TMI Tax Updates - e-Newsletter
July 18, 2020
Case Laws in this Newsletter:
GST
Income Tax
Customs
Securities / SEBI
Service Tax
CST, VAT & Sales Tax
Indian Laws
TMI SMS
Highlights / Catch Notes
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GST:
Exemption from payment of GST - Renting of accommodation service - Though the applicant claims that she has rented out residential dwelling for use as residence, it appears that the premise is a non-residential property. Considering the number of rooms and amenities provided in it, boarding and hospitality services extended to the inmates and all the clauses of the agreements discussed above, it appears that the building was constructed for the purpose of running a lodge house.
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GST:
Valuation - HSD Oil issued free of cost by the service recipient to the applicant - Any amount that the supplier is liable to pay in relation to such supply but which has been incurred by the recipient of the supply and not included in the price actually paid or payable for the goods or services or both is includible in value.
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GST:
Classification of goods - Tamarind Seed - Tamarind trees are forest trees. Seeds of Tamarind trees are nothing but seeds of forest trees which Tamarind seed is classified under HSN code 1207 and attracts tax rate of 5%.
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GST:
Classification of supply - supply of goods or supply of services - supply of print on flex - Immaterial of the fact that whether the content is supplied by the customer or it is designed by the applicant himself basing on the requirement of the customer, the applicant transfers the title in the goods i.e., printed material on flex to the customer - the applicant is transferring the title in goods to his customers in the form of printed flex material and it amounts to nothing but supply of goods only.
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GST:
Valuation - inclusion of reimbursement of expenses - RA bills issued on cost recovery basis - Since APSPDCL and APEPDCL being the Contractees are recovering the cost of the materials that are used/consumed in the services provided to them by the applicant from the R.A. Bills issued, such cost recovered is to be included in the taxable value of the supply.
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Income Tax:
Penalty u/s 271(1)(c) - From the order of ITAT, there is a clear finding that the assessee is liable to penalty under Section 271(1)(c) of the Act. Hence, if the assessee was aggrieved, she should have challenged that portion of the order of the Tribunal, which held that the assessee should be liable to penalty.
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Income Tax:
Validity of Reopening of assessment - change of opinion - If the very same reasons were the subject matter of the proceedings under Section 143(3) of the Act or the proceedings under Section 263 of the Act, once again, for the very same reasons, the power under Section 147 cannot be invoked and having done so, the CIT(A) as well as the Tribunal were right in coming to the conclusion that the reopening was bad in law.
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Income Tax:
Deduction u/s 80IB(10) - assessee had not incurred any expenses towards development or construction of the housing project - we have noted the factual position as could be culled out from the joint venture agreement, which clearly shows that the assessee is the developer and M/s.ETA is the builder and mutual rights and obligations are inextricably linked with each other and undoubtedly, the project is a housing project thereby, the assessee would be entitled to claim deduction under Section 80IB (10)
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Income Tax:
Bad debt written off as admissible u/s 36(1)(vii) - Investment made by the assessee in a sister concern for purchase of equity shares which into liquidation can be written off as bad debt - Order of ITAT is modified and the finding that the assessee is entitled to the benefit of capital loss is set aside. The matter is remitted to the AO.
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Income Tax:
Addition u/s. 56(2)(viib) - differential value of shares - It is the prerogative and privilege of the assessee to adopt one method and once the assessee has chosen discounted cash flow method for valuing its shares then the AO or any other revenue authorities cannot compel the assessee to adopt another method i.e. book value method.
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Income Tax:
Penalty u/s. 271D - violation of section 269SS - father using the money of his son - the money has been given by the son to the father and that have been used by the father for tiding over urgent business requirement cannot be termed as loan/advance, so it cannot attract the penalty u/s. 271D.
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Customs:
Import of poppy seeds - contracts for import of poppy seeds from Turkey - Non-registration by the respondent no.2- the Narcotics Commissioner - Clause 3 of the MOU between the Government of India and Government of Turkey casts a responsibility on the TMO not to register sales contract in excess of the Country Cap declared by the Government of India. It would be for the TMO therefore, to determine in what manner and following what procedure such contracts shall be registered by it. It can also not be said that the respondents have failed to discharge any duty by not inquiring from the TMO about the non-registration of petitioners’ contracts.
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Customs:
Principles of Natural Justice - Suspension and denial of renewal of CHA licence - during the pendency of the enquiry ordered by the Commissioner of Customs, the Commissioner should not have denied the renewal, more so, when there are extra ordinary circumstances prevailing in the country on account of spread of pandemic Covid19 during which the appellant is supposed to pay the wages to its employees as per the instruction issued by the Government of India.
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Service Tax:
Classification of services - GTA or cargo handling service - The contract in dispute in the instant case is essentially for the transportation of goods which incidentally involving loading of tipper/unloading of tipper at Railway Track head/Railway Siding which cannot be taxed under the category of Cargo Handling Service simply because rates for loading of tipper at Dump Yard and unloading of tipper at Railway Siding is not provided separately.
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Service Tax:
Classification of services - IPR service or franchise service? - manufacture and sale of various formulations (fast moving consumer goods) - The arrangement is clearly a typical case of a licensing transaction and is in no way similar to a ‘franchisee’ agreement as understood in the commercial world. - When the services received by the Appellant would merit classification under IPR service, the Appellant would also be entitled to abatement of Service Tax available to a holder of IPR
Articles
Notifications
GST - States-
28/2019-State Tax (Rate) - dated
16-7-2020
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Delhi SGST
Amendment in Notification No. 12/2017- State Tax (Rate), dated the 30th June, 2017
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27/2019- State Tax (Rate) - dated
16-7-2020
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Delhi SGST
Amendment in Notification No. 1/2017-State Tax (Rate), dated the 30th June, 2017
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Removal of Difficulty Order No. 01/2020-State Tax - dated
10-7-2020
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Goa SGST
Goa Goods and Services Tax (Removal of Difficulties) Order, 2020.
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38/1/2017-Fin(R&C)(159) - dated
10-7-2020
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Goa SGST
Seeks to amend Notification No. 38/1/ 2017-Fin(R&C)(43)/433, dated the 31st January, 2018
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(25/2020)-FD 03 CSL 2020 - dated
6-7-2020
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Karnataka SGST
Seeks to amend Notification No. Notification (17/2020) No. FD 03 CSL 2020 dated 20.04.2020
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20927- FIN-CT1-TAX-0002/2020 - dated
15-7-2020
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Orissa SGST
Amendment in Notification No. 16536-FIN-CT1-TAX-0043/2017, dated the 24th April, 2019
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601-F.T. - dated
10-7-2020
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West Bengal SGST
Seeks to provide relief by waiver of late fee for delay in furnishing outward statement in FORM GSTR-1 for tax periods for months from March, 2020 to June, 2020 for monthly filers and for quarters from January, 2020 to June, 2020 for quarterly filers by amending Notification No. 118-F.T. dated 24.01.2018
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600-F.T. - dated
10-7-2020
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West Bengal SGST
Seeks to provide one time amnesty by lowering/waiving of late fees for non-furnishing of FORM GSTR-3B from July, 2017 to January, 2020 and to provide relief by conditional waiver of late fee for delay in furnishing returns in FORM GSTR-3B for tax periods of February, 2020 to July, 2020 by amending notification No. 1895-F.T. dated 31.12.2018
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599-F.T. - dated
10-7-2020
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West Bengal SGST
Seeks to provide relief by lowering rate of interest for a prescribed time for tax periods from February, 2020 to July, 2020 by amending notification No. 1153-F.T. dated 29.06.2017
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598-F.T. - dated
10-7-2020
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West Bengal SGST
West Bengal Goods and Services Tax (Seventh Amendment) Rules, 2020.
