held that source of advance was part of sale proceed of land. Therefore, there was no reason for confirming the addition to the extent of Rs. 55.00 lakhs advance to Samuria Textile. Remaining advance which was not satisfactory explained was upheld. Before us the Ld. CIT-DR for the Revenue has not shown any contrary facts or evidence to take other view, except making submission that Ld. CIT(A) granted relief to the assessee by accepting explanation of assessee. assessee discharged his onus in proving identity, source of investment and genuineness of transaction. Therefore, we do not find any reason to interfere with the finding of Ld.CIT(A), which we affirm. This ground No.4 of Revenue s appeal is dismissed. Appeal of the revenue is dismissed.

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• 2023 (7) TMI 401
  Validity of order u/s 92CA (3) on the ground of limitation as contemplated u/s 153 - Time limit for completing the assessment u/s 153 - assessee has TP issues and AO makes reference to the Ld. TPO for determination of Arm s Length Price of international transaction - computation of period of limitation is 21 months + further time of 12 months is available for passing of the order due to TP issues HELD THAT:- As the extended time limit available to the AO for passing the final order in the present case is 33 months ending on 31st December, 2016. According to the provisions of Sec.92CA(3) such order should be passed at any time before 60 days prior to the date on which the period of limitation be prescribed u/s 153 expires. In this case, the period of limitation expires on 30th December, 2016, therefore, the Ld. TPO should have passed an order u/s 92CA(3) of the Act on or before 31/10/2016, however, such TP order is passed on 01/11/2016, therefore, naturally the order passed by the Ld. TPO is barred by limitation. In such a situation,in the case of M/s Pfizer India Healthcare Pvt. Ltd. [ 2021 (2) TMI 1152 - MADRAS HIGH COURT ] as the order dated 07/09/2020 has quashed the TPO order. Accordingly, we respectfully following the decision of Hon ble Madras High Court which has been further affirmed by in DCIT Vs. Saint Gobain India Pvt. Ltd [ 2022 (4) TMI 808 - MADRAS HIGH COURT ] quash the T P order . As the order of the Ld. TPO is barred by limitation, there is no variation to the income of the assessee pursuance to the reference made the Ld. TPO. Accordingly, assessee does not qualify to be an eligible assessee u/s 144C(15)(b). Thus, the moment the order of the TPO is quashed the assessee ceases to be an eligible assessee . Therefore, in that circumstances the time limit for completion of the assessment reverts back to 21 months. However, in this case the final assessment order is passed on 26th October, 2017, same is also time barred. Accordingly, the final assessment order is also quashed. Decided in favour of assessee.

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• 2023 (7) TMI 400
  Disallowance u/s 14A - Mandation of recording satisfaction - suo motu disallowance made by assessee - HELD THAT:- After taking into consideration the nature of business of the assessee and the expenditure, the Bench is of considered view that the findings arrived by the Co-ordinate Bench in [ 2022 (10) TMI 82 - ITAT DELHI] are squarely applicable as held where suo motu disallowance has been made, the Assessing Officer is required to form satisfaction in terms of Section 14A of the Act for higher disallowance which has not been made and thus the formula provided for quantification of disallowance under Rule 8D would not automatically apply . Disallowance cannot exceed the actual expenditure incurred in relation to the earning of the exempt income - Decided in favour of the assessee. Computation of the book profits u/s 115JB of the Act by invoking provisions of Section 14A - Revenue could not dispute the settled proposition of law that the disallowance u/s 14A of the Act is a notional disallowance and therefore, by taking recourse to Section 14A of the Act the amount cannot be added back to book profits under clause (f) of section 115JB of the Act - See Vireet Investment (P.) Ltd. [ 2017 (6) TMI 1124 - ITAT DELHI] and Sobha Developers Ltd. [ 2021 (1) TMI 378 - KARNATAKA HIGH COURT] - Decided in favour of the assessee. Allowability of the deduction u/s 80-IAB with regard to car parking rental - HELD THAT:- As decided in M/s. Unitech Developers and Projects Ltd. [ 2022 (10) TMI 82 - ITAT DELHI] in the light of documentary evidences placed by way of notifications and instructions from competent authorities, it is manifest that car parking rentals have been reckoned as authorized operation in SEZ. In the light of express guidelines issued by the Government as referred to and relied upon, we are of the view that the income from car parking rental would squarely qualify for deduction u/s 80IAB - Decided in favour of the assessee. Allowability of 80-IAB reduction on interest income is claimed by the assessee - HELD THAT:- This issue covered in favour of the assessee by the judgment of Meghalaya Steels Ltd. [ 2016 (3) TMI 375 - SUPREME COURT] - The assessee has claimed that the fixed deposit receipts were created as the Collateral security which are covered by the aforesaid observations and there appears to be no denial to aforesaid arguments and accordingly the grounds arising out of this issue stand decided in favour of the assessee.

