TMI Tax Updates - e-Newsletter
August 2, 2017
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Insolvency & Bankruptcy
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
TMI SMS
Highlights / Catch Notes
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GST:
Embroidered sarees to attract 5% GST: CBEC
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Income Tax:
For the purpose of filing return, it shall be sufficient as of now to quote Aadhar or Aadhar Enrolment Number. The actual linking of PAN with Aadhar can be done subsequently, but any time before 31st August, 2017.
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Income Tax:
Adjustment of amount refundable for the Assessment Year 2012-13 against the tax demands of subsequent years - SC confirmed the order of HC
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Income Tax:
Exemption u/s 11 and 12 eligibility - Sectio n2(!5) - Merely because the assessee is holding conferences and seminars which are according to us in furtherance of the object of education only against payment of fees will not make the object of the trust falling into the 6th category i.e. Any other object of general public utility
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Income Tax:
Merely because telephone call register is not maintained or vehicle logbook is not available, expenses cannot be disallowed on ad hoc basis when the telephone is installed and used for the purpose of business and vehicles are also owned and used by the assessee for the purpose of business.
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Customs:
Amendment in notification no 50/2017-cus dated 30.06.2017 - Exemption from customs duty on Electrical energy supplied to DTA by power plants of 1000MW or above, and granted formal approval for setting up in SEZ - Cut of date changed from 2009 to 2012 - Notification
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Bill:
THE COMPANIES (AMENDMENT) BILL, 2017 - AS PASSED BY LOK SABHA ON 27.07.2017
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Indian Laws:
The offence under Section 138 of Negotiable Instruments Act, undoubtedly is a civil liability dressed in a criminal colour - an accused is entitled to maintain silent. - HC
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VAT:
Jurisdiction - input tax credit - The directions given by the Tax Board to the Commissioner cannot be said to be contrary to the provisions of the Act and the Tax Board was within its competence to give certain directions. - HC
Articles
Notifications
Customs-
70/2017 - dated
31-7-2017
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Cus
Amendment in notification no 50/2017-cus dated 30.06.2017 - Exemption from customs duty on Electrical energy supplied to DTA by power plants of 1000MW or above, and granted formal approval for setting up in SEZ - Cut of date changed from 2009 to 2012
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69/2017 - dated
31-7-2017
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Cus
Rescinding notification no 63/2017-customs dated 05.07.2017
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7/2017-Customs (N.T./CAA/DRI) - dated
31-7-2017
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Cus (NT)
Appointment of Common Adjudicating Authority by DGR
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6/2017-Customs (N.T./CAA/DRI) - dated
31-7-2017
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Cus (NT)
Appointment of Common Adjudicating Authority by DGR
GST - States-
15/2017-State Tax - dated
19-7-2017
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Chhattisgarh SGST
The Chhattisgarh Goods and Services Tax (Second Amendment) Rules, 2017.
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F-10-53/2017/CT/V (97) - dated
14-7-2017
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Chhattisgarh SGST
Appointed the classes of officers.
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F-10-50/2017/CT/V (92) - dated
10-7-2017
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Chhattisgarh SGST
Notification Regarding documents of in-liu of e-way bill
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CCT/26-2/2017-18/1/1559 - dated
21-7-2017
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Goa SGST
Extension of time limit for filing intimation for composition levy under sub-rule (1) of Rule 3 of the Goa Goods and Services Tax Rules, 2017.
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GSL/GST-S.25/B.1 - dated
27-7-2017
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Gujarat SGST
Commissioner of State tax, Notifies that the Space Applications Centre (SAC), Jodhpur Tekra, Ambawadi, Ahmedabad
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17/2017-State Tax - dated
27-7-2017
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Gujarat SGST
The Gujarat Goods and Services Tax (Fourth Amendment) Rules, 2017.
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(GHN-65)GST-2017-S.11(1)(9)TH - dated
27-7-2017
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Gujarat SGST
Corrigendum in Notification No.2/2017-State Tax (Rate),dated the 30th June, 2017.
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(GHN-64)GST-2017-S.9(1)(6)TH - dated
27-7-2017
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Gujarat SGST
Corrigendum in Notification No.GHN-31 Notification No.1/2017-State Tax (Rate),- Dated 30-06-2017.
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15/2017-State Tax - dated
18-7-2017
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Gujarat SGST
The Gujarat Goods and Services Tax (Third Amendment) Rules, 2017. 7 Forms
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EST/I/Jurisdiction/B.2359 - dated
14-7-2017
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Gujarat SGST
Ammedment in notification No EST 1 Jurisdiction B 2052 Dt.29-06-2017.
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1557/ST-11 - dated
21-7-2017
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Haryana SGST
Extension of time limit for filing intimation for composition levy under sub-rule (1) of rule 3 of the HGST Rules, 2017
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59/ST-2 - dated
17-7-2017
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Haryana SGST
Amendment in Notification No.36 ST-2 dated 30.06.2017 - Regarding Dried, Leguminous Vegetables and Unbranded Honey etc.
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58/ST-2 - dated
17-7-2017
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Haryana SGST
Amendment in Notification No.35ST-2 dated 30.06.2017 - Regarding Bran, Citrus Fruit, Road Tractors & others.
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57/ST-2 - dated
12-7-2017
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Haryana SGST
Specifies the documents comprising of a trip sheet or log book, alongwith a tax invoice or delivery challan or bill of supply or bill of entry, U/s. 138 of the HGST Act, 2017
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56/ST-2 - dated
12-7-2017
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Haryana SGST
The Haryana Goods and Services Tax (Third Amendment) Rules, 2017.
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55/ST-2 - dated
5-7-2017
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Haryana SGST
Reducing rate & others amendment in notification No.35/ST-2, dated 30.06.2017(182A,182B,182C & 182D).
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53/ST-2 - dated
30-6-2017
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Haryana SGST
The Haryana Goods and Services Tax (Second Amendment) Rules, 2017.
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Va Kar/GST/04/2017-S.O. 059 - dated
27-7-2017
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Jharkhand SGST
State wise jurisdiction to all the Officers appointed as Registring Authority.
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Va Kar/GST/13/2017-S.O. 058 - dated
18-7-2017
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Jharkhand SGST
Designation of Officers under GST
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Va Kar/GST/13/2017-S.O. 057 - dated
18-7-2017
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Jharkhand SGST
Jurisdiction assigned to Officers under GST.
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Va Kar/GST/07/2017-S.O. 056 - dated
13-7-2017
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Jharkhand SGST
The Jharkhand Goods and Services Tax (Third Amendment) Rules, 2017.
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18/2017-State Tax (Rate) - S.O. 055 - dated
13-7-2017
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Jharkhand SGST
Amendments in the Notification No. 01/2017-State Tax (Rate), dated the 29th June, 2017
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MGST-1017/C.R.120/Taxation-1 - dated
27-7-2017
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Maharashtra SGST
The Maharashtra Goods and Services Tax (Fourth Amendment) Rules, 2017.
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01/2017-(MGST) - dated
21-7-2017
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Maharashtra SGST
Extension of time limit for filing intimation for composition levy under sub-rule (1) of rule 3 of the Maharashtra Goods and Services Tax Rules, 2017.
