TMI Tax Updates - e-Newsletter
July 28, 2018
Case Laws in this Newsletter:
GST
Income Tax
Customs
Corporate Laws
Insolvency & Bankruptcy
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Highlights / Catch Notes
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GST:
Concessional rates of GST / IGST on specified handicraft items (5% or 12%) - New Notification no. 22/2018 -Integrated Tax (Rate)
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GST:
Refund of GST due to inverted rate of tax - removal of Fabric from negative list w.e.f. 1.8.2018 - amendments to the Notification 05/2017-Integrated Tax (Rate)
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GST:
Absolute exemption from GST on supply of goods - scope enlarged - Amendments to the Notification 02/2017-Integrated Tax (Rate)
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GST:
Rates of GST on Supply of Goods as per the schedules - Amendments to the Notification 01/2017-Integrated Tax (Rate)
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GST:
Supply of works contract services in relation to construction to the Government - the term "Busienss" explained - Amendments to the Notification No. 8/2017 – Integrated Tax (Rate)
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GST:
Activity which shall neither be treated as supply of good nor a service - amendments to the notification No. 11/2017- Integrated Tax (Rate) - any activity in relation to a function entrusted to a municipality under Article 243W
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GST:
Supply of services by DSA to banks/NBFCs shall be taxable on reverse charge basis - Amendments to the notification No. 10/2017- Integrated Tax (Rate)
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GST:
Exemption to various supply of services - Amendments to the notification No. 9/2017- Integrated Tax (Rate)
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GST:
Rates of GST on services - amendments to the notification No. 8/2017- Integrated Tax (Rate) in relation to Accommodation Services, Multimodal transportation of goods and Supply consisting only of e-book.
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Income Tax:
Penalty u/s 271(1)(c) - Revenue expenditure or not - expenses on NPA’s - merely because the assessee has claimed the expenditure, which claim was not accepted or not acceptable to the Revenue, that by itself would not attract penalty u/s. 271(1)(c)
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Customs:
Seeks to exempt IGST calculated on the assessable value over and above the value (Pool in Price) at which Urea is sold by Department of Fertilizers to Fertilizer Marketing Entities on high sea sale basis.
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Service Tax:
CENVAT Credit - trading activities - common inputs used for providing taxable services as well as in trading activity - the assessee’s argument that there is no mechanism to reverse credit, once taken, in the opinion of this Court, cannot be accepted.
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Service Tax:
Business Exhibition Service - lease out stalls - Cultural Dusshera Exhibition - leasing stalls and land will not fall under the category of “business exhibition services”.
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Service Tax:
GTA Services - transportation of effluents out of operational area to ETP - the transportation of effluents cannot be treated as transportation of 'goods' and hence there cannot be any service tax liability under ‘Goods Transport Agency’
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Service Tax:
Scope of SCN - Banking and Other Financial Services - appellants is a non-banking financial institution - Only a company, corporation or cooperative society would fall within the definition of non-banking financial institution - Demand set aside being beyond the scope of show cause notice.
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Service Tax:
Classification of services - Works contract or Erection, installation, and commissioning services? - Registration under the wrong classification earlier by the assessee will not help the revenue - in the earlier classification of the appellant, the erection, installation and commissioning services, would not preclude them from the benefit under Works Contract Service.
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Service Tax:
Reverse Charge Mechanism - GTA Service - The argument that since the service providers are mostly individual truck owners do not fall under goods transport agency is not legally sustainable and the GTA service provided by the individual truck owner is leviable to the service tax.
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Central Excise:
Valuation - inclusion of the design, drawing and layout charges in the assessable value of printed cartoons - Section 4(3)(d) - demand confirmed.
Articles
Notifications
Customs-
55/2018 - dated
26-7-2018
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Cus
Seeks to exempt IGST calculated on the assessable value over and above the value (Pool in Price) at which Urea is sold by Department of Fertilizers to Fertilizer Marketing Entities on high sea sale basis.
DGFT-
23/2015-2020 - dated
27-7-2018
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FTP
Amendment of Policy Conditions of Urea under Chapter 31 of the ITC (HS) 2017, Schedule - I (Import Policy).
GST-
21/2018 - dated
26-7-2018
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CGST Rate
Seeks to prescribe concessional CGST rate on specified handicraft items, to give effect to the recommendations of the GST Council in it’s 28th meeting held on 21.07.2018
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20/2018 - dated
26-7-2018
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CGST Rate
Seeks to amend Notification No 05/2017-Central Tax (Rate),dt. 28-06-2017 to give effect to the recommendations of the GST Council in it’s 28th meeting held on 21.07.2018
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19/2018 - dated
26-7-2018
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CGST Rate
Seeks to amend Notification No. 02/2017-Central Tax (Rate),dt. 28-06-2017 to give effect to the recommendations of the GST Council in it’s 28th meeting held on 21.07.2018
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18/2018 - dated
26-7-2018
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CGST Rate
Seeks to amend Notification No. 01/2017-Central Tax (Rate),dt. 28-06-2017 to give effect to the recommendations of the GST Council in it’s 28th meeting held on 21.07.2018
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17/2018 - dated
26-7-2018
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CGST Rate
Seeks to insert explanation in an item in notification No. 11/2017 – Central Tax (Rate) by exercising powers conferred under section 11(3) of CGST Act, 2017
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16/2018 - dated
26-7-2018
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CGST Rate
Seeks to amend notification No. 14/2017- Central Tax (Rate) to notify that services by way of any activity in relation to a function entrusted to a municipality under Article 243W shall be treated neither as a supply of good nor a service
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15/2018 - dated
26-7-2018
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CGST Rate
Seeks to amend notification No. 13/2017- Central Tax (Rate) so as to specify services supplied by individual Direct Selling Agents (DSAs) to banks/ non-banking financial company (NBFCs) to be taxed under Reverse Charge Mechanism (RCM)
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14/2018 - dated
26-7-2018
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CGST Rate
Seeks to amend notification No. 12/2017- Central Tax (Rate) so as to exempt certain services as recommended by Goods and Services Tax Council in its 28th meeting held on 21.07.2018
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13/2018 - dated
26-7-2018
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CGST Rate
Seeks to amend notification No. 11/2017- Central Tax (Rate) so as to notify CGST rates of various services as recommended by Goods and Services Tax Council in its 28th meeting held on 21.07.2018
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2/2018 - dated
26-7-2018
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GST CESS Rate
Seeks to amend Notification No. 1/2017 -Compensation Cess (Rate) dated 28.06.2017 togive effect to the recommendations of the GST Council in it’s 28th meeting held on 21.07.2018
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22/2018 - dated
26-7-2018
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IGST Rate
Seeks to prescribe concessional IGST rate on specified handicraft items, to give effect to the recommendations of the GST Council in it’s 28th meeting held on 21.07.2018
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21/2018 - dated
26-7-2018
