TMI Tax Updates - e-Newsletter
September 12, 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:
Seeks to make amendments (Ninth Amendment, 2018) to the CGST Rules, 2017 - Commissioner empowered to extent the Filing of GST TRAN-1 not beyond 31st March, 2019, in respect of registered persons who could not submit the said declaration by the due date on account of technical difficulties on the common portal and in respect of whom the Council has made a recommendation for such extension
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GST:
Seeks to extend the due date for filing of FORM GSTR - 3B for newly migrated (obtaining GSTIN vide notification No. 31/2018-Central Tax, dated 06.08.2018) taxpayers [Amends notf. No. 34/2018 - CT]
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GST:
Seeks to extend the due date for filing of FORM GSTR - 3B for newly migrated (obtaining GSTIN vide notification No. 31/2018-Central Tax, dated 06.08.2018) taxpayers [Amends notf. No. 35/2017 and 16/2018 - CT]
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GST:
Seeks to extend the due date for filing of FORM GSTR - 3B for newly migrated (obtaining GSTIN vide notification No. 31/2018-Central Tax, dated 06.08.2018) taxpayers [Amends notf. No. 21/2017 and 56/2017 - CT]
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GST:
Seeks to extend the due date for filing of FORM GSTR - 3B for newly migrated (obtaining GSTIN vide notification No. 31/2018-Central Tax, dated 06.08.2018) taxpayers [Amends notf. No. 21/2017 and 56/2017 - CT]
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GST:
Seeks to extend the due date for filing of FORM GSTR - 1 for taxpayers having aggregate turnover above ₹ 1.5 crores
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GST:
Seeks to extend the due date for filing of FORM GSTR - 1 for taxpayers having aggregate turnover up to ₹ 1.5 crores
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GST:
Levy of GST - operation and maintenance work order given by such Municipal Corporation - Admissibility of ITC (input Credit tax) of purchases against such work order - Post 25.01.2018, their services would be exempt only subject to the fulfilment of condition that the value of supply of goods does not exceed 25% of value of composite supply.
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GST:
Classification of Services - no provision has been made for carving out an exception in case of supply of service in the nature of a Works Contract for creating infrastructure which is to be exclusively used for Solar Power or in a Solar Park for or by a Solar Project Park Developer.
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Income Tax:
Interest expenditure could be allowed only if the loan was borrowed for the purpose of the business of the assessee and if it is used for the purchase of an asset which yielded exempted income, that interest expenditure cannot be allowed u/s. 36(1)(iii) of the Act.
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Income Tax:
Levy of interest u/s 201(1A) - failure to deduct TDS u/s 194J - payments made by the assessee herein have been included in the income of the deductees and taxes paid thereon. - There is no choice available to the revenue and interest u/s 201(1A) is to be mandatorily charged for the delayed period of remittance and is automatic in nature.
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Income Tax:
Revision of assessment order - computation of long term capital gain against the sale of immovable property - claim of deduction towards indexed cost of construction of compound wall and the cost of improvements - assessee has only transferred vacant land to the purchaser - there is no question of deductions so claimed - Revision order u/s 263 sustained.
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Income Tax:
Validity of prosecution proceedings u/s 279 when application for settlement of case is pending - The order of the Commission allowing the application for settlement “to be proceeded with” cannot by itself result in an action legitimately initiated under the law being set at naught.
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Income Tax:
Disallowance of Agricultural income - nature of income from sale of agricultural produce, i.e. , sugarcane seeds grown by the assessee from the lease hold land carrying out basic operation on land involving expenditure of human skill such as ploughing, tilling, sowing and planting of seeds - Assessee failed to prove its case.
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Customs:
Penalty u/s 112 (b)(ii) of the Customs Act, 1962 - Smuggling - The appellant suffered a lot by loss of his job and thriving on a meager salary. It would be difficult for him to arrange such a huge amount of personal penalty.
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Customs:
Penalty u/s 112 (a) and 114 (AA) of the Customs Act, 1962 - Merely on the basis that the appellant is a CHA whose license has been suspended in some other case cannot be the basis to implicate the appellant in the case in hand.
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Corporate Law:
Issue of securities in dematerialised form by unlisted public companies - New Rule 9A Inserted to the Companies (Prospectus and Allotment of Securities) Rules, 2014
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Service Tax:
Valuation - reimbursement of expenses on actual basis - the charges collected by them towards electricity and water, are not to be included in the taxable value for charging service tax.
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Service Tax:
Place of supply of services - reverse charge mechanism (RCM) - commission paid for availing services of certain foreign based agencies for receiving external foreign commercial borrowings (ECB) from abroad - assessee are legally liable to pay service tax on the service of foreign institutions availed in getting their ECBs.
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Service Tax:
Refund of unutilized CENVAT Credit - appellants are rightly eligible to take credit of service tax paid on insurance premium on Group Insurance Policy, as the said service is an eligible input service
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Central Excise:
Clandestine Removal - demand based on documents and information recovered from third party / ex-employee - There was no scrap of paper or evidence linking the assessee with any allegations levelled against it vis-ŕ-vis excess production and clandestine removal. - Demand set aside.
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Central Excise:
Validity of second SCN - Time Limitation - while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities.
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Central Excise:
Classification of goods - mono cartons - whether classified under CETH 48192020 or under CETH 48173090 - appellant are manufacturing boxes and for boxes, the Entry No. 48192020 is for boxes, therefore, the entry which is more specific
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Central Excise:
Reversal of CENVAT Credit - input has been cleared as such - Rule 3 (5) - the issue is of segregation of impurities from the aluminium scrap before they are put to use in the manufacture of Aluminium Ingots, molten metal etc - credit cannot be reversed
Articles
Notifications
Circulars / Instructions / Orders
News
Case Laws:
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GST
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2018 (9) TMI 546
Classification of Services - Construction, Erection, Commissioning and Installation of projects - Electrical Transmission Lines, Sub-Stations and Line Shifting - service of construction of new 33/220 kV Pooling Sub-station along with associated 220 kV DCDS Transmission Line and associated feeder bay work on total Turnkey basis under World Bank Financing - rate of CGST and SGST on the supply being made under the contract. Held that:- On a reading of the scope of work, it is clear that the work involves both supply of goods and supply of services, which are naturally bundled. Accordingly, under this agreement, the applicant is providing a composite supply within the meaning of Section 2 of the CGST Act, 2017 - The HSN Code for the supply of composite service in the nature of Work Contract under the all the three agreements entered into with RUMS, shall be 9954/995423 - Under the CGST and SGST Acts, Rules and Notifications issued till the date of making of the application, no provision has been made for carving out an exception in case of supply of service in the nature of a Works Contract for creating infrastructure which is to be exclusively used for Solar Power or in a Solar Park for or by a Solar Project Park Developer - The rate of CGST on the supply being made under the contract shall be according to N/N. 11/2017-Central Tax (Rates). Ruling:- The rate of MPGST on the supply being made under the contract referred to in para 3.3 supra shall be also 9 per cent as per the corresponding Notification to the Notification No. 11/2017-Central Tax (Rates), issued under MPGST Act, 2017.
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2018 (9) TMI 545
Levy of GST - operation and maintenance work order given by such Municipal Corporation - Admissibility of ITC (input Credit tax) of purchases against such work order - Determination of responsibility of municipal authority of discharging such GST Liability payable to the contractor - service Contract where labour job Contribute 95% to 98% if Contract Value and 2-3 % as Oil and Lubricant and pertains Purchase to operate the Existing Plant - Pure Services or not? Whether the Applicant is exempted from payment of GST on Operation and Maintenance contracts/ work orders entered into by them with Navi Mumbai Municipal (NMMC), Panvel Municipal Corporation (PMG), Municipal Council, Pandharpur (MCP) and City & Industrial Development Corporation of Maharashtra, Ltd. (CIDCO)? Whether the Applicant is entitled to Input Credit Tax (ITC), of purchases against such work order and whether it is the responsibility of municipal authority to discharge such GST Liability payable to the Applicant? Held that:- The services rendered by the applicant, as is seen from the terms of the contracts, is a composite contract consisting of supply of services and also supply of goods in the form of materials, spares, consumables, etc., there is clearly a tax liability @ 9% each of CGST and SGST till 21.07.2017 and further @ 6% each of CGST and SGST with effect from 22.07.2017 - it is very clear that the services provided by the applicant are not pure services and rather involve supply of materials and consumables, the supply which is in the nature of composite supply and works contract, is not exempt from levy of GST as per N/N. 12/2017 and is therefore clearly taxable at the rates. With effect from 25.01.2018, the applicant can avail the benefit of the above said Exemption N/N. 2/2018 Central Tax (Rate) dated 25.01.2018 only if the value of supply of goods does not exceed 25% of value of composite supply. A fact to be noted from the submissions made by the Applicant, is that they themselves were aware that, on implementation of GST, 2017 the said supply of Operation & Maintenance work was taxable as per notification no. 11/2017 dated 28.06.2017 and notification no. 20/2017 dated 22.08.2017. However, the Municipal Corporation has disregarded levying of GST on the said work saying it is exempt and have rejected the claims made by appellant. It can be seen from the submissions of the applicant as well as the contracts that along with the services rendered they also supply to the Local Bodies, spares, materials and consumables such as oil, lubricant etc. Hence their services cannot be termed as pure services attracting exemption as per sr.No .3 of under N/N. 12/2017 and the applicant would have to pay the GST on the services provided by them to such Local Bodies - It appears that this ARA has been filed not because the applicant had doubts regarding levy of GST but because the Local bodies have refused to pay them the said GST. Also, the applicant is entitled for Credit for purchases made against the said work orders entered into by them. Ruling:- Under GST Act, 2017, their services attracted CGST & SGST @ 9% each with effect from 01.07.2017 and CGST & SGST @ 6% each with effect from 22.08.20171 Post 25.01.2018, their services would be exempt only subject to fulfilment of conditions that the value of supply of goods does not exceed 25% of value of composite supply. The applicant is eligible for availing ITC (input Credit Tax) of purchases against such work order under the GST Act/ Rules subject to the terms and conditions mentioned in section 16 to 22 of the GST ACT and rules 36 to 45 of the GST Rules, 2017. The liability to pay GST is on the supplier, being a legal liability and no comments are offered in respect of recovery or otherwise from the recipient. Under GST Act, 2017, their services attracted CGST& SGST @ 9% each with effect from 01.072017 and CGST & SGST @ 6% each with effect from 22.08.2017. Post 25.01.2018, their services would be exempt only subject to the fulfilment of condition that the value of supply of goods does not exceed 25% of value of composite supply.