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MGST-1017/C.R.111/Taxation-1 - dated
14-7-2017
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Maharashtra SGST
Corrigendum – Notification No. MGST-1017/CR. 111/Taxation-1, dated the 11th July 2017
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FIN/REV-3/GST/1/08 (Pt-1) “S” - dated
30-6-2017
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Nagaland SGST
United Nations or a specified international organisation
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FIN/REV-3/GST/1/08 (Pt-1) “R” - dated
30-6-2017
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Nagaland SGST
Supplies not eligible for refund of unutilized ITC under the Nagaland Goods and Services Tax Act, 2017
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FIN/REV-3/GST/1/08 (Pt-1) “Q” - dated
30-6-2017
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Nagaland SGST
Notification regarding the supplies which shall be treated neither as a supply of goods nor a supply of service under the Nagaland Goods and Services Tax Act, 2017
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FIN/REV-3/GST/1/08 (Pt-1) “P” - dated
30-6-2017
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Nagaland SGST
U/s 9(3) of the Nagaland Goods and Services Tax Act, 2017 notifies the categories of supply of services
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FIN/REV-3/GST/1/08 (Pt-1) “M” - dated
30-6-2017
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Nagaland SGST
U/s 11(1) of the Nagaland Goods and Services Tax Act, 2017 Exempts intra-State supplies of second hand goods
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FIN/REV-3/GST/1/08 (Pt-1) “K” - dated
30-6-2017
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Nagaland SGST
Exemption from reverse charge upto ₹ 5000 per day NGST
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FIN/REV-3/GST/1/08 (Pt-1) “J” - dated
30-6-2017
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Nagaland SGST
Exemption for inward supply to Canteen store department under section 11(1) of the Nagaland Goods and Services Tax Act, 2017
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FIN/REV-3/GST/1/08 (Pt-1) “I” - dated
30-6-2017
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Nagaland SGST
Refund to CSD Nagaland Goods and Services Tax Act, 2017
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FIN/REV-3/GST/1/08 (Pt-1) - dated
30-6-2017
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Nagaland SGST
Exemption for tax deductor under section 11(1) of the Nagaland Goods and Services Tax Act, 2017
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F.1-11 (91)-TAX/GST/2017 (Part-III) - dated
29-6-2017
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Tripura SGST
The Tripura State Goods and Services Tax (Amendment) Rules, 2017.
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F.1-11 (91)-TAX/GST/2017 - dated
22-6-2017
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Tripura SGST
The Tripura State Goods and Services Tax Rules, 2017
Circulars / Instructions / Orders
News
Case Laws:
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Income Tax
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2017 (8) TMI 43
Adjustment of amount refundable for the Assessment Year 2012-13 against the tax demands - Held that:- HC order confirmed [2017 (3) TMI 1336 - MADHYA PRADESH HIGH COURT] wherein held Section 245 of the Act infact permits the Revenue to set off any demand from the amount to be refunded but the only condition is of intimation in writing to such person against whom action is proposed to be taken. We find that demand having been raised against the petitioner for the Assessment Years 2013-14 and 2014-15 and intimation having been sent to the petitioner on 05.01.2017, the mandate of Section 245 was satisfied by the Revenue before making adjustment from the refund due to the assessee from the tax due to the assessee for the subsequent years. In view thereof, we do not find any merit in the writ petition, the same is dismissed. In the facts of this case, we are not inclined to interfere with the order of the High Court. However, after the adjustment of the tax in the next year, the balance amount, if any, should be refunded to the petitioner by the Income Tax Department. The Special Leave Petition is dismissed.
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2017 (8) TMI 42
Validity of reopening of assessment - assessment against non existent entity - amalgamation scheme adopted - Held that:- The proceedings under Section 148 were itself void ab initio for the simple reason that on that day VBPPL was not in existence as a result of the order dated 20th February, 2013 of the High Court approving its amalgamation with the Petitioner with effect from 1st April, 2012. The question of revival of such proceedings at a later point in time, with there being no change to the legal position regarding VBPPL having ceased to exist, does not arise. The mere fact that prior to 20th February, 2013 (being the date of the order approving the amalgamation) VBPPL and/or the Petitioner may have responded to such notices, will to make a difference to the said legal position. The facts show that after 20th February 2013, the Petitioner lost no opportunity in reminding the AO at every stage that VBPPL no longer existed in the eye of law. Despite being made aware of this legal position, the AO persisted in continuing the proceedings against VBPPL. A second aspect of the matter is that the reassessment proceedings under Section 147 were barred by limitation since limitation for framing the assessment under Section 143(3) read with Section 147 of the Act expired on 31st March, 2014. On this ground also, the question of revival of those proceedings by the impugned letter dated 14th March, 2016 was bad in law. Thus reopning order quashed - Decided in favour of assessee.
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2017 (8) TMI 41
Eligibility to registration as a charitable institution under Section 12A - application rejected on the ground that the documents which were required to be submitted by the Assessee not submitted - Held that:- The appeal filed by the Assessee against the said rejection before the ITAT, the Assessee was able to produce the documents to show that its income was in fact exempt under Section 10(23C)(iiiae). This was evident from the assessment order passed in the case of Assessee for AY 2013-14. Further, the Assessee had been allowed exemption under Section 11 of the Act by the ITAT in AY 1990-91 as well. It was noted by the ITAT that the Assessee had filed all the information before the ITO, Headquarters (Exemptions) as was evident from the paper book filed by the Assessee. There was no need for the ITAT to have remanded the matter to the Director of Income Tax (Exemptions) for a fresh determination. There was sufficient material to justify grant of registration to the Assessee under Section 12A of the Act - Decided against revenue
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2017 (8) TMI 40
Exemption from applicability of provisions of Section 115JB - Held that:- It is a matter of record that assessment order was passed by the Assessing Officer. The same was taken up in appeal before the Commissioner and thereafter before the Tribunal. The Tribunal under its order dated 22nd October 2009 remitted the matter to the Assessing Officer with the limited directions to the Assessing Officer to exclude profit on sale of investments from income of the assessee liable to be taxed. Save and except the above, no further directions were given by the Tribunal empowering the Assessing Officer to reopen the whole assessment. In the earlier assessment order, the Assessing Officer had never raised up any issue with regard to Section 115JB nor the same was the subject matter in issue in appeal before the Commissioner or before the Tribunal, nor the order of remand empowered the Assessing Officer to do so. It was not open for the Assessing Officer to travel beyond the directions of the Appellate authority. The Assessing Officer, as such, exceeded his jurisdiction, while considering the issue under Section 115JB. No substantial question of law
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2017 (8) TMI 39
Deduction u/s.80IB - Held that:- For the earlier assessment year, the Assessing Officer has accepted the claim of the assessee of carrying out independent business and the benefit under Section 80IB has been allowed. The present appeal pertains to assessment year 2000-2001. In the said year, Sachin Perfumery and Cosmetics had not come into existence. It had started its operation in the Assessment Year 2001-2002. In the light of the above, the admission of the Income Tax Appeal pertaining to assessment year 2001-2002 would not inure to the benefit of the present appellant and the same need not be considered. For earlier year the claim of the assessee of carrying out independent business has been accepted. Addition on account of business receipts from Shri Rasiklal Dhariwal - ITAT deleted the addition - Held that:- The basis on which the Assessing Officer concluded that the present assessee has received amount from Rasiklal Dhariwal, that is, the statement of an accused in MOCA case, the said statement has not been confronted to the assessee to verify whether the amount was actually paid to the assessee. It is further observed that no corroborative evidence has been produced or brought on record to substantiate the fact of alleged payment. The Tribunal has also considered the statement of Mr.Ansari, the accused in MOCA case, that the transaction took place in Karachi. However, nothing is brought on record to show as to how the alleged amount was transmitted from Karachi to India. It is further observed by the Tribunal that though the amount stood invested in Karachi, the assessee is not doing any business in Karachi. It is further observed that the assessee's premises was searched under Section 132 of the Act. Even during the search operations, no such incriminating material was found from the business / residential premises of the assessee which could suggest that some settlement took place in Karachi. The reliance placed on the confessional statement without corroborating was certainly unsafe to be relied upon. No substantial questions of law
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2017 (8) TMI 38
ITAT ordering a de novo determination of the Arms Length Price by the Transfer Pricing Officer upon a fresh benchmarking - Held that:- The question framed by this Court is answered in the affirmative by holding that the ITAT ought not have remanded the matter to the TPO for the de novo determination of the ALP of the international transactions in the various segments. This exercise should be performed by the ITAT itself. This is on the basis of the submission of the Assessee that all the details relevant for such determination are already available on record.