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08/2020–C.T./GST - dated
10-7-2020
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West Bengal SGST
Seeks to extend due date for furnishing FORM GSTR-3B for supply made in the month of August, 2020 for taxpayers with annual turnover upto ₹ 5 crore till 03.10.2020
Circulars / Instructions / Orders
News
Case Laws:
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GST
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2020 (7) TMI 411
Input tax credit - goods/services received for construction of hotel building - work contract service received for construction of hotel building - goods/services received for construction of banquet hall which is rented further to customer - work contract service received for construction of banquet hall which is rented further to customer - scope of plant machinery - inclusion of hotel/banquet under section 17 - specified goods viz. Lifts, sanitary items, under ground cables etc - reverse charge mechanism. HELD THAT:- Since applicant has sought advance ruling on admissibility of input tax credit of tax paid or deemed to have been paid , therefore, in terms of said Section 97(2)(d) of the Act, the application filed by the applicant was admitted - Thus authority was of the view that before deciding the application, the fate of said writ petition, whether admitted or otherwise, shall be considered and if any issue is there, notice will be issued and personal hearing would be given. The authority shall not admit the application where the question raised in the application is pending or decided in any proceedings of an applicant under any of the provisions of this Act. No application shall be rejected under this sub section unless the opportunity of hearing given to the applicant. Where the application is rejected reasons of such rejection shall be specified in the order - as per applicant s argument their application can be admitted in as much as no case is pending before Hon ble Court in the name of the applicant on the issue in hand. In this context we find that applicant has been defined under Section 95(c) of the Act which means any person registered or desirous of obtaining registration under this Act. All the cases are pending in respective courts on the same issue and thus matter is sub-judice - Application rejected.
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2020 (7) TMI 410
Contract Carriage or not - Rental service of transport vehicles - services of APSRTC giving Non Air Conditioned Buses on contract for the occasions of marriages, functions etc, for transportation of employees and students of other Organizations/Department, for different purposes like, transportation of passengers to Sabarimala, transporting of public to the places where meetings conducted by political parties and to the places like Polavaram project - Serial No 15 of notification 12/2017 - Whether the APSRTC, being a public sector undertaking, whose books of accounts are subjected to CAG of India or an auditor appointed for auditing the accounts of local authorities under any law for the time being in force, is it required to file reconciliation statement in FORM-GSTR-9C as per proviso to Section 35(5) of the GST Act, 2017? HELD THAT:- As per serial no.15 in Notification no. 12/2017-Central Tax (Rate) dated 28.06.2017 transport of passengers, with or without accompanied belongings, by non-air conditioned contract carriage other than radio taxi, for transportation of passengers, excluding tourism, conducted tour, charter or hire is exempt from GST - the case of the applicant clearly doesn't fall under serial no.15 in Notification no. 12/2017-Central Tax (Rate) dated 28.06.2017. So the services offered by the applicant are covered by Sl.no. 10 of notification no. 11/2017-Central Tax (Rate) dated 28.06.2017 i.e., 'Rental Services of transport vehicles'. Charge of GST on rental services - HELD THAT:- In terms of notification no. 11/2017-Central Tax (Rate) dated 28.06.2017 as amended by notification no. 20/2017- Central tax (Rate) dated 22.08.2017, notification no. 31/2017- Central tax (Rate) dated 13.10.2017, notification no. 20/2019- Central tax (Rate) dated 30.09.2019, wherein Sl.no. 10, (i) Rental Services of transport Vehicles (Heading 9966) attracts GST at the rate of 2.5% or 6% or 9% CGST. Identical rate would be applicable for SGST also, taking the effective rate to 5% or 12% or 18% - However, the rate of 5% is subject to the condition that the cost of fuel is included in the consideration charged from the service recipient and the credit of input tax charged on goods and services used in supplying the service other than the input tax credit of input service in the same line of business has not been taken. Applicability of FORM GSTR-9C - HELD THAT:- The applicant's question doesn't fall under any of the clauses mentioned under sub section 97(2). The rate of tax on the rental services where the cost of fuel is included in the consideration charged from the service recipient is 5% / 12%subject to satisfying the conditions as prescribed under notification no. 11/2017 - CT (Rate) dated 28.06.2017 as amended by notification no. 20/2017-CT ( Rate) dated 22.08.2017, notification no. 31/2017- Central tax (Rate) dated 13.10.2017, notification no. 20/2019-Central tax (Rate) dated 30.09.2019 - In case, the said conditions are not satisfied, the rate of GST is 18% (9% CGST+9% SGST) and the applicant being the provider of rental service has to pay the said tax - The applicability of GSTR-9C cannot be answered as per Section 97(2).
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2020 (7) TMI 409
Valuation - HSD Oil issued free of cost by the service recipient to the applicant - includible in the value of supply of service or not - HELD THAT:- In the instant case, the service recipient i.e., M/s. Sree Jayajyothi Cements Private Limited is providing diesel to the equipments and vehicles used by the applicant for executing the mining contracts at different places stipulated in the work order. Diesel so provided by the service recipient to the applicant for use in the equipments and vehicles of the applicant forms an important and integral component of this business process, without which the process of excavation of limestone at different mines, transportation and delivery of Limestone to Yanakandla Limestone Hopper belonging to the recipient - As per Section 15 (2) (b) of CGST Act, the value of supply includes any amount that the supplier is liable to pay in relation to such supply but which has been incurred by the recipient of the supply and not included in the price actually paid or payable for the goods or services or both. Any amount that the supplier is liable to pay in relation to such supply but which has been incurred by the recipient of the supply and not included in the price actually paid or payable for the goods or services or both is includible in value.