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IGST Rate
Seeks to amend Notification 05/2017-Integrated Tax (Rate),dt. 28-06-2017 to give effect to the recommendations of the GST Council in it’s 28th meeting held on 21.07.2018
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20/2018 - dated
26-7-2018
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IGST Rate
Seeks to amend Notification 02/2017-Integrated Tax (Rate),dt. 28-06-2017 to give effect to the recommendations of the GST Council in it’s 28th meeting held on 21.07.2018
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19/2018 - dated
26-7-2018
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IGST Rate
Seeks to amend Notification 01/2017-Integrated Tax (Rate),dt. 28-06-2017 to give effect to the recommendations of the GST Council in it’s 28th meeting held on 21.07.2018
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18/2018 - dated
26-7-2018
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IGST Rate
Seeks to insert explanation in an item in notification No. 8/2017 – Integrated Tax (Rate) by exercising powers conferred under section 6(3) of IGST Act, 2017
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17/2018 - dated
26-7-2018
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IGST Rate
Seeks to amend notification No. 11/2017- Integrated Tax (Rate) to notify that services by way of any activity in relation to a function entrusted to a municipality under Article 243W shall be treated neither as a supply of good nor a service
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16/2018 - dated
26-7-2018
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IGST Rate
Seeks to amend notification No. 10/2017- Integrated Tax (Rate) so as to specify services supplied by individual Direct Selling Agents (DSAs) to banks/ non-banking financial company (NBFCs) to be taxed under Reverse Charge Mechanism (RCM)
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15/2018 - dated
26-7-2018
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IGST Rate
Seeks to amend notification No. 9/2017- Integrated Tax (Rate) so as to exempt certain services as recommended by Goods and Services Tax Council in its 28th meeting held on 21.07.2018
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14/2018 - dated
26-7-2018
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IGST Rate
Seeks to amend notification No. 8/2017- Integrated Tax (Rate) so as to notify IGST rates of various services as recommended by Goods and Services Tax Council in its 28th meeting held on 21.07.2018
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21/2018 - dated
26-7-2018
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UTGST Rate
Seeks to prescribe concessional UTGST rate on specified handicraft items, to give effect to the recommendations of the GST Council in it’s 28th meeting held on 21.07.2018
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20/2018 - dated
26-7-2018
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UTGST Rate
Seeks to amend Notification 05/2017-Union Territory Tax (Rate),dt. 28-06-2017 to give effect to the recommendations of the GST Council in it’s 28th meeting held on 21.07.2018
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19/2018 - dated
26-7-2018
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UTGST Rate
Seeks to amend Notification 02/2017-Union Territory Tax (Rate),dt. 28-06-2017 to give effect to the recommendations of the GST Council in it’s 28th meeting held on 21.07.2018
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18/2018 - dated
26-7-2018
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UTGST Rate
Seeks to amend Notification 01/2017-Union Territory Tax (Rate),dt. 28-06-2017 to give effect to the recommendations of the GST Council in it’s 28th meeting held on 21.07.2018
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17/2018 - dated
26-7-2018
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UTGST Rate
Seeks to insert explanation in an item in notification No. 11/2017 – Union Territory Tax (Rate) by exercising powers conferred under section 8(3) of UTGST Act, 2017
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16/2018 - dated
26-7-2018
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UTGST Rate
Seeks to amend notification No. 14/2017- Union Territory Tax (Rate) to notify that services by way of any activity in relation to a function entrusted to a municipality under Article 243W shall be treated neither as a supply of good nor a service
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15/2018 - dated
26-7-2018
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UTGST Rate
Seeks to amend notification No. 13/2017- Union Territory Tax (Rate) so as to specify services supplied by individual Direct Selling Agents (DSAs) to banks/ non-banking financial company (NBFCs) to be taxed under Reverse Charge Mechanism (RCM)
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14/2018 - dated
26-7-2018
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UTGST Rate
Seeks to amend notification No. 12/2017- Union Territory Tax (Rate) so as to exempt certain services as recommended by Goods and Services Tax Council in its 28th meeting held on 21.07.2018
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13/2018 - dated
26-7-2018
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UTGST Rate
Seeks to amend notification No. 11/2017- Union Territory Tax (Rate) so as to notify UTGST rates of various services as recommended by Goods and Services Tax Council in its 28th meeting held on 21.07.2018.
Income Tax-
34/2018 - dated
25-7-2018
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IT
Central Government specifies Director General, Central Economic Intelligence Bureau (CEIB)
Circulars / Instructions / Orders
News
Case Laws:
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GST
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2018 (7) TMI 1688
Memo Seeking withdrawal of petition - Held that:- Memo is placed on record - The writ petition is dismissed as withdrawn.
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Income Tax
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2018 (7) TMI 1687
TPA - include forex gain/loss as part of operating profit to determine the PLI [profit level indicator] for comparison under TNMM [transactional net margin method] method with ascertaining the nexus between such gain and the business activity of the tax payer? - Held that:- The controversy involved herein is no more res integra in view of the decision in PR. COMMISSIONER OF INCOME TAX AND ASSISTANT COMMISSIONER OF INCOME TAX VERSUS M/S. SOFTBRANDS INDIA P. LTD. [2018 (6) TMI 1327 - KARNATAKA HIGH COURT] wherein it has been observed that unless the finding of the Tribunal is found ex facie perverse, the Appeal u/s. 260-A of the Act, is not maintainable
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2018 (7) TMI 1686
Addition u/s 69C - Held that:- Section 69C would shows that section becomes applicable where the assessee has incurred any expenditure and offers no explanation about the source or the explanation offered by him was not satisfactory. The seized materials, GEQD reports and the statements of the assessee and various persons clearly go to show that the assessee has incurred certain expenditure more than what is stated in the invoices, and the assessee also failed to explain the source for such expenditure. Therefore, it is of the view that AO has rightly invoked and applied section 69C of the Act. The provisions of section 69C do not lay any pre-condition that the books of account should be rejected before invoking the section. CIT(A) has considered section 69C and gave a finding that the assessee has incurred expenditure more than what is stated in the invoice; assessee failed to explain the source for the expenditure. Therefore, Assessing Officer has rightly invoked section 69C of the Act and confirmed his order by the ld.CIT(A). In view of the above, we find no infirmity in the order passed by the ld. CIT(A). Thus, this plea raised by the assessee is rejected. The statement given by Shri A. Viswanadham, sales head of M/s. K.K. Enterprises, dated 10/12/2008 has no relevancy, the same cannot be considered. Therefore, there is no merit in the plea raised by the assessee and the same is deserves to be rejected. Accordingly, we reject the same. The same plea has been raised before the CIT(A), the ld. CIT(A) considered the same and observed that assessee has not given any explanation for the source of impugned expenditure incurred. It was only argued that the assessee has not indulged and no explanation was given on indiscriminating material noticed. As argued that sales admitted by the assessee was correct. Therefore, ld. CIT(A) has rejected the alternative plea raised by the assessee. In view of our above finding and also considering the order passed by the ld.CIT(A) in respect of alternative plea with regard to profit element, we find no merit in the plea raised by the assessee, the same is dismissed.
