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GST
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2023 (9) TMI 791
Suspension of GST registration of petitioner - non-compliance of the provisions of GST Act/Rules - no decision has been taken by the adjudicating authority till date - HELD THAT:- The writ petition is being disposed of at this stage without calling for Counter Affidavit of the respondents for the reason that no decision has yet been taken at the level of the respondent No.3 on the show cause notice dated 08.02.2023. A bare perusal of the show cause notice shows that no specific contraventions of GST Act or the Rules made thereunder have been alleged. The show cause notice is vague and it would be difficult for any noticee to submit a categorical reply, if contraventions are not clearly alleged. Meanwhile, petitioner s business continues to suffer because of suspension of the GST registration since February, 2023. It is deemed pro....... + More
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2023 (9) TMI 790
Input tax credit - denial of credit on the ground that no goods have been supplied to the petitioner - HELD THAT:- Considering that the petitioner has full opportunity to respond to the Show Cause Notice, it is not considered apposite to interfere at this stage. The issues are required to be considered by the Adjudication authority in the first instance. However, it is directed that in the event the petitioner responds to the Show Cause Notice, the concerned officer shall consider the said response. If the concerned officer proposes to pass an adverse order, he shall afford the petitioner full opportunity to be heard and shall pass a speaking order dealing with contentions as advanced by the petitioner. Petition disposed off.
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2023 (9) TMI 789
Refund of IGST - exparte order - opportunity of a hearing not provided to the petitioner - violation of principles of natural justice - HELD THAT:- The present proceeding would stand covered by the decision of the Division Bench of this Court in the petitioners own case M/s. Knowledge Capital Pvt. Ltd. Vs. Union of India [ 2023 (4) TMI 752 - BOMBAY HIGH COURT] had set aside the order impugned therein which was similar to the order as impugned in the present proceedings, with a direction that the refund application be restored to the file of the authority to be processed as per the procedure as applicable and as discussed in the said judgment. For the reasons as recorded in such judgment, it is opined that the respondent No.3 needs to follow the procedure which has been set out in the rules - it is found that such a procedure was no....... + More
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2023 (9) TMI 780
Classification of goods - treated water that would be sold by the Applicant, after carrying out various treatment process on the effluent water purchased by them - rate of GST applicable on the said treated water which would be sold by the Applicant - HELD THAT:- Upon going through the processes effected by the Applicant, the effluent water is subjected to micro-filtration and sand filtration process to remove suspended impurities. They have then used a series of RO units for removing minerals. In spite of the RO treatment, the TDS of the treated water is higher, which can be seen from the test report. As per the report furnished by The South India Textile Research Association (SITRA) Textile Testing and Service Centre, test report No. V2300305 dated 09.08.2023 of Sample given for testing, in the case of the Applicant, it is seen tha....... + More
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2023 (9) TMI 788
Seeking defreezing of petitioner's bank account - freezing not to be operative beyond a period of one year - Jurisdiction to pass such order - order not issued by the Commissioner, but by an officer of a lower rank - HELD THAT:- In terms of Section 83 of the CGST Act, no order of provisional attachment could be issued by any officer other than the Commissioner, and third, that the conditions as stipulated under Section 83 of the CGST Act, that is, if the Commissioner is satisfied, that it is necessary in the interest of the Revenue to issue such an order is not reflected in the impugned attachment order. Revenue on advance notice states, at the outset, that a communication is being issued to the concerned bank to clarify that the order is no longer operative. He also states that the officers of the GST Department have been sensi....... + More
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2023 (9) TMI 787
Seeking release of vehicle detained with goods - delay in passing the order - typographical error or not - certain errors made while preapring invoices - HELD THAT:- On perusing the Tax Invoice, it is seen that in the Billed To column, the said M/s.Rashmi has correctly mentioned Tvl.T.M. Steel with correct address of Tvl.T M Steel and has also mentioned its GST number. However, in the Shipped To column, instead of mentioning Tvl.T.Balaji, it has mentioned as Tvl.TM Steel. But in address column, it has been clearly mentioned Tvl.T.Balaji address as Devapuram Road, Thoothukudi. Therefore, it can be considered as typographical error only. Moreover, it is not the mistake of Tvl.TM Steel, it is the mistake committed by M/s.Rashmi. Moreover, as rightly pointed out by the Learned Counsel appearing for the petitioner that the respondent has....... + More
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2023 (9) TMI 786
Refund claim - commercial production not commenced - It was submitted that the mere fact that the appellant had not commenced production or manufacturing activities would not detract from the issue of refund being accorded a closure as contemplated under the Second Proviso to Section 142(3) of the Central Goods and Services Tax Act, 2017. HELD THAT:- Matter requires consideration - List again on 08.09.2023.
