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  1. 2018 (6) TMI 841

    Penalty under Section 271(1)(c) - whether the Assessee is guilty of concealment of income, which is deliberate - Additional income declared by the assessee by filing revised return consequent to notices u/s.143(2) and 142(1) - factual matrix - substantial question of law - Held that - There is no debatable question of law of substance necessary for determining the rights of the parties in the case. This is just a case where the question as to whe....... + More

  2. 2018 (6) TMI 840

    Doctrine of Merger - Issue of notice u/s 148 - disallowance of interest paid to banks - revision u/s 263 - Chnage of opinion - Held that - It can be construed to be Change of Opinion only when the same issue dealt with in reassessment is raised again in proceedings u/s 263 - thus relying upon the judgement in Sat Pal Aggarwal s case (COMMISSIONER OF INCOME-TAX VERSUS SAT PAL AGGARWAL 2007 (2) TMI 104 - HIGH COURT, PUNJAB AND HARYANA where it is h....... + More

  3. 2018 (6) TMI 839

    Disallowance of 50% of management charges u/s 44C - treatment as Head Office expenditure - Held that - While deciding identical issue in case of assessee s Group Company M/s. Lloyd s Register Asia (India Branch Office), in AY 2005 06, the Tribunal 2015 (6) TMI 423 - ITAT MUMBAI has held that management charges paid to the Head Office do not come within the purview of section 44C - thus following the aforesaid decision of the Co ordinate Bench, we....... + More

  4. 2018 (6) TMI 838

    Reopening of assessment - reason to believe - unexplained investment - Held that - For reopening assessment, AO is required to form a prima facie belief that income chargeable to tax has escaped assessment. In the instant case, the AO has got the information from the CBI, the other investigating agency, that certain investment was made by the assessee through Shri Navneet Kumar Singhania, local cash carrier in the Jagati Publications and this inv....... + More

  5. 2018 (6) TMI 837

    Validity of reopening u/s 147 - Disallowance of Commission payment - Held that - The commission paid to the same / similar parties was already disallowed in later years and the same was also got confirmed by the ITAT. Thus, there is no merit in the contentions that commission amount is eligible for deduction - thus we find that there is no merit in the contentions of assessee on the issue of reopening and also disallowing the claim of commission ....... + More

  6. 2018 (6) TMI 836

    Correctness of exemption claimed u/s 10(38) - LTCG on sale of shares - A.O disallowing the exemption claimed u/s 10(38) and treating the same as unexplained cash credit - whether the purchase of shares are bogus? - Held that - the facts are mutatis mutandis identical in the case of SMT. SARITA DEVI, AND SMT. NITIKA KUMARI VERSUS INCOME TAX OFFICER WARD-14 (5) , HYDERABAD 2017 (5) TMI 1111 - ITAT HYDERABAD treating the transactions as bogus, since....... + More

  7. 2018 (6) TMI 835

    Right to file an appeal before CIT(A) where the application for revision u/s 264 rejected by the CIT - Revisional jurisdiction of Commissioner - Whether the assessee can file an appeal before the appellate authority - Held that - Following the judgment of Madras High Court in COMMISSIONER OF INCOME TAX VERSUS D. LAKSHMINARAYANAPATHI 1998 (12) TMI 12 - MADRAS HIGH COURT it is held that even though for invoking revisional jurisdiction, it is a pre-....... + More

  8. 2018 (6) TMI 834

    Disallowance for conversion charges paid to the Municipal Corporation - whether capital expense or revenue expense - Held that - Conversion charges as well as parking charges paid by the assessee are necessary charges without which the assessee cannot run the business - relying on the judgement in case of DCIT vs. Haldiram Products Pvt. Ltd. 2013 (12) TMI 1151 - ITAT DELHI where it is held that when necessary expenditure has been incurred by maki....... + More