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2018 (9) TMI 544
Rate of tax - Held that:- By considering the fact that the petitioner has raised an issue with regard to the Chapter Heading in consonance with the work executed by him, certainly, it is for the authorities concerned to clarify the same as, at this stage, this Court, is not inclined to go into such issue and express any view - Petition disposed off.
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2018 (9) TMI 543
Unable to upload FORM GST TRAN-1 - transition to GST Regime - main grievance in all these writ petitions is that the respective writ petitioner is not in a position to take excise duty credit in the stock of goods on the appointment of GST - Held that:- A circular has been already issued on 03.04.2018 by the Central Board of Indirect Taxes, by setting up a Grievance Redressal Mechanism to address certain grievance of the Assesses, which contemplates the appointment of a Nodal Officer to address the problem faced by the tax payers due to the problem faced by such people in the GST portal during the transitional period - when such Grievance Redressal Mechanism has already been formed by the Central Board of Indirect Taxes and consequently, a Nodal Officer is also appointed by the State Government, it is for the petitioners/Assessees, to submit their applications in accordance with the said circular before the concerned Nodal Officer - Petition disposed off.
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2018 (9) TMI 542
Validity of SCN - Petitioner submits that, the petitioner is the owner of the vehicle. The notice for confiscation was issued to the driver of the vehicle - Section 130(2) of the Central Goods and Services Tax Act, 2017 - Held that:- In the facts of the present case, it appears that, the petitioner as the owner was well aware of the confiscation proceedings. The driver of the vehicle was given notice to the confiscation proceedings. He participated in such confiscation proceedings - it cannot be said that, the petitioner was without any notice of the confiscation proceedings. The order emanating out of the confiscation proceedings has been assailed by the parties in different forai. At this stage, it would not be appropriate for a writ court to intervene any further at the behest of the owner of the vehicle - petition dismissed.
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Income Tax
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2018 (9) TMI 541
Conditional stay of recovery - condition imposed to pay 20% of the disputed demand - entitled for exemption under Section 10(21) - Held that:- Order passed by the first respondent directing the petitioner to pay 20% disputed demand, as a condition to grant the stay, cannot be sustained, in view of the fact that on the very same issue namely, entitlement of the petitioner for exemption under Section 10(21), already a decision of the Income Tax Appellate Tribunal had come in favour of the petitioner on 26.05.2006 in respect of assessment year 1997-1998 etc. It is seen that the Tribunal has found that the petitioner is entitled for exemption under Section 10(21). Even though, the learned counsel for the respondents contended that the said order of the Tribunal is sought to be challenged by way of appeal before this Court, the fact remains that till this date, the said order is in force and has not been stayed so far. 100% stay granted, pending disposal of the appeal filed by the petitioner before the Commissioner of Income Tax (Appeals).
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2018 (9) TMI 540
Proportionate deduction u/s 80IB(1) - existence of any provision for pro rata deduction in the statute - some of the flats violated the condition of not exceeding area of 1000 sq. `ft. and thus vitiating the whole project - Held that:- We did so as prima facie we were of the opinion that the substantial question raised in this Appeal was covered by a subsequent decision of a Division Bench of this Court in the case of Commissioner of Income Tax-6, Pune v/s Makwana Brothers and Co [2017 (11) TMI 684 - BOMBAY HIGH COURT]. On going through this decision in some detail, we find that though a similar question was raised in those Appeals, Mr. Kotangle argues that the question raised herein was decided on facts by relying upon the decision of another Division Bench in the case of Commissioner of Income Tax v/s Vandana Properties [2012 (4) TMI 54 - BOMBAY HIGH COURT]. We admit the Appeal on this substantial question of law reproduced above. The Registrar (Judicial) / Registrar, High Court, Original Side, Bombay to ensure that the original record in relation to this Appeal is summoned from the Tribunal and offered for inspection of the parties. This paper book is treated sufficient for the purpose of admission of this Appeal. However, the Registry must further ensure preparation of complete paper book in accordance with the Rules. The Registry, in the first instance, must send intimation of admission of this Appeal enclosing therewith a copy of this order so as to enable the Tribunal to act accordingly.
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2018 (9) TMI 539
Validity of prosecution proceedings u/s 279 when application for settlement of case is pending - Power of Settlement Commission to grant immunity from prosecution and penalty - Criminal case against the petitioner - offences punishable u/s 277(i) - Held that:- The fact that the Settlement Commission receives, entertains, accepts or takes on board an application for settlement cannot result in the other process getting frozen. The order of the Commission allowing the application for settlement “to be proceeded with” cannot by itself result in an action legitimately initiated under the law being set at naught. The arguments to the above effect raised vis-ŕ-vis the criminal complaint which was filed on 27.01.2015 leading to the summoning order being passed by the Additional Chief Metropolitan Magistrate on 30.01.2015 and, of course, in relation to the sanction for prosecution which was granted on 09.01.2015, cannot be accepted. The same are, thus, repelled. It will have to be remembered that the petition has been filed invoking the inherent power and jurisdiction of this Court under Section 482 Cr.P.C. where questions of fact cannot ordinarily and in absence of evidence of unimpeachable character to the contrary be properly inquired into or adjudicated upon. There is no case made out for any interference by this Court in the ongoing criminal prosecution of the petitioner on the complaint of the respondent.
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2018 (9) TMI 538
Stay petition filed by the petitioner by granting stay of 80% of the demand only subject to a condition that 20% of the total demand has to be paid by the petitioner immediately - Held that:- While disposing the stay petition on 27.06.2018, the order impugned in this writ petition, has not even referred to the order passed by this Court in the earlier writ petition, where a specific direction was issued to the first respondent to hear the stay petition on merits and take a decision in accordance with law, also by observing that the first respondent has to consider a prima-facie case which the petitioner would place before him. On the other hand, he has simply disposed the stay petition without there being any discussion much less expressing a prima-facie view as to why 20% of the total demand is directed to be paid by the petitioner, while granting stay for the balance demand. This Court is satisfied to set aside the order passed by the first respondent impugned in this writ petition and remit the matter back to the first respondent for passing an order afresh, as directed by this Court [2018 (4) TMI 609 - MADRAS HIGH COURT]. This Court makes it clear that it is not expressing any view on the merits of the contentions made by the writ petitioner either in respect of the merits of the assessment or in respect of the stay petition, as it is for the first respondent/Appellate Authority to consider the same and decide. Accordingly, the writ petition is allowed and the impugned order is set aside. Consequently, the matter is remitted back to the first respondent for passing a fresh order on the stay petition.
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2018 (9) TMI 537
Addition of unsecured loans - proof of the genuineness of the loan transaction - Held that:- AO has filed the relevant details of unsecured loan to prove the identity, creditworthiness and genuineness of the transaction. The assessee disclosed the name, address, PAN, IT particulars, confirmations, bank statement etc. The transaction was effected through banking channel. AO relied upon the statement of Mr. Jagdish B. Ahuja Director and Promoters of M/s. Ahuja Group recorded u/s 132. Relying upon the statement of the said person does not itself made the transaction as unexplained u/s 69A. AO nowhere brought any other material to discredit the evidence given by the assessee. Even notice u/s 133(6) of the Act was not issued. Cross-examination of Shri Jagdish B. Ahuja was not allowed. Nothing came into the notice that the transaction was sham, fictitious and artificial. However, it also came into notice that the said receipt was changed consequentially replacing the cheque payment. - Decided against revenue.