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2023 (9) TMI 785
Seeking direction to de-freeze/allow the operation of bank account - order of provisional attachment under Section 83 of the Central Goods and Services Tax Act, 2017 not received by petitioner - violation of principles of natural justice - HELD THAT:- Admittedly, in terms of Section 83(2) of the CGST Act, an order passed under Section 83 of the CGST Act would cease to be operative after an expiry of a period of one year from the date of the order. Thus, even assuming that any order under Section 83 of the CGST Act was passed by the respondents, which had triggered the communication dated 07.03.2022; the said order would not be operative. It is not necessary for this Court to examine the various other contentions raised in the present petition. The Bank is directed not to further interdict the operation of the petitioner s bank account on the basis of the communication dated 07.03.2023, which has ceased to be operative - Petition allowed.
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2023 (9) TMI 784
Maintainability of petition - availability of alternate remedy - Validity of impugned adjudication order - appealable order - HELD THAT:- This writ petition is not entertained on the ground of alternative remedy by way of appeal without going into the merits of the impugned adjudication order and to grant any relief in this matter except granting liberty to the petitioner to file the appeal against the impugned adjudication order and the Appellate Authority, if the appeal filed by the petitioner subject to the fulfilment of all other formalities of appeal it shall be considered and disposed of in accordance with law by passing a reasoned and speaking order. Petition dismissed.
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2023 (9) TMI 783
Maintainability of petition - non-constitution of appellate forum - petitioner has already deposited 10% of the demanded tax amount before the first appellate authority - condonation of delay in preferring appeal - HLED THAT:- Since the petitioner wants to avail the remedy under the provisions of law by approaching 2nd appellate tribunal, which has not yet been constituted, as an interim measure subject to the Petitioner depositing entire tax demand within a period of fifteen days from today, the rest of the demand shall remain stayed during the pendency of the writ petition. List this matter along with W.P.(C) No.6684 of 2023 on the date fixed therein.
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2023 (9) TMI 782
Seeking release of goods alongwith conveyance - exercise of powers under Section 129 and thereafter switching over to Section 130 and passing order thereunder without availing the petitioner the benefits of release of the goods under Section 129 - HELD THAT:- In the facts and circumstances of the case, by way of interim relief, it is directed that the goods of the petitioner as well as vehicle bearing registration MH-09CU-0099, shall be released provided the petitioner complies with the conditions imposed. Petition allowed.