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2020 (7) TMI 408
Classification of goods - Tamarind Seed - taxable at Nil Rate under HSN Code 1209 (Forest Trees Seed) or not - HELD THAT:- The appellant at the time of Personal Hearing admitted that the tamarind seed/kernel as traded by them is sold to Millers and meant for commercial /industrial purpose. Moreover no certificate or any other document certifying the tamarind kernel/ seed meant for sowing purpose is submitted by the applicant. Coming to the classification issue, CBIC in its FAQs published on HSN code and GST Rates dt: 03.08.2017 gave a clarification that tamarind kernel falls under HSN Code 1207. As per the powers vested in the Governor of Andhra Pradesh vide section 28-G of the Andhra Pradesh Forest Act 1967, (Act 1 of 1967) in its application to the scheduled Areas in the Andhra Pradesh made A.P. preservation of Private Forest Rules, 1978 - Chinta is the Local name of Tamarind. Therefore, as per the Indian forest Act, 1927 and the Andhra Pradesh forest Act, 1967, Tamarind Tree is declared as forest tree. According to the Andhra Pradesh preservation of Private forest rules, 1978, a Product or a tree specified in the schedules to the Rules, whether those are produced in forest area or other than forest area, all rules and regulations are applicable as if those are forest products. Tamarind trees are forest trees. Seeds of Tamarind trees are nothing but seeds of forest trees which Tamarind seed is classified under HSN code 1207 and attracts tax rate of 5%.
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2020 (7) TMI 407
Classification of goods - Tamarind Seed - taxable at Nil Rate under HSN Code 1209 (Forest Trees Seed) or not - HELD THAT:- The appellant at the time of Personal Hearing admitted that the tamarind seed/kernel as traded by them is sold to Millers and meant for commercial /industrial purpose. Moreover no certificate or any other document certifying the tamarind kernel/ seed meant for sowing purpose is submitted by the applicant. Coming to the classification issue, CBIC in its FAQs published on HSN code and GST Rates dt: 03.08.2017 gave a clarification that tamarind kernel falls under HSN Code 1207. As per the powers vested in the Governor of Andhra Pradesh vide section 28-G of the Andhra Pradesh Forest Act 1967, (Act 1 of 1967) in its application to the scheduled Areas in the Andhra Pradesh made A.P. preservation of Private Forest Rules, 1978 - Chinta is the Local name of Tamarind. Therefore, as per the Indian forest Act, 1927 and the Andhra Pradesh forest Act, 1967, Tamarind Tree is declared as forest tree. According to the Andhra Pradesh preservation of Private forest rules, 1978, a Product or a tree specified in the schedules to the Rules, whether those are produced in forest area or other than forest area, all rules and regulations are applicable as if those are forest products. Tamarind trees are forest trees. Seeds of Tamarind trees are nothing but seeds of forest trees which Tamarind seed is classified under HSN code 1207 and attracts tax rate of 5%.
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2020 (7) TMI 406
Classification of supply - supply of goods or supply of services - supply of print on flex - whether under HSN 4911 under entry no 132 of Schedule II of Notification 1/2017- CTR - supply of print on flex non commercial purpose, classifiable under HSN 4911 under entry no 132 of Schedule II of Notification 1/2017- CTR or not - HELD THAT:- The applicant in the instant case is engaged in supply of printed flex material and the raw materials of the goods in questions are completely procured by the applicant himself. Immaterial of the fact that whether the content is supplied by the customer or it is designed by the applicant himself basing on the requirement of the customer, the applicant transfers the title in the goods i.e., printed material on flex to the customer - the applicant is transferring the title in goods to his customers in the form of printed flex material and it amounts to nothing but supply of goods only. Rate of tax of the goods - HELD THAT:- The supply of print on flex is classifiable vide Notification No.1/2017 - Central Tax (Rate) dated 28.06.2017 under Sl.No.132 under HSN code 4911 and attracts tax rate of 12%. Further, the same has been clarified in detail vide the clarification issued under F.No.354/263/2017 - TRU, Dt: 20th October, 2017 in Circular No.11/11/2017-GST. Whether supply of print on flex non-commercial purpose is also classifiable under HSN 4911 under entry no 132 of Schedule II of Notification 1/2017- CTR? - HELD THAT:- The applicant did not submit any specific details pertaining to the question that what would constitute commercial / Non-Commercial in the context of trade as mentioned by him. Nevertheless, the supplier of the goods i.e., applicant in this context shall levy and collect tax from the recipients for the taxable supplies made by him as per the classification of the goods and tax rates as specified in the notifications of the CGST / APGST Act 2017 from time to time as amended.
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2020 (7) TMI 405
Government authority/ Government Entity or not - contract with APSPDCL, relating to System improvement project works for erection of indoor sub stations at Vijayawada and GIS Indoor Sub-station at Guntur and their connected lines on semi turkey basis under IPDS Scheme - applicable rate of GST - Valuation - RA bills issued on cost recovery basis - HELD THAT:- The Applicant Contractees i.e. APSPDCL and AEPDCL are Government Companies i.e. wholly owned by the Government of Andhra Pradesh. When a copy of Audited Annual Accounts of M/s APSPDCL and APEPDCL are examined, it is evident from the schedule of Equity Share Capital of the Annual Statement that 100% share capital is held by the Government of Andhra Pradesh in the name of Honourable Governor of Andhra Pradesh. Thus, based on the facts, it is concluded that the Government of Andhra Pradesh is having full control over the APSPDCL and APEPDCL and they are covered under the definition of Government Entities. In the instant case, the contract entered by the applicant falls under the works contract and falls under entry no. (ii) of S.No.3 of the table of Notification No. 11/2017 - Central Tax (Rate), Dated: 28th June 2017 as amended from time to time and corresponding notifications under APGST Act, 2017, and the applicable rate of tax is 18% - The applicant stated that they are receiving materials such as Power Transformers, loo Sqmm Conductor Station Transformer from the Contractee and the value of such materials is recovered from their RA bills issued on cost recovery basis by the Contractee. Applicability of Reverse Charge Mechanism - HELD THAT:- As seen from the said Notification, reverse charge is not applicable to the goods issued by a Contractee. However, the provisions of Section 15(2)(b) of CGST Act, 2017 which as follows, attract in such situations. Since APSPDCL and APEPDCL being the Contractees are recovering the cost of the materials that are used/consumed in the services provided to them by the applicant from the R.A. Bills issued, such cost recovered is to be included in the taxable value of the supply.
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2020 (7) TMI 404
Prayer for already sanctioned Central Goods and Service Tax component of the provisional refund amount and to refund the balance amount to the petitioner - Circular No.125/44/2019 GST dated 18th November, 2019 - HELD THAT:- The writ petition is disposed of with a direction to the respondent No.2 to pay ₹ 17,59,780/- as well as respondents No.3-4 to pay ₹ 17,59,780/- within a period of one week. Application disposed off.