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2018 (9) TMI 536
Allowability of expenses on account of advertisement - main contention of the revenue is that the CIT(A) did not certify the period of the claim of the assessee - Held that:- There is no specific period explained in the order with regard to the expenses incurred. Since the period has not been specified in the finding of the CIT(A). Therefore, we are of the view that it is necessary to ascertain the period in which the advertisement expenses have been incurred, therefore, we set aside the finding of the CIT(A) on this issue and remand this issue before the AO to verify the claim of the assessee in connection with advertisement expenses and period relating to.
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2018 (9) TMI 535
Penalty u/s. 271(1)(c) - defective notice - Held that:- The show cause notice issued in the present case u/s 274 of the Act does not specify the charge against the assessee as to whether it is for concealing particulars of income or furnishing inaccurate particulars of income. The show cause notice u/s 274 of the Act does not strike out the inappropriate words. We are of the view that imposition of penalty cannot be sustained. Imposition of penalty in the present case cannot be sustained and the same is directed to be cancelled. See Jeetmal Choraria Vs. ACIT [2017 (12) TMI 883 - ITAT, KOLKATA] - Decided in favour of assessee.
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2018 (9) TMI 534
Disallowance of Agricultural income - nature of income from sale of agricultural produce, i.e. , sugarcane seeds grown by the assessee from the lease hold land carrying out basic operation on land involving expenditure of human skill such as ploughing, tilling, sowing and planting of seeds - Held that:- Similar disputed issue was dealt by this bench of the Tribunal in the case of Smt. Asha Manjari Mishra [2017 (3) TMI 1698 - ITAT CUTTACK] wherein held A.R. could not bring any relevant and cogent material on record to controvert the findings of the AO as well as the CIT(A) that the appellant received the sugarcane seeds from Nayagarh Sugarcane Complex Ltd. in her planting village Panipoila on 06.12.2012 and supplied it to the farmer who planted it on 18.12.2012 in his planting village at Gunthuni. According to the appellant's own written submission-dated 18th November 2016, in which the appellant has explained the agricultural process, it takes 1 to 2 months time for buds and 6 to 12 months time for small plants to develop from the seeds. If this is so, then how could the appellant take supply of the seeds on 06.12.2012 and supply the sugarcane plants on 18.12.2012. - Decided against assessee
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2018 (9) TMI 533
Challenging the validity of notice u/s 148 - Disallowance of provision for bad and doubtful debts u/s 36(1)(viia) - Disallowance of excess provision for non performing of assets - Disallowance of amortization of expenses for government securities - Held that:- Crux of the submissions made by the Ld. Counsel for the assessee is that all the details in connection with the deduction claimed by the assessee u/s 36(1)(viia) were very much available with the Assessing Officer during the assessment u/s 143(3) of the Act and the assessments were concluded after examining the relevant details filed by the assessee. No new facts came up before the assessing authority and therefore the reopening was merely based on account of change of opinion. Relying on various judgments, it is contended that reopening of assessments for mere change of opinion are not valid. For assessment year 2008-09 the assessee duly filed return of income and assessment completed u/s 143(3) of the Act and has submitted all material facts necessary for the assessment. All these facts shows that the first proviso to section 147 is squarely applicable on the given facts for A. Y. 2008-09 and the reopening is beyond four years from the end of relevant assessment year and thus cannot be held to be valid. We therefore find force in the contentions of the Ld. Counsel for the issue of reopening raised for A. Y. 2008-09 and accordingly quash the reassessment proceedings u/s 147 for Assessment Year 2008- 09 and allow the relevant ground for assessment year 2008-09 in favour of the assessee. Assessee claimed deduction u/s 136(1)(viia) only in the computation of income and no such provision was actually made in the profit and loss account. It is true that the details of the deduction claim u/s 136(1)(viia) was available on record but the legal angle of examining this claim was not discussed at length during the course of assessment u/s 143(3). The claim of the assessee were based on certain judicial pronouncements which the Assessing Officer later on found to be favouring the revenue. This change of legality of the issue triggered the issuance of notice u/s 148 of the Act. It is not disputed that the notice issued u/s 148 of the Act for Assessment Year 2009-10 and 2010-11 are within the period of four years from the end of relevant assessment years. The reasons have duly been recorded and the need of issuance of notice was due to the alleged excess provisions claimed for provisions for bad and doubtful debts u/s 36(1)(viia). Disallowance of amortization of expenses for government securities - Held that:- Both the lower authorities erred in confirming the addition and the assessee has rightly claimed the amortization of loss in the value of government securities and the same is liable to be treated as business expenditure. In the result this common issue is decided in favour of the assessee Disallowance of alleged excess provision for NPA - Held that:- RBI guidelines are for the purpose of maintaining the balance sheet and financial statements for the stake holders so as to give true and fair view of the financials of the bank. Claiming of deduction for bad and doubtful debts as well as provision for bad and doubtful debts for the borrowers involved in Debt Relief Scheme, 2008 needs to be examined in the light of provisions of Income Tax Act applicable to the assessee. We find that the observations of AO are also not very clear and only the auditors remarks have been discussed and similarly Ld. CIT)(A) has also not given clear finding on this issue. In our considered view this issue needs to be set aside to the file of Ld. CIT(A) for fresh adjudication. Needless to mention that proper opportunity being heard to be provided to the assessee and also direct the assessee to bring necessary details for calculating the provisions of bad and doubtful debts as well as the details of over due debts from the borrowers involved in debt relief scheme of 2008 so that the issue can be decided on merit under the relevant provisions of law.
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2018 (9) TMI 532
Revision u/s 263 - computation of long term capital gain against the sale of immovable property - claim of deduction towards indexed cost of construction of compound wall and the cost of improvements - Held that:- As compound wall cannot be demolished for vastu defect even we assume that there was a vastu defect, the assessee has not filed any details except agreement entered with one Mr. Narayana, who is mason. So far as existence of construction of shed is concerned, the assessee has not filed any house number or electricity bill or municipal tax receipt. Only his case is based on agreement entered with Mr.Narayan. On the basis of agreement, it cannot be said that there was a compound wall and also a shed constructed, particularly the sale deed dated 10/11/2009 clearly mentioned that the assessee has only transferred vacant land to the purchaser. CIT has rightly considered that the order passed by the AO is erroneous and prejudicial to the interests of the revenue and directed the AO to disallow the said amount. We find no reason to interfere with the order passed by the ld. CIT(A). - Decided against assessee
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2018 (9) TMI 531
Levy of interest u/s 201(1A) - failure to deduct TDS u/s 194J - payments made by the assessee herein have been included in the income of the deductees and taxes paid thereon. - additional ground of appeal - ‘assessee in default’ - Held that:- AO in his assessment order had categorically recorded that the assessee has been given several show cause notices in the course of assessment proceedings stating as to why it should not be treated as an ‘assessee in default’ u/s 201(1)and consequential charging of interest u/s 201(1A). The assessee had even replied to the said show cause notices. AO after examining the replies of the assessee and the evidences filed on record, concluded that the assessee cannot be treated as an ‘assessee in default’ u/s 201(1) but however charged interest u/s 201(1A) for the delayed period of remittance of tax dues to the exchequer. Hence the additional ground of appeal raised by the assessee is devoid of any merit and is hereby dismissed. We find lot of force in this argument of the AR in as much as the interest u/s 201(1A) of the Act is only compensatory in nature and the Government should be compensated for the delayed remittance of TDS from the date of default by the deductor to the actual date of remittance of taxes by the deductees. Accordingly, we direct the AO to recomputed the interest u/s 201(1A) of the Act accordingly. There is no choice available to the revenue and interest u/s 201(1A) is to be mandatorily charged for the delayed period of remittance and is automatic in nature. It is not in dispute before us that the tax is required to be deducted by assessee TPA on payments made to hospitals. Hence we are not inclined to agree with the argument of the AR in this regard. We hold that the AO had rightly levied interest u/s 201(1A) in the instant case. With regard to the calculation of interest u/s 201(1A) we have already directed the AO to re-compute the said interest upto the date of actual remittance of taxes by the deductees and not upto the date of filing of return of income by the deductees. Appeal of the assessee is partly allowed for statistical purposes
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2018 (9) TMI 530
Interest on Non Performing Assets - Accrual of income - Held that:- Interest on a loan whose recovery is doubtful and which has not been recovered by the assessee-bank, but has been kept in a suspense account and has not been brought to the P&L a/c of the assessee, could not be included in the income of the assessee. CIT(A) rightly deleted the additions towards interest on NPAs. There is no error or infirmity in the order of CIT(A). In case of Sri Mahila Sewa Sahakari Bank Limited (2016 (8) TMI 377 - GUJARAT HIGH COURT) we hold that the interest on NPA is to be recognized on actual receipt basis but not on accrual basis. Accordingly, we set aside the orders of the lower authorities and delete the addition. Gratuity premium paid to LIC Gratuity Fund - Held that:- We hold that actual payment made to group gratuity fund of LIC required to be allowed as deduction. We uphold the order of the Ld.CIT(A) and dismiss the appeal of the revenue for both the assessment years 2012-13 and 2013-14.