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2023 (9) TMI 781
Maintainability of appeal - appeal dismissed on the ground that the appeal was not accompanied by the certified copy of the impugned order as per Rule 108(3) of the Haryana Goods and Service Tax Rules, 2017 - appeal not in accordance with Section 107 of the Haryana Goods and Service Tax Rules, 2017 - HELD THAT:- This issue has already been taken into consideration by this Court in KPMG INDIA PVT. LTD. VERSUS JOINT COMMISSIONER OF STATE TAX (APPEALS) FARIDABAD AND OTHERS [ 2023 (5) TMI 642 - PUNJAB AND HARYANA HIGH COURT] . The said writ petition was allowed keeping in view that the impugned orders were already uploaded on common portal and were already part of the appeal and it would amount to substantial compliance of Rule 108 of the HGST Rules, 2017. Hence, the appeals filed by the petitioner could not be dismissed on the ground that....... + More
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Income Tax
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2023 (9) TMI 799
Levy of penalty u/s 271B - assessee failed to get accounts audited as per provisions of section 44AB - non maintenance of books of accounts by assessee - appellant was under the misbelief that if the income declare is above 8% of gross profit, then he is not required to get its accounted audited - HELD THAT:- As apparent from the records that assessee because of her bonafide belief may be wrong has not maintained any books of account and, therefore, it was impossible to get the accounts audited which were not even ever prepared/maintained. The ratio of law as interpreted in the case of CIT vs. Bisauli Tractors ( 2007 (5) TMI 181 - ALLAHABAD HIGH COURT ) on which the assessee placed reliance wherein the Hon ble High Court has concluded that the penalty u/s 271B of the Income Tax Act is not attracted in case where no account has been ....... + More
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2023 (9) TMI 798
Addition u/s 56(2)(vii)(b)(ii) - difference in the value that was adopted by the stamp valuation authority for payment of stamp duty as against the value for which the sale transaction was executed - declining reference by the A.O to the Valuation Cell for determining the fair market value (FMV) of the said property - HELD THAT:- A conjoint reading of Section 56(2)(vii) r.w.s. 50C(2)(b), therein reveals that such right is available only where the value so adopted or assessed or assessable by the stamp valuation authority for the purpose of payment of stamp duty in respect of the transfer transaction had, inter alia, not been disputed by the assessee in any appeal or revision and no reference has been made before any other authority, court or the High Court. As in the present case, the assessee had disputed the stamp value of the pro....... + More
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2023 (9) TMI 797
Addition u/s 56(2)(viib) - difference between the financial projections and actual projections submitted by the assessee - recognized method of valuation rejected - CIT(A) deleted addition concluding that DCF Method is the correct method for valuation of shares - HELD THAT:- There is no dispute that the valuation of the assessee is supported by valuation report from a technical expert who has adopted DCF method, which is one of the recognized methods u/r 11UA of the Rules. Therefore, AO erred in rejecting the method. On a perusal of the relevant sections read with the Rules, we are of the view that the action of the AO in substituting the method of valuation is beyond jurisdiction. DCF Method is based on projections which are based on factors like growth of the company, economic/market conditions, business conditions, expected deman....... + More
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2023 (9) TMI 796
Rectification u/s 154 - main grievance of the assessee is that it has earned long term capital gain from the sale of shares which has been brought to tax by the AO, and as per assessee, the same ought not to have been taxed because the said income is exempt u/s 10(38) - dismissal of appeal against order passed u/s 154 as appellant has not accepted the assessment order and filed an appeal against the order sought to be rectified, therefore he cannot ask for rectification of assessment order - HELD THAT:- We are of the considered view that this matter need to go back to the file of AO for fresh consideration of the matter, and assessee is directed to produce all the relevant records/evidences to prove that the assessee is entitled for exemption from tax on long term capital gains earned on the sale of shares as is stipulated u/s 10(38). ....... + More
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2023 (9) TMI 779