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• 2023 (7) TMI 399
  Estimation of income - bogus purchases - contention of the assessee that no disallowance of purchases is warranted, since the manufacturing loss and the gross profit rate declared by the assessee compares well with industry standards and assessee itself, in the alternative, has submitted that the addition towards incremental gross profit may be restricted to 2% of the value of purchases - HELD THAT:- As noticed earlier that the manufacturing loss declared by the assessee was less than the SION standards prescribed by DGFT. The gross profit rate declared by the assessee was more than the industry average. Hence, in the normal circumstances, no disallowance of purchases is called for. Since some of the suppliers have stated that they have not supplied the materials and since the AO DGCEI has opined that the assessee might have procured materials from others, it is possible that the assessee could have made some profit in such an exercise. Hence, in order to take care of revenue leakages, if any, some addition is called for. We modify the order passed by Ld CIT(A) in all these years and direct the AO to restrict the addition on account of non-genuine purchases to 2% of the value of alleged bogus purchases in both the years under consideration. TP Adjustment - Commission on Corporate Guarantee given to the Associated Enterprises by the assessee - HELD THAT:- We notice that the co-ordinate bench of Tribunal has examined an identical issue in the assessee s own case in AY 2010-11 wherein as restricted the rate of commission at 0.50% of the value of loan actually availed by the Associated Enterprises. Tribunal has followed the decision rendered in the case of Everest Canto Cylinders Ltd [ 2015 (5) TMI 395 - BOMBAY HIGH COURT] No reason to interfere with the decision so taken by Ld CIT(A) on this issue. Accordingly we uphold the same in both the years. Unexplained income u/s 69A - Addition towards Cash income shown in seized materials - HELD THAT:- There are receipts and payments noted against the name of Shilan . The impugned document was seized from his chamber only. We notice that a sum has been received in November, 2016 with the noting cash received from Shilan Returnable . We also notice that a sum has been paid to Shilan with the noting Insurance Shalin in March, 2017. In our view, above said receipt of Rs. 5.00 lakhs can be set off against the payment of Rs. 6.00 lakhs, since both the receipts payments are in the name of Shalin only. Accordingly, we are of the view that a further relief of Rs. 5.00 lakhs should be granted in respect of this addition made in AY 2017-18. Accordingly, we modify the order passed by Ld CIT(A) on this issue and direct the AO to allow further deduction of Rs. 5.00 lakhs in AY 2017-18. Revenue expenses should be reduced from this disallowance - What is required to be done is to deduct the revenue expenses from the income already assessed. As noticed and listed out the revenue expenses relating to AY 2017-18 and 2018-19 respectively. We also notice that the aggregate amount of expenses in each year is more than the revenue receipts of that year. Accordingly, we are of the view that the above said expenditure should be deducted from the revenue receipts and only net revenue income should be taxed. Accordingly, we modify the order passed by Ld CIT(A) on this issue and direct the AO to allow deduction. Additions made on account of profits made in the alleged bogus purchases would result in generation of cash and hence the same shall constitute source for the receipts shown in the document - The above said claim of the assessee is justified on the principle that same income cannot be taxed twice. The profit element assessed on account of alleged bogus purchases would result in generation of cash and the same should fund the receipts shown in the seized document. Accordingly, there is merit in the claim of the assessee that the said addition should be given set off against the receipts noted in the seized document. We notice that the addition in respect of alleged bogus purchases has been sustained by the Tribunal @ 2% of the value of purchases. assessee is entitled for deduction of above said amount against the addition made on the basis of seized document in both the years, since the same constitutes source for the receipts shown in the seized document. Accordingly, we modify the order passed by Ld CIT(A) and direct the AO to allow deduction partly. Unexplained expenditure u/s 69C - We noticed earlier that the assessee has paid Rs. 10.00 lakhs in January, 2017 and Rs. 5.00 lakhs in March, 2017. From the seized document, we notice that the payments to contractors and MIDC Road were not made in January, 2017 and March, 2017. The payment towards other expenses was Rs. 2,58,885/- in January, 2017 and Rs. 17,05,787/- in March, 2017. Hence the amount of Rs. 10.00 lakhs noted to have been paid in January, 2017 cannot be said to have been included in the seized document. Under the same principle, we are of the view that it cannot be inferred that the amount of Rs. 5.00 lakhs was also included in that document. Accordingly, we do not find any merit in the contentions of the assessee. Excess of expenditure over receipt in the month of March, 2017 - Hence there is merit in the submissions of the Ld A.R that overall picture should be considered. We also find merit in the submissions that there may be mistakes in making entries in the months of March, 2017 to May, 2017, i.e., it may be due to clerical or typographical mistakes. Accordingly, we are of the view that the AO was not justified in making addition on the basis of uncorroborated seized document. Accordingly, we set aside the order passed by Ld CIT(A) on this issue and direct the AO to delete this addition. Addition being cash salary paid to employees - We notice that the AO has also placed reliance on the statement given by CMD Shri Neeraj Raja Kochhar. We noticed that the Ld A.R has submitted that the CMD could not have remembered the transactions immediately, since there are 4000 to 5000 employees are employed. Hence, we are of the view that the AO could not have placed reliance on the above said statement for making any addition without bringing any other material on record to support his case that the cash was actually paid as stated in the Statement. Accordingly, we set aside the order passed by Ld CIT(A) on this issue and direct the AO to delete this addition. Addition relating to cash transferred through Angadias - It consists of two items, viz., domestic transfer of funds and transfer of funds abroad - Whatsapp messages from the personal mobile phone of Shri P Nandakumar (Senior Purchase manager of the assessee company) relied upon - HELD THAT:- We notice that this addition has been made on the basis of whatsapp messages exchanged between an employee of the assessee company and Shri Amit Mehra. Secondly, both the employees of the assessee company, Shri Amit Mehra and Shri Neeraj Raja Kochchar, i.e., all the concerned persons have denied the execution of the transaction. Thirdly, in the said messages, it is nowhere mentioned that funds of the assessee company are involved in the transactions. All these factors cumulatively show that the assessee cannot be involved/implicated in respect of this transaction merely on the reasoning that the whatsapp messages are between the employee of assessee company and Shri Amit Mehra, son in law of CMD. As submitted by Ld A.R, it could be a private and independent transaction, unconnected with the assessee company. Accordingly, AO could not have made this addition without bringing any material on record to show that the assessee company s funds have been used for execution of this transaction and further the transaction has actually been executed. Accordingly, we set aside the order passed by Ld CIT(A) on this issue and direct the AO to delete this addition made u/s 69C. Appeals of the assessee are partly allowed and the appeal of the revenue is dismissed.

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• 2023 (7) TMI 398
  Maintainability of appeal on low tax effect - Disallowance u/s 14A r.w.r. 8D - AO referred to the CBDT Circular No. 05/2014 and stated that disallowance u/s 14A becomes mandatory once any investment relating to earning of exempt income is made by the assessee and it is not material whether the exempt income is earned or not during the year - HELD THAT:- We are of the considered view that the present case doesn t fall under exception 10(b) of the CBDT Circular and the appeal so filed by the Revenue is hereby dismissed at the threshold on account of low tax effect. The contentions on merits of the case need not be gone into and are not dealt with and thus left open.