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2018 (9) TMI 529
Addition towards capital introduction - Held that:- CIT(A), the assessee has filed certain details in respect of salary received from his employer and bank statement maintained with Indian Bank, Governorpet, Vijayawada. CIT(A) after considering the bank account of the assessee, he was of the opinion that there is no balance in his account except amount of ₹ 70,240/- and therefore confirmed the order of the Assessing Officer. The assessee has not filed any details and any evidence to substantiate the source for introduction of the capital. Therefore, we find no infirmity in the order passed by the ld. CIT(A). Thus, this ground of appeal raised by the assessee is dismissed. Addition towards sundry creditors - Held that:- On appeal before the ld. CIT(A), the assessee has not filed any evidence, therefore, he confirmed the order of the Assessing Officer. Even before us, no evidence with regard to sundry creditors has been filed. Therefore, we find no reason to interfere with the order of the ld. CIT(A). Thus, this ground of appeal raised by the assessee is dismissed. Addition towards loan creditors - Held that:- The reason for non-filing of confirmation letter is that the promissory note itself is sufficient, however, the assessee has filed confirmation letters in respect of 09 loan creditors. Therefore, in our view, it is not correct to say that he is not aware about the value of the confirmation letter. Therefore, at this stage, this evidence cannot be admitted. Even confirmation letter filed by the loan creditor Mr. S. Venkateswara Reddy is having only Ac. 4.76 of land and he has given loan of ₹ 4.00 lakh, but he has not explained the source properly and genuineness of the transaction. Therefore, this cannot be considered at this point of time. Accordingly, the plea raised by the assessee is rejected. So far as merits of the case is concerned, the ld. CIT(A) has rightly deleted the addition in respect of 09 loan creditors, where confirmation letters are filed. So far as ₹ 24.00 lakhs is concerned, the assessee is not able to substantiate the creditworthiness of the loan creditors and genuineness of the transaction and therefore, the ld. CIT(A) confirmed the order of the Assessing Officer. We find no reason to interfere with the order of the ld. CIT(A). Thus, this ground of appeal raised by the assessee is dismissed.
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2018 (9) TMI 528
Revision u/s 263 - claim of deduction u/s 10B - Held that:- We find that in the case of TEI Technologies P Ltd (2012 (9) TMI 47 - DELHI HIGH COURT) held that the stage of deduction u/s 10AA of the Act would be while computing the total income of the eligible unit under Chapter IV of the Act and not at the stage of computing income as per Chapter VI of the Act (which covers section 70 and 71 of the Act). CIT had also agreed to this proposition in his revision order passed u/s 263 of the Act and had directed the ld AO to grant deduction u/s 10AA of the Act accordingly. Hence we hold that the ld CIT himself in his order passed u/s 263 had admitted deduction u/s 10AA of the Act while computing the Gross total income under Chapter IV of the Act as has been claimed by the assessee company in its return of income and accepted by the ld AO in the course of assessment proceedings. Ground raised by the assessee is allowed. Foreign Exchange Fluctuation Loss - Held that:- The assessee in the instant case had opted for one of the options given to it in para 46A of AS -11 issued by ICAI with regard to treatment of the said loss in its books. This is relevant only for the purpose of books and not for income tax purposes. In income tax proceedings, the assessee has been consistently claiming the said exchange fluctuation loss as a deduction. Hence even on the principle of consistency as has been held by the Hon’ble Supreme Court in the case of Radhasaomi Satsang (1991 (11) TMI 2 - SUPREME COURT), the claim of exchange fluctuation loss deserves to be allowed, which was done by the ld AO. As in the case of Taparia Tools (2015 (3) TMI 853 - SUPREME COURT) had held that the entries in the books of accounts are not relevant for determination of income for income tax purposes. As far as income tax proceedings are concerned, there is no dispute that the assessee had been consistently claiming the said loss as a deduction in the past. Hence no error could be attributed in his order by the ld CIT in revisionary jurisdiction u/s 263 of the Act. Claim of deduction of Mark to Market Loss while computing the book profits u/s 115JB - Held that:- the provisions of Section 115JB of the Act, being a self contained code in itself, which starts with a non-obstante clause, specifically provides for specific items of additions and deletions to net profit as profit and loss account in order to arrive at the book profits thereon. We hold that this provision for MTM losses does not fall under any of the items of additions mentioned in the said section. In the absence of any specific requirement by any of the clauses (a) to (k) of Explanation 1 of section 115JB of the Act, the provision for MTM losses not added back while computing the book profits u/s 115JB of the Act, is in order. When this has been allowed by the ld AO after due examination of the same with reference to the legal provision and settled legal principles thereon, no error could be attributed in the said order of the ld AO warranting revisionary jurisdiction u/s 263 of the Act - no case for invoking revisionary jurisdiction u/s 263 - Decided in favour of assessee
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2018 (9) TMI 527
Interest expenditure disallowance - liability towards long term borrowings is ₹ 9,09,56,368/- as on 31/03/2012 and the corresponding figure as on 31/03/2011 was ₹ 8,25,10,213/- - contention of the assessee was that it had used the agricultural land for the purpose of business - Held that:-Contention of assessee itself shows that investment in agricultural land cannot be held to be business asset because it should have been shown as agricultural land only. Being so, interest incurred on borrowings used for purchase of agricultural land cannot be allowed a deduction in terms of section 36(1)(iii)as the condition laid down under section 36(1)(iii) has not been fulfilled. There is direct nexus between the interest bearing loans taken by the assessee and the investment made in agricultural land. The income generated from such land acquired by way of borrowings is exempt from tax u/s. 10(1) of the Act. The assessee incurred expenditure on such borrowings and therefore is not entitled for deduction of interest u/s. 36(1)(iii) of the Act which was rightly disallowed by the Assessing Officer. AR made an alternative claim that the assessee earned agricultural income on the said land to the tune of ₹ 1,93,540/- and therefore, interest should be disallowed to that extent only and the total interest cannot be disallowed - Held that:- Merely because the assessee did not earn agricultural income to the extent of disallowance of interest, disallowance cannot be reduced. It is not hard and fast rule that on each and every investment in exempted yielding asset, the assessee would earn income equivalent to the interest income. Earning of exempted income is not certain because it depends on various factors. The established facts are that the assessee used the borrowed funds for the purpose of acquisition of agricultural land and not for the purpose of business. Therefore, once the income is exempted u/s. 10(1) of the I.T. Act, the said income is directly related to the investment made in the agricultural land, it is not possible to accept the alternative contention of the Ld. AR that part of the interest may be disallowed out of the total disallowance made by the Assessing Officer. This contention of the Ld. AR is also rejected. Also there is no merit in the findings of the CIT(A) that the provisions of section 36(1)(iii) of the Act does not have clause of “put to use”. As per this section, interest expenditure could be allowed only if the loan was borrowed for the purpose of the business of the assessee and if it is used for the purchase of an asset which yielded exempted income, that interest expenditure cannot be allowed u/s. 36(1)(iii) of the Act. Accordingly, we reject all the contentions of the assessee. - Decided in favour of revenue
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2018 (9) TMI 526
Addition u/s.14A r.w. Rule 8D - Held that:- No disallowance could be made u/s. 14A of the Act. The Hon’ble Delhi High Court in the case of Cheminvest Ltd. v. CIT (2015 (9) TMI 238 - DELHI HIGH COURT) has categorically held that section 14A envisages that there should be actual receipt of income which was not includible in the total income during the relevant previous year for the purpose of disallowing any expenditure in relation to the said income. Wherever there is no exempt income includible in the total income of the assessee, the provisions of section 14A cannot be invoked. - Decided in favour of assessee.
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2018 (9) TMI 525
Reopening of assessment - addition u/s 68 - assessee charged share premium of ₹ 154.72 per shares for 28,66,500 shares issued during the year - income from other sources - Held that:- As per the provisions of section 56(2)(viib), where a company, not being a company in which the public are substantially interested, receives, in any previous year, from any person being a resident, any consideration for issue of shares that exceeds the face value of such shares, the aggregate consideration receive for such share as exceed the fair market value of such share was inserted by the Finance Act, 2012, w.e.f. 01/04/2013 and the present assessment year before us is 2009-10, therefore, the amendment made in section 68 is prospective in nature As decided in CIT vs Gangadeep Infrastructure Pvt. Ltd. (2017 (3) TMI 1263 - BOMBAY HIGH COURT) three essential tests while confirming the section 68 laid down by the Court namely the genuineness of the transaction, identity and the capacity of the investor have all been examined by the impugned order of the Tribunal and on fact it was found satisfied. Further it was a submission on behalf of the Revenue that such large amount of share premium gives rise to suspicion on the genuineness (identity) of the shareholders, i.e., they are bogus. The Apex Court in a case in this context to the preamended section 68 has held that where the Revenue urges that the amount of share application money has been received from bogus shareholders then it is for the Incometax Officer to proceed by reopening the assessment of such shareholder and assessing them to tax in accordance with law. It does not entitle the revenue to add the same to the assessee's income as unexplained cash credit. - decided against revenue
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Customs
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2018 (9) TMI 521
Release of detained goods - goods are perishable in nature - Section 110A of the Customs Act, 1962 - Held that:- Since the goods are perishable in nature and the petitioner has applied under Section 110A of the Act of 1962 on August 29, 2018 and the customs authorities has issued a notice of hearing for September 11, 2018, it would be appropriate to direct the customs authorities to consider and dispose of such proceedings as expeditiously as possible - petition disposed off.