Penalty u/s 271(1)(c) - defective notice u/s 274 - non specification of clear charge - valid assumption of jurisdiction by the A.O or not? - HELD THAT:- We are of a firm conviction that the very purpose of affording a reasonable opportunity of being heard to an assessee as per the mandate of Sec. 274(1) of the Act would not only be frustrated but would be rendered redundant if he is not conveyed in clear terms the specific default for which penalty under the said statutory provision was sought to be imposed. In our considered view, the indispensable requirement on the part of the A.O to put the assessee to notice as regards the specific charge contemplated under the aforesaid statutory provision, viz. concealment of income or furnishing of inaccurate particulars of income or both of the said defaults is not merely an idle formality....... + More
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2023 (9) TMI 778
Revision u/s 263 - assessment is taken up for limited scrutiny - payment to contractors and tax deducted thereon - HELD THAT:- From the assessment order we note that the case was selected under Limited Scrutiny to examine the expenses earned by the assessee for earning exempt income . In the assessment order, AO observed that the assessee has submitted its reply on the above issue for which assessment was opened and no addition was made on this issue. Accordingly, the AO being satisfied with the reply/clarification filed by the assessee, accepted the returned income of the assessee and no additions were made in the assessment order. In the recent case of Sahita Construction Company [ 2022 (2) TMI 1298 - ITAT INDORE ] the Tribunal held that when the assessment is taken up for limited scrutiny, Ld. Pr. CIT cannot hold the assess....... + More
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2023 (9) TMI 777
Deduction under Sec. 80P - a primary agricultural cooperative society engaged in the business of banking, paddy procurement, sale of fertilizer, seeds, manures and pesticides as well as sale of controlled items under the Public Distribution System (PDS) - HELD THAT:- Tribunal in the case of Gramin Sewa Sahakari Samiti Maryadit Ors [ 2022 (3) TMI 75 - ITAT RAIPUR ] had after necessary deliberations on the issue in hand remanded the matter to the file of the A.O, with a specific direction i.e, to restrict its claim for deduction as regards its profit from PDS only to the extent of its net profit i.e., after considering the proportionate expenses. Thus restore the matter to the file of the AO, with a direction to restrict the assessee s claim for deduction as regards its profit from PDS only to the extent of its net profit i.e., afte....... + More
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2023 (9) TMI 795
Addition u/s 68 - disallowance of exemption of long-term capital gains claimed u/s 10(38) - AO placing reliance upon the investigation carried out by the Directorate of Investigation, Kolkata in relation to 84 penny stocks, the financial position of the Companies in whose shares assessee has transacted and fluctuation in the share rates in a short span of time - HELD THAT:- We find that the AO without commenting on any of the evidence submitted by the assessee placed reliance upon the report of the Investigation Wing, Kolkata, and the price fluctuation of shares of the entities in which the assessee has transacted. The findings of the Investigation Wing, appears to be mere general findings of the investigation without any adverse observation regarding the assessee or the scrips in which the assessee has transacted. Revenue has fail....... + More
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2023 (9) TMI 794
Addition u/s 56(2)(vii) - shares of the company were purchased for a consideration which is less than the fair market value of the shares - year of purchases of the shares - facade to convert unaccounted money by way of shell companies and putting them into a series of transactions to give a legitimate colour of converting of unaccounted cash available with the individuals - HELD THAT:- Appellant had nowhere contested the applicability of the provisions of sec.56(2)(vii)(b) of the Act to the transactions Challenge for year of transaction was rightly dislodged by the Ld. CIT(A) as well as the Assessing Officer by bringing the cogent material on record to show that the assessee-appellant had purchased the shares during the year under consideration. The assessee also had failed to controvert the findings of the lower authorities that....... + More
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2023 (9) TMI 776
Disallowance of advance excise and deposit u/s 43B - HELD THAT:- As decided in assessee own case [ 2013 (9) TMI 1239 - ITAT DELHI] for the purpose of claiming benefit of deduction of the sum paid against the liability of tax, duty, cess, fee, etc., the year of payment is relevant and is only to be taken into account. The year in which the assessee incurred the liability to pay such tax, duty, etc., has no relevance and cannot be linked with the matter of giving benefit of deduction u/s 43B. Ins this view of the matter, the appeal deserves to be allowed. Prior period expenses disallowance - HELD THAT:- The issue of allowability of prior period expenses involved in the above ground of appeals of the Revenue is no more Res-integra, the jurisdictional High Court in the case of CIT vs. Jagjit Industries Ltd. [ 2010 (9) TMI 58 - DELHI ....... + More