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2018 (7) TMI 1685
Addition u/s 14A r.w.r. 8D - Held that:- Admittedly, there are no fresh investments which have been made during the year and all the investments have been carried over from the previous years and in the previous years, the Coordinate Bench has deleted the disallowance made under section 14A of the Act. In light of above, respectively following the decision of the Co-ordinate Bench referred in assessee’s own case, the addition made by the AO under section 14A is hereby deleted and the ground taken by the Revenue is hereby dismissed. Addition on account of unverifiable expenses - Held that:- Following the decision of the Co-ordinate Bench in assessee’s own case for AY 2010-11 and 2011-12, he has deleted the said disallowance made by the Assessing Officer. No infirmity in the said findings of the ld. CIT(A) hence the same is confirmed and ground taken by the Revenue is hereby dismissed. Addition towards the late deposit of contribution to PF and ESI - Held that:- CIT(A) has returned a finding that the payments have been made before due date of filing of the return of income and following the decision of Hon’ble Rajasthan High Court in case of CIT vs. Udaipur Dugdh Utpadak Sahakari Sangh Ltd. (2014 (8) TMI 677 - RAJASTHAN HIGH COURT) and CIT vs. State Bank of Bikaner and Jaipur [2014 (5) TMI 222 - RAJASTHAN HIGH COURT], he has correctly directed the deletion of said disallowance made by the Assessing Officer.
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2018 (7) TMI 1684
Revenue expenditure or not - expenses on NPA’s - Held that:- Expenses incurred on NPA’s and treated as part of asset in the books of account cannot be treated as revenue expenditure in statement of total income as the same is not meeting the matching principles of accountancy. Penalty u/s 271(1)(c) - Held that:- We find merit in the arguments of the assessee for the reason that mere disallowance of expenses incurred cannot be considered as furnishing inaccurate particulars of such income, when assessee has furnished complete details of expenses and treatment of such expenses in its books of account, by way of notes to account explaining reasons for differential treatment in the books of account and in return of income for the relevant assessment year. We further observe that it is not a case of the Assessing Officer that assessee neither furnished any details of expenses nor explained reasons for giving differential treatment in books of account and return of income filed for the year. He levied penalty only for the reasons that assessee has given differential treatment of expenses in the books of account and in return of income without pointing out how such treatment given by the assessee towards expenses incurred on NPA is not allowable as revenue expenses, which is evident from the fact that the Assessing Officer has never doubted the genuineness of expenses and also not observed that these expenses are not revenue in nature. Additions made by the AO towards disallowance of expenses incurred on loan assets and treated as part of cost of asset and claimed as revenue in nature in statement of total income was only on account of different views taken on same set of facts and, therefore, they could at the most be termed as difference of opinion but nothing to do with concealment of income or furnishing of inaccurate particulars of income. This legal proposition is supported by the decision of Hon’ble Supreme Court in the case of Reliance Petroproducts (2010 (3) TMI 80 - SUPREME COURT), wherein, it was clearly observed that merely because the assessee has claimed the expenditure, which claim was not accepted or not acceptable to the Revenue, that by itself would not attract penalty u/s. 271(1)(c) of the Act
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2018 (7) TMI 1659
Condonation of delay - removal of office objections - sufficient cause for condoning this enormous delay - Held that:- SLP dismissed.
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2018 (7) TMI 1654
Maintainability of Petition - Amalgamation - scheme sanctioned by the Court - intervention by the Income Tax authorities on the ground that it would entail huge losses to the revenue – Demand notice was issued u/s 166 of the IT Act - Held that:- At the request of learned counsel for the appellant and by way of indulgence, last opportunity of one week is granted to file adequate number of spare copies. However, it is made clear that in case adequate number of spare copies are not filed within a week, the appeals shall stand dismissed for non-prosecution without further reference to the Court in terms of the signed order.
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2018 (7) TMI 1653
Rectification of mistake u/s 154 - Allowing the appeal of the assessee against the order of CIT(A) confirming the order passed by the Assessing Officer u/s.154 - addition u/s 14A - Held that:- The Special Leave Petition is dismissed on the ground of delay as well as on merits.
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2018 (7) TMI 1652
Addition of Long Term Capital Gain - Assessing Officer applying the market value on the basis of the rate communicated by Ghazibad Development Authority of ₹ 5,700/- per sq. mtr as against the rate of ₹ 4,200/- sq. mtr. applied by the assessee? - Held that:- Special Leave Petition is dismissed on the ground of delay as well as on merits.
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2018 (7) TMI 1651
Entitlement to deduction under Section 80-IC - whether an “undertaking or an enterprise” (Unit) established after 7th January, 2003, carrying out “substantial expansion” within the specified window period, i.e. between 7.1.2003 and 1.4.2012, would be entitled to deduction on profits @ 100%, under Section 80-IC? - Held that:- Special Leave Petition is dismissed only on the ground of low tax effect leaving the question of law open.
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2018 (7) TMI 1640
Exemption u/s. 54 - sale consideration was not deposited in the capital accounts scheme before due date of filing return - non adherence to conditions stipulated under the provisions of section 54F(4) - Held that:- The assessee could make investment in construction of new residential building within three years from the date of transfer of original asset to claim deduction u/s. 54F of the Act. Provisions of section 54F are beneficial provisions and are to be considered liberally. See COMMISSIONER OF INCOME-TAX VERSUS A. RAAJENDRA PRASAD [2007 (11) TMI 124 - ANDHRA PRADESH HIGH COURT] We are inclined to remit the issue to the file of the Assessing Officer to examine the fulfillment of the conditions u/s. 54F of the Act through intermediary period, i.e., from the date of transfer of the capital asset to the date of actual investment in construction of residential building. Accordingly the issue of allowability of deduction u/s. 54F is remitted to the file of the Assessing Officer with the direction to the assessee to prove the investment in the residential building as prescribed u/s. 54F of the Act before the due date of filing of return of income u/s. 139(4) of the I.T. Act, i.e., 31/03/2007. Accordingly, this issue is remitted to the file of the Assessing Officer for fresh consideration after giving adequate opportunity of hearing to the assessee. The appeal of the Revenue is partly allowed for statistical purposes.
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Customs
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2018 (7) TMI 1681
Refund claim - unjust enrichment - various submissions of appellant not examined - principles of Natural Justice - Held that:- From the fact and arguments adduced, it is quite apparent that the ld. Commissioner (Appeals) has not considered the various submissions made by the appellant and also the case laws cited for their relevancy in the factual matrix - appeal allowed by way of remand to the Commissioner (Appeals) for appropriate order following the due process of law.