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2018 (9) TMI 520
Condonation of delay in filing appeal - principles of Natural Justice - Held that:- A delinquent in a proceedings before the adjudicating authority is entitled to a right of hearing. In the present case, the petitioner was afforded a right of hearing. The petitioner, however, wanted deferment of the first date of hearing on medical conditions - here the petitioner consists of more than one natural person. Therefore, the petitioner cannot take benefit of the so-called medical condition of one of the partners to ask for repeated adjournments. Taking a sympathetic view on the subject, it would be appropriate to quash the impugned order on the ground of the same being vitiated by breach of the principles of natural justice, as it does not deal with the request for adjournment on their second date of hearing - the impugned order is quashed to the extent of the petitioner only - petition disposed off.
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2018 (9) TMI 519
Application for renewal of licence - Held that:- The interest of justice should be sub-served by requiring the authorities to decide on the application for renewal of licence made by the petitioners on May 25, 2018, in accordance with law - petition disposed off.
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2018 (9) TMI 518
Provisional release of goods - calling of records - refund of excess amount paid - Held that:- If the petitioner pays the duty in accordance with the declared valuation, the goods shall be released to the petitioner on the petitioner executing a bank guarantee for the balance duty under dispute - So far as refund is concerned, the respondents shall take into account the grievance highlighted by the petitioner with respect to issuance of an order under Section 17(5) enabling the petitioner to file appeal, taking into account whether the duty was paid by the petitioner under protest or otherwise. Petition disposed off.
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2018 (9) TMI 517
Release of detained goods - goods were imported without paying the demurrage and container detention charges - Held that:- It is not clear as to why on every occasion the Court has to direct the 4th respondent to comply with the orders passed by the department. If the respondents 3 and 4 are flouting the orders passed by the department, then, it is for the department to initiate action to cancel the licence/permission granted to them. The respondents 3 and 4 have been granted licence under the relevant regulations and if they do not comply with the direction issued by the department, necessary action should be initiated against them - the writ petition is disposed of with a direction to the respondents 3 and 4 to forthwith release the imported cargo without insisting upon the payment of demurrage charges and detention charges till the date of release.
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2018 (9) TMI 516
Confiscation under Section 113(c) of the Customs Act - Export taking place or not - rice and paddy - In the raid it was found that the petitioner is indulging in permitting transportation of similar goods from Indo-Nepal border on tractors bearing Nepal registration number and various documents and materials showing indulgence of the petitioner in these kind of activities were seized - Held that:- The earlier similar act by the appellant in illegally transporting the goods and various other material are available to hold that an attempt was made to export the goods and, therefore, the provisions of Section 113(c) of the Customs Act is attracted. The finding recorded by the Learned Tribunal in our considered view is a reasonable finding based on due appreciation of evidence that has come on record and we find that no substantial question of law involved in the matter for making indulgence into the same - Confiscation upheld. Penalty - Held that:- Penalty can be imposed upon only on one of the persons or the legal entity, i.e. either the concerned establishment or its owner and not on both. Imposition of penalty on both would amount to double punishment which is not permissible in law. To that extent the appeal has to be allowed as the law prohibits imposition of penalty for the same act of omission or commission on two individuals - The concerned Revenue authorities directed to recover penalty either from the concern or establishment or from the owner but not from both. Appeal disposed off.
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2018 (9) TMI 515
Provisional release of goods - conditions and expeditious consideration of the adjudication - it is the allegation of the Department that the appellant had imported the goods in his name only to avoid detection if the import is made by the brother himself - Held that:- Before adjudication there need not be a cash deposit, since payment of duty as per the declared value and execution of bond has been insisted. There is also a further bank guarantee for ₹ 3,00,000/- from a Nationalised Bank towards probable fine and penalty - Appeal disposed off.
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2018 (9) TMI 514
Smuggling - Gold Bars - Confiscation - Section 111 of the Customs Act and Section 135 of the Customs Act - divergent views of different Courts - whether the acquittal order is sustainable? Held that:- Surely, when two views are available, one view was accepted by the trial court and acquitted the accused, the appellate court may not unsettle the same by saying that another view is also possible. The Hon'ble Apex Court said that the subject matter, i.e., 30 gold biscuits are subject to confiscation, it can be said that, that issue has been finally decided by the Apex Court. It is binding upon all the Courts and the authorities in India. When there is such a finding, it can be only said that in a prosecution under Section 135 of the Customs Act, the primary burden of the prosecution has been discharged - the burden as such will not be upon the appellant, as in a proceeding under Section 111 of the Customs Act. Surely, the burden upon the respondent is not that as in a civil proceedings. The impugned judgment of acquittal is hereby set aside and the matter is remanded back to the trial Court to decide afresh after affording opportunity to the parties to adduce evidence, if any, they want to produce - appeal allowed by way of remand.
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2018 (9) TMI 513
Maintainability of petition - alternative remedy - remand of the case - Held that:- The respondent herein could not have relied on and even referred to the order, dated 29-12-2004, but what was expected of him was to take an independent decision in the matter based on the documents placed by the petitioner, after hearing the assessee. This, having not been done, the impugned order calls for interference. It is made clear that this Court has not gone into the merits of the matter and the correctness of the impugned order has been examined only on the above grounds. The matter is remanded to the respondent for fresh consideration, who shall take an independent decision in the matter, uninfluenced by any of the earlier orders and the decision of the respondent should be a speaking order - Petition allowed by way of remand.
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2018 (9) TMI 512
Quantum of penalty - appellant was allegedly involved in the export of sub-standard garments, with inflated FOB values, with the intention of claiming undue drawback - Held that:- From the record there is nothing to suggest that the appellant was aware of the over- valuation of the goods, with the intention of claiming fraudulent drawback. Lower Authority has recorded that he was very much aware of the unnecessary exercise of transportation of goods from Uran to ICD Dhannadh and back to the Nhava Sheva. The knowledge of this suspicious act along with act of preparing export invoices has been used to justify the penalty imposed on him. The main conspirators, in the case i.e. Shri Kirit Sharimankar and Shri Ajay Mishra were directly involved in this fraudulent export. The only benefit received by the appellant is in the form of certain payments of ₹ 3000 per container for the role played by him - the penalty imposed on the appellant on the higher side and is reduced from ₹ 5 Lakh to ₹ 1 Lakh, in the interest of justice - appeal allowed in part.
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2018 (9) TMI 511
Quantum of Penalty u/s 112 (a) read with 114 (AA) of the Customs Act, 1962 - Held that:- In this case for a duty of ₹ 57 lakhs, penalty of ₹ 3.2 Crs imposed on the appellant is not justified - matter remanded back to the Adjudicating Authority for fresh adjudication to find out whether the penalty is imposable upon the appellant and if yes, then what should be the quantum of the penalty - appeal allowed by way of remand.
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2018 (9) TMI 510
Penalty u/s 112 (a) and 114 (AA) of the Customs Act, 1962 - import of the mis-declared goods - under-valuation - illegal import - Whether the appellant was actively involved in the import so as to be liable to be imposed penalty on him? Held that:- On going through the details of phone calls between the appellants and co-noticee, namely Shri Deepak Kumar Rishi and Shri NK Singh reveals that these phone calls were made during the period 29.09.2011 till 10.10.2011 whereas in this case, the import has been done on 27.10.2011 - Moreover, as per the statement of Shri Deepak Kumar Rishi, he made a phone call to the appellant on 31.10.2011 stating about the examination of the said goods and the details of the branded goods. There is no record of the phone call made by Shri Deepak Kumar Rishi on record for 31.10.2011. The case record for the period 29.09.2011 to 10.10.2011 cannot be the basis to impute the appellant in illegal import - Merely on the basis that the appellant is a CHA whose license has been suspended in some other case cannot be the basis to implicate the appellant in the case in hand. In these circumstances, in the absence of any evidence against the appellant, no penalty can be imposed under Section 112 (a) and Section 114 (AA) of the Act. Penalty set aside - Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 509
Penalty u/s 112 (b)(ii) of the Customs Act, 1962 - Smuggling - Gold - it was alleged that the appellant is guilty of being party to the smuggling activity in respect of seized gold - Held that:- For his indulgence in the facilitation of smuggling activity at the Airport. The appellant at relevant time, had been working Bird Worldwide Freight Pvt. Ltd. as he was authorized cargo handling agent at there. He has lost the job after his involvement in the smuggling activity, he has accepted his mistake and prayed for lenient view while imposing penalty. The appellant suffered a lot by loss of his job and thriving on a meager salary. It would be difficult for him to arrange such a huge amount of personal penalty. In this case the adjudicating authority has not made any distinction between the main smuggler and his accomplish i.e. the appellant - the penalty imposed appears to be too harsh and beyond the propensity of the offence committed by the appellant. Penalty imposed reduced to ₹ 4 lacs., to be adjusted out of pre deposit and balance amount to be paid in installment of ₹ 10,000/- per month till the amount of penalty imposed is recovered from the appellant - appeal disposed off.