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2017 (8) TMI 37
Addition u/s 14A - whetehr he Assessing Officer committed serious error in applying the formula contained in sub rule (2) of Rule 8D of the Rules without recording his satisfaction rejecting the assessee’s accounts reflecting that no expenditure was incurred for earning such tax exempt income? - Held that:- Section 14A as well as Rule 8D require the Assessing Officer to arrive at a satisfaction that the claim of the expenditure made by the assessee is not correct. It is only then he can apply the formula under sub-rule (2) of Rule 8D. However, these statutory provisions do not require that such satisfaction must be arrived at in a particular manner. As long as there is sufficient material to enable the Assessing Officer to arrive at such a satisfaction and which is also recorded by him in the order of assessment, the requirements of the statute would be satisfied. In the present case, we have noted that the Assessing Officer has given detailed reasons for discarding the assessee’s theory that to earn the assessable income the assessee incurred no expenditure whatsoever. The Tribunal confirmed such view. Decision of the Assessing Officer to apply the formula under Rule 8D was therefore correct. - Decided against assessee.
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2017 (8) TMI 36
Validity of revision u/s 263 against non-existent entity - Held that:- In the present case, it is not in dispute that KPPL ceased to exist as a result of the order dated 8th October, 2010 passed by this Court whereby its merger with Ventura stood approved. Ventura was later renamed as ARSPL. These facts were known to the AO in the course of the assessment proceedings. The statement of the Director of KPPL formed part of the assessment record. Consequently, the issuance of the notice dated 23rd March, 2016 by the PCIT under Section 263 of Act and consequential order dated 31st March, 2016 were in respect of a non-existent entity and were clearly void ab initio, as correctly held by the ITAT. This, by itself, was sufficient for the ITAT to set aside the impugned order dated 31st March, 2016.
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2017 (8) TMI 35
Addition of interest paid to M/s IFCI Ltd. - Held that:- As placed before the Court a copy of the sanction letter from IFCI, evidencing the fact that the term loan was utilised for purchasing fixed assets. This was further supported by copies of the audited balance sheet as at 31st March 2000 and 31st March 2001. He has also placed before the Court a copy of the audited balance sheet and Profit & Loss account (P&L Account) for the financial year 2006-07 evidencing that the waived off amount has been credited to capital reserve and the interest amount has been written off in the P&L Account. Consequently, the ratio of the decision of this Court in CIT v. Pasupati Spinning Weaving Mills Ltd. (2015 (11) TMI 385 - DELHI HIGH COURT) squarely covers to this appeal and the only question framed in this appeal is accordingly answered in the negative i.e. against the Revenue and in favour of the Assessee. It is held that the ITAT did not error in deleting the addition on account of “amount transferred to capital reserve."
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2017 (8) TMI 34
Condonation of delay - reason of delay - Held that:- The right of Appeal is a statuary right. Of course, the litigant has to be diligent. The Appellant herein is a Society naturally acting for and on behalf of the members. The affidavit has been filed by the Appellant thereby accepting that it had received the notice under Section 263 of the Income Tax Act on 18/03/2014 and had been to the Income Tax Officer and it was represented to it that the assessment would be taken up by the later date. The affiant of the said affidavit further states that he was not aware that the Appeal could be filed. The Society employed the Charted Accountant on 28th January 2015 and because of which the delay has been caused. It does not appear that the Appellant would stand to gain by delay. It is trite that when the cause for substantial justice and technical consideration are pitted against each other, cause for substantial justice has to be sub-served. As it is found that the Appellant was not to gain by delay and for the reasons stated in the affidavit, we are inclined to exercise our discretion in favour of the Appellant and condone the delay. However, the Appellant also deserves to be mulct with cost for delay that has been caused. In the result, we pass the following order. The impugned order is quashed and set aside on condition that the Appellant deposit cost of ₹ 20000/with the Tribunal on or before 21st August 2017.On deposit of said cost within the period as stipulated above, the Tribunal shall proceed and decide the Appeal on merits after hearing all the parties concerned.
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2017 (8) TMI 33
Case under Sections 276-C and 277 read with Section 278-B of the Income Tax Act - Held that:- The penalty in the form of income tax was imposed upon the petitioners was set-aside by the Income Tax Appellant Tribunal by its order dated 29.09.2006 and the tax paid in excess was also refunded to the petitioners. Thus the criminal liability of the petitioners does not survives. Hence the prosecution of the petitioners company could not be permitted and it would be nothing but sheer waste of time and money of the court and the petitioners. In the facts and circumstances mentioned here in above the petition is liable to be allowed.
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2017 (8) TMI 32
Reworking of the book profits by AO as per the provisions of Section 115JB - MAT - Assessee had directly credited the profit arising from sale of land to Capital Reserve Account in the balance sheet rather than routing it through Profit and Loss Account in the manner provided as per PartII and PartIII of Schedule VI to the Companies Act, 1956 - Held that:- Tribunal referring to the Judgment of the Apex Court in a case of Apollo Tyres Ltd. v. C.I.T. [2002 (5) TMI 5 - SUPREME Court] and Akshay Textiles Trading and Agencies Pvt.Ltd. [2007 (10) TMI 251 - BOMBAY HIGH COURT] as observed no infirmity in the order of ld. CIT(A) for deleting the addition under Section 115JB.” Thus Tribunal has not committed any error. Appeal dismissed.
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2017 (8) TMI 31
Disallowance of consultancy charges paid to Jeevan suraksa Medicare Services Ltd - whether the expenditure was not incurred wholly and exclusively for the purpose of business - Held that:- Commissioner granted additional opportunity to the assessee to produce documents and called for remand report from the Assessing Officer. After considering such additional materials, the Commissioner reversed the decision of the Assessing Officer on the ground that the expenditure was not in doubt and that the same was also made for the purpose of business. How the assessee should arrange his business would not be the concern of the department. This view of the Commissioner of Income Tax (Appeals) was confirmed by the Tribunal. No reason to interfere whether the certain expenditure is made for the purpose of business is essentially a question of fact. Commissioner (Appeals) and Tribunal have been concurrently come to certain findings.No question of law arises. Addition by way of commission to different agents - Held that:- Commissioner (Appeals) noted that the commission was paid to large number of persons and the assessee could produce enough evidence to establish majority of his payments. It was this view of the Commissioner of Income Tax (Appeals) which was confirmed by the Tribunal. Once again this question is purely one of facts. No question of law arises. Revenue appeal dismissed.
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2017 (8) TMI 30
Unexplained bank deposits treated as income from other sources - Held that:- No reason to interfere with the concurrent finding of fact by two Revenue authorities and the Tribunal that the assessee failed to explain the source of sizable amount of cash deposits in the bank accounts and therefore, such amount is required to be added to the income of the assessee as income from other source. No question of law arises
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2017 (8) TMI 29
Addition on account of interest on nonperforming assets - admission of additional evidence rejected - Held that:- As decided in the case of Sh. Shanker Khandsari Sugar Mills versus CIT [1991 (3) TMI 74 - KARNATAKA High Court] the appellate authority should have accepted the material produced by the assessee as clarificatory in nature and considered the same to test the fairness and propriety of the estimate of income made by the income tax officer. Though it was about belated production of very relevant material, no prejudice (in its legal sense) would have resulted to the revenue by considering the material produced by the assessee. We deem it fit to restore the issue to the file of the AO to decide the issue afresh after considering the relevant documents to be filed by the assessee and after giving due opportunity of being heard to the assessee.