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2018 (7) TMI 1680
Classification of goods - Health Oxygen Equipment of model MR 930 of “Morning Walker” - whether classified under CTH 95069010 or CTH 90191020? - Held that:- It is evident that the classification of the ‘Morning exerciser’ has already been finalised by this Bench in the case of HILITE ELECTRICALS VERSUS COMMISSIONER OF CUSTOMS, CALCUTTA [1999 (11) TMI 231 - CEGAT, CALCUTTA] - Department has not gone in appeal against this order and therefore, we are of the view that the same cannot be changed at this juncture particularly, when product has not undergone any change. Appeal dismissed - decided against Revenue.
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2018 (7) TMI 1656
Imposition of Safeguard Duty - N/N. 71/2009 dated 19.6.2009 - Held that:- No case for review of order in the case of M/S P.G. FOILS LTD. VERSUS COMMISSIONER OF CUSTOMS (FOR ADMISSION) [2018 (7) TMI 796 - SUPREME COURT OF INDIA] is made out - Review petition dismissed.
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2018 (7) TMI 1650
Provisional release of goods - Jurisdiction - Held that:- In view of the admitted position that pursuant to the impugned order, the customs authorities have already passed an order, this special leave petition has become infructuous - The special leave petition is accordingly dismissed as having become infructuous.
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2018 (7) TMI 1649
Benefit of N/N. 21/2002-Cus. dated 01.03.2002 - misdeclaration of goods - Crossslinkable Polyethylene Compounds - Held that:- There is no merit in this appeal - Admission is refused and the civil appeal is, accordingly, dismissed.
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2018 (7) TMI 1648
Recovery of erroneous refund - Benefit of N/N. 133/ 85 dated 19.04.1985 - Captive consumption - Held that:- The special leave petition is dismissed both on the ground of delay as well as on merits.
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Corporate Laws
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2018 (7) TMI 1683
Prohibition of Insider Trading - Violation of the PIT Regulations 1992 - Held that:- The argument that the actual write down was much less than the potential write down disclosed does not come to the help of the appellant because if the audit disclosures were factored in by the public they would have taken their decision based on that and in the process could have incurred huge losses in view of the fact that subsequently the actual hit is almost 40% less than what was projected. A disclosure based regime means proper and exact disclosure not an indicative disclosure, as argued by the appellant. In any case even the indicative disclosure was discounted by the Board of Directors of PVP Ventures. We find no merit in the argument of the appellants that after publication of the results of the quarter ending September 2009 there was no substantial decline in the price of the shares of PVP Ventures since the market had already factored in the loss that the company would incur. Prices of the shares prevailed in September 2009 was in the range of ₹ 60.30 to ₹ 42.70 and in October 2009 between ₹ 51.70 to 39. However, it declined to ₹ 39.50 and ₹ 26.20 in November and further down in December 2009. The average price reckoned by the appellants for valuing the shares still being held by Appellant No. 1 was ₹ 45. We are not convinced by the argument that the journal vouchers 231 to 233 were entered in the books on or about October 30, 2009 given their sequential character. Even assuming that the tally software facilitated the same during those times taking the October sales for crystallizing the amount of loss as on September 30 was a huge jump beyond both the requirement for crystallizing the value of loss and from the spirit of AS 4. It is in the affidavit of the appellants itself (dated March 6, 2017) that they crystallized the value of their investment in the securities of its parent company by “ascribing a value of ₹ 45 per share considering the average trading price as of October 30, 2009” in respect of 80,36,235 shares which Appellant No. 1 continued to hold as on that date. Therefore, for crystallizing the value of the loss as on September 30, 2009 it was not necessary that the shares had to be actually sold and the actual sale price had to be taken; the books could have been valued using what was actually sold and the remaining securities valued notionally using the average price available. Therefore, the argument that the appellant continued to sell the shares in October (during the UPSI period, as held in the impugned order) was to crystallize the value of loss that they would have incurred does not have any merit. We do not agree with the argument of the appellant that AS 4 (8.2) enables juxtaposing the October sales value on to the September 30 quarterly statement since AS 4 (8.3) clearly states that such an approach is not correct in respect of investments. We also do not agree with the argument of the appellant that both the company and its Director cannot be punished for the same set of transactions as it is now a settled position in law that the Directors are equally liable for the offences of the company. In the instant matter it is also important to note that the Director concerned is the same responsible person in both the listed parent company and the unlisted 100% subsidiary. We agree with the appellants in their submissions that the ratio of this Tribunal’s order in the matter of Ravi Mohan (2016 (3) TMI 93 - SECURITIES APPELLATE TRIBUNAL MUMBAI) is available to the appellant as far as violations of Regulation 7(1A) of SAST as held in the impugned order is concerned. Accordingly, penalty of ₹ 15 Lakh each imposed on both the appellants cannot be sustained. While finding no fault in holding that both the company and its Director are liable for punishment we do not find it appropriate that both are to be punished with the same force; same quantum of penalty. It is on record that the disputed transactions had led to a loss avoidance (or gain) to the tune of ₹ 10,94,12,571 to the company because of the insider trading done by the company and its authorized director. There is nothing on record to show that the Director himself has sold any shares which he held. Therefore while both are liable for the said violation both need not be punished on equal measure when only the company has actually benefited of about ₹ 11 crore. Once it is proved that the appellant company has violated the disclosure requirements under Regulation 13(6) of PIT Regulations 1992 Appellant No. 2 who was the CMD of Appellant No. 1 cannot be absolved of the responsibility. We also note that the penalty imposable under Section 15A(b) shall not be less than 1 lakh rupees for each day of such failure subject to a maximum of 1 crore rupees. Since the non-disclosure relates to four occasions and continued open ended and transactions involved were a total of about 15% of the shares of the Appellant No. 1, we hold that the penalty of ₹ 15 lakh each imposed on the appellants cannot be considered harsh or disproportionate. In Appeal No. 357 of 2015 penalty of ₹ 15 lakh each imposed on both the appellants under Regulation 7(1A) of SAST Regulations 1997 is set aside and penalty of ₹ 15 crore imposed on Appellant No. 2 in Appeal No. 357 of 2015 is reduced to ₹ 5 crore while retaining the penalty of ₹ 15 crore imposed on Appellant No. 1 in the same appeal.