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2018 (9) TMI 508
Penalty u/s 114 of CA on CHA - it was alleged that appellant had abetted the exporter in the misuse of drawback scheme - Held that:- The SCN does not examine specific role of the CHA. The nature of omission or commission conducted by CHA has not been identified. The impugned order also fails to point out any specific act or omission of the CHA. In absence of any evidence, whatsoever against the CHA and in absence of identification of any specific act or omission on the part of the CHA, the penalty imposed against the CHA cannot be sustained - Appeal allowed - decided in favor of appellant.
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Corporate Laws
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2018 (9) TMI 523
Winding up petition - Held that:- The facts that emerge are that from April 2013 to February 2014, the respondent accepted delivery of goods without a whisper that there were some defects or the goods were not as per the purchase order. Having received and consumed the goods they failed to pay the dues. It is only subsequently after receipt of the legal notice from the petitioner for the payment of the outstanding dues which was sent on 26.06.2014 that the respondent has woken up to claim that there is some variation in the goods supplied which do not suit the business conditions of the respondent. There is no explanation why this plea was not taken when the goods were delivered. The defence which is sought to be raised cannot be said to be bona fide or prima facie valid. No doubt the learned counsel for the respondent has relied upon the two communications to plead that they have received complaints about peeling of paint. However, these complaints are received from the alleged customers of the respondent and do not generate any confidence. In my opinion, the defence raised by the respondent cannot be said to be bonafide. Accordingly, I admit the present petition. 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.
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2018 (9) TMI 522
Winding up petition - existence of bonafide dispute - Held that:- There is no bonafide defence raised by the respondent. The cheque issued for ₹ 4,56,122/- dated 27.10.2010, the acknowledgment dated 14.01.2012 by Mr.Narender read with the fact that when the legal notice was sent, there was no response by the respondent show that there is no defence or bonafide defence available to the respondent. Co-jointly all these facts lead to the conclusion that the said sum is due and payable. The faint and vague plea of denial by the respondent are make belief. The settled legal position is that the debts due should be payable by the respondent company. It is only where the respondent company raises a bonafide dispute then no winding up petition would lie. The respondent company has failed to show any bonafide dispute. Accordingly admit the present petition. 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 in the Delhi editions of the newspapers ‘Statesman’ (English) and ‘Veer Arjun’ (Hindi), as well as in the Delhi Gazette, at least 14 days prior to the next date of hearing.
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Insolvency & Bankruptcy
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2018 (9) TMI 524
Corporate insolvency process - neither the Petitioner nor the respondent has obtained the Product Acceptance of BSNL - Held that:- The tribunal observes that the offer from the petitioner has no stipulation regarding the acceptance of the equipment by BSNL or any other third party. However, the purchase order of the respondent dated 13.09.2010 Page no.84 Annexure D mentions a condition which is as under: “Payment Terms: 90 days from the date of Delivery Acceptance by BSNL.” This constitutes a counter offer and the petitioner has implicitly accepted it by making delivery of the equipment in terms of the above purchase order. In view of this, the petitioner at this juncture cannot claim that he is no way concerned with the acceptance or otherwise of the installed equipment in the premises of BSNL. Tribunal further observes that by making the supply to the Respondent, the Petitioner Company has given implied consent to the counter offer made by the respondent. In this case, neither the Petitioner nor the respondent has obtained the Product Acceptance of BSNL and hence has not fulfilled the condition required. Thus the petition filed by the Operational Creditor under section 9 Rule 6 of the IBC, 2016 at this point of time is premature and is liable to be dismissed. The Tribunal further clarifies that the right of the operational creditor to approach this forum under Section 9 of IBC is unaffected if and when the respondent does not make any payment within a period of 90 days from the date of delivery of acceptance by BSNL.
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Service Tax
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2018 (9) TMI 503
Banking and Other Financial services - reverse charge mechanism - Section 66A of the Finance Act, 1994 read with Rule 2 (1)(4) of Service Tax Rules, 1994, and read with Rule 3 of Taxation of Services (provided from outside and received in India) Rules 2006 - appellant assessee have availed services of certain foreign based agencies for receiving external foreign commercial borrowings (ECB) from abroad - Time Limitation. Held that:- As per the provisions of Section 66A of the Finance Act, 1994 read with Rule 3 of Taxation of Services (provided from Outside India and received in India) Rules, 2006, the recipient of services needs to discharge their service tax liability as if such services have been performed in India. It is categorically been provided that even if a part of borrowings have been used abroad for the business purposes, the facts remain that recipient of services is based in India and therefore, as per the provisions Section 66A of Finance Act, 1994 read with relevant rules, the appellant assessee should have discharged their service tax liability in India, on the amount of commission paid by them as the value of services received by them from abroad - Thus, the appellant-assessee are legally liable to pay service tax on the service of foreign institutions availed in getting their ECBs. Time Limitation - Held that:- Since the noticee is already registered with the Central Excise department and is also regularly filing his Excise and Service tax returns, they cannot plead ignorance about the provisions of reverse charge mechanism for payment of service tax on the services received from abroad - even when the assessee has become aware that in July, 2007 itself that there may be certain legal issues regarding service tax liability on the services availed by them from abroad, however, we find that they have not stirred themselves to final take certain conclusive steps, in making compliance of service tax law - the extended time proviso under Section 73(1) of Finance Act, 1994 rightly invoked. Appeal dismissed - decided against appellant.
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2018 (9) TMI 502
Rectification of Order - Manpower recruitment or supply agency Services - Held that:- From the record, it is observed that the grounds of appeal as raised before the Commissioner (Appeals) included all other grounds of defence as were taken by the appellant before the original adjudicating authority. The silence of the Commissioner qua all remaining grounds mentioned therein makes it clear that the order of Commissioner (Appeals) is a non-speaking order as far as the merits of the appeal are concerned - Further perusal of record shows that the appellant himself has provided a chart with breakup of such different services, as alleged by the Department of being provided by him. It is a fit case to be remanded back to Commissioner (Appeals) to be re-decided qua all the issues of the appeal - appeal allowed by way of remand.
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2018 (9) TMI 501
Works Contract services - Department alleged short / non payment of Service Tax resulting in Show Cause Notice dated 9.9.2011 which raised a demand for ₹ 49,12,051/- along with interest at appropriate rate and proportionate penalty - Composition Scheme - Held that:- It is admitted fact that option is filed prior to making payment which is only the mandate of Composition scheme under Rule 3(3) of 2007 Rules thereof - The sole plea of the department that option has not been exercised, is therefore found not tenable. Benefit of cum tax - Held that:- The Commissioner (Appeals) while confirming the penalty has considered the plea of the department about the delayed payment amounting to suppression. Appeal dismissed.
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2018 (9) TMI 500
Valuation - appellant had received certain amounts towards electricity and water charges since 2008-2009 and on which no service tax has been paid - Rule 5(2) of Service Tax (Determination of Value) Rules - Held that:- It is a matter of record that appellants have been charging 20% of sales proceeds from "Shan-e-Bhopal Restaurant" as a commission for providing support service to business in the form of providing space for the restaurant and other infrastructure support which included the premises for housing restaurant, man power, security service, etc. It is also a matter of fact that electricity and water charges have also been recovered by the appellant from the restaurant owner on actual basis and same has been deposited with the respective authorities providing electricity and water to the said premises - appropriate Service tax is payable on 20% commission charged by the appellant from ‘Shan-e-Bhopal restaurant’ for providing the premises and other infrastructure facilities. Whether the electricity and water charges recovered by the appellant will form part of the value of the service as per the provisions of Finance Act, 1994 or not? - Held that:- It can be seen that electricity and water services are being provided by other Government agencies and the charges for use of the said facilities is being raised on the service provider i.e. the appellant on actual basis which the appellant is collecting from the Shan-e-Bhopal Restaurant' and same is deposited with the authorities providing electricity and water. In view of these facts, it can be concluded that the appellant is purely working as an agent in collecting the charges with regard to supply of water and electricity and deposited the same with authorities concerned - appellant has behaved purely as and agent and the charges of electricity and water cannot be included in the taxable value of the services, namely support service of business provided by the appellant - the charges collected by them towards electricity and water, are not to be included in the taxable value for charging service tax. Appeal allowed.
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2018 (9) TMI 499
Refund of unutilized CENVAT Credit - most of the output services were being exported by the appellant/ assessee - input services - insurance premiums - Time Limitation - Held that:- The issue of availment of input service credit on the service tax paid by them on the insurance premiums on group insurance policy for their employees including the Directors is already covered by this Tribunal’s order in their own case M/S EXL SERVICE. COM (INDIA) PVT. LIMITED VERSUS CCE & ST, LTU [2017 (5) TMI 1461 - CESTAT NEW DELHI], where it was held that the appellants are rightly eligible to take credit of service tax paid on insurance premium on Group Insurance Policy, as the said service is an eligible input service - refund allowed. Time Limitation - Held that:- Demand is hit by period of limitation as the department has always been aware about the practice being followed by the appellant/assessee - there are no valid reasons for invoking the extended time proviso under Section 73 of the Finance Act, 1994 - demand is also barred by period of limitation. Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 498
Classification of services - appellant is engaged in providing services in the mining area - Department has alleged that the appellants are providing services of cargo handling but have not discharged their service tax liability - Held that:- The appellant was providing the services of loading and unloading of material. Apparently and admittedly these services were being provided in the mining area and the mining services has been brought under the service tax act with effect from 1.6.2007 - the appellant is providing services which are taxable in nature. Apparently and admittedly, appellant has not discharged any kind of tax liability. The matter needs to be considered by the adjudicating authority below for deciding the proper classification of the activity of the appellant - appeal allowed by way of remand.