  9. 2018 (6) TMI 833

    Levy of penalty u/s 271(1)(c) - non specification of charge - non striking of inappropriate words - Held that - Penalty is deleted by making reliance in case of JEETMAL CHORARIA VERSUS A.C.I.T., CIRCLE-43, 2017 (12) TMI 883 - ITAT, KOLKATA wherein it is held that show cause notice issued u/s 274 does not specify the charge against the assessee as to whether it is for concealing particulars of income or furnishing inaccurate particulars of income ....... + More

  10. 2018 (6) TMI 832

    Revision u/s. 263 by CIT - failure of AO to make relevant enquiry in respect to sale of rights in the immovable property - order erroneous and prejudicial to the interest of revenue - Held that - Twin conditions which needs to be satisfied before exercising revisional jurisdiction u/s 263 by the CIT. The twin conditions are that the order of the Assessing Officer must be erroneous and so far as prejudicial to the interest of the Revenue - BR BR H....... + More

  11. 2018 (6) TMI 831

    Disallowance u/s 40A(3) - payments made to agriculturalist - commercial expediency in making cash payments - Held that - As relying upon case of Asst. CIT vs. R. P. Real Estate Pvt. Ltd. 2015 (7) TMI 1283 - ITAT RAIPUR it is held that sellers being villagers had no bank accounts and therefore insisted on cash payment - The Tribunal held that payment in cash was out of business compulsion and not optional - thus payments are made to agriculturalis....... + More

  12. 2018 (6) TMI 830

    Deduction u/s 80P(2)(a)(i) - assessee were doing the business of banking and therefore in view of the insertion of the provisions of section 80P(4) the assessee were not entitled to the deduction u/s 80P - Held that - Assessees in these cases are primary agricultural credit societies, registered as such under the Kerala Co-operative Societies Act - in case of ITO v. The Chengala Service Co-operative Bank Limited (2018 (4) TMI 339 - ITAT COCHIN) h....... + More

  13. 2018 (6) TMI 829

    Validity of the proceedings and order u/s 153C on the basis of documents seized - notings in the seized documents made reference to the name of third party - Held that - Seized documents make reference to the payments made to TIPL by the person to whom the document belonged to.the document was found from the premises of N.K.G. with whom TIPL was having business transactions. In the circumstances, if the documents seized from the custody of Sr. Of....... + More

  14. 2018 (6) TMI 828

    Delay in payment of tds to government treasury - Disallowance u/s 40(a)(ia) on coal washing charges for non deduction of TDS - Held that - CIT(A) observed that TDS has been remitted to the Govt. within the extended period for filing of return as vivid from the facts and in any case if disallowed this year, the assessee could have got the claim allowed in the next year on the strength of the TDS certificate as per the proviso to sec. 40(a)(ia) - t....... + More

  15. 2018 (6) TMI 827

    Levy of penalty u/s 271(1)(c) - additions made on the basis of evidence in the seized material - Held that - Once the AO accepts the revised return filed u/s 153A, the original return under Section 139 abates and becomes non-est - thus, for the purpose of levying penalty u/s 271(1)(c), what has to be seen is whether there is any concealment in the return filed by the assessee u/s 153A, and not vis-a-vis the original return u/s 139 - here assessee....... + More

  16. 2018 (6) TMI 826

    Disallowance u/s 14A - whether disallowance can be made in a year in which no exempt income has been earned or received by the Assessee? - Held that - following the decision of the Hon ble Delhi High Court in the case of Cheminvest Limited vs. Commissioner Of Income Tax 2015 (9) TMI 238 - DELHI HIGH COURT has held that if no dividend income is earned during the year, no disallowances u/s 14A is warranted - no error in the finding of the Ld. CIT(A....... + More

  17. 2018 (6) TMI 825

    Disallowance u/s 14A r.w.r. 8D - Held that - There is no doubt that purpose for which shares are held is not relevant and expenditure corresponding to the non-taxable income has to be disallowed proportionately. In view of the above, we feel it appropriate to restore this issue to the file of the Assessing Officer for determining proportionate disallowance of expenditure under section 14A of the Act following the decision of the Hon ble Supreme C....... + More