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2023 (9) TMI 775
Revision u/s. 263 - As per CIT AO has wrongly estimated profit rate @ 8% on the differential cash deposit - HELD THAT:- AO while framing assessment has categorically noted that there is a difference between the cash sales and cash deposits into the bank and the explanation of the assessee before AO was that the difference between cash sales and cash deposits into his bank account was due to cash deposited out of collection from debtors being credit sales being executed, other collections etc. Hence, it was stated that the difference between cash deposit in the bank account is on account of cash sales or recovery from earlier year and hence, AO has taken a possible view and estimated the net profit on the differential cash deposit treating the same as sales. AO has taken one of the possible views and hence, we find no infirmity in....... + More
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2023 (9) TMI 793
Penalty u/s 272A(1)(d) - non-compliance of notice issued u/s 142(1) - HELD THAT:- Assessee has filed a manual letter dated 31.10.2019 requesting for some time to get details and then reply. However, the AO passed the assessment order on 23.11.2019 without disposing of the assessee s letter dated 31.10.2019 either rejecting the said application or granting time. We also found that ultimately assessment was completed by AO u/s 144 making addition which is cash deposit in various bank accounts. In our opinion, it is the duty of the AO to dispose of any communication/letters filed by the assessee before him at the time of assessment or giving finding about those letters in his order. Being so, the inaction of the AO on the various letters filed by the assessee which enable the assessee to believe that the time to comply with the exte....... + More
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Customs
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2023 (9) TMI 774
Drawback claim - The respondents / Department have neither passed a formal order rejecting the claim nor have they released the same in terms of the application in terms of Rule 12(1) of the Customs, Central Excise Duties Drawback Rules, 1995 - Entitlement of claim where the petitioner did not pay any Basic Customs Duty [BCD] on the imported articles and merely paid the additional duty as imposed in terms of Section 3 of the Customs Tariff Act, 1975 - HELD THAT:- The provision of section 3 to the Tariff Act obliges an importer to pay an additional duty equivalent to the excise duty for the time being leviable on a like article if produced or manufactured in India. It becomes pertinent to note that while the additional duty which comes to be levied in terms of Section 3 of the Tariff Act is to be computed bearing in mind the excise duty....... + More
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2023 (9) TMI 792
Valuation - Validity of findings of SVB - Matter remanded back to original authority for fresh adjudication - Non-examination of documents properly - unexplained variances found - necessity to examine balance sheet - HELD THAT:- It is evident that facts would have to be ascertained and the only available options for the first appellate authority were to call for the balance sheet and ascertain veracity of the elements or to have such exercise undertaken. That the latter was preferred is not without jurisdictional competence and setting aside of order is pre-requisite for such re-consideration - this remand is not found to be contrary to the decisions in re DJ Malpani [ 2007 (10) TMI 410 - BOMBAY HIGH COURT] or in re Dell International Services India (P) Ltd [ 2016 (5) TMI 114 - KARNATAKA HIGH COURT] and the only issue for considerati....... + More
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2023 (9) TMI 772
Valuation of imported goods - rough diamonds - rejection of declared value - prohibited goods or not - discrepancy in value - absolute confiscation - penalty - redeption denied on the ground that the certificate submitted was not in conformity with other supporting documents - HELD THAT:- On perusal of invoice and airway bill, both of which have declared the weight and value of the rough diamonds and the cavil on the lack of segregation in accordance with lots comprising the consignment appears to be more procedural than substantive; indeed, there is no finding of variation in total quantity to cast doubts on the certificate. Thus, the only discrepancy that the lower authorities could fall back on was the value of the goods and, that too, by ascertainment in accordance with a procedure peculiar to the diamond industry. If the certi....... + More