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• 2023 (7) TMI 397
  Addition of unsecured loan u/s 68 - interest free unsecured loan received from a close friend in Dubai to fund ongoing project with a condition that amount will be refunded once revenue is generated from the project - AO found that the assessee has not furnished proper details of the lender such as the address as well as return of income of the lender and merely the amount was received through banking channel and filing confirmation letter will not discharge the assessee from his obligation cast u/s 68 - HELD THAT:- The provision of section 68 of the Act fastens the liability on the assessee to make proper and reasonable explanation regarding the nature and sources of sum credited in the books of accounts to the satisfaction of the AO. The assessee is liable to provide proof of the identity of the lenders, establish the genuineness of the transactions and creditworthiness of the parties. These liabilities on the assessee were imposed to justify the credit entries u/s 68 In this case the amount was directly remitted by party from the bank account held NBD Emirates bank which can be verified from copy of bank statement placed on record. As the assessee discharged primary onus with regard to identity, genuineness as well as creditworthiness of creditor. The revenue authority without bringing contrary material in the submission of the assessee has treated the loan from Sri Salim Menon as unexplained cash credit on the reasoning that there being no formal loan agreement, cash flow statement of lender, schedule of repayment and interest and permission of RBI/authority to accept money from NRI. The revenue held the amount credited as unexplained cash credit u/s 68 - we note that, the allegation of the revenue that there is no formal agreement, repayment schedule cannot be the basis for treating the credit of loan as deemed income of the assessee u/s 68 - As such it is the understanding between the assessee and loan parties whether to enter into formal agreement or not and how to when to make repayment of such loan. Similarly, not filling cash flow statement of loan party does not tantamount the loan party is not genuine or does not have sufficient credit worthiness. Approval from competent authority for accepting fund from NRI - We are of the considered opinion when the identity and credit worthiness of creditor is established, genuineness of transaction is also not in doubt as the party has confirmed and the transaction was carried out through banking channel by way foreign direct remittance. Then, such amount cannot be deemed as unexplained since the assessee has not got the approval from competent authority to accept foreign direct remittance. As such, it may the violation RBI which is independent to Income Tax Act. But the violation of certain other statute cannot be used to draw an inference that the amount received as loan represents unexplained cash credit and deemed income of the assessee under the provisions of section 68 of the Act. Decided in favour of assessee. TDS u/s 194C - Disallowance of land leveling expenses u/s 40(a)(ia) - HELD THAT:- As the assessee failed to provide the details that the payee has included the amount received from the assessee in its income. Thus, the assessee cannot be given the benefit of the proviso to section 40(a)(ia) - we find that Finance (No. 2) Act has made amendment to section 40(a)(ia) of the Act w.e.f. 1-4-2015. Various benches of the Tribunals have held the amendment made by Finance (No 2) Act to be curative in nature. As in the case of M/s. R. H. International [ 2019 (5) TMI 616 - ITAT DELHI] has held that disallowance u/s. 40(a)(ia) of the Act be restricted to 30% of the expenses paid as against 100% because amended provision is curative in nature and the provisions should be applied retrospectively. We, therefore, hold that the disallowance of expenses on account of non-deduction of TDS be restricted to 30% of the expenses in the given facts and circumstances. Addition being outstanding labor charges payable to one individual - HELD THAT:- disallowance has been made concurrently by both the lower authorities in the absence of supporting documents. Even at the time of hearing before us, the learned AR has not brought any iota of documentary evidence suggesting that the Labour expenses has been incurred for the purpose of the business. Be that as it may, we find that the assessee is engaged in the business of civil construction and development besides trading in lands. Admittedly, the activity of civil construction and development cannot be carried out without the involvement of the labours. Thus, Restrict the addition to tune of 50% to prevent any revenue leakage. Decided partly in favour of assessee.

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• 2023 (7) TMI 396
  Validity of re-assessment was completed on the basis of the loose sheet and the report received from the Central Bureau of Investigation - HELD THAT:- The books of accounts which is impounded by the CBI was not verified by any of the revenue authorities during passing the order. It is a fit case that the assessee has not got a reasonable opportunity to substantiate its fact before the revenue authorities. Only on basis of the loose papers and report of CBI, the assessment order was passed by the revenue without considering the Books of accounts of the assessee which is violation of natural justice. The assessee placed the Affidavits U/R 29 of the Rule before the bench which were never be filed before any of the lower authorities. So, we remit back the cases to the ld. AO for further adjudication - AO shall provide proper and adequate opportunity of being heard to the assessee in set aside proceedings. The evidence/explanations submitted by assessee in its defence shall be admitted by the ld. AO, and adjudicated by the ld. AO on merits in accordance with law.