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Insolvency & Bankruptcy
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2018 (7) TMI 1690
Initiation of Corporate Insolvency Resolution Process - Held that:- If the application is filed under Section 7, default in respect of a ‘financial debt’ owed to any of the ‘Financial Creditors’ of the corporate debtor, it need not be a default of debt owed to the particular Financial Creditor and may be a Co-Financial Creditor under Section 7(2). Application made under Sub-section (1) in the form prescribed required to accompany the documents and records therein. If the authorization letter was not accompanied or other record relating to debt or a default was not enclosed, as pleaded by learned counsel appearing on behalf of Corporate Debtor, which requires to be mentioned in Part-IV and Part-V of Form 1, it was duty on part of the Adjudicating Authority to allow time to the ‘Financial Creditor(s)’ to remove the defects and should not have rejected the application on the ground that the loan amount of certain ‘Financial Creditor’ is not clear from the record. For the reasons aforesaid, we set aside the order passed by the Adjudicating Authority (National Company Law Tribunal), Ahmedabad Bench, Ahmedabad and allow Appellant to remove all the defect as pointed out by learned counsel for the Corporate Debtor and enclose the authorization letter by the Financial Creditor(s), providing all the detailed material required under Part-IV and Part-V of Form 1 within three weeks.
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2018 (7) TMI 1689
Corporate insolvency proceedings - Held that:- There is a dispute about invoices issued by the Operational Creditor, one to the Appellant (Corporate Debtor) and another to one ‘M/s Pebble Bay Developers Pvt. Ltd.’, which is sister concern of the Corporate Debtor, we are of the view that application under Section 9 was not maintainable. For the said reason we set aside the impugned order dated 26th April, 2018 passed by the Adjudicating Authority (National Company Law Tribunal) but we do not remit the case back to the Adjudicating Authority as settlement has been reached between the parties. In effect, order(s) passed by Ld. Adjudicating Authority appointing any ‘Interim Resolution Professional’, declaring moratorium, freezing of account, and all other order(s) passed by Adjudicating Authority pursuant to impugned order and action taken by the ‘Interim Resolution Professional’, including the advertisement published in the newspaper calling for applications all such orders and actions are declared illegal and are set aside. The application preferred by Respondent under Section 9 of the I&B Code, 2016 is dismissed. Learned Adjudicating Authority will now close the proceeding. The ‘Corporate Debtor’ is released from all the rigour of law and is allowed to function independently through its Board of Directors from immediate effect. Learned Adjudicating Authority will fix the fee of ‘Interim Resolution Professional’, and the ‘Corporate Debtor’ will pay the fees of the Interim Resolution Professional
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Service Tax
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2018 (7) TMI 1679
CENVAT Credit - trading activities - common inputs used for providing taxable services as well as in trading activity - non-maintenance of separate records - Whether the assessee could claim the credit on input which were not services? - extended period of limitation. Held that:- Undoubtedly, there cannot be an exact correlation between one kind of input and corresponding. That is the reason the Rules cover situations where assessees provide both exempted and taxable services. Wherever someone undertakes activities that cannot be called a service or which is not manufacture , that activity goes out of the purview of both Central Excise Act as well as Finance Act, 1994. In such cases, an assessee would be ineligible for claiming input-service tax credit on an output which is neither a service nor excisable goods - There is no provision to cover situations where an assessee is providing a taxable service and is undertaking another activity which is neither a service nor manufacture. In such a situation, the only correct legal position appears to be that it is for the assessee to segregate the quantum of input service attributable to trading activity and exclude the same from the records maintained for availing credit. In the present case, the assessee s argument that there is no mechanism to reverse credit, once taken, in the opinion of this Court, cannot be accepted. The assessee was well aware of the exact nature and extent of its service tax liability. It was also aware of the eligible service tax inputs. Therefore, when it did claim- successfully and unchallenged input credits in respect of activities that were not subjected to service tax levy, it was aware that the claim was excessive and could not be justified. Extended period of limitation - Held that:- Being conscious of its trading activity and that it was not liable to service tax (since it did not include the amounts earned from that business, in its returns) meant that the assessee was aware of what it was doing. It cannot now take shelter under the plea that non-trading activity was expressly exempt from claiming credit, in 2011. That amendment made no difference, given that trading was never taxable under the Finance Act, 1994 - the Revenue was justified in invoking the extended period of limitation in this case. Appeal dismissed - decided against appellant.
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2018 (7) TMI 1678
Simultaneous penalties u/s 76 and 78 - Commercial coaching and training services - case of Revenue is that the assessee was aware about its service tax liability; despite this knowledge, it filed its returns claiming that no liabilities were attracted - Held that:- The appellant, when it smelt investigation and adverse orders, it apparently approached the service tax authorities and deposited the amounts which they were admittedly liable to pay. Such being the case of foreknowledge, in the opinion of the court, itself is an important factor that ought to have been and was taken into account by the lower revenue authorities. Hence, foreknowledge lead to the imposition of recovery of dues assessed as well as imposition of the penalty under Section 78 - penalty u/s 78 upheld. Penalty u/s 76 - effect of amendment, retrospective or prospective? - Held that:- The appellant s contention with respect to retrospective effect of the amendment of Section 78 (which makes the imposition of penalties under Section 76 and 78 mutually exclusively) are unsubstantial as this court in M/s. Bajaj Travels Limited vs. Commissioner of Service Tax [2011 (8) TMI 423 - DELHI HIGH COURT] held that the amendments are prospective in nature and cannot come to the aid of an assessee for past period - penalty u/s 76 also upheld. Appeal dismissed - decided against appellant.
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2018 (7) TMI 1677
Condonation of delay in filing appeal before Commissioner Appeals - Refund of amount paid by the petitioners - refund claimed on the ground that there was no authority to collect tax on the service rendered by the developer to the petitioners who are prospective buyers of Flats by construing the payment made as deposit - Circular issued by the Board in No. 108/02/2009 dated 29.01.2009 - refund was rejected on the ground of delay. Held that:- Admittedly, in the present case, the delay was 4 months 4 days and the petitioners/appellants have explained the delay by filing the additional affidavits in pursuance of the remand order passed by this Court and explained the delay - Though the Deputy Commissioner was right in dismissing the appeals in view of Section 85 of the Finance Act, in view of dictum of Division Bench of this Court in the case of PRACTICE STRATEGIC COMMUNICATIONS INDIA P. LTD., v. C.S.T., DOMLUR [2017 (1) TMI 659 - KARNATAKA HIGH COURT], the matter was remanded to the Commissioner of Service Tax (Appeals) to decide the appeals on merits. This Court is bound to follow the judgment of the Division Bench of this Court. The matters are remanded to the Commissioner of Service Tax (Appeals) to decide the appeals on merits without reference to the limitation and pass orders strictly in accordance with law - petition allowed by way of remand.
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2018 (7) TMI 1676
Pre-deposit - appeal dismissed on the ground that the assessee did not make the pre-deposit of part of disputes demand of service tax before the stipulated date - Held that:- There is no dispute that the pre-deposit requirement now stands satisfied albeit with a delay and therefore the Tribunal should be directed to decide the pending Appeal on merits in accordance with law - appeal allowed - the case remitted to the learned Tribunal to decide the Appeal of the assessee on merits and in accordance with law.