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2020 (7) TMI 390
Exemption from payment of GST - Renting of accommodation service - Residential property or commercial property - monthly rentals received by her on lease of her residential building at Telangana to D-Twelve Spaces Private Limited - exemption under SI.No.13 of the Notification No. 9/2017 Dt:28-6-2o17 - HELD THAT:- Reading the lease agreement (Exhibit-2) and Residents Enrolment Form (Exhibit- 3) together and also taking note of the various observations made above, it appears that apart from renting of the rooms, the inmates are also being provided with food and hospitality services. As verified from the records, the lessee is a registered Taxable Person - Though the applicant claims that she has rented out residential dwelling for use as residence, it appears that the premise is a non-residential property. Considering the number of rooms and amenities provided in it, boarding and hospitality services extended to the inmates and all the clauses of the agreements discussed above, it appears that the building was constructed for the purpose of running a lodge house. It is clear that the lessee is engaged in commercial activity of renting of rooms in the dwelling and providing boarding and hospitality services to the inmates. The lessor has rented out her dwelling for commercial activity, and supply of such services, in the facts and circumstances of the case, are classifiable as Rental or leasing services involving own or leased non-residential property under Service Code (Tariff) 997212. It is taxable in the hands of the lessor and is liable for IGST at the rate of 18 percent.
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Income Tax
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2020 (7) TMI 403
Penalty u/s 271(1)(c) - assessment was completed under Section 153A read with Section 143(3) - Tribunal held that the CIT(A) does not have power to give a direction to the Assessing Officer to levy penalty under Section 271AAA of the Act on the undisclosed income and accordingly set aside that direction - HELD THAT:- Tribunal, in the impugned order, rightly observed that when the Tribunal held that the penalty could not be levied under Section 271AAA of the Act, it is automatic that the levy of penalty made under Section 271(1)(c) of the Act was confirmed. The Tribunal further observed that the assessee had not challenged the levy of penalty under Section 271(1)(c) of the Act. Argument of Mr.G.Baskar, learned counsel appearing for the appellant assessee is that the assessee had no occasion to challenge the same because the appeal filed by the assessee stood allowed. We are not convinced with the said argument because in paragraph 6 of the order of the Tribunal dated 25.11.2016, there is a clear finding that the assessee is liable to penalty under Section 271(1)(c) of the Act. Hence, if the assessee was aggrieved, she should have challenged that portion of the order of the Tribunal, which held that the assessee should be liable to penalty. As miscellaneous petition filed by the Revenue was dismissed as time barred and not on merits. In any event, the finding rendered by the Tribunal in its order dated 25.11.2016 having attained finality and the order imposing penalty having been confirmed, the decision arrived at by the Tribunal in dismissing the assessee's appeal does not call for any interference.- Decided against assessee.
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2020 (7) TMI 402
Validity of Reopening of assessment - change of opinion - same reasons were the subject matter of the proceedings under Section 143(3) or the proceedings under Section 263 once again - assessee claimed depreciation on block of assets water supply and drainage at 15% and the said asset was shown separately and not in the plant and machinery - as per AO restriction of depreciation to 10% was for a small portion of the block of assets and 5% on rest was to be disallowed and this had resulted in short computation of disallowance of depreciation - HELD THAT:- Issue cannot be permitted to be raised more than once. Not stopping with that, upon change of officer, the Department, once again, issued notice dated 28.3.2013 to reopen the assessment and in that notice, a finding was rendered that the relevant portion of the order under Section 143(3) of the Act was restricted and the Assessing Officer stated that the restriction of depreciation to 10% only to a small portion of the block of assets was incorrect. In fact, this was the very same reason, which was posed to the respondent - assessee in the proceedings under Section 143(3) of the Act. Therefore, it is evidently clear that reopening was a case of change of opinion. A bare reading of Section 147 of the Act will clearly show that in all contingencies of reopening, the Assessing Officer should have reasons to believe that income chargeable to tax escaped assessment. If the very same reasons were the subject matter of the proceedings under Section 143(3) of the Act or the proceedings under Section 263 of the Act, once again, for the very same reasons, the power under Section 147 cannot be invoked and having done so, the CIT(A) as well as the Tribunal were right in coming to the conclusion that the reopening was bad in law. Thus, by applying the decision of Kelvinator of India Ltd. [ 2002 (4) TMI 37 - DELHI HIGH COURT] a s confirmed by the Hon ble Supreme Court [ 2010 (1) TMI 11 - SUPREME COURT] where the case pertains to an assessment before 01.4.1989 or thereafter, mere change of opinion cannot confer jurisdiction upon the Assessing Officer to initiate proceedings under Section 147 of the Act, we hold that the judgment under appeal does not call for interference. - Decided against revenue.
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2020 (7) TMI 401
Allowable business expenses u/s 37 - main object of the company was hotel business - HELD THAT:- Factual position needed to be considered, as the assessee company, though was incorporated on 17.2.2006, till the financial year 2010-11, did not enter into its hotel business, which was the main object, for which, the assessee company was incorporated. Since the impugned order passed by the Tribunal did not give any independent reasons for allowing the assessee's appeal to follow the earlier decision in the assessee's own case, which order now stands confirmed because the appeal filed by the Revenue before this Court having been withdrawn on the ground of low tax effect, necessarily the factual position needs to be adjudicated by the Tribunal as it is the last fact finding forum in the hierarchy of remedies available under the Act. Tax case appeal is allowed, the impugned order is set aside and the matter is remanded to the Tribunal for a fresh consideration in accordance with law.
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2020 (7) TMI 400
Deduction u/s 80IB(10) - Whether ITAT is correct allowing claim to assessee land owner when it had not incurred any expenses towards development or construction of the housing project ? - HELD THAT:- As relying on M/S. BASHYAM CONSTRUCTIONS P LTD. [ 2019 (2) TMI 906 - MADRAS HIGH COURT], SANGHVI AND DOSHI ENTERPRISE [ 2012 (12) TMI 84 - MADRAS HIGH COURT] , RADHE DEVELOPERS [ 2011 (12) TMI 248 - GUJARAT HIGH COURT] , M/S VEENA DEVELOPERS [ 2015 (5) TMI 193 - SUPREME COURT] Tribunal merely stated that no expenses were recorded in the P L account. Therefore, the contention advanced by the Revenue in this regard is not tenable. That apart, a plain reading of Section 80IB(10) of the Act evidently makes it clear that deduction is available in a case where an undertaking develops and builds a housing project. The Section clearly draws the distinction between 'developing' and 'building'. In the preceding paragraphs, we have noted the factual position as could be culled out from the joint venture agreement, which clearly shows that the assessee is the developer and M/s.ETA is the builder and mutual rights and obligations are inextricably linked with each other and undoubtedly, the project is a housing project thereby, the assessee would be entitled to claim deduction under Section 80IB (10) - Decided against revenue.