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2017 (8) TMI 28
Unexplained cash credit u/s 68 - chargeability of agricultural income - Held that:- When the genuineness of the transaction with respect to agricultural income is raised and further they are newspaper reports as well as subsequent assessment orders where the agricultural income of the assessee has been established and accepted emphatically by revenue these orders do have relevance on the issue. In view of this as assessee is prevented by sufficient cause to produce these evidence before the lower authorities we accordingly admit them and accordingly remit the issue back to the file ld Assessing Officer to decide in accordance with the law along with the additional ground. In view of our decision on admission of additional evidences and additional ground raised by the appellant and further as all the grounds of appeal of the assessee are related to chargeability of agricultural income, we deem it fit and proper and in the interest of justice to set aside the all the grounds of appeal including additional ground to the file of the ld AO with a direction to reexamine the whole issues in view of additional evidence and after granting proper opportunity of hearing to the assessee. Appeal of the assessee is allowed for statistical purposes.
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2017 (8) TMI 27
Reopening of assessment - no valid recourse to service of notice by affixture - non independent use of mind by AO - approval/sanction of Joint CIT prior to recording of reasons - Held that:- There is no evidence or indication in the report of the Inspector that he had personal knowledge of the present place of business of the assessee and therefore, he was in a position to identity the same. From the affixture report, it is clearly discernible that no independent witness or person was present during the course of affixture who could be said a person who could identify the place of business of the assessee at the time of affixture of notice. Therefore, we hold that neither the procedure laid down under Order V. Rule 17 CPC had been followed nor that laid down under order V rules 19 and 20 had been adhered to. Neither before taking recourse to service by affixture, the Assessing Officer or the concerned officer had recorded the findings to justify the service by this mode nor afterwards called for the affidavit or certificate of service by affixture from the Serving Officer i.e. ITO and Process Server Shri Alam Singh. In view of the above, it is clear that there was no valid service of notice u/s 148 of the Act by way of affixture also. Therefore, we hold that reassessment proceedings resulting into reassessment order dated 30.12.2010 are bad in law. A.O himself noted in the reasons that “satisfaction of the ACIT, Range VIII, New Delhi has been obtained on 22.3.2010 to issue notice u/s 148 of the Act” which makes it clear that approval/sanction of Joint CIT, Range VIII, New Delhi was obtained prior to recording of reasons and thus we have no hesitation to hold that the A.O recorded reasons subsequently and sanction/approval u/s 151 of the Act was obtained by the ITO prior to recording of reasons. Therefore, we are unable to understand that on which material and reasons the JCIT, Range VIII gave approval/sanction for issuance of notice u/s 148 of the Act and initiation of reassessment proceedings. Thus, we hold that sanction/approval u/s 151 of the Act was given by the sanctioning authority without seeing the reasons and record and without application of mind, in a mechanical manner, which also vitiates the reassessment proceedings and consequent reassessment order. Therefore, we hold that the same are bad in law and not sustainable. A.O, except stating the source of information and taking the total of ₹ 2.67 crore from the information of Investigation Wing has not even seen or referred to the assessment record of the assessee for A.Y 2003-04 and has not applied his mind to the so called list of alleged accommodation entries. This is a case of clear non application of mind by the A.O at the time of initiation of reassessment proceedings and recording of reasons on 22.3.2010. To sum up, in the instant appeal, the main contention of the assessee is that the A.O issued the notice u/s 148 of the Act mechanically simply on the basis of information alleged to have been received from the Investigation Wing without application of mind - Decided in favour of assessee.
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2017 (8) TMI 26
Notional fair rental value - computation of notional rent - Held that:- AO had taken the market rent from the website on 28/07/2011 whereas the assessment order was passed on 30/12/2011 and thus there was almost a period of 6 months between the date the information was obtained from the website and the date on which the assessment order was passed. The Ld. CIT (Appeals) has further observed that the AO should have intimated the proposed adoption of notional rent to the assessee and that the AO was not right in making addition behind the back of the assessee under assumed circumstances. CIT (Appeals) proceeded to adopt a notional rent of ₹ 12,000/- per month instead of ₹ 22,000/- per month as adopted by the AO. In our considered opinion, the AO was patently wrong in adopting a figure of notional fair rental value without confronting the assessee with the same and as such the entire addition is liable to be deleted. However, since the assessee has not challenged the action of the Ld. CIT (Appeals) in upholding the computation of notional rent to the extent of ₹ 12,000/- per month, we cannot grant any further relief to the assessee but deem it fit to dismiss ground numbers 1 and 2 of the Department’s appeal. Addition under section 68 - Held that:- Hon’ble Delhi High Court in the case of CIT versus Divine Leasing and Finance Ltd [2006 (11) TMI 121 - DELHI HIGH COURT] for the proposition that the burden of proof can seldom be discharged to the hilt by the assessee and if the AO harbours doubt of legitimacy to any subscription, he is empowered to carry out thorough investigations but if the AO fails to unearth any wrong or illegal dealings, he cannot adhere to his suspicions and treat the subscribed capital as the undisclosed income of the company. CIT (Appeals) correctly observed that in all the cases the assessee had submitted all possible evidences and there was no evidence on record which may prove that assessee had given cash for receiving advances. The Ld. CIT (Appeals) has further observed that the assessee had duly discharged his burden of proof which a person of ordinary prudence would discharge under section 68 of the Act and that once the assessee has discharged his primary onus, the burden shifts to the AO to prove that the transaction of advance was not genuine. - Decided in favour of assessee.
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2017 (8) TMI 25
Exemption u/s 11 and 12 eligibility - whether the activities of the assessee are charitable in nature and covered under "education" of Section 2(15) and not under advancement of "any other object of general public utility" - Held that:- The annual accounts placed before shows that the assessee has excess of income of ₹ 8351077 for the year ended on 31st of March 2009 and 5188749/– for March 2008. On a query being raised by the bench that whether the assessee is still enjoying the registration under section 12A of the income tax act or not, it was replied by both the parties that still assessee is registered under section 12A. Merely because the assessee is holding conferences and seminars which are according to us in furtherance of the object of education only against payment of fees will not make the object of the trust falling into the 6th category i.e. ‘ Any other object of general public utility’. Further more it is not the case of the revenue that assessee is not carrying on the objective for which it has been formed and the fees and the income earned by the assessee is not used for charitable purposes. The Ld. departmental representative could not controvert the decisions relied upon by the Ld. AR. The revenue also could not place before us any evidence to show that the objects of the assessee are not ‘education’. NO infirmity in the order of the Ld. CIT (A) in holding that assessee is entitled for deduction or exemption under section 11 and 12 of the income tax act as assessee is carrying on the activity of education only and income generated there from is also used for the charitable objects of education only. - Decided in favour of assessee.