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2018 (7) TMI 1675
Taxability - Security Agency services - appellant are a society registered under the Society Registration Act, 1860 and also registered as Public Charitable Trust - whether the activities of appellant are 'Commercial' in nature or not? - Held that:- Reliance was placed in the case of PUNJAB EX-SERVICEMEN CORPORATION VERSUS UNION OF INDIA [2010 (9) TMI 871 - PUNJAB & HARYANA HIGH COURT], where it was held that As per definition of security agency under Section 65(94) service provider should be engaged in the business rendering specified service. There is no warrant for reading therein requirement of profit motive - taxability of service upheld. Time Limitation - penalties - Held that:- Considering the nature of organization which is charitable and considering the fact that a number of Tribunal decisions have expressed a similar view, there is no justification in invoking extended period of limitation as the appellant could have harbored a bonafide view - extended period of limitation and penalty set aside. Appeal allowed in part.
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2018 (7) TMI 1674
Renting of Immovable Property Services - rent received on leasing the fit outs in the premises - Whether the appellants are liable to pay service tax on the rent received for leasing the fit outs? Held that:- Undisputedly, the appellants have entered into two different agreements for leasing the premises and leasing the fit outs. The fit outs include air conditioners, CCTV, fire alarms, etc. Appellants are discharging VAT on the rent received for leasing the fit outs. They have been discharging VAT even before the services of renting of immovable property became taxable. The Tribunal in the case of Ascendas IT Park (Chennai) Ltd. [2018 (1) TMI 827 - CESTAT CHENNAI] has considered the very same issue and held that VAT and service tax being mutually exclusive, service tax cannot be demanded on the very same consideration received for renting of movable properties. The demand cannot sustain and requires to be set aside - appeal allowed - decided in favor of appellant.
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2018 (7) TMI 1673
CENVAT Credit - Input/Capital Goods - angles, channels, beams, falling under Chapter 72 and 73 of Central Excise Tariff Act and prefabricated buildings/shelters/PUF panels falling under Chapter Heading 9406 - whether the appellant would be entitled for availing CENVAT credit in respect of excise duty paid on purchase of towers and parts thereof, prefabricated buildings? - penalty. Held that:- There is no ambiguity in the use of words in the Rules. There is a clear-cut distinction between the inputs used and eligible for credit for a manufacturer vis-à-vis inputs used and eligible for a specific provider - the issue is squarely covered by the decision in the case of Vodafone Essar South Ltd. vs. Commissioner of Service Tax [2018 (4) TMI 226 - CESTAT BANGALORE], where it was held that various Benches of the Tribunal have held that the appellants are not entitled to take CENVAT credit on tower / tower materials and prefabricated buildings/shelters as capital goods as well as inputs - demand upheld. Penalty - Held that:- The appellants are government undertaking and the issue in the present appeals is in the nature of interpretation of eligibility of CENVAT credit or otherwise - Penalty set aside by invoking section 80. Appeal allowed in part.
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2018 (7) TMI 1672
Business Exhibition Service - right to others lease out stalls - scope of SCN - the original SCN did not invoke extended period whereas the revision SCN has invoked it - whether allowing the contractor to lease or rent stalls for exhibition is taxable under business exhibition services ? - whether the Revenue proceedings have been gone beyond the scope of the original SCN? Scope of SCN - Held that:- The original SCN has mentioned that the appellants suppressed the facts of rendering taxable service with intent to evade payment of Service Tax and they fail to declare their taxable turnover to the Department. The revision SCN has only expanded the reasons for invoking extended period; since original SCN made mention of extended period, it is concluded that the SCN has not gone beyond scope. Taxability of the service rendered by the appellants - Held that:- The main objective of the Cultural Dusshera Exhibition is to propagate and project the Cultural and Literary heritage and technical achievements and educational and sociological advancement in the State. The bidder of the tender would let out the allotted area or stalls to the interested people who wish to put up their stalls. The stalls are used to put up shops for selling their products; taxable service requires that the Service Tax should be provided to the exhibitor - there is no service rendered by the appellants to the exhibitor, in fact, the successful tenderer will give it to individual shops, the service receiver as well as the appellants are concerned, is the tenderer but not the individual exhibitors of the shops - leasing stalls and land will not fall under the category of business exhibition services as held by the Revisionary Authority. As the appeals sustain on merits, the question of charging interest and levying penalty could not survive. Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 1671
Liability of Service tax - GTA Services - Freight paid towards transportation of effluents out of operational area to ETP - Held that:- This issue is squarely covered by the decision of Tribunal in the case of Gujarat State Fertilizers & Chemicals Ltd. Vs CCE Vadodara [2014 (7) TMI 893 - CESTAT AHMEDABAD], where it was held that As the relevant facilities/services of transportation provided by appellant are not for the ‘goods’ as defined in Section 2(7) of the Sale of Goods Act, 1930, the same cannot be considered as a service provided for transportation of goods as per Section 65(105)(zzz) of the Finance Act, 1994 read with Section 2(7) of Sale of Goods Act, 1930 - the transportation of effluents cannot be treated as transportation of 'goods' and hence there cannot be any service tax liability under ‘Goods Transport Agency’ as defined in Section 65 (150b) of the Finance Act, 1994 - tax liability and penalty set aside. Liability of Service Tax - freight paid towards transportation of crude oil and condensate within the operational area - transportation services received for transport of various goods out of operational area - Held that:- As the appellants have conceded the tax liabilities of ₹ 79,90,126/- in respect of freight paid for transportation of crude oil condensate as also the tax liability of ₹ 67,935/- in respect of outward transportation, no interference is made in respect of these demands confirmed by the adjudicating authority in these matters - tax liability sustained. Appeal allowed in part.