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• 2023 (7) TMI 395
  Addition to the total income of assessee under pretext of mismatch in the amount of sales turnover as per accounts - assessee is engaged in the profession of consultancy relating to construction diagnosis under his proprietary concern - HELD THAT:- AR has merely filed three sample sale invoices, however, these sample invoices do not demonstrate that the actual amount which has been deposited in bank contains sales tax amount also. In Form 3CD column No. 26 is regarding sum referred in s. 43B . Thus, column 26 is regarding sales tax, custom duty, excise duty etc. In column No. 26, assessee has merely returned NIL. It means, in Form 3CD, assessee has not claimed that there is NIL sales tax amount collected by assessee and out of that NIL amount deposited by assessee and outstanding at the end of the year is NIL. If there is any sales tax amount collected/outstanding which could have been shown in Form 3CD (column No. 26), but not such amount appears in column No. 26 of Form 3CD. Form 3CD is duly signed by Chartered Accountant (CA). The assessee along with the return of income has filed details of TDS and gross receipts. The said gross receipts have been shown by the assessee in profit and loss account, therefore, the assessee s plea which he has taken before us that gross receipts includes sales tax amount is factually incorrect, as in schedule 6, assessee has shown gross receipts TDS and that gross receipts has been shown in profit and loss account. Had there been any component of sales tax, assessee would have qualified it either in the statement of income or in Form 3CD, but nowhere assessee has qualified the same.T he assessee s claim that the difference is on account of sales tax liability is devoid of merit, therefore we uphold the addition made by the AO. Accordingly, ground Nos. 1 to 3 are dismissed. Addition made out of the purview of limited scrutiny - HELD THAT:- One of the reasons for selection of case for scrutiny was higher turnover reported in service tax return compared to ITR, mismatch in sales turnover reported in audit report and ITR mismatch, 26AS and ITR. Thus, the case was mainly selected on ground of mismatch between the figures shown by the assessee in income tax return vis-a-vis other. The AO has made the addition to the turnover of the assessee based on this mismatch only. Therefore, there is no merit in this ground and accordingly, ground No. 4 of the assessee is dismissed. Difference in receipts/sales which the assessee has agreed in assessment and/appellate proceedings be ignored and deleted since the said agreement was not in keeping with facts and circumstances of the case and the law - HELD THAT:- If assessee has agreed for the difference, then there is no reason for the assessee to file this appeal unless assessee proves that acceptance was on account of coercion, threat, undue influence. In this case, the assessee has not alleged that there was any coercion, threat, undue influence. In these facts and circumstances of the case, the ground No. 5 of the assessee is dismissed. Thus, assessee has pleaded that the assessee has agreed for the difference in receipts/sales during the course of assessment proceedings. If assessee has agreed for the difference, then there is no reason for the assessee to file this appeal unless assessee proves that acceptance was on account of coercion, threat, undue influence. In this case, the assessee has not alleged that there was any coercion, threat, undue influence. In these facts and circumstances of the case, the ground No. 5 of the assessee is dismissed. Only profit element should be taxed, if at all addition is sustained - HELD THAT:- The assessee in income and expenditure account, had claimed expenditure for AY 2015-16, but shown less turnover, therefore the expenditure pertaining to the said amount has already been claimed by the assessee in profit and loss account. Therefore, the AO was right in making addition of entire amount therefore there is no merit in the assessee s claim that only profit shall be taxed, hence, ground No. 6 of the assessee is dismissed. CIT(A) has not considered the submissions of the assessee AND has disposed the appeal without affording adequate opportunity of being heard - HELD THAT:- There is no merit in the said ground as both the AO and the ld.CIT(A) had reproduced the assessee s submissions and have arrived at the decision after considering his submissions. Also CIT(A) has reproduced the assessee s submissions and after considering the submissions, ld.CIT(A) has passed the order. Therefore, there is no merit in the allegation leveled by the assessee that ld.CIT(A) has not given proper opportunity of hearing. Decided against assessee.

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• 2023 (7) TMI 394
  Income accued in India - taxability of subscription charges received by the assessee as Royalty u/Article 12(3) of India USA DTAA and u/s 9(1)(vi) - subscription revenue received by the assessee in Chemical Extract Service and Publication division - assessee is a scientific society based in the USA that supports scientific enquiry in the field of chemistry - HELD THAT:- As respectfully following the orders passed in assessee s own case [ 2019 (4) TMI 1818 - ITAT MUMBAI] as held what is acquired by the customer is a copyrighted article, copyrights of which continue to lie with assessee for all purposes. It is a well settled law that copyrighted article is different from a copyright, and that consideration for the former, i.e. a copyrighted article does not qualify as royalties. Thus, the principles noted by us in the earlier part of this order in the context of the income earned by way of CAS fee are squarely applicable to the subscription revenue received from customers of PUBS division for sale of journal also, and accordingly PUBS fee also does not qualify as Royalty in terms of section 9(1)(vi) of the Act as well as Article 12(3) of the India-USA DTAA. Thus we uphold the plea of the assessee and delete the impugned addition in respect of the subscription fee received by the assessee under Chemical Abstract Service and Publications division. Decided in favour of assessee.

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• 2023 (7) TMI 393
  Addition u/s 68 - accommodation entry receipts - Unexplained expenditure u/s 69C - HELD THAT:- As during appellate proceedings, no further details have been filed by appellant company, despite allowing opportunity of being heard in that regard, so as to justify its claim that no additions needed to be made in appellant s present case No material/evidence was ever produced by the Appellant, neither is available on record to substantiate the grounds raised in this appeal by the Appellant and to controvert the findings of the ld. Authorities below to the effects that the Appellant failed to discharge its onus to establish the identity and creditworthiness of the party from whom the amount was received. The Appellant could also not establish the genuineness of the transaction. Therefore, the onus cast upon the Appellant to fulfil the conditions of section 69 of the Act, does not stand discharged. Consequently, the findings recorded by Commissioner in the impugned order, does not call for any interference. Accordingly, the impugned order is liable to be affirmed. Decided against assessee.