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2017 (8) TMI 24
Addition on account of purchases made from Suresh HYP Enterprises - 133(6) enquiry letter sent to that party came back un served because of incorrect address - Held that:- As during the course of assessment proceedings, the AO has verified the books of accounts, bills, vouchers, master rolls, bed sheet and logbooks and on such verification, no defect in the books of the assessee was pointed out. The Assessing Officer made the whole addition by pointing out certain lacunas in the bank account of the suppliers of the assessee, which cannot be permitted. Merely because 133(6) notices issued to the party returned un-served though it was the same address, which was supplied by supplier while filing its income tax return, no fault can be put on the shoulder of assessee. Further, the ld CIT(A) confirmed the finding of the ld Assessing Officer without giving any reason but merely reiterating the findings of the Assessing Officer. In view of this the addition made by the ld Assessing Officer of ₹ 2657303/- from Suresh HYP Enterprises cannot be sustained and hence, deleted. In the result ground of the appeal of the assessee is allowed. Disallowance u/s 14A - Held that:- As submitted that the assessee has not earned any exempt income during the year. The fact is also verifiable from page no. 2 and 3 of the computation of total income wherein the ld DR could not point out any exempt income. From the profit and loss account of the assessee also it is evident that assessee has not claimed any income under exemption. In view of the decision of the Hon'ble Delhi High Court in Cheminvest Ltd Vs. Cit [2015 (9) TMI 238 - DELHI HIGH COURT] wherein, it has been held that no disallowance can be made where no exemption is claimed. Therefore, in view of the above decision we direct AO to delete the disallowance u/s 14A of the Act. - Decided in favour of assessee. Disallowance of expenses as non-business purposes - Held that:- Any expenditure which is not supported by proper bills and vouchers or if it is shown that such expenditure has not been incurred wholly and exclusively for the purposes of the business then definitely such expenditure is not allowable u/s 37(1) but for making disallowance of any expenditure it is for the revenue to show that such expenditure is personal in nature or incurred for any other object. In absence of any such finding the ad hoc disallowance made specifying certain percentage to which the assessee has not agreed at all is not sustainable. No instances noted by AO about any of the expenditure, which are not incurred for the purpose of business. Merely because telephone call register is not maintained or vehicle logbook is not available, expenses cannot be disallowed on ad hoc basis when the telephone is installed and used for the purpose of business and vehicles are also owned and used by the assessee for the purpose of business. The disallowance made are deleted - Decided in favour of assessee
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2017 (8) TMI 23
Liability for capital gain tax - sale of land - capital asset in terms of section 2(14)(iii) - distance of the land from municipal boundary - Held that:- It is notable that the assessee itself vide its reply furnished the computation of capital gains and investments in purchase of various properties and in reconstruction of residential house so as to claim exemption u/s. 54B and 54F of the Act, which itself alludes that the property sold by the assessee was nothing else but a capital asset. On this premise only, there is sharp contradiction between the initial claim of land being beyond 8 kms from Municipal limit and the claim of exemption u/s. 54B and 54F on long term capital gain. Moreover, the certificates obtained by the AO in remand proceedings with respect to the impugned land of assessee unequivocally speak against the assessee and the same have not been rebutted by the assessee. Accordingly, the conclusion of capital asset sold by assessee, as observed by the ld. Authorities below, deserves to be sustained. Whether the deduction u/s. 54B and 54F claimed by the assessee is available with reference to the capital gain invested in purchase of agriculture land subsequent to the due date of filing of return of income - Held that:- There is no ambiguity in the relevant provisions of the Act that the assessee was legally obliged to appropriate the amount towards purchase of new asset before due date of filing the return, in absence of which the assessee would not be entitled to claim exemption under the provisions of the Act. The appellant has claimed to have invested ₹ 1,07,21,900/- in purchase of agricultural land on 15.11.2007 and on 22.04.2008, i.e., after the due date of filing the return of income without keeping the same deposited in Capital Gain Account. Therefore, the ld. Authorities below are justified in disallowing the exemption on the investment made beyond the due date of filing the return as the said amount was not appropriated by depositing the same in the capital gain accounts scheme as per provisions of the Act. Similarly, as per provisions of section 54F(1) of the Act, the case of construction of a house, deduction available with reference to the amount invested in 3 years subsequent to the date of sale of the asset. In the instant case, since the amount claimed to be invested in the reconstruction of the house was prior to one year from the date of sale, deduction u/s. 54F of the Act was not available to the assessee, as no amount was claimed to have been invested in reconstruction of house subsequent to the date of sale before the Assessing Officer. - Decided against assessee.
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2017 (8) TMI 22
Deduction under section 54 - investment in more than one property - Held that:- It is apparent that assessee has purchased more than one house property and claimed deduction under section 54 of the income tax act with respect to 2 house properties. The Hon‘ble Delhi High Court in case of CIT versus Geeta Dugal [2013 (3) TMI 101 - DELHI HIGH COURT] has already held that deduction under section 54 is available with respect to more than one properties and decided the issue wherein the properties were purchased by the assessee at two different places on in Jhor Bag and another at Sonipat Thus Assessee is entitled for deduction under section 54 of the act with respect to both the properties - Decided in favour of assessee.
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2017 (8) TMI 21
Validity of reopening of assessment - receipt of accommodation entries by assessee - Held that:- In the present case assessment has been reopened on the basis of search and seizure action at the premises of SK Gupta Group Companies. At this juncture, we agree with submissions made by Ld. Counsel that on receipt of information received on the basis of search and seizure operation, assessing officer should have followed procedure under section 153C, instead of reopening the assessment u/s 147. Further it is observed that the reopening has been done on the basis of reasons recorded on incorrect facts. That being so the reasons are in fact no reasons at all. Assessing officer could have confirmed purchase of software provided by M/s BT Technet Ltd., from Ministry of Home Affairs who was buyer. Ld. Counsel placed his reliance upon a chart reproduced at page 27 of order of Ld. CIT(A) wherein all the purchases from M/s BT Technet Ltd., has been listed. It is submitted that except for alleged PGSM Software Module, rest of purchases has not been disputed by the authorities below. Further at para 2.1 of assessment order assessing officer himself mentions that purported transaction for purchase of PGSM Software module from M/s BT Technet Ltd., was provided vide bill dated 25.05.2004. In our considered opinion, this cannot be correct as actual invoice is dated 28.12.2003 a copy of which is placed in paper book. If we go by bill dated 25.05.2004 as observed by Ld.AO, alleged transaction would fall in the previous year relevant to assessment year 2005-06 and not in the year under consideration. Also assessing officer has proceeded with preconceived notion by blindly accepting statement of Sh. SK Gupta and entire finding is based on mere surmises and conjunctures without any application of mind. At this juncture it is pertinent to observe that reasons recorded are based on inferences of Ld. AO without there being any materials on record to support such inferences. In view of above discussions addition made by Ld.AO stands deleted. - Decided in favour of assessee.
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2017 (8) TMI 20
Applicability of the provisions of Section 153C - share application addition - Held that:- As found that of post search investigation on 15/04/2010, a summons u/s 131 was issued to the director of the company Mr. Narayan Hari Halan. He was appointed as director of the company on 15/02/2010. He was nowhere connected with the affairs of Jogia Properties Ltd or Karburi Properties Ltd., during the period 01/04/2007 to 31/03/2008 and 01/04/2008 to 31/03/2009. He was not aware about the affairs of the company for the period 01/04/2007 to 31/03/2009. We found Tribunal have elaborately dealt with the summon issued to Mr. Narayan Hari Halan in its order dated 18/12/2015. We found that the director of the company while recording statement has clearly stated that Mr. Jose Mathews is not fully aware about the business activity of the company. The statement made by Mr. Jose is not true. He also further stated that owing to the facts mentioned to him by the Authorised Officer and the circumstances of that case he is offering certain sum received as share capital as the income for A.Y. 2008-09 and 2009-10. The statement of the director cannot be referred to as the document found during the course of search and on the basis of the statement no notice u/s 153C can be issued. We had also gone through the statement of Mr. Mukesh Chokshi. In this statement there is no reference to the assessee. There is no allegation that the assessee has given the cash and received the Cheque by way of share application. The statement of Mr. Mukesh Chokshi cannot be base for acquiring jurisdiction by issue of notice u/s 153C is concerned. The Tribunal have also dealt threadbare with the statement of Shri Mukesh Chokshi in its order dated 18/12/2015. 47. In view of the above, we can conclude that no document belonging to the assessee was found during the course of search and also none of the statements of Mr. Jose Mathews, Mr. Narayan Hari Halan or Mr.Mukesh Chokshi can be construed as a document belonging to the assessee for issue of notice u/s 153C. - Decided in favour of assessee.