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2020 (7) TMI 399
Rectification u/s 154 - Disallowance of deduction u/s 80P shown in the intimation u/s 143(1) issued by CPC cannot be rectified as the same will not come under the purview of rectification u/s 154 - HELD THAT:- Rectification application would not have been undertaken, owing to certain technical problems i.e, the functionality of the Department. However vide impugned communication dated 5-7-2019 Ext.P5, same has been rejected in a most sketchy and mechanical manner. Even the order do not disclose affording of any other opportunity of hearing. Petitioner cannot be relegated to alternate remedy as the order prima facie is without jurisdiction. Accordingly, impugned order is quashed and matter is remitted to 1st respondent to decide the rectification application Ext.P6 afresh, in accordance with law, after affording an opportunity of being heard to the petitioner. Let this exercise be undertaken within a period of two months from the date of receipt of a certified copy of the judgment. Till such time, no coercive measures shall be taken against the petitioner.
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2020 (7) TMI 398
Bad debt written off as admissible u/s 36(1)(vii) - Investment made by the assessee in a sister concern for purchase of equity shares which into liquidation can be written off as bad debt - HELD THAT:- AO has not examined the fact whether or not the assessee has entered an amount as written off as bad debt. In the appeal, the remand report was called for by the Commissioner of Income Tax (Appeals) and the assessing officer has submitted report - from the order passed by the Commissioner of Income Tax (Appeals) also it is evident that he has not recorded a specific finding that the assessee had written off the debt in the books of account. Tribunal also has not recorded a specific finding by assigning reasons that in the books of account the debts have been written off. Only in a single sentence, it is stated that the assessee had in its books of account written off its debt as irrecoverable. Loss of shares in a company which went under liquidation was considered by Gujarat High Court in CIT VS. JAI KRISHNA [ 1997 (2) TMI 65 - GUJARAT HIGH COURT] and it was held that a person who gets nothing on account of liquidation of a company and suffers loss, his loss has to be treated as capital loss by virtue of Section 46(2) of the Act. The tribunal has followed the aforesaid decision and has held that the assessee is entitled to benefit under Section 46(2) of the Act in respect of an amount of ₹ 32,25,000/- for diminution of value of investment made in Gujarat Instruments Ltd. We concur with the view taken by Gujarat High court. In view of preceding analysis, the impugned order passed by the Income Tax Appellate Tribunal is modified and the finding that the assessee is entitled to the benefit of capital loss is set aside. The matter is remitted to the assessing officer who shall decide the same in the light of law laid down by the Supreme Court in the case of T.R.F [ 2010 (2) TMI 211 - SUPREME COURT].
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2020 (7) TMI 397
Stay petition - recovery proceedings - first respondent directed the petitioner to pay 20% of the disputed tax amount treating him as Assessee in default - assessment was reopened and the reassessment order was passed wherein addition was made under short-term capital gains and long-term capital gains and as aggrieved over the same, the petitioner filed an appeal before the second respondent - HELD THAT:- This Court is inclined to modify the order passed by the first respondent vide communication dated 06.02.2020 and give appropriate direction to the second respondent for disposal of the appeal filed by the petitioner. Accordingly, the order passed by the first respondent vide communication dated 06.02.2020 is modified to the effect that the petitioner shall pay a sum of ₹ 10,00,000/- to the first respondent within a period of four weeks from the date of receipt of a copy of this order, failing which, it is open to the first respondent to recover the amount as mentioned in the said communication. In the meanwhile, the second respondent shall consider the appeal filed by the petitioner as against the order of reassessment dated 27.12.2019 for the year 2012-13 and pass appropriate orders, on merits and in accordance with law, after affording due opportunity of personal hearing to the petitioner.
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2020 (7) TMI 396
Validity of reopening of assessment - notice u/s 148 on a dead person - HELD THAT:- Hon ble High Court of Madras in Alamelu Verappan vs ITO [ 2018 (6) TMI 760 - MADRAS HIGH COURT] after considering the decision of CIT Vs. Amarchand N.Shroff [ 1962 (10) TMI 51 - SUPREME COURT] held that notice issued on dead person is illegal and the department cannot plead ignorance. Therefore, we hold that notice issued u/s 148 is invalid, hence, we quash the notice and hold that the subsequent assessment proceedings are void-ab-initio. - Decided in favour of assessee.
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2020 (7) TMI 395
Reopening of assessment - doubt on realization of debtors - As submitted assessee could not furnish the required details due to sad demise of her husband who looked after the business and the entire financial transactions - HELD THAT:- Normally, in India, it is an accepted practice that husband looks after the business and financial transactions of the wife. AO also has not disputed this fact - though the assessee has stated that the information was also available with the auditor, the auditor has withdrawn the case from representation and the business was discontinued and the accountant also has left the job. Apart from the above, the building where the records were stated to be maintained was sold away and records were destroyed. All the above reasons appear to be convincing reasons for non-submission of the details. In the instant case, the AO has neither examined the auditor who had represented the case earlier and also did not dispute the fact that the financial transactions were looked after by her husband. In addition the Ld.Pr.CIT as well as the AO has called for the details after the lapse of six years from the end of relevant assessment year. All the above reasons appear to be genuine and convincing for non-submission of the details. Thus, we hold that the reasons explained by the Ld.AR are the convincing reasons for non-submission of the details. Therefore, in our considered opinion the case needs to be decided as per the information available in the statement of affairs A.Y. 2007-08 - contention of the assessee that the realization of debtors was from the outstanding balance appears to be correct. The AO has neither doubted the opening balances of debtors and the closing balances of debtors and the reduction of outstanding debtors. Therefore, there is no reason to suspect the realization of debtors, hence, there is no case for making the addition. Accordingly, we set aside the order of the Ld.CIT(A) and delete the addition made by the AO. The appeal of the assessee is allowed . A.Y.2008-09 - Since the advances were reduced as at the end of the year, the same clearly shows that the source for investment was realisation of advances from land advances and other debtors. Therefore, there is no reason to suspect the source of investment and the cash flow, hence, there is no case for making the addition. Accordingly, we set aside the order of the Ld.CIT(A) and delete the addition made by the AO. The appeal of the assessee is allowed
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2020 (7) TMI 394
TP Adjustment - MAM Selection - adjustment on account of interest on loan/quasi equity by assessee - rejection of Transactional Net Margin Method as the most appropriate method to justify the arm's length nature of the aforesaid transaction and applying Comparable Uncontrolled Price ('CUP') as the most appropriate method - HELD THAT:- Arm s length rate of interest in the case of loans advanced to the AE s is to be determined on the basis of rate of interest charged in the countries where loan is received/ consumed. Assessee in alternative submissions also submitted that internal CUP is available, for the purpose of benchmarking of transaction of interest free loan as the AEs also availed loan from DBS Bank Singapore and the documents evidencing the interest rate at 6.22% charged by DBS Bank is filed on record. Considering the submissions of assessee, we direct the AO/TPO to consider internal CUP of 6.22% for the purpose of benchmarking of international transaction of provision of interest free loans and recompute the arm s length price afresh. Needless to direct that before making fresh calculation/ computation the AO/TPO shall grant opportunity of hearing to the assessee. Grounds of appeal are allowed for statistical purpose. Adjustment on account of upfront fee cost and administrative expenses on loan given to foreign AEs - TPO/AO to workout adjustment by taking consolidated rate of 0.25% of upfront fee for loan granted by assessee and deleted the addition of administrative charges - HELD THAT:- While benchmarking international transaction, an element of income, expenses, or in apportionment of any contribution to any cost, must be embedded in it. In case of lending or borrowing of money, the determination of arm and spice is made on the basis of income, expenses, interest, allocation or apportionment or any contribution to any cost element is rooted in the transaction which may have bearing on the profit or loss of the assessee. In our humble view, in case of capital financing the usual element is the interest earned or incurred. We have noted that the case of assessee throughout the proceeding is that the loans were provided from assessee s own fund and that no expenses were incurred. The TPO has not brought on record that while granting loan the assessee to its assessee has incurred, recovered or earned any expenses on account of upfront fees or administrative charges. Considering the aforesaid factual discussion, we direct the AP/TPO to delete the entire upfront fees and administrative charges. - Decided in favour of assessee.