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2018 (9) TMI 497
GTA Services - It has been the contention of the department that the appellant-assessee has not included the value of loading /unloading, and stacking charges in the service value of GTA service - CBEC circular No. 104/2007-2008 ST dated 6.8.2008 - short payment of tax - time limitation. Held that:- The provisions of Circular No. 104/07/2008-ST dated 6.8.08 are relevant only in cases where the consolidated value of transportation charges is being recovered from the service recipient by the service provider. And the clarification is primarily with regard to whether abatement will be entitled on the full value of such charges i.e. transportation charges plus cargo handling, loading, / unloading, stacking /destacking charges etc. are also included. In this particular case, the contracts for transportation of fertilizers cargo filed by the appellant assessee, with regard to various transport contractor are very categorically having two parts, first, which is primarily for transportation of fertilizers; and second is for loading / unloading and stacking/ de-stacking of fertilizers and separate charges for each activity are indicated. Since the value of both the services have categorically been provided separately, the appellant assessee has discharged his service tax liability under reverse charge mechanism of transportation charges as is the requirement of Service tax law, we do not find any legally tenable ground to demand service tax on the cargo handling charges on which service tax as per the provisions of service tax law is to be discharged by the service provider i.e. various transport contractors - Since in the present case, the value has been indicated separately and there is no charge of the department that the service provider of the cargo handling service like loading /unloading stacking /destacking of fertilizer consignment has not discharged their service tax liability. It is seen that the department has not even tried to prove that there is short payment of service tax. We also find that since there is no charge of non-payment of service tax by the contractors of cargo handling services like loading / unloading etc. in that case they must have paid service tax on the full value of service and if same is added to the transportation charges, the appellant-assessee will be entitled for prescribed abatement and as a result the Department would get less amount of service tax - there is no merit in confirming short payment service tax. Time Limitation - Held that:- Since the appellant assessee is being audited regularly by the Department and all the details have been in the knowledge of the department and the charge of suppression of facts or mis declaration etc. have not been established by the department., Therefore the demand of duty under section 73 (1) under extended time proviso is not sustainable on the ground of limitation in this case - demand is also barred by limitation. Appeal allowed - decided in favor of appellant.
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Central Excise
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2018 (9) TMI 496
Clandestine Removal - demand based on documents and information recovered from third party / ex-employee - cross examination - Whether the Customs, Excise and Service Tax Appellate Tribunal was right in rejecting and not taking into consideration computer printouts and holding them as inadmissible for failure to meet the conditions specified in Section 36B of the Central Excise Act? - Whether the decision of the Customs, Excise and Service Tax Appellate Tribunal is contrary to facts and perverse? - Whether the Customs, Excise and Service Tax Appellate Tribunal was right in excluding statement of Janki Sharma and computer printout and in holding that there was no evidence to show clandestine removal? Held that:- It is evident that the case built up against the assessee is entirely based on the evidence procured from third party. The lynchpin of the Revenue s case is the statement of Ms. Janki Sharma. Concededly, there was nothing recovered from the premises of assessee connecting it with her-either as an employee or as a consultant. It is not even Revenue s claim that during the course of adjudication, it asked any query from the assessee for directing her to furnish the bank statement etc. to find out possible connection with respect to any payments made or other financial connection with Ms. Janki Sharma. The inference that the Revenue sought to draw a reference to ATM ; the link it sought to make by the statement of Ms. Janki Sharma. There was no scrap of paper or evidence linking the assessee with any allegations levelled against it vis- -vis excess production and clandestine removal. On the other hand, the CESTAT noticed that the assessee s installed capacity was the production of five ton of copper ingots. Apparently, the assessee was able to function only half the month i.e. for about 15 days. The questions of law framed are answered against the Revenue and in favor of the assessee - Appeal dismissed.
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2018 (9) TMI 495
Rejection of adjournment application - Tribunal refused such a request on the ground that the issues were in narrow compass - Held that:- Record reveals that no submissions were made on behalf of the appellant. The Tribunal dismissed the appeal only hearing the representative of the department, perusal of the record and the grounds of appeal. If the Tribunal was of the opinion that because of repeated adjournments or any such similar reason, no case for further adjournment was made out, the request could have been rejected. However, the ground that since the issues are in narrow compass, such adjournment should not be granted is a risky one. The proceedings are remanded and placed back before the Tribunal for fresh consideration and disposal in accordance with law.
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2018 (9) TMI 494
Recovery of Central Excise Duty - Time Limitation - Section 11AC(1) of the Act - Held that:- When the matter was allowed and all the issues were directed to be decided by the Adjudicating Authority de novo, it would have been appropriate for the Tribunal to also remit the matter to the Adjudicating Authority to decide the question of limitation and the extended period of limitation under Section 11A(1) read with Section 11A(4) of the Act. The authority is required to consider whether any fraud or collusion or wilful misstatement or suppression or contravention of any provision of the Act was made by the appellant in a particular case while considering the extended period of limitation. Since the Tribunal has remitted the matter to the Adjudicating Authority for re-consideration on all the issues de novo, the question as to whether the show cause notice was issued within the period of limitation or otherwise needs to be considered and adjudicated afresh by the Adjudicating Authority. Appeal allowed by way of remand.
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2018 (9) TMI 493
CENVAT Credit - inputs/capital goods - wire rods, MS plate, HR Plate etc - Held that:- Such items have been procured and used by the appellant for fabrication of foundations and other supporting structures for capital goods. Cenvat Credit on such items has been consistently allowed by the Tribunal in various cases - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 492
Validity of second SCN - Time Limitation - SSI Exemption - Use of Brand Name of Others - Nuloux - Ganak - Savstar - N/N. 8/2003-CE dated 1.3.2003 - Held that:- In this case admittedly, investigation was conducted on 22.1.2013 and during the course of investigation certain goods were seized. For seizure of the said goods, a show cause notice was issued on 19.7.2013 to the trading unit i.e. M/s Devika Enterprises wherein the allegation is that the manufacturing unit is engaged in manufacturing and clandestinely clearing the goods in brand name of others. The said manufacturing unit is named as M/s B.M. Enterprises, but no show cause notice was issued. Later on, after issuance of the second show cause notice, the show cause notice dated 19.7.2013 has been dropped against the appellants. The appellants are manufacturing branded goods of others and subsequent notice has been issued on the basis of same investigation on 14.6.2016 is not sustainable - Reliance was placed in the case of NIZAM SUGAR FACTORY VERSUS COLLECTOR OF CENTRAL EXCISE, AP [2006 (4) TMI 127 - SUPREME COURT OF INDIA], where it was held that When the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. The show cause notice dated 14.6.2016 is not sustainable in the eyes of law - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 491
Classification of goods - mono cartons - whether classified under CETH 48192020 or under CETH 48173090 of Central Excise Tariff Act, 1985? - Extended period of limitation - demand alongwith Interest and Penalty - Held that:- The HSN does not throw light for proper classification of the goods but on going through the Chapter entries, it is found that the appellant are manufacturing boxes and for boxes, the Entry No. 48192020 is for boxes, therefore, the entry which is more specific, the goods are to be classified in that entry. In that circumstances, the classification on the impugned goods under Chapter Heading of 48192020 of Central Excise Tariff Act, 1985 is appropriate. Time Limitation - Held that:- As in this case on 1.11.2011, the appellant wrote a letter to the department for change of their classification and also filed ER-1 return accordingly. As the said fact was in the knowledge of the department since 2011, therefore, the show cause notice issued to the appellant on 2.1.2017 is barred by limitation. For the period within limitation the appellant is liable to pay duty along with interest - penalty not warranted as the action of the appellant was in the knowledge of the department itself - appeal allowed in part.
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2018 (9) TMI 490
CENVAT Credit - Sulphur - It appears to Revenue that the use of Sulphur as input is not exclusively for manufacture of dutiable excisable goods - whether the appellant is required to pay an amount under Rule 6(3) of the Cenvat Credit Rules, 2004 on removal of items like maize husk, maize gluten, maize germ, which are unintended products in the manufacture of maize discharge? - Time Limitation. Held that:- The present SCN by the Revenue is by way of change of opinion and as such, is hit by the limitation - So far as the demands for the current period 2015–16 is concerned, it is an admitted fact in the SCN that the appellant has reversed the proportionate credit on the input - Sulphur and other inputs and have reversed the proportionate credit on the basis of turnover of exempted goods and dutiable goods, which fact is not disputed and has been recorded in the SCN. The appellant has already reversed the proportionate amount under Rule 6(3)(2) of the CCR, they are not required to reverse the CENVAT credit - Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 489
Validity of SCNs - repeated SCNs - principles of audi alteram partem - SSI Exemption - Clubbing of Clearances - Held that:- The grounds of appeal are repetition of allegation in the SCN. Further, this Tribunal has observed that earlier Order-in-original (first round) dated 09.01.2009 was bad for violation of principles of natural justice audi alteram partem - appeal of Revenue is dismissed - decided against Revenue.