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2018 (7) TMI 1670
Scope of SCN - Banking and Other Financial Services - appellants is a non-banking financial institution - the basic allegation is that the assessee being a non-banking financial institution is engaged in lending activity and, therefore, their services are classifiable under bank and other financial services with effect from 10.09.2004. Held that:- Only a company, corporation or cooperative society would fall within the definition of non-banking financial institution. There is no allegation in the Show Cause Notice that assessee is liable to pay service tax as they are rendering ‘Banking and Other Financial Services’ as they are included in the category “any other person” - the categorical allegation in the Show Cause Notice is that assessee is a non-banking financial institution and therefore is liable to pay service tax for the Banking and Financial Services. This being so, the Commissioner has traversed beyond the scope of Show Cause Notice to confirm the demand for the period 01.05.2006 to 30.04.2007. The Commissioner has rightly dropped the demand for the period from 01.10.2004 to 30.04.2006 and for 01.05.2007 to 30.11.2009 when the words “any other person” was not part of the definition under Section 65(105)(zm). The Tribunal had analyzed a similar issue in the case of Grama Vidiyal Trust [2018 (6) TMI 584 - CESTAT CHENNAI] has held that As it has already been found that the appellants would not fall within the ambit of ‘banking company or financial institution’ for the purposes of Section 65 (12) ibid, that allegation in the SCN and its confirmation in the impugned order cannot then be sustained. Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 1669
Classification of services - Works contract or Erection, installation, and commissioning services? - EPC contracts - Benefit of abatement under N/N. 19/2003- ST dated 21.08.2003 and N/N. 1/2006-ST dt.01.03.2006 denied - period 01.07.2003 to 30.09.2007 - Imposition of penalty u/s 76 of FA - quantification of Interest under Section 75 of the Act - Held that:- From N/N. 12/2003-ST, dated 20.06.2003, it is clear that the credit can be denied only on the non-fulfilment of conditions (a) & (b), which is not the case in the present appeal. Therefore, the appellant is entitled for abatement as contained in the N/N.12/2003-ST, dated 20.06.2003 - This substantiated from the fact that the appellant has paid the VAT on the portion of the materials sold and used in the erection and commissioning of the plant and machinery under Local Taxes Act. Considering the nature of the contract entered by the appellants and the services rendered to their clients, it is beyond doubt that they are engaged in providing EPC contracts, which falls under the category of Works Contract Acts. - Registration under the wrong classification earlier by the assessee will not help the revenue - in the earlier classification of the appellant, the erection, installation and commissioning services, would not preclude them from the benefit under Works Contract Service. The levy of service tax on the works contract, has been the subject matter of the appeal before the Hon’ble Supreme Court in the case of Commr. of Central Excise & Customs, Kerala Vs. Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT], where it has been held that leviability of service tax prior to 1st June, 2007, whereafter Finance Act, 2007, expressly made such contracts liable to service tax is not as per the Scheme of Finance Act, 1994 - the service tax is not leviable on the appellant prior to 01.06.2007 and therefore, the demand is only left for the period from 01.06.2007 to September, 2007. The availment of sale of the materials is not important in the case of Works Contract Service even miniscule portion of the supply of material will render as Works Contract Service. The contract covered by the second agreement is appropriately classifiable under the Work Contract Service under the Finance Act, 1994 and not under the Erection, Commissioning and Installation Service, and therefore not chargeable to service tax prior to 01.06.2007 - However, for the period starting from 01.06.2007 to 30.09.2007, the appellant has paid the service tax under Erection, Commissioning and Installation Service after availing the benefit of Notification Nos.19/2003-ST dated 21.08.2003 and Notification No.1/2006-ST dt.01.03.2006, the same is required to be recomputed and any excess or short payment is required to be adjusted as per extant provisions under the Act/the Rules. Appeal allowed in part.
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2018 (7) TMI 1668
Reverse Charge Mechanism - GTA Service - freight charges exceeding ₹ 1,500/- per trip - benefit of N/N. 34/2004-ST dated 3.12.2004 - case of Revenue is that the limit of ₹ 1,500/- per trip availed by them under Notification No. 34/2004-ST dated 3.12.2004 is not applicable in their case because the same is relevant only when a carriage carry more than one “individual consignment” and where total freight comes to less than ₹ 1,500/- per trip. Held that:- The issue was decided in the case of CCE., SALEM VERSUS SUIBRAMANIA SIVA CO-OP. SUGAR MILLS LTD. [2014 (11) TMI 925 - MADRAS HIGH COURT]. As the definition of “goods transport agency”, means any [person who] provides service in relation to transport of goods by road and issues consignment note, by whatever name called”, any person who is providing GTA service by road, will fall under the category of GTA service - The argument of the ld.Advocate that since the service providers are mostly individual truck owners do not fall under goods transport agency is not legally sustainable and the GTA service provided by the individual truck owner is leviable to the service tax as per the provisions of the Finance Act, 1994. Benefit under N/N. 34/2004-ST dated 3.12.2004 - Held that:- Appellant will fall under the category of Clause (ii) of the above Notification and thus they need to pay service tax on the freight charges above @ ₹ 750/- per trip. Appeal dismissed - decided against appellant.
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2018 (7) TMI 1658
Valuation - CHA service or C & F Agent service - inclusion of reimbursement of expenses - Held that:- The appeal is dismissed.
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2018 (7) TMI 1657
Business Support Services - Held that:- There is no legal and valid ground for interference - appeal dismissed.
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2018 (7) TMI 1647
Discharge of service tax liability - Business Auxiliary Service - Held that:- The appeal is dismissed on the ground of limitation.
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Central Excise
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2018 (7) TMI 1682
100% EOU - rags cleared to DTA by availing exemption N/N. 23/2003-CE dated 31.03.2003 - whether the rags are eligible to the benefit of exemption N/N. 23/2003-CE dated 31.03.2003? Held that:- by switching over from 6 digit to 8 digit tariff, no new commodity has been introduced under the 8 digit only existing commodities were classified in a proper manner and mentioned in the 8 digit tariff. Rags was not a new commodity since from time to time various exemption notifications were issued recognizing rag as an excisable commodity - In the judgement of the Bombay High Court in the case of Punjab Business and Supply Co. Pvt Ltd’s case, [1977 (3) TMI 43 - HIGH COURT OF BOMBAY], rag has been considered as a commodity following under the first schedule to the Central Excise Act, 1944. Rag is an excisable goods, accordingly, eligible to the benefit of the notification - appeal allowed - decided in favor of appellant.
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2018 (7) TMI 1667
CENVAT Credit - M.S. Round, G.I Steel Tubes & Pipes, M.S.Pipes, Black Pipes - denial on the ground that inputs have not been used for the manufacture of any finished goods, since the process undertaken by the assessee before clearing the goods, does not amount to manufacture - Held that:- The issue is squarely covered by the decision in the case of THE COMMISSIONER OF CENTRAL EXCISE BANGALORE-V VERSUS M/S. VISHAL PRECISION STEEL TUBES AND STRIPS PVT. LTD. [2017 (3) TMI 1287 - KARNATAKA HIGH COURT], where it was held that When once duty is paid by the assessee treating the activity as manufacturing activity by the Department, CENVAT credit is available and there is no question of reversal of CENVAT credit - credit allowed - appeal dismissed - decided against Revenue.
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2018 (7) TMI 1666
Valuation - inclusion of the design, drawing and layout charges in the assessable value of printed cartoons - Section 4 (3)(d) of the Central Excise Act, 1944 read with Valuation Rules - Held that:- The matter is no longer res-integra and the present issue has already been decided by this Tribunal in the case of Paper Products Ltd. Vs. Commr. of Central Excise, Mumbai III [2005 (7) TMI 153 - CESTAT, MUMBAI], where it was held that he customers of the appellants paid the price as reflected in invoice of flexible packaging and plus charges on account of “Development & Maintenance of Design and Art work”. If the charges were included in the invoice value of the finished product no customer will pay these prices against such debit notes again. This would go to prove beyond doubt that the amount charged by raising debit notes on account of Development & Maintenance of Design and Art work are not incorporated in the value of finished product and is required to be included in assessable value. Demand upheld - appeal dismissed - decided against appellant.