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Customs
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2017 (8) TMI 12
Refund claim - excess payment of CVD - principles of unjust enrichment - whether the claim of the Petitioner that it had not passed on the incidence of CVD in respect of the above B/Es for 27th March, 2015 to 31st March, 2015 to the customer was supported by proper documentation? - Held that: - there was no reason whatsoever for Respondent No. 4 not to accept the very same documents in respect of the imports between 27th March, 2015 and 31st March, 2015. The certificate of the CA is categorical that the incidence of CVD, even in respect of these imports, had not been passed on to the customers. Consequently, there was no valid justification for Respondent No. 4 to have denied the refund claim. Given the history of the case where the Petitioner has to approach this Court again for relief, the stand taken by the Respondents regarding the maintainability of the present petition deserves to be rejected. Respondent No. 4 appears to be unwilling to accept the legal position explained by this Court repeatedly in several decisions and is persisting with rejection of the refund claims of the Petitioner on specious grounds. The Respondent is directed to allow the Petitioner’s refund in respect of the claims made for the imports for the period 27th March, 2015 to 31st March, 2015 - petition allowed - decided in favor of petitioner.
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2017 (8) TMI 11
Entitlement of interest - delayed refund - Circular No. 6/2008-Cus dated 28.04.2008 - Held that: - reliance placed upon the decision of Hon'ble Madras High Court in the case of KSJ Metal Impex (P) Limited vs. Under Secretary (Cus.), M.F. (DR) [2013 (6) TMI 148 - MADRAS HIGH COURT] to say that the said Circular has been considered by the Hon'ble High Court and the Hon'ble High Court quashed Para 4.3 of the said Circular relied upon by the ld. AR and held that the assessee is entitled for interest on belated refunds - appellants are entitled to claim interest of delayed refund, after three months from the date of filing of the refund claims - appeal allowed - decided in favor of appellant.
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2017 (8) TMI 10
Jurisdiction - power of officers of DRI/SIB/Commissioner of Customs(Prev.) to issue SCN - Held that: - the powers of officers working in these organizations to issue notice under Customs Act, 1962 as proper officers has been subject matter of decision by various High Courts - we set aside the impugned orders and remand the matter to the original authority to decide the question of jurisdiction first and thereafter on merit after the matter is settled by the Hon’ble Supreme Court in the pending appeals by the Revenue against the decision of Hon’ble Delhi High Court in the case of Mangali Impex Vs. Union of India [2016 (5) TMI 225 - DELHI HIGH COURT] - appeal allowed by way of remand.
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2017 (8) TMI 9
Condonation of delay in filing appeal - natural justice - Held that: - the impugned order was passed on 31.12.2013 and the copy of the same was received by the concerned employee of the company, but no process was initiated thereafter in filing the appeal by the applicant. The reason given by the applicant for filing the appeal after such an inordinate delay is that the employee did not bring it to the notice of the management. This reason is not justified in law for condoning such an inordinate delay - delay not condoned - appeal dismissed - decided against Appellant.
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Corporate Laws
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2017 (8) TMI 6
Auction notice - proclamation for the auction of Ambey Vally - Held that:- It is directed that the respondent-contemnor shall deposit ₹ 1500 crores (Rupees fifteen hundred crores only) which would include the balance amount of today by 7.9.2017. After due consideration, we have granted time till 7.9.2017, though Mr. Sibal, with all humility at his command, prayed for fixing the date some time in October, 2017. Though we appreciate the humble submission but we are not in a position to accede to the same. The grant of time, without any steps taken by the Mr. Tushar Gupta, Adv. Mr. Nizam Pasha, Adv. Mr. Simaranjeet Singh, Adv. Court, would tantamount to giving indulgence. Indulgence has the propensity to give rise to procrastination which is the murderer of justice. Therefore, we are disposed to think that the first two steps for sale of Ambey Vally Project shall be undertaken within this time and for the same we approve the draft sale notice submitted by the Official Liquidator and direct him that he shall take first two steps by updating the dates. The official liquidator shall publish the sale notice as given by him and the notice shall be published on 14.8.2017. The steps which are required to be taken for the publication of the sale notice are allowed. The amount that is required for publication shall be given from the SEBI Sahara Account. Mr. Pratap Venugopal shall see that the moment the official liquidator produce a letter, the amount shall be released to the official liquidator. The respondent-contemnor shall remain personally present in Court on the next date of hearing.
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2017 (8) TMI 5
Outstanding liability towards petitioner - liability to repay under the Bonds - Held that:- On 07.11.2014 an additional affidavit was filed by the respondent company wherein it admitted its liability to repay under the Bonds. This Court vide order dated 11.05.2017, as a matter of last opportunity directed the respondent to place on record an affidavit giving the mode and manner in which it will repay its admitted outstanding liability towards petitioner and also to demonstrate its ability to repay admitted amount. On 14.07.2017 the respondent filed an additional affidavit but nothing was stated as to how it is going to repay the debt owed to the petitioner or ever demonstrated its ability to repay. The CDR scheme as proposed, even otherwise, is not binding upon the petitioner or the Bond Holders since they have never approved of such a scheme. The petitioner in its own right as a creditor, being the Trustee in respect of the Bonds has a locus to file this petition and considering the financial deterioration of the company as is shown in the record submitted and also is out of business and is merely speculating of getting more contracts from ONGC despite having being blacklisted by it from January 2013 till the end of 2014, do show that it had failed in its business. The TEV Report which forms the basis of CDR Scheme too is based on assumptions, caveats or benefits which are largely theoretical. In its reply dated 21.08.2013 to the legal notice, the respondent did not dispute the allegations of the petitioner. Thus considering the huge debt liability of the respondent company coupled with the fact it is out of business and is pulling with scant number of employees, having a negative worth; there is no reason why the petition be not admitted against it. Consequently, the petition is admitted and the Official Liquidator attached to this Court is appointed as the Provisional Liquidator. He is directed to take over all the assets, books of accounts and records of the respondent-company forthwith. The citations be published accordingly also adhering to procedures as detailed in law.
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Insolvency & Bankruptcy
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2017 (8) TMI 4
Corporate Insolvency resolution process - claim of the Operational Creditor as C&F Agent - non- performance of mutual obligations - Held that:- From the averments, it is quite evident that the dispute centres on the relationship arising out of the appointment of the Operational Creditor as C&F Agent and subsequent transactions emanating out of it. The allegations arising out of the agreement seem to be mutual, wherein certain duties have been enjoined on the Operational Creditor as well, which it is claimed by the Corporate Debtor have not been performed to its satisfaction including the one relating to obtaining refund of tax deposit as well as furnishing of relevant forms which had resulted in considerable loss of monies to the Corporate Debtor. In view of the disputes in relation to accounts, as existing between the parties, it is claimed by the Corporate Debtor that there is a bonafide dispute of the accounts between the Operational Creditor and the Corporate Debtor and in the circumstances, the parties should be relegated to seek remedy elsewhere particularly, in view of the arbitration clause contained in the C&F Agreement dated 1st May, 2014 entered into between the parties on which the petitioner has also relied on for claiming the amounts. On going through the certificate as issued by the Bankers, it is seen that the said certificate is also not in consonance with the way it is required to be produced as it does not refer to the unpaid Operational Debt by the Corporate Debtor and about its non- payment. However, on the other hand, the certificate is bald in its content and produced in relation to the period between 13th March, 2017 and 17th March, 2017 and not in relation to the duration of the agreement period prior to termination. Therefore, taking into consideration the disputes as raised between the parties and as the claim also relates to and arises out of the C&F Agreement and the ascertainment of the performance or non- performance of mutual obligations as contracted between the parties, it is not possible for this Tribunal in the exercise of Summary jurisdiction to go into it, particularly in view of the limited time period available for disposal and in the circumstances, we are not inclined to admit the petition and the same is rejected without costs.