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2020 (7) TMI 393
Addition u/s. 56(2)(viib) - differential value of shares and valuation done as per book value method - calculation of fair market value of shares issued at premium - AO calculated the fair market value of shares under Rule 11UA and as the assessee has received over above the FMV which is treated as income of the assessee u/s.56(2)(viib) - Revenue seek to change method of valuation which has been opted by the assessee - HELD THAT:- As relying on M/S. RAMESHWARAM STRONG GLASS (P) LTD. VERSUS THE ITO, WARD 2 (1) , AJMER [ 2018 (9) TMI 403 - ITAT JAIPUR] when the fair market value of the shares issued by the assessee company is more than the consideration received by it from the allotment of the shares particularly when there is no occasion to invoke the provisions of section 56(2)(viib) of the Act for making the addition in the hands of the assessee company. It is the prerogative and privilege of the assessee to adopt one method and once the assessee has chosen discounted cash flow method for valuing its shares then the AO or any other revenue authorities cannot compel the assessee to adopt another method i.e. book value method - exercise of such option cannot be therefore challenged by the revenue authorities with the same has exercised at first place by the assessee but the AO is undisputedly entitled to scrutinise, verify and examine the valuation report and determine the fresh valuation either by himself or from an independent valuation after confronting the assessee. But at the same time, it is ample clear that the basis has to be the DCF method and it is not open to the revenue to change the method of valuation which has been opted by the assessee. In the instant case, the value adopted and computed by the assessee as per Rule 11UA(2)(c)(b) by following DCF method at ₹ 51/85 and the assessee company has received shares and issued/allotted @ ₹ 50 per share including premium and this rate has not been contested or challenged by the AO and during hearing before him by ld D.R. From a careful reading of the assessment order, clearly observe that the AO merely compelled the assessee to change the valuation method from DCF method to another book value method, which is not permissible as per Rule 11UA(2)(c)(b) and other provisions of the Act. As per the Explanation (a) (ii) to Section 56(2)(viib), speaks about the satisfaction of the AO but there is no condition in the explanation (a)(i) that the AO is not permitted to interfere with the valuation once done in accordance with the method prescribed in the Rule 11UA (2)(c)(b) of the Rules. Therefore, the AO as well as ld CIT(A) was not correct in rejecting the adoption of DCFM by the assessee and invoking the provisions of section 56(2)(viib) for making addition on differential value of shares and valuation done as per book value method. Appeal of the assessee is allowed.
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2020 (7) TMI 392
Penalty u/s. 271D - violation of section 269SS - father using the money of his son - HELD THAT:- The explanation of the assessee was that his son who earns income from truck plying has given the money for safe keeping with him and when there was an urgent necessity to pay the creditors to run his proprietorship business, the assessee had used this money and reflected it as loan from his son. A father using the money of his son cannot be termed as loan given by the son to the father/assessee. When the father needs money or son needs money, the money given between the family members cannot be termed as loan or advances even though for purpose of accounting it is shown as loan. It is a settled law that the nomenclature in the account books cannot determine the nature of transaction. Since the Ld. JCIT has noted from the ledger account of the son Shri Saurabh Agarwal that the money has been given by the son to the father and that have been used by the father for tiding over urgent business requirement cannot be termed as loan/advance, so it cannot attract the penalty u/s. 271D of the Act, therefore, we direct deletion of the penalty as imposed by the Ld. JCIT and confirmed by the Ld. CIT(A). Therefore, appeal of assessee is allowed.
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2020 (7) TMI 391
Unexplained deposits in bank account - unexplained cash credit - assessee has submitted that advances in question were received by the wife of the assessee against sale of her property and the amounts so received were deposited in the joint bank account of the assessee and his wife - HELD THAT:- As wife of assessee submitted that the said advances were wrongly shown in the balance sheet of the assessee and since the same were received by the wife of the assessee and not the assessee, the concerned parties in reply to the notices issued by the AO u/s 133(6) stated that the advances in question were not paid by them to the assessee. Also there is a sufficient documentary evidence to support and substantiate this claim being made by her and urged that the matter may be sent back to the AO for necessary verification. Keeping in view all the facts of the case and the documentary evidence placed on record, we are inclined to accept this contention of the ld. counsel for the assessee. Even the Ld. DR has not raised any objection for sending the matter back to the AO for proper verification. - Decided in favour of assessee for statistical purposes.
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Customs
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2020 (7) TMI 389
Import of poppy seeds - contracts for import of poppy seeds from Turkey - Non-registration by the respondent no.2- the Narcotics Commissioner - It is the case of the petitioners that in terms of the Foreign Trade Policy, poppy seeds are freely importable, subject only to the conditions mentioned in Clause 3, Chapter 12, Section II of Schedule 1 of the Import Policy - HELD THAT:- Though described as freely importable, the import of poppy seeds is subject to the policy conditions, which inter alia restrict the countries from which such imports can be made; the requirement of such opium poppy being grown legally in that country; and the registration of the import contracts with the respondent no.2 in accordance with the Guidelines issued by the Department of Revenue, which may inter alia include fixing of the Country Cap - The National Policy on Narcotic Drugs and Psychotropic Substances , in Clause 17 provides that the import of poppy seeds will continue till self-sufficiency is achieved. Therefore, the intent of the policy is clearly to promote consumption of the domestic production. In the present case, though the Committee appointed in terms of Clause 1 of the Guidelines acknowledges the availability of 8438 MTs of poppy seeds in Turkey for exports to India, the Competent Authority has taken into account the imports allowed from China and Czechoslovakia, the domestic licit production of poppy seeds in 2019, and the expected production/availability of poppy seeds in April-May, 2020, for its decision to finalize the Country Cap at 18000 MT. Such determination cannot, therefore, be said to be arbitrary or unreasonable - In terms of Clause I of the Guidelines, the Competent Authority has to base its decision determining the Country Cap on the recommendation of the Committee constituted in terms of the said Clause. However, it cannot be said that such recommendation is binding on the Competent Authority, that is, the Department of Revenue. The Competent Authority, for germane reasons, may decide not to agree with the recommendations, as has happened in the present case. The submission of the learned counsel for the petitioners of first cum first serve principle having been followed by the respondents or the registration being made by the respondents in some arbitrary manner, cannot also be sustained - Clause 3 of the MOU between the Government of India and Government of Turkey casts a responsibility on the TMO not to register sales contract in excess of the Country Cap declared by the Government of India. It would be for the TMO therefore, to determine in what manner and following what procedure such contracts shall be registered by it. It can also not be said that the respondents have failed to discharge any duty by not inquiring from the TMO about the non-registration of petitioners contracts. In any case, the occasion for the respondents to adopt first cum first serve principle would never arise. Petition dismissed.