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2018 (7) TMI 1665
Jurisdiction - power of Commissioner (Appeal) to remand the case - amendment of Section 35A (3) of the Central Excise Act - Held that:- There are conflicting decisions regarding the power of remand by the Commissioner (Appeal) after amendment of Section 35A (3) of the Central Excise Act by Finance Act, 2001. This issue has been finally decided after considering the conflicting judgements on the issue by the Larger Bench in case of Commissioner of Central Excise , Bhubaneswar Vs. Oripol Industries [2003 (5) TMI 86 - CEGAT, NEW DELHI], where it was held that the respondent cannot be heard to contend that the Commissioner (Appeals) would still retain the power of remand as an inherent power of the appellate authority. In case of Viper Chemicals [2002 (6) TMI 216 - CEGAT, MUMBAI], it has been held that Commissioner (Appeal) is not empowered to remand the case to Adjudicating Authority in view of amendment carried out in the Section 128 (3) of the Customs Act, 1962; the Section 128 (3) is pari materia with Section 35A (3) of Central Excise Act, 1944 after amendment carried out vide Finance Act, 2001. The case is remanded back to Commissioner (Appeal) for taking appropriate action as per law following the principle of natural justice - appeal of Revenue allowed.
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2018 (7) TMI 1655
Refund claim - EC/SHEC - Area Based Exemption - industrially backward area - Held that:- There is no error much less apparent in the judgment impugned - review petition dismissed.
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2018 (7) TMI 1646
SSI exemption - wrong availment of Exemption benefit - Notification No.175/86-CE and 1/93-CE - Held that:- The appeals are dismissed on the ground of limitation.
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2018 (7) TMI 1645
Non-compliance with pre-deposit - Section 35F of CEA - Held that:- The appeals are dismissed in terms of the signed order.
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2018 (7) TMI 1644
Valuation of differential duty - quantification of differential duty based on comparable value of similar products manufactured and cleared by others - Held that:- No case for review is made out. There is no error in the impugned order - the Review Petition is dismissed.
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2018 (7) TMI 1643
Manufacture - the bulk LLP/HLP in tankers was filled by the appellants in drums and sold to the customers - Held that:- There is no merit in this appeal - The civil appeal is, accordingly, dismissed.
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CST, VAT & Sales Tax
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2018 (7) TMI 1664
Principles of Natural Justice - no personal hearing granted - validity of assessment order - Best Judgement Assessment - disallowance of ITC - Held that:- It is seen that the assessment order is deemed to have been assessed as per Section 22(2) of Tamilnadu VAT Act,2006. On random scrutiny, the petitioner was issued with the summons and since he failed to respond, final orders were passed - It is well settled by the instructions issued by the department as well as various judgments that even where objections are filed or not, an opportunity of personal hearing shall be afforded to the dealer concerned - In the instant case, the summons were issued on 20.01.2010. There is no reference as to the date of service of summons and there was no reference as to the date fixed for personal hearing. The respondent has not communicated the hearing date fixed for personal hearing and called the petitioner to make his submissions. In the instant case, the mandatory requirement of affording an opportunity of personal hearing was not given to the petitioner and the respondent proceeded to pass orders only because the petitioner failed to respond and he has not applied his mind as to the documents available before the authority also - Such an act would amount to violation of principles of natural justice. The matter is remanded back to the respondent - petition allowed by way of remand.
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2018 (7) TMI 1663
Reopening of assessment - TNVAT Act - Held that:- This Court is of an opinion that there is no total prohibition for reopening of the assessment, if any discrepancies are found by the competent authorities during scrutiny - reopening of assessment is held to be valid - the writ petition stands disposed of, by giving liberty to the respondents to initiate reopening of the proceedings, if the authority competent deems fit and appropriate to do so.
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2018 (7) TMI 1662
Principles of Natural Justice - the assessing officer has failed to afford the opportunity of personal hearing to petitioner - Held that:- From the consideration of the materials it is clearly seen that without affording an opportunity of personal hearing, the impugned order came to be passed. The Head of the Department i.e., the Commissioner of Commercial Tax has given clear instruction as to personal hearing. It is mandated in Circular dated 03.02.2014 issued by him. The impugned orders passed by the respondent are set aside and the matter is remanded back to the respondent for fresh consideration - petition allowed by way of remand.
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2018 (7) TMI 1661
Calling of records in connection with the orders of the respondent - opportunity of personal hearing not provided - principles of natural justice - Held that:- The revised assessment notices were issued on 13. 03. 2018. After the issuance of revised assessment notices, an opportunity of submitting objections was not given by the respondent. Further, it was treated as a continuation of the previous proceedings and without affording an opportunity of personal hearing, the impugned orders came to be passed. Since the impugned orders are passed without complying with the requirements of principles of natural justice, it shall be construed as not sustainable in law - matters are remanded back to the respondent for fresh consideration - petition allowed by way of remand.
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2018 (7) TMI 1660
Principles of Natural Justice - the respondent, without waiting for clarification from the Head of the Department, sought by the petitioner, passed the impugned order without affording personal hearing - Held that:- The Head of the Department i. e the Commissioner of Commercial Tax has given clear instruction as to personal hearing. It is mandated in Circular dated 3.2.2014 issued by him - it is mandatory to afford personal hearing even if the objections are not filed by the dealer or not. But in the instant case, no personal hearing was given to the petitioner. When the opportunity of personal hearing has not been given as mandated in the guidelines issued by the Head of the Department, the order of the respondent is vitiated for violation of principles of nature justice - matter remanded to the respondent for fresh consideration - petition allowed by way of remand.
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2018 (7) TMI 1641
Validity of assessment order - assessment order challenged on the short ground that the assessment for the relevant years is deemed to have been completed as on 30.06.2012 and thereafter, the respondent has no power to pass an original assessment order - Held that:- What is to be noted is that on and after 30.06.2012, the petitioner is deemed to have been assessed for the relevant year, viz., 2007-08. Therefore, the question of passing a separate assessment order does not arise - So far as the assessment year 2008-09 is concerned, the mistake committed by the respondent is to issue a notice for provisional assessment. This could not have been done by the respondent. These writ petitions are disposed of giving liberty to the respondent to initiate reopening proceedings, if she deems fit and appropriate to do so.
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Indian Laws
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2018 (7) TMI 1642
Adjournment of time - paucity of time - Held that:- On account of paucity of time the matter stand adjourned to 25/07/2018 as per CMIS. If ad-interim relief is granted and is operative till today, the same will operate till the next date.
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