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• 2023 (7) TMI 382
  Fee payable to CA Firms, for Special Audits directed u/s 142(2A) - CA Firm registered as MSME - Recovery of fees due from the Income Tax Department invoking the provisions of MSMED Act - interplay between the IT Act and the Micro, Small and Medium Enterprises Development Act ( MSMED Act ) - Nomination of the Special Auditor by the IT Department - CA Firm, being on the panel of the Income Tax Department was nominated as a Special Auditor by the IT Department in four cases for carrying out Special Audit in terms of Section 142(2A) HELD THAT:- The nature of the Audit and the manner in which remuneration is to be determined would require domain expertise and knowledge which the MSEFC cannot possess. Function which is in effect delegated to the Audit firm is one which is exercised under the Income Tax Act and would be purely governed by the said statute. Payment of remuneration is also based on the factors prescribed in the Rules as discussed above. The nature of the assessment is not commercial but is a statutory nomination for the assistance of the AO and in effect the IT Department. IT Department cannot be termed as a buyer when it is nominating the accountant for conducting a Special Audit and neither can the CA Firm be termed as a supplier . The remuneration payable to the accountant cannot also be termed as consideration as the Special Audit is a statutory duty being performed by the accountant for and on behalf of the AO. The invocation of the provisions of the MSMED Act under such circumstances, in respect of Special Audit remuneration u/s 142(2D) would, therefore, not be tenable and is completely misplaced. MSMED Act has no applicability to the nature of the assignment which has been given to the Respondent/CA Firm. CA Firm may be registered as a Micro or Small enterprise and may be entitled to invocation of the jurisdiction of the MSMED Act for other purposes. Insofar as the assignment is one which is emanating from a statute i.e., u/s 142(2A) of the IT Act, the determination of the remuneration is solely the prerogative of the Commissioner or the Chief Commissioner. The same would not be liable to be called into question either in a civil court or in a commercial suit or civil suit as one of recovery of money. The nomination as a Special Auditor for the conduct of Special Audit is governed purely by the provisions of the Income Tax Act and Rules. This would, however, not bar the remedy of filing of a writ petition. The present is a case where there is a clear lack of jurisdiction in the MSEFC, which even failed to consider as to whether the MSMED Act would itself be applicable or not. MSMED Act would have no applicability, the impugned references by the MSEFC, of the claims raised by the Respondent/CA Firm to arbitration are not sustainable. The same are, accordingly, set aside.

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• Customs

• 2023 (7) TMI 392
  Requirement to determine correct Fe content - Iron Ore Fines - error apparent on the face of record - Failure on the part of Adjudicating Authority to follow the direction of Tribunal in Remand back Proceedings [ 2022 (8) TMI 11 - CESTAT KOLKATA ] - HELD THAT:- On perusal of the order in original, it is found that the adjudicating authority has not acted strictly as per findings, observations and directions given by the Tribunal rather it has given its own reason and opinion and has not implemented the aforesaid order of the Tribunal in its letter and spirit. Though Mr. Maiti, Respondent Customs Authority very vehemently argues that since the order-in-original is an appealable order under the statute before the first appellate authority, this Court should not interfere with the same on the ground of availability of alternative remedy which is not convincing and acceptable to this Court for the exceptional reason that aforesaid order of the Tribunal which has attained its finality after the order of the Division Bench of this Court by neither interfering with nor setting aside the same, the adjudicating authority was bound to carry the aforesaid order of the Tribunal in its letter and spirit and the impugned order-in-original is not only a factual error it is a jurisdictional error and error in law since it is contrary to the decision of the Supreme Court upon which even the first appellate authority in the first round has relied and held in favour of the petitioner and for the same reasoning the Tribunal has remanded the matter back by its aforesaid order. The aforesaid impugned order in original dated 5th January, 2023 is not sustainable in law and is set aside and the matter is remanded back to the adjudicating authority concerned to implement the aforesaid order - Petition disposed off.

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• 2023 (7) TMI 391
  Refund of SAD - Time limitation - Finalization of assessment of Bill of Entry - rejection on the ground that claim for refund of SAD filed after the expiry of one year from the date of payment - HELD THAT:- It is found that the Notification No. 102/2007-Cus. Dated 14 September, 2007 which was the relevant notification has made a prescription after amendment vide Notification No. 93/2008-Cus. dated 01 August, 2008 that importer has to file a claim for refund of SAD before the expiry of one year from the date of payment of the said additional duty of Customs. It is undisputed fact that the payments for the appellant were made on the provisional basis, but refund of SAD was filed before the finalization of assessment took place, with few exceptions, where again the refund claim was filed within one year from the date of finalization of assessment. This Court finds that the Board Circular as well as the Delhi High Court decision as reported in PIONEER INDIA ELECTRONICS (P) LTD. VERSUS UNION OF INDIA ANOTHER [ 2013 (9) TMI 705 - DELHI HIGH COURT] was duly considered by the Division Bench of Delhi this Tribunal in M/S. SUZUKI MOTORCYCLE INDIA PRIVATE LTD. VERSUS C.C. NEW DELHI (IMPORT GENERAL) [ 2017 (1) TMI 526 - CESTAT NEW DELHI] and it was decided in that matter in the similar circumstances, that refund cannot be rejected as time barred and Bench allowed the appeal by remanding the same to adjudicating authority for deciding refund claim if otherwise admissible. This Court is inclined to follow the same decision and particularly emphasizes, there is no ambiguity as such in the notification as the statutory provision as that contained in Section 27 (1B) (C) is very clear as to what is the date of payment to be reckoned when provisional assessment has been resorted to. The appeals are allowed with the direction to original authority to consider the refund claim expeditiously. The Original authority may consider admissibility as per law, but not the reading of new any facts and issues, at this belated stage.

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• 2023 (7) TMI 390
  Levy of penalty on Custom House agent and its partner u/s 112(a) of Customs Act, 1962 - aiding and abetting the importer in the importation of three consignments of misdeclared goods including shoes, alkaline batteries and wooden strips/beads - HELD THAT:- From the findings of the adjudicating authority, it is observed that the CHA partnership firm and its Partner, both have been penalized for the alleged offence committed. The Tribunal Order in KRISHNA SHIPPING AGENCY [ 2016 (9) TMI 1120 - CESTAT KOLKATA ] while setting aside the order revocating their license of the CHA has categorically held that they have not violated any of the provisions of Regulation 13, of CHALR, 2004 - thus the penalty cannot be imposed on the CHA Firm as well as its Partner under Section 112(a) of the Customs Act, 1962. It is a settled proposition of law that once a partnership is penalized, its partners cannot be penalized separately for the same offence - the penalty imposed on the Appellant 2 is not sustainable and liable to be set aside. The Gujarat High Court in the case of PRAVIN N. SHAH VERSUS CESTAT [ 2012 (7) TMI 850 - GUJARAT HIGH COURT ], wherein it clearly states that once a Firm is penalized, separate penalty not imposable on the partner. The penalties imposed on the CHA Firm as well as its Partner Vivek Banka, under Section 112(a) of the Customs Act, 1962, not sustainable - Appeal allowed.