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2018 (9) TMI 488
Reversal of CENVAT Credit - input has been cleared as such - Rule 3 (5) of Cenvat Credit Rules, 2004 - Held that:- On perusal of the Appeal record and the CBEC CIRCULAR NO.1029/17/2016-CX, DATED 10-5-2016, it seems that the Board’s Circular squarely covers the issues in hand, as in this case also, the issue is of segregation of impurities from the aluminium scrap before they are put to use in the manufacture of Aluminium Ingots, molten metal etc - credit cannot be reversed - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 487
Valuation - inclusion of VAT subsidy in the assessable value - Section 4 of the Central Excise Act, 1994 - Held that:- Identical issue decided in the case of GREENLAM INDUSTRIES LTD [2018 (4) TMI 1552 - CESTAT NEW DELHI], where it was held that There is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT 37B Challans - appeal allowed - decided in favor of appellant.
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2018 (9) TMI 486
SSI Exemption - use of Brand Name of others - Department alleged that the brand ‘Rastogi’ belongs to some other firm - Held that:- The appeal of M/s. Steel Craft has already been decided by this Tribunal in M/S STEEL CRAFT VERSUS CCE, JAIPUR [2018 (5) TMI 1410 - CESTAT NEW DELHI] wherein the appeal filed by manufacturer-assessee namely, M/s. Steel Craft has been allowed by this Tribunal, and Order-in-Appeal confirming the duty amount has been set aside - Demand with penalty set aside - appeal dismissed - decided against Revenue.
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2018 (9) TMI 485
SSI Exemption - use of Brand name of others - The case of the Department is that prior to 06.04.2011 the appellants were using the brand name BESTON which belonged to another person and were therefore not entitled to avail N/N. 8/2003-CE - Held that:- The brand name belongs to Mr Prabha Dass Nathani, in whose name the brand was registered in the year 2005 and who happens to be the founder Director of the appellant company - Tribunal in the case of Anil Pumps Pvt. Ltd. vs. CCE [2004 (12) TMI 134 - CESTAT, NEW DELHI] have held that the benefit of SSI exemption is not deniable - SSI Exemption allowed. Valuation - rejection of transaction value - Held that:- The basis adopted by Revenue for rejecting the valuation adopted by the appellant and revaluating the goods at enhanced price based on the international brand is not tenable - Rejection of value not justified - Appeal allowed. Appeal allowed - decided in favor of appellant.
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2018 (9) TMI 484
Clearance of the goods required for Ministry of New and Renewable Energy - Benefit of N/N. 15/2010 dated 26.02.2010 - Subsequent N/N. 26/2012 dated 08.05.2012 - Held that:- The earlier notification has been modified by the subsequent notification, which is beneficial in nature and, therefore, it has to be given retrospective effect - Appeal allowed. Penalty u/r 26 of the CER - Held that:- Penalty on N.K. Khanna, Director set aside. Appeal allowed - decided in favor of appellant.
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CST, VAT & Sales Tax
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2018 (9) TMI 483
Vires of second proviso to Section 84 of the West Bengal Value Added Tax Act, 2003 - Held that:- The issues raised by the petitioner were considered and decided in W.P. No.1211(W) of 2016 M/s. Vatech Wabag Limited Vs. Deputy Commissioner of Sales Tax, Midnapur Charge & Ors. [2017 (4) TMI 1000 - CALCUTTA HIGH COURT], where the constitutional validity of such provision was upheld - petition disposed off.
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2018 (9) TMI 482
Principles of Natural Justice - Held that:- The Petition was adjourned on various occasions to enable the State to file reply. The learned Additional Government Advocate states that he has taken instructions from Respondent No.2- Commissioner and he states that factual assertions made by the Petitioner as above are correct. If the factual assertions made by the Petitioner, which we have reproduced are correct, then the case for breach of principles of natural justice before passing the impugned order is made out - prayer as sought for by the Petitioner will have to be allowed and the Commissioner will have to now proceed after giving hearing to the Petitioner. The proceedings are restored before the Respondent No.3 - Impugned order set aside.
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2018 (9) TMI 481
Attachment of property - Encumbrance has been created on the property owned by the petitioner - validity of assessment orders passed by the first respondent dated 21.11.2016 for the years 2010- 11 and 2011-12. Held that:- It is not in dispute that the first respondent addressed to the Customs Department and the Income Tax Department. However, he has not received any reply. This is so because the correct officers have not been addressed - The official, who is present in court, expresses his apprehension that in the event the proceedings culminated in an order levying tax, the Department will not be in a position to recover the same. When the assessment orders have been set aside and when the matters have been remanded for de novo consideration, the attachment cannot continue. Petition allowed.
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Indian Laws
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2018 (9) TMI 507
Dishonor of cheque - repayment of loan - Section 138 of NI Act - Held that:- It cannot be held that the finding of the learned Trial Court is perverse and contrary to the evidence led. The legal position with regard to the interference against the judgment of acquittal is well settled that if the view by the learned Trial Court is a plausible view then in an appeal against acquittal the Appellate Court will not interfere in the same unless the finding is perverse, based on no evidence or contrary to the evidence on record. Appeal dismissed.
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2018 (9) TMI 506
Dishonor of Cheque due to insufficiency of funds - Section 138 of the Negotiable Instruments Act, 1881 - Whether loan transaction existed or not? - the Court below acquitted the respondent / accused from the charges on the ground that the appellant / complainant has not proved the existing liability of the respondent. Further held that the complainant is not having any source for giving ₹ 2 lakhs as a loan to the respondent. Held that:- The Court below acquitted the respondent / accused from the charges on the ground that the appellant / complainant has not proved the existing liability of the respondent. Further held that the complainant is not having any source for giving ₹ 2 lakhs as a loan to the respondent. Moreover, the trial Court believing the documents exhibited on the side of the respondent held that the cheque pertaining to this case has not been issued by the respondent in order to discharge the loan alleged to be availed from the complainant. Now, challenging the above said order of acquittal, the present appeal has been filed. In an appeal against acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him and the fundamental principle of criminal justice delivery system is that every person, accused of committing an offence shall be presumed to be innocent, unless his guilt is proved by a competent Court of law. Secondly, if the accused has secured an order of acquittal, the presumption of his innocence is reaffirmed and strengthened by the trial Court. Even if two reasonable conclusions are possible on the basis of evidence on record, the appellate Court should not disturb the finding of the acquittal recorded by the trial Court. Appeal dismissed.
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2018 (9) TMI 505
Dishonor of Cheque due to insufficiency of funds - Section 138 of Negotiable Instruments Act - legally enforceable debt or not - whether the Courts below have failed in appreciation of the evidence and whether there is any illegality or impropriety in the judgement of the Courts below? Held that:- When opportunity was given to the revision petitioner to reply he did not avail that opportunity, but kept quiet till the complainant lodged the complaint before the Magistrate - Thereafter, as a defence he has pleaded that the cheques were stolen and he gave a complaint to the police. In support of that, he has also examined D.W.1, one Mr.Ravikumar, Sub-Inspector of Police and marked his compliant to the Sub-Inspector of Police, as Ex.D.1. From the evidence of D.W.1, this Court finds that on receipt of the complaint, Ex.D.1, summon was issued to the revision petitioner which was marked as Ex.D.4. Since he did not appear for enquiry, the complaint was closed and the same has been informed to him - the defence theory of lost cheque, has no legs to stand. Revision petition dismissed.
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2018 (9) TMI 504
Dishonor of Cheque - Time Limitation - only contention is that though the complaint has been filed on 17.03.2010 within the period of limitation, as it could be seen from the complaint and from the seal of the Lower Court, the complaint was returned to the respondent to represent within a period of two weeks time - proviso as per the Section 142 of the Negotiable Instruments Act. Held that:- If there is any delay in filing the complaint under the Negotiable Instruments Act, if a delay is explained to the satisfaction of the Court concerned, the same may be condoned. In this case, though, the complaint was filed well within the time, the delay of 147 days has occurred in representing the complaint. Hence, the Trial Court taking the Crl.M.P.No.7229 of 2010 on the file and issuance of notice to the petitioner who is an accused in un-numbered S.T.C. of 2010 cannot be construed as an abuse of process of law - the case is pending even without assigning S.T.C. Number from the year 2010, due to the pendency of the above Criminal Original Petition. Under Section 143 to 146 of the Negotiable Instruments Act, it could be seen that these amendments have been made for the purpose of the speedy disposal of the cases filed under Negotiable Instruments Act. Considering the inordinate delay, even at the pre-cognizant stage of the above case, this Court in the interest of justice directs the Trial Court to proceed with the case as expeditiously as possible.
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