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Service Tax
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2017 (8) TMI 19
Reverse charge - GTA Service - effect of retrospective amendment - Held that: - the issue is no more res-integra in view of the decision of the Tribunal in the case of Balasore Alloys Ltd. Vs. Commissioner of Central Excise, BBSR-I [2017 (6) TMI 861 - CESTAT KOLKATA], has held that during the period in question no notice could have been issued under Section 73 for non filing or the return under Section 70 as there was no requirement for filing of return by the service Recover. Hence, demand of interest and penalty cannot be sustained - appeal allowed - decided in favor of appellant.
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2017 (8) TMI 18
CENVAT credit - Consulting Engineer, Maintenance or Repair and Commercial Training or Coaching Services - Held that: - as per the statutory provisions of Cenvat Credit Rules, 2004 cenvat credit cannot be availed with regard to these services which were received prior to 10th day of September 2004 whereas in this case admittedly the import of services were taken in the year 1999 and therefore no cenvat credit is available as per the statutory Rules - Credit rightly denied - appeal dismissed - decided against appellant.
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Central Excise
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2017 (8) TMI 17
CENVAT credit - reversal of the final orders and re-adjudication - Held that: - reliance placed in the case of M/s. Roots Multiclean Ltd. Versus The Customs Excise and Service Tax Appellate Tribunal, The Commissioner of Central Excise [2016 (2) TMI 16 - MADRAS HIGH COURT], where it was held that when the dispute raised is touching the valuation of the property, the Tribunal has no discretion to refuse to admit the appeal - CESTAT is directed to adjudicate the issues raised in the appeals and pass orders on merits - petition allowed - decided in favor of petitioner.
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2017 (8) TMI 16
CENVAT credit - reversal of the final orders and re-adjudication - Held that: - reliance placed in the case of M/s. Roots Multiclean Ltd. Versus The Customs Excise and Service Tax Appellate Tribunal, The Commissioner of Central Excise [2016 (2) TMI 16 - MADRAS HIGH COURT], where it was held that when the dispute raised is touching the valuation of the property, the Tribunal has no discretion to refuse to admit the appeal - CESTAT is directed to adjudicate the issues raised in the appeals and pass orders on merits - petition allowed - decided in favor of petitioner.
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2017 (8) TMI 15
Valuation - petroleum products - The case of the Department is that transfer from warehouse to COCO does not involve any sale and the sale transaction arises only from the COCO - whether the petroleum products cleared from warehouse to company owned and company operated outlets are to be valued in terms of Section 4(1)(b) of the CEA, 1944 read with Rule 7 of the Central Excise Valuation Rules? - Held that: - this issue has been settled in favour of the respondent by various decisions of the Tribunal specifically, in the case of BPCL [2007 (8) TMI 137 - CESTAT, BANGALORE], where it was held that Appellant PSU unit had removed goods to their sales outlets under Administrative Pricing Mechanism but revenue rejected the same and demand raised by applying Section 4(4)(b)(iii) of CEA,1944 and Section 4(1)(b)ibid in two distinct period for valuation purpose - appeal dismissed - decided against Revenue.
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2017 (8) TMI 14
Clandestine removal - 56882 Ballast and Transformers - Held that: - the respondent had taken a definite stand that the computer print out had not given a total picture of the manufacture and clearance of the goods, and it was maintained on theoretical basis. Therefore, the respondent had not admitted the maintenance of computer print out as proper account of stock - no enquiry was conducted in respect of the alleged clandestine removal and the entire case was made out on a theoretical basis - appeal dismissed - decided against Revenue.
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2017 (8) TMI 13
CENVAT credit - input services - Insurance Service - Pest Control Service - Rent-a-Cab Service - Held that: - the service tax paid on Pest Control Service falls in the definition of ‘input service' because the Pest Control Service is essential for maintaining the clean environment in a particular factory and to protect the properties of the company - the issue of availment of credit on Insurance Service and Rent-a-Cab Service has been settled in favour of the appellant in their own case by this Tribunal in SKF Technologies (I) Ltd. Vs. CCE, Bangalore [2013 (12) TMI 329 - CESTAT BANGALORE] - credit allowed - appeal allowed - decided in favor of appellant.
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CST, VAT & Sales Tax
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2017 (8) TMI 8
Exemption from payment of tax - the activity of converting raw milk into slim/skim milk - entitlement certificate - Held that: - It is not a matter of debate that the Respondent has been issued an entitlement certificate. The entitlement certificate also details the following products, milk, milk products viz., desi ghee, whole milk/ skim milk, butter etc - on and from the date of cancellation of entitlement certificate the unit shall cease to be eligible for exemption from the payment of tax. The procedure is also laid down for cancellation of the entitlement certificate. 41C (1) (b) lays down that the certificate of entitlement if is inconsistent with any of the provisions of this Act, rules or notification issued under the Act or any of the relevant package scheme of incentive shall be cancelled by the Commissioner after giving the eligible unit an opportunity of being heard. There is no dispute among the parties that the entitlement certificate of the respondent/unit is not cancelled and was in force at all material time. The entitlement certificate is in force and as long as the entitlement certificate is in operation, the Petitioner would be entitled for exemption benefits qua the activity referred to in the entitlement certificate - appeal allowed - decided in favor of assessee.
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2017 (8) TMI 7
Jurisdiction - input tax credit - sale of taxable goods as well as on exempted goods - Whether under the facts and circumstances of the present case the Rajasthan Tax Board has not exceeded its jurisdiction in giving directions to the petitioners to appear before the Commissioner, Commercial Taxes, Rajasthan, Jaipur on 14.02.2013 by invoking provisions of Section 85 of the Rajasthan Value Added Tax Act, 2003? - Held that: - this court held that the input tax credit could not be allowed to the extent of sale of VAT exempted goods, namely, wheat bran (Chaff/Chokar), which had been assessed by the Assessing Authority to the extent of 25% of the input tax credit and reverse tax has been imposed on the respondent-assessee and this Court allowed the claim of the revenue in the aforesaid case. There is a judgment of this Court in the case of Durgeshwari Foods Limited [2011 (12) TMI 654 - RAJASTHAN HIGH COURT] holding that the assessee was not entitled to claim Input Tax Credit or Input Tax Credit could not be allowed to the extent of sale of VAT exempted goods namely; wheat bran (Chaff/Chokar) which had been assessed by the Assessing Authority to the extent of 25% of the Input Tax Credit and reverse tax had been imposed on the respondent-assessee. Counsel for the petitioner also accepts that the finding of this Court in the case of Durgeshwari Foods Limited is squarely applicable on the facts of the instant case. Once this is an admitted fact that the judgment is squarely applicable even the Tax Board irrespective of directing the Commissioner in my view, could have directed that in the light of the judgment in the case of Durgeshwari Foods Limited, the claim was not required to be allowed and for the purposes of calculating as to how much input tax credit is to be allowed/disallowed, the matter could have been restored back to the Assessing Officer. The powers of the Tax Board are wide enough. On perusal of section 83 quoted herein before and sub-section (10) of section 83 states that the Tax Board after opportunity of being heard shall pass such order “as it thinks fit” which in my view, gives power to the Tax Board even to direct the Commissioner u/Sec. 85 to revise an order. In my view, even the inherent power is available with the Tax Board to pass an appropriate order “as it thinks fit” which would mean even directing the Commissioner u/Sec.85 to pass an appropriate order. Admittedly, the Commissioner is an Authority subordinate to the Tax Board and the Tax Board can certainly give directions to correct a wrong undone in the matter. The directions given by the Tax Board to the Commissioner cannot be said to be contrary to the provisions of the Act and the Tax Board was within its competence to give certain directions. Once it is an admitted fact that the judgment of this Court in the case of Durgeshwari Foods Ltd governs the case, it is binding upon all the Subordinate Authorities and particularly when the matter was pending before the Tax Board and the judgment of this Court was available by the time when the appeal came up for hearing before the Tax Board. Appeal dismissed - decided against assessee.