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• PMLA

• 2023 (7) TMI 419
  Request for hearing the reply - exclusion of the days in the initial period of 15 days in the matter of claim of police custody - HELD THAT:- It goes without saying that as the question has already been framed by this court, at the time of admission and today the same being argued in detail on behalf of the petitioner, the said question is being considered. As requested by the learned Solicitor General of India, post the case on 27.06.2023 for respondent side arguments.

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• 2023 (7) TMI 389
  Bribe - Writ of Habeas Corpus (to produce the body before court - seeking direction to respondents to produce the body of the detenu Shri V.Senthil Balaji, S/o Velusamy aged about 48 years before this Court and set him free - petitioner was not permitted to avail the right to consent a legal counsel. The allegation against the detenu is that, while officiating as a Transport Minister in the Government of Tamil Nadu, he had obtained money from third parties promising jobs in the Transport Department and thereafter cheated them. Whether or not a Writ of Habeas Corpus would be maintainable after passing of Judicial Order of Remand of the detenu and if so, on what premises? - HELD THAT:- The Hon ble Supreme Court of India in Kanu Sanyal s case [ 1974 (2) TMI 85 - SUPREME COURT ] held that irrespective of the pointers of legality or otherwise with regard to the initial detention, when there is a subsequent order making the detention as legal, in the application for Habeas Corpus, the Court is not concerned with the same. The Hon ble Supreme Court of India in Serious Fraud Investigation Office s case [ 2019 (3) TMI 1411 - SUPREME COURT ], while considering the ex post facto extension granted by the Central Government, by which only, the Agency had jurisdiction to proceed further, considered the issue in detail and held that the Habeas Corpus Petition will no longer be maintainable once there is an Order authorising judicial custody as the custody is the pursuant to the custodial judicial function exercised by a competent Court. A petition for Habeas Corpus agitating to produce the detenu and set him at liberty normally would not be maintainable after the order of judicial remand, but, only under the exceptional circumstances of absolute illegality. Whether the petitioner herein had made out a case for exercise ofpowers under Article 226 of the Constitution of India to set the detenu free? - Violation of Article 22(1) - HELD THAT:- From the very nature of the allegations in this case that there was non-cooperation and threat and allegation of manhandling leading to a drama at the time of arrest, it can be prima facie concluded that there is no ground to discard the veracity in the averment made on behalf of the respondent officials - Copies of e-mails sent to the relatives of the detenu including the petitioner herein and SMS messages sent through telephone numbers are also produced. Therefore, I am satisfied that there due compliance of the Article 22 of the Constitution of India and the provisions in the Code of Criminal Procedure relating to the same in this regard. Non-following of Sections 41 and 41-A of Cr.P.C. - HELD THAT:- It can be seen that the provisions of both the statutes absolutely make it clear that if there is a special enactment and if there is any special provision contained in respect of any particular purpose, then that special provision will apply. Wherever the special enactment does not contain specific provisions, then the provisions of the Code of Criminal Procedure would apply. The Code of Criminal Procedure and P.M.L.A are thus clearly and categorically harmonious - the issue is no longer res integra and the Hon ble Supreme Court of India had considered that the special provision in the form of Section 19 adequately safeguards the interests of the accused and thus, the express application of Sections 41 and 41-A of Cr.P.C., stood negated in respect of the offence under P.M.L.A. On a perusal of the counter affidavit filed by the Investigating Officer of the case, it would be clear that the accused behaved in a manner so as to intimidate the Investigating Officer and secondly, did not also furnish the particulars which were necessary to trace out the money trail relating to the offence and thirdly was hampering the investigation. Therefore, on more than one ground mentioned in Section 41(1)(b) of Cr.P.C., the arrest was necessary and the same is clearly mentioned in the grounds of arrest and thus, even in the absence of specific application, substantially the requirements under Section 41 and 41-A of Cr.P.C., stood complied in the instant case - the petitioner has not made out a case in this regard. Non-application of mind at the time of remand - HELD THAT:- It cannot be said that there is non-application of mind much less total nonapplication of mind. The contention of the learned Senior Counsel for the detenu is that when the objections are raised in the petition to reject the remand, the said petition ought to have been considered while making the order of remand and it was incumbent on the part of the learned Presiding Officer to apply his or her mind in respect of those objections and if those objections are found to be genuine or valid, then the remand should be refused and if the objections are liable to be rejected, then the remand should be authorised. Even though a petition for objections has been taken up subsequently, all the substantive allegations of non-information of the grounds, non-existence of prima facie case and other concerns were independently considered by her which reflects in the order of remand and therefore, the violation complained is only of procedure and becomes technical in nature, as there is substantive application of mind in the order of remand. Therefore, in this context, even though, the submissions of the learned Senior Counsel agreed upon that the procedure adopted by the learned Pricipal Sessions Judge could have been better, substantive compliance relating to the application of mind as to the compliance of the Article 22 of the Constitution of India, Section 19 of P.M.L.A for arrest and consideration of other apprehensions expressed by the detenu himself are made and therefore, there the exercise of power cannot be termed as absolute mechanical manner or total non application of mind . Therefore, it can be seen that the petitioner is unable to make out any ground. Every ground raised is untenable or to say the least is arguable both in terms of law and on facts and therefore, this is not a case of patent illegality or absolute nonapplication of mind or case of lack of jurisdiction so as to grant any relief to the petitioner. If the detenu is not be set free, then whether the period from the moment of his arrest on 14.06.2023, whereby, he is admitted in the Hospital till his discharge is to be excluded while computing the time of initial 15 days from the date of remand to judicial custody under Section 167 of Cr.P.C., so as to entrust him for the custody of the respondents? - HELD THAT:- From Section 65 of P.M.L.A and if Section 65 is read along with Section 4(2) and 5 of Cr.P.C., it can be seen that in respect of the investigation of the offences under P.M.L.A, since no other contrary or separate procedure is contained in P.M.L.A, the provisions relating to investigation would be applicable to the offences relating to P.M.L.A - the word Police is not even specifically used at the first instance. In any event, when Section 65 of P.M.L.A expressly makes it clear that the provisions in the Code of Criminal Procedure relating to investigation will apply to P.M.L.A, then Section 167 Cr.P.C., should be applicable to mutatis mutandis and therefore, the word Police has to be read as Investigating Agency or the Enforcement Directorate. Therefore, the first contention that the Enforcement Directorate cannot seek for Police custody is without any merits. In this case, after the arrest and before the production before the learned Principal Sessions Judge and after the remand, not even a minute, for which, the detenu / accused was available to the respondents for custodial interrogation. In the offences like P.M.L.A, especially in the current scenario, when money trail is difficult to be unearthed on account of huge advancement of technology wire transfers, off-shore investments and transfers, it is extremely essential to unearth the truth and the custodial interrogation assumes significance - The accused, in this case, was unwell and it was due to his Coronary Artery Disease. The reason is attributable not to the Enforcement Directorate. Similarly, not permitting him in the custody for interrogation, is only taking into consideration of his own health and his health condition so that he will not be put to undue stress when he is ailing from a serious disease and post operative care. In such circumstances, when the first 15 days goes in the Hospital for his own benefit, then the benefit of custodial interrogation cannot be denied in its entirety to the respondents Enforcement Directorate. By the interim order dated 15.06.2003, this Court, based on the medical reports of the detenu, had agreed that the detenu needs emergency medical treatment and ordered shifting to Cauvery Hospital for treatment. As a matter of fact, the respondents Enforcement Directorate had every right to feel aggrieved by our interim order and also to approach the Hon ble Supreme Court for redressal and has been rightly done so in this case. But, at the same time, the custody was also pressed on the next day. Had the learned Principal Sessions Judge, Chennai had granted the prayer, then virtually, it would amount to overruling the order that there is necessity for emergent treatment. What reliefs are to be granted in the present Habeas Corpus Petition? - HELD THAT:- By the interim order, it was directed shifting of the detenu / accused to the Cauvery Hospital, Chennai to undergo treatment for his ailment. It is also submitted before us that already, the surgery is performed and he is out of the Intensive Care Unit and at present, continuing his treatment in the Hospital. Considering the fact that he has undergone surgery and he can continue to undergo the treatment at the Cauvery Hospital for a period of another 10 days from today or until discharge whichever is earlier. If he needs treatment even after the 10th day, the same shall be continued at the Prison Hospital and his physician / surgeon can also visit him there and continue the treatment/follow up. In the result, (i) The Habeas Corpus Petition in H.C.P.No.1021 of 2023 shall stand dismissed; (ii) The period from 14.06.2023 till such time the detenu / accused is fit for custody of the respondent shall be deducted from the initial period of 15 days under Section 167(2) of the Code of Criminal Procedure; (iii) The detenu / accused shall continue the treatment at Cauvery Hospital until discharge or for a period of 10 days from today whichever is earlier and thereafter, if further treatment is necessary, it can be only at the Prison/ Prison Hospital as the case may be; (iv) As and when he is medically fit, the respondents will be able to move the appropriate Court for custody and the same shall be considered on its own merits in accordance with law except not to be denied on the ground of expiry of 15 days from the date of remand; (v) However, there shall be no order as to costs.