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2020 (7) TMI 388
Permission to record the statements under Section 108 of the Customs Act, 1962 - HELD THAT:- The prayer sought in the writ petition in general no longer subsists. In view of interim order dated 16.06.2020 of the Hon'ble High Court of Delhi Petitioners are in detention in Thiruvananthapuram Jail. After the period of quarantine the respondents are directed to expedite the recording of the statement under Section 108 and issue regarding show cause notice under Section 124 of the Customs Act be expedited. Petition disposed off.
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2020 (7) TMI 387
Principles of Natural Justice - Suspension and denial of renewal of CHA licence - no opportunity was given to the appellant of being heard - allegation against the appellant is that they have contravened the Regulations 10(d), 10(n) and 13(7) of CBLR 2018 - HELD THAT:- The order dt. 21/04/2020 whereby the renewal of Customs Broker licence has been denied by the Commissioner was passed without following the principles of natural justice and without affording an opportunity of hearing to the appellant which is clear violation of principles of natural justice especially when his application for renewal of licence is already pending. Further, it is found that once the Customs Broker licence of the appellant has already expired on 13/04/2020, there was no need to pass an order of suspension because after 13/04/2020, the Bills of Entry filed by the appellant were not processed by the Customs. Therefore, the suspension order dt. 21/04/2020 is premature. Further, while passing the impugned order, the Commissioner has not considered the various judgments relied upon by the appellant wherein the High Court as well as the Tribunal from time to time has held that the Customs Broker is not supposed to physically visit the premises of the importer/exporter and if he verifies the documents on the basis of the official records, then he cannot be alleged to have violated the regulations of CBLR. Further, it is found that after the impugned order dt. 19/05/2020 was passed upholding the denial of renewal as well as suspension of licence, an inquiry was ordered by the Commissioner, under Regulation 17 of CBLR 2018, which is still pending and has not been completed. Since the enquiry is pending, the finding of the Commissioner in the impugned order that the appellant has violated Regulations 10(d), 10(n) and 13(7) of CBLR 2018 is without any basis because the appellant has submitted that he has not violated the regulations on the basis of the decisions rendered by the Tribunal and the High Court. The show-cause notice issued to the appellant by Trichy Commissionerate is pending before the High Court of Madras (Madurai Bench). In view of the above, during the pendency of the enquiry ordered by the Commissioner of Customs, the Commissioner should not have denied the renewal, more so, when there are extra ordinary circumstances prevailing in the country on account of spread of pandemic Covid19 during which the appellant is supposed to pay the wages to its employees as per the instruction issued by the Government of India. Keeping in view the livelihood of the appellant and the fact that enquiry is still pending regarding the violation of regulations against the appellant, the impugned order is not sustainable in law and therefore we set aside the same and direct the Commissioner of Customs to allow the appellant to carry on his business of CHA during the pendency of enquiry except at Trichy Commissionerate where the alleged violation took place. Appeal disposed off.
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Securities / SEBI
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2020 (7) TMI 386
Unpublished price sensitive information being shared on a messaging platform 'Whatsapp' - whether the appellant is entitled for inspection and for supply of all the documents in possession of the adjudicating authority including those documents upon which no reliance has been placed by the Adjudicating Officer ('AO') of the Securities and Exchange Board of India ('SEBI' )? - HELD THAT:- Concept of fairness and principles of natural justice are in-built in Rule 4 of the Rules of 1995 and that the AO is required to supply the documents relied upon while serving the show cause notice. This is essential for the person to file an efficacious reply in his defence. The contention that the appellant is entitled for copies of all the documents in possession of the AO which has not been relied upon at the preliminary stage when the AO has not formed any opinion as to whether any inquiry at all is required to he held cannot be accepted. A bare reading of the provisions of the Act and the Rules as referred to above do not provide supply of documents upon which no reliance has been placed by the AO, nor even the principles of natural justice require supply of such documents which has not been relied upon by the AO. We are of the opinion that we cannot compel the AO to deviate from the prescribed procedure and supply of such documents which is not warranted in law. In our view, on a reading of the Act and the Rules we find that there is no duty cast upon the AO to disclose or provide all the documents in his possession especially when such documents are not being relied upon. Practice of filing a compilation of judgments without citing during the course of arguments is not an accepted practice and consequently we are not required to consider such decisions which were no cited at the Bar. The request of the appellant for supply of the documents in possession of the authority is misconceived and cannot be accepted. Prima facie, the only object in making such demand is to obstruct the proceedings. We accordingly do not find any merit in the appeal and is dismissed.
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Service Tax
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2020 (7) TMI 385
Classification of services - GTA or cargo handling service - local transportation/shifting charges collected by the Appellant which is inclusive of loading of tipper, transportation upto Railway Track Head and automated unloaded of tipper at the Railway Track Head - HELD THAT:- The contract in dispute in the instant case is essentially for the transportation of goods which incidentally involving loading of tipper/unloading of tipper at Railway Track head/Railway Siding which cannot be taxed under the category of Cargo Handling Service simply because rates for loading of tipper at Dump Yard and unloading of tipper at Railway Siding is not provided separately. The Learned Commissioner (Appeal) has erred in placing reliance on Circular No.B11/1/2002-TRU dated 01-08-2002 which does not apply to the facts of the instant case. Further, so far as the transaction of transportation is concerned, it is no body s case that the Appellant is a Cargo Handling Agent to attract the levy under the category of Cargo Handling Services. Appeal allowed - decided in favor of appellant.