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Indian Laws
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2017 (8) TMI 3
Grant of Special Leave to prefer an Appeal as against the 'Judgment of Acquittal' - offence under Negotiable Instruments Act - Held that:- In the Complaint, the Petitioner/ Appellant/Complainant had stated that the Respondent/Accused as Surety for the amount to be paid by his wife, had issued a cheque. But before the trial Court, on behalf of the Petitioner/Appellant/ Complainant, it was not established that the Respondent/Accused wife was paid with a sum of ₹ 3,00,000/- through cheque based on Sale Agreement. Further, for the alleged payment of ₹ 1,00,000/- in cash by the Petitioner/Appellant/Complainant to the Respondent/ Accused wife, no document or evidence was produced in the main case. Apart from that, the big question revolves around the Petitioner/Appellant/Complainant is that when he was in possession of Ex.P1 Cheque from 11.2.2015 till 11.4.2015, how the Respondent/Accused (husband of the Komathi) had made correction or alteration in Ex.P1 Cheque. Moreover, P.W.1, in her cross examination, had tacitly admitted that the Respondent/Accused gave Ex.P1 Cheque on 11.2.2015, but he corrected/altered the same on 11.4.2015. She had also proceeded to state in her cross examination in emphatic terms that the Respondent/Accused on 11.2.2015 itself had handed over the cheque to her. Further, in her evidence, P.W.1 had stated that on what date, she had paid a part sum of ₹ 1,00,000/- to the Respondent/Accused wife, which fact was also not mentioned either in her proof affidavit or in the complaint. Indeed, Section 138 of the Negotiable Instruments Act is a Penal Provision which incorporates strict liability and therefore, it has to be construed strictly. In Law, a Cheque can be presented for payment repeatedly any number of times within six months from the date of drawing of cheque or within the period of its validity, whichever expires earlier. The requirement for an offence under Section 138 of the Negotiable Instruments Act is that the cheque must be drawn 'for the discharge, in whole or in part, of any debt or other liability'. However, the Section does not say that the cheques should have been drawn for the discharge of any debt or other liability of the Drawer towards the Payee. Section 138 of the Negotiable Instruments Act does not in any way preclude power of an individual from owning up other person's liability or insist that the cheque should be one drawn to discharge the liability of the Drawer. As per Section 139 of the Negotiable Instruments Act, there is a presumption, unless the contrary is established, that the Holder of the cheque received the cheque for the discharge in entirety or in part of any debt or other liability. Judgment of Acquittal passed by the trial Court is free from any flaw. Consequently, the 'Grant of Special Leave' sought for by the Petitioner/Appellant/Complainant by means of filing the present Criminal Original Petition before this Court under Section 378(4) Cr.P.C. is devoid of merits.
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2017 (8) TMI 2
Offence under Section 138 of Negotiable Instruments Act, 1881 - Judgment of Acquittal - Held that:- As a matter of fact, the complainant who is a 'Payee' under Section 7 of the Negotiable Instruments Act or a 'Holder in Due Course' under Section 9 of the Act, is entitled to seek 'Leave' under Section 378(4) of Cr.P.C., and bringing a Miscellaneous Petition in this regard seeking a prior permission from the High Court is perfectly maintainable in Law. Looking at from any angle, if the Judgment of Acquittal / Acquittal Order is passed 'in any case instituted upon a complaint', a Petition filed under Section 378(4) of Cr.P.C., seeking 'Grant of Leave' before the Hon'ble High Court is clearly maintainable in the eye of Law. It is to be pointed out that an offence under Section 138 of Negotiable Instruments Act, 1881 is not a Regular / Ordinary Crime like 'Murder' 'Grievous Hurt' or 'Simple Hurt' or other criminal case. To put it precisely, the offence under Section 138 of Negotiable Instruments Act, undoubtedly is a civil liability dressed in a criminal colour. Be that as it may it is to be pointed out that the burden is on the complainant in respect of an offence under Section 138 of Negotiable Instruments Act to establish his case against the Respondent / Accused beyond shadow of doubt. But at the same time, it cannot be slightly ignored that the Respondent / Accused is entitled to shake or affect the credibility of the prosecution story by bringing in certain facts / circumstances which point out about his probabilities of the case. In short, an accused in respect of offence under Section 138 of Negotiable Instruments Act is entitled to maintain silent. He need not enter into the box to dislodge the case of a complainant. It is just enough that if he is able to make an inroad into the evidence depositions of witnesses / witnesses of the prosecution side. In view of the qualitative and quantitative discussions as afore stated and also this Court on a careful consideration of the attendant facts and circumstances of the instant case in a cumulative manner is of the earnest view that the Petitioner / Appellant / Complainant has not made out a prima facie case to interfere with the 'Judgment of Acquittal' dated 18.10.2016 passed by the trial court.
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2017 (8) TMI 1
Appeal under Section 378(4) of Cr.P.C., as against the 'Judgment of Acquittal' - Negotiable Instruments Act - Held that:- In the present case, it is to be pointed out by this Court that for a large sum of ₹ 5,00,000/- purportedly lent by the Petitioner / Appellant to the Respondent / Accused, no pro-note was taken by the Petitioner / Appellant / Complainant from the Respondent / Accused. Even in the absence of pro-note, except Ex.P.1, Cheque there appears to be no document in the form of receipt or in any other manner to and in favour of the Petitioner / Appellant / Complainant evidencing the payment of loan amount in question. In Law, the Respondent / Accused need not enter into the Witness Box and in fact he can maintain silence. The 'Onus of Proof' to establish a case lies on the Petitioner / Appellant and in fact the Respondent / Accused can pick holes or gather sufficient materials from the evidence of the complainant witnesses and is entitled to shake their evidence. The Respondent / Accused in his evidence, as D.W.1, had stated that the Petitioner / Appellant / Complainant is running a small provision store and the value of items in his shop would be ₹ 25,000/- and it was false to state that he issued cheque for ₹ 5,00,000/- and obtained a loan on 27.09.2014. Moreover, it is the evidence of P.W.1 that presently through Periyasamy, a cheque case was filed against him for ₹ 10,00,000/- on the file of Learned Judicial Magistrate, Bhavani and the same is pending. Apart from that, the Respondent / Accused had raised a plea that through Periyasamy, the Petitioner / Appellant had filed the present case before the trial Court. This Court comes to an irresistible conclusion that the Petitioner / Appellant / Complainant had failed to establish that Ex.P.1, Cheque was issued by the Respondent / Accused for a 'Legally Enforceable Debt'. Per contra, this Court is of the considered opinion that the Respondent / Accused had shaken the evidence of P.W.1 by gathering materials from his evidence. Moreover, P.W.1 had given a contradictory evidence during the trial in regard to the payment of loan amount to the Respondent / Accused. Looking at from any angle, the Judgment of the trial Court dated 24.10.2016 in S.T.C No.32 of 2015 is free from any flaw. Therefore, the Leave sought for by the Petitioner / Appellant / Complainant to prefer an Appeal in present Criminal Original Petition is not acceded to by this Court.
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