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• 2023 (7) TMI 384
  Judgement pronounced with split verdict by Division Bench of the High Court - HELD THAT:- The Chief Justice of the High Court is requested to place the matter before the 3rd Judge at the earliest, with a further request to the assigned Bench to decide the issues as noticed in our previous order dated 21.06.2023, as early as possible. Post these special leave petitions for hearing on 24.07.2023.

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• 2023 (7) TMI 383
  Maintainability of the Habeas Corpus Petition - exclusion of the period of treatment undergone by the detenu from the period of custodial interrogation - HELD THAT:- Since both these issues are likely to be examined by the High Court on the date fixed, i.e., 22- 06- 2023 or soon thereafter, it is deemed appropriate to post these Special Leave Petitions for further hearing on 04 -07- 2023. It is clarified that the pendency of these Special Leave Petitions shall not be taken as a ground to adjourn the matter, pending adjudication before the High Court.

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• 2023 (7) TMI 381
  Maintainability of writ of Habeas Corpus against an order of remand under Section 167 of Criminal Procedure Code - Illegal detention of the husband of the petitioner - it is alleged that the detenu had obtained money from third parties, promising jobs in the Transport Department and thereafter cheated them - HELD THAT:- The medical bulletin issued by the Government Medical College and Hospital, Omandurar Government Estate is extracted. At this juncture, lightly and without any material, it cannot be doubted that the opinion of the doctors, when there has to be an emergent treatment. As prima facie, the detenu is in custody by judicial order of remand, there is no question of enlarging him on bail. He shall continue to be in judicial custody. The only question is whether he has to undergo an emergent treatment at the Omandurar Government Hospital itself or the hospital of their choice. In this regard, when the petitioner pleads that they have a regular physician at Cauvery Hospital, Chennai which is also a reputed hospital in Chennai, regarding the treatment in Cardiology, when the matter is concerning a life of an individual, the prayer on behalf of the detenu to undergo treatment at the hospital of their choice, at his own cost, can be acceded to even while he continues to be in judicial custody. But however, since there is a concern which is expressed on behalf of the respondents / Enforcement Directorate, even after shifting the detenu from the Omandurar Government Hospital to Cauvery Hospital, a panel of doctors constituted by the respondents, can also visit and examine the detenu and the medical records and the treatment which is being given to the detenu - the detenu is directed to be shifted to Cauvery Hospital, Chennai, for undergoing the emergency treatment as mentioned in the Medical Bulletin of the Omandurar Government MultiSpeciality Hospital, Chennai, dated 14/06/2023. Call the main Habeas Corpus Petition on 22.06.2023 for final disposal.