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2023 (9) TMI 771
Revocation of Customs Broker License - forfeiture of security deposit - levy of penalty - misdeclared imports - documentation for entitling import by M/s Twister Enterprises had been secured in the name of one Atul Dilip Baviskar who claimed to be a helper in a construction venture and denied any knowledge of, or wherewithal for, undertaking imports - inquiry was completed after more than eleven months of the notice and report - HELD THAT:- The impugned goods were found to be offending for having been misdeclared. There is no allegation that the appellant was either a party to it or was aware of any transaction between shipper and client in furtherance of such intent. A case can hardly be made out that a customs broker would, in normal course of business, be privy to misdeclaration and may, thereby, have not given proper advice or co....... + More
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2023 (9) TMI 773
Direction to the respondent to release his gold chain in terms of Section 110(2) of the Customs Act, as amended upto date - restricted item - Baggage Rule - unlawful seizure or not - HELD THAT:- There are no hesitation in holding that the respondent has dealt with the entire matter patently in an arbitrary, unjust and illegal manner. Although, this Court in NIDHI KAPOOR, SUPRIYA, SUDHA MURTHY, MR. JASMEET SINGH CHADHA AND MS. SHANAZ MALIK VERSUS PRINCIPAL COMMISSIONER AND ADDITIONAL SECRETARY TO THE GOVERNMENT OF INDIA ORS., JT COMMISSIONER OF CUSTOMS, IGI AIRPORT T-3 DELHI, COMMISSIONER OF CUSTOMS, IGI AIRPORT, NEW DELHI, UNION OF INDIA [ 2023 (8) TMI 1008 - DELHI HIGH COURT] has already laid down the proposition of law that gold is a restricted item and if the importation of gold is in the nature of smuggling within the meaning ....... + More
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Service Tax
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2023 (9) TMI 770
Clubbing of clearances - rules of classification - C F service - clearing and transporting the goods under two separate contracts and bills have also been raised separately - HELD THAT:- C F Agent Service includes two kinds of service providers i.e. the freight forwarders and the clearing agent. When the C F himself is providing both the services to the principle, he is liable to tax under Section 65(25) of the Finance Act. However, when C F agent is engaging a GTA or another agency who are freight forwarders than the levy cannot be raised against the C F agent for providing C F agent service. This Tribunal in the case of MEDPRO PHARMA PVT. LTD. VERSUS COMMISSIONER OF C. EX., CHENNAI [ 2006 (6) TMI 2 - CESTAT, NEW DELHI] had held that even isolated activity of freight forwarding is covered under C F operations and is taxable as....... + More
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2023 (9) TMI 769
CENVAT Credit - input services - Renting of Immovable Property Services - denial on the ground that the service being the right to use service, hence credit availed on various input services are not admissible - non-payment of service tax on sale of space or time for advertisement service. CENVAT Credit - HELD THAT:- Admissibility of CENVAT Credit which was proposed to denied on the basis of Circular No. 98/1/2008-ST dated 04.01.2008 has been considered by this Tribunal in various judgments. This Bench in the case of GOLFLINKS SOFTWARE PARK PVT LTD VERSUS C.C.E C.S.T. -BANGALORE [ 2018 (8) TMI 331 - CESTAT BANGALORE] has observed that From the definition of input service, it is clear that the input service is not limited to the services for providing output service but it also includes the services for setting up the premises ....... + More
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Central Excise
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2023 (9) TMI 768
Refund of Excess duty paid - capacity based duty - closure of factory - change in constitution of business - permanent cessation of work or not - HELD THAT:- On 25-06-2011, the respondent closed down their factory. The intimation given by the respondent to the Assistant Commissioner of Central Excise by letter dated 22.06.2011 would show that the respondent permanently ceases to work in respect of all the machines installed in the factory and it would be followed for surrender of registration due to the change of constitution of name. In such a peculiar facts and circumstances of the case, in our considered view, the refund claim filed by the respondent would come within the purview of Rule16 of Rules 2008. The contention of the revenue that the respondent had not permanently ceased to work in as much as they had only changed the co....... + More