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2020 (7) TMI 384
Classification of services - IPR service or franchise service? - manufacture and sale of various formulations (fast moving consumer goods) - benefit of a Notification dated 10 September, 2004 - reverse charge mechanism - HELD THAT:- The amended definition of franchisee contains only the first condition of the definition as it stood prior to 16 June, 2005 and the other three conditions have been left out. Under the amended definition, franchise means an agreement by which the franchisee is granted representational right to sell or manufacture goods or to provide service or undertake any process identified with franchisor, whether or not a trade mark, service mark, trade name or logo or any such symbol, as the case may be, is involved. Thus, if the condition relating to representational right is not satisfied the transaction would not be classified as a franchisee service. Representational right means that a right is available with the franchisee to represent the franchisor and in that case the franchisee loses its individual identity and would be known only by the identity of the franchisor. The Mumbai Tribunal in GLOBAL TRANSGENE LTD VERSUS COMMISSIONER OF CENTRAL EXCISE CUSTOMS SERVICE TAX, AURANGABAD [ 2013 (8) TMI 748 - CESTAT MUMBAI] also observed that the foremost requisite for a service to qualify as a taxable franchise service is that the franchisee should have been granted a representational right and that in a franchisee transaction, the franchisee loses its individual identity and represents the identity of the franchisor to the outside world. There is nothing in the agreement which may indicate that the franchisee has lost its individual identity and is representing the identity of the franchisor to the outside world. The arrangement is clearly a typical case of a licensing transaction and is in no way similar to a franchisee agreement as understood in the commercial world. In a franchisee agreement, the franchisor owns IPR and allows the franchisee to set up and run the business in the name of the franchisor. The customers coming to the outlets of the franchisor believe that they are directly dealing with the franchisor - The terms of the agreements leave no manner of doubt that the agreement is not a franchisee agreement. Whether the services received by the Appellant can be classified as IPR service ? - HELD THAT:- The definitions of IPR and intellectual property service as contained in section 65(55)(a) and section 65(55)(b) of the Act have been reproduced above. The taxable service under section 65(55)(zze) of the Act has been defined to mean any service provided or to be provided to any person by the holder of intellectual property right, in relation to intellectual property service. The agreement executed between the parties is clearly for a temporary transfer of IPR as will be seen from the Preamble and Article 2 of the Agreement. Under Article 3 of the Agreement, the licensee acknowledged that all rights, title, interest or goodwill in the IPR is and remains vested in the licensor and shall not impair the rights of the licensor in the IPR. Article 6 provides that in consideration of the rights and IPR granted by the licensor under the agreement, the licensee shall pay the licensor royalty equivalent to 5% of net sales of products in India and royalty equivalent to 8% on exports in India. It is, therefore, clear that the services have been correctly classified by the Appellant as IPR. When the services received by the Appellant would merit classification under IPR service, the Appellant would also be entitled to abatement of Service Tax available to a holder of IPR under the notification dated 10 September, 2004 - it is not necessary to examine whether the Appellant would also be entitled to the benefit of the Notification dated 10 September, 2004 even if it is held that the service received by the Appellant would be in the nature of a franchisee agreement, nor would it be necessary to examine whether the extended period of limitation was correctly invoked in the show cause notice. The order passed by the Commissioner confirming the demand of service tax and imposing penalty cannot be sustained and is set aside - Appeal allowed - decided in favor of appellant.
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CST, VAT & Sales Tax
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2020 (7) TMI 383
Reopening of assessment - rectification of mistake - error apparent on the face of record - Section 55 of the Tamil Nadu General Sales Tax Act, 1959 - exemption from payment of sales tax - Government vide G.O.Ms.No.528 Commercial Taxes and Religious Endowment Department dated 21.11.1997 - levy of penalty. Whether the power under Section 55 of the Act could have been invoked and Section 55 of the Act gives power to rectify any error apparent on the face of the record? - HELD THAT:- The intention of the Legislature was to grant power to the Assessing Officer or the Appellate Authority or the Tribunal to rectify its orders when there is an error apparent on the face of the record. Hence, the power under Section 55 of the Act cannot be used to review an order of assessment by reopening an assessment. Such power has not been conferred on the Authority under Section 55 of the Act - In the instant case, the Assessing Officer, while passing the revised assessment orders dated 28.7.2009, reviewed the earlier assessment orders, which is impermissible in law by invoking Section 55 of the Act. The mistake should be apparent on the face of the record. Only if all these features are available, the assessment can be reopened by invoking the power under Section 55 of the Act. Therefore, the revision of assessment dated 28.7.2009 is wholly without jurisdiction - Hence, the issue is decided in favour of the petitioners and against the Revenue. Whether the Tribunal was right in denying the benefit of exemption, largely, by referring to the decision of the Hon ble Supreme Court in the case of COASTAL CHEMICALS LTD. VERSUS COMMERCIAL TAX OFFICER, AP AND OTHERS (AND OTHER APPEALS) [ 1999 (10) TMI 599 - SUPREME COURT] and the decision of the Kerala High Court in the case of TEAKTEX PROCESSING COMPLEX LIMITED VERSUS STATE OF KERALA [ 2002 (10) TMI 761 - KERALA HIGH COURT] ? - HELD THAT:- In view of the factual position in the decision in the case of Coastal Chemicals Limited wherein the question involved was as to whether the natural gas fell within the meaning of the word 'consumables' in Section 5B(1) of the Andhra Pradesh General Sales Tax Act, 1957, based on which, the decision was rendered, we find, on facts, that the said decision cannot be of any assistance to the case of the Revenue. The most important aspect, which is to be noted, is that the exemption has been granted by the State Government for sale of certain items of goods to 100% EOUs in the State and the units located in Chennai Export Processing Zone. Therefore, the object of exemption is to promote exports. The Tribunal proceeded largely by examining as to what would be the meaning of the term consumable and referred to the two decisions and held that though the carbide tip inserts lose their utility, they do not lose identity. The Tribunal should have interpreted the expression 'consumable goods and if the same is done, the nature of the goods supplied and whether the same gets consumed would be required to be examined. The exemption notification has to be interpreted in a strict manner without adding any words to it. As mentioned earlier, the object of the Legislature is to promote exports. Therefore, if viewed from the purchasers point of view, the carbide tool becomes useless after it loses its utility. So far as the sellers are concerned, on sale of the goods and use by the purchasers, if it loses its utility, it can no longer be termed as a tool or a cutting device. Hence, viewed from the angle of both the purchasers and the sellers, the carbide tip tools are to be treated as consumable goods and are entitled to the benefit of exemption - the issue is answered in favour of the petitioners. Revision allowed.
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Indian Laws
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2020 (7) TMI 382
Request for detention in Kerala instead of Mumbai - case of petitioners is that they are resident of Kerala - HELD THAT:- This Court is of the prima facie view that pending adjudication of this petition, the petitioner should immediately surrender before Director General of Police, Government of Kerala, Thiruvananthapuram and if the petitioners do not succeed in this petition, they shall be shifted to Mumbai - The petitioners are directed to surrender before Director General of Police, Government of Kerala, Thiruvananthapuram on 18th June, 2020 at 02:30. List for continuation of the arguments on 24th July, 2020.
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