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• Central Excise

• 2023 (7) TMI 388
  CENVAT Credit - capital goods or not - Oxygen Gas Acetylene Gas used for repairs and maintenance of plant and machinery - can be treated to be components/spares and/or accessories of welding machine falling under Heading 84.68 of Chapter 84 of the Tariff or not - HELD THAT:- This Court, in Hindustan Zinc Ltd. s case [ 2008 (7) TMI 55 - RAJASTHAN HIGH COURT] , while considering the question of law, whether welding electrodes used for repairing and maintenance of plant Machinery both as capital goods as well as inputs, has answered the same in favour of the assessee and against the revenue. It is deemed appropriate to allow these appeal in terms of the judgment passed by the Division Bench of this Court in Hindustan Zine Ltd. s case - application disposed off.

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• 2023 (7) TMI 387
  Seeking direction to open the portal or accept the amount, by any other means, and settle the dues under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Non-deposit of Central Excise Duty - suppression on the value of the figures of manufacture and clearance in the Central Excise Returns filed or not - HELD THAT:- As per the documents annexed with the petition, the petitioner-Company was to deposit a sum of Rs. 10,90,646/-, as per the provisions of Section 127 of the Finance Act, 2019, within a period of thirty days from the date of issuance of such statement. Annexure P-5 is the statement under Section 127 of the Finance Act, 2019, read with Rule 6 of the Sabka Vishwas (Legacy Dispute Resolution) Scheme Rules, 2019. Admittedly, the petitioner-Company could not deposit the amount within a period of thirty days, on account of the alleged technical glitch. This statement was issued on 28th January, 2020. Meaning thereby, the amount, as mentioned in this document, was to be deposited within a period of thirty days, i.e., on or before 27th February, 2020. Whether the time limit fixed under the Scheme can be extended by this Court, while exercising powers under Article 226 of the Constitution of India? - HELD THAT:- The Hon ble Supreme Court in Petition for Special Leave to Appeal (C) No. 2070 of 2022, titled as M/s Yashi Constructions versus Union of India Ors. [ 2022 (3) TMI 110 - SC ORDER] , has replied this question in negative holding that the High Court has rightly refused to grant relief to the petitioner for extension of the period to make the deposit under the Scheme. It is a settled proposition of law that a person, who wants to avail the benefit of a particular Scheme has to abide by the terms and conditions of the Scheme scrupulously. If the time is extended not provided under the Scheme, it will tantamount to modifying the Scheme which is the prerogative of the Government. If the facts and circumstances of the present case are seen in the light of the decisions of the Hon ble Supreme Court, the petitioner could not point out any legal impediment or bar to make the payment within the stipulated time. So far as the alleged technical glitch, as highlighted by the learned counsel for the petitioner, is concerned, when, the other similarly situated declarants have made the payment online, then, accepting the said plea is not justifiable - Moreover, as per the case set up by the petitioner, the SVLDRS-3 was issued on 28th January, 2020. As per Section 127 (5) of the Finance Act, 2019, the petitioner- Company was required to pay the amount payable, as indicated in the statement issued by the Designated Committee, electronically, through internet banking, within a period of thirty days, from the date of issuance of such statement. Admittedly, this amount has not been deposited within the stipulated time and the first communication, which was made by the petitioner with the authorities, was made on 28th February, 2020, i.e. after the expiry of thirty days - Even otherwise, the present writ petition is also bad for delay and laches, as the intimation regarding the alleged technical glitch was made by the petitioner-Company, after the expiry of the statutory period, i.e. 28th February, 2020, and the present writ petition has been filed before this Court only on 21st July, 2022. Petition dismissed.

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• 2023 (7) TMI 386
  Cash Refund of unutilzed credit - closure of the factory - rejection on the grounds that no provision regarding the cash refund of unutilzed Cenvat Credit at the time of surrender of Central Excise Registration is available under Cenvat Credit Rules or Central Excise Rules - HELD THAT:- In the present matter the appellant has taken specific stand that due to difference in rate of duty on inputs and finished goods and export of goods under Bond and LUT, the cenvat credit get accumulated and it was not possible for them to adjust the said CENVAT credit due to closure of the their manufacturing activity and subsequently surrendering their central excise registration certificate -The adjudicating authority in the impugned matter observed that the refund of the appellant does not fall under any of the rules and that there are no express or implicit provisions in the Central Excise Act and Cenvat Credit Rules for grant of refund of Cenvat credit balance lying unutilized at the time of closure of the unit. In case of export of goods under bond and LUT without payment of duty, manufacturer is entitled to claim refund of cenvat credit accumulated unutilized on export of finished goods. However the said facts require verification, therefore without giving any finding on merit on the disputed refund claim we remand the matter back to the original authority for deciding the impugned matter afresh. Appeal allowed by way of remand.

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• CST, VAT & Sales Tax

• 2023 (7) TMI 385
  Taxability - Maize Flakes, Malted Barley, Malt conversion and Malt extract are taxable under KTEG Act or not - imposition of interest and penalty for the period prior to the decision in United Breweries [ 2015 (9) TMI 1516 - KARNATAKA HIGH COURT] - HELD THAT:- Admittedly, the decision in United Breweries is rendered on September 14, 2015. Hence, Maize Flakes, Malted Barley, Malt conversion and Malt extract became taxable pursuant to the decision in United Breweries. Assessee was paying tax on hops pallets prior to the said decision. In Jayce Trading Corporation [ 2021 (3) TMI 956 - KARNATAKA HIGH COURT] , the assessee therein had paid taxes for period between 03.03.2010 and 31.03.2011 prior to the date on which the Commissioner had clarified the issue on 07.07.2014. In the case on hand, the basis to impose tax is the decision in United Breweries which has been rendered on 15.09.2015. Therefore, imposition of tax prior to the decision in United Breweries is not sustainable. For the same reason, interest and penalty are also not sustainable. The aspect of fit for consumption has been considered by this Court in United Breweries. Therefore, this contention is untenable and accordingly, rejected. Revision petition allowed.

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