  18. 2018 (6) TMI 824

    Eligibility to deduction u/s 80P(2)(a)(i) - assessee bank getting the deposit from non members - Held that - As in earlier A.Y.2009-10 2012 (7) TMI 1067 - ITAT DELHI , the Tribunal decide this issue in favour of the assessee Assessing Officer in the present assessment year also not pointed out how income would generate to the assessee by taking deposits from non-members. The direct source of income is ultimately from the credit facility provided ....... + More

  19. 2018 (6) TMI 761

    Validity of order passed by the Settlement Commission u/s 245D - additional disclosure of income - as decided by HC 2017 (6) TMI 786 - GUJARAT HIGH COURT initial disclosures themselves were untrue projecting the additional disclosures for all years the assessee had sought settlement, we find the Commission committed no error in accepting them and in proceeding to pass final order on such settlement applications - Held that - We are not inclined t....... + More

  20. 2018 (6) TMI 760

    Reopening of assessment u/s 147 - notice issued against dead person - period of limitation - assessment against spouse after death of assessee - Held that - On being intimated about the death, the Department sent the notice to the petitioner - his spouse to participate in the proceedings. This notice was well beyond the period of limitation, as it has been issued after 31.3.2017. If we approach the problem sans complicated facts, a notice issued ....... + More

  21. 2018 (6) TMI 757

    PE in India - Interest paid by Indian Branch to its foreign Head Office and other overseas Branches - withholding of tax - assessee is a non resident Banking Company operating in India as Branch of DBS Bank Limited, Singapore - India Singapore Tax Treaty - Held that - The issue in dispute has been decided in favour of the assessee by the Tribunal in assessee s own case 2013 (10) TMI 1452 - ITAT MUMBAI as held under the domestic law the interest p....... + More

  22. 2018 (6) TMI 756

    Initiation of penalty u/s 271(l)(c) - provision for bad and doubtful debts disallowed as assessee failed to provide the same in their accounts and only claimed the same in the computation of income - Held that - Assessee cannot be held to have committed any contumacious conduct so as to warrant levy of penalty - there is no furnishing of inaccurate particulars of income nor there is any concealment - therefore we set aside the order s of authorit....... + More

  23. 2018 (6) TMI 755

    Initiation of penalty u/s. 271(1)(c) - Non specification of charge - Held that - Following the decision of Coordinate Bench of this Tribunal in the case of Jeetmal Choraria Vs. ACIT 2017 (12) TMI 883 - ITAT, KOLKATA where it is held that the show cause notice issued u/s 274 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 notic....... + More

  24. 2018 (6) TMI 754

    Disallowing the claim of deduction u/s. 80IB(10) - income derived from Development of housing project - Gram Panchayat was not the local authority competent for sanction of plans of housing project - Held that - Following the judgement of High Court in case of PR. COMMISSIONER OF INCOME TAX, NAGPUR-1 VERSUS SWAPNASHILP DEVELOPERS 2016 (10) TMI 1031 - BOMBAY HIGH COURT approval granted by the Village Panchayat for the housing project to be as one ....... + More

  25. 2018 (6) TMI 753

    Deduction u/s 80P - denying the benefit of deduction was that the assessee were doing the business of banking - Held that - As relying upon the judgement in case of ITO v. The Chengala Service Co-operative Bank Limited 2018 (4) TMI 339 - ITAT COCHIN Tribunal held that the assessee is entitled to deduction u/s 80P(2) wherein it is held that when a primary agricultural credit Society is registered as such under the Kerala Co-operative Societies Act....... + More

  1. 2018 (6) TMI 762

    Transitional Credit - carry forward of Credit - Post-GST implementation situation - Uttarakhand VAT Act - Whether Credit of Uttarakhand VAT paid on Construction material such as Cement, sand, steel etc. held in closing as on 30-06-2017 is allowed to be carried forward as transitional credit as Uttarakhand GST under GST regime? - If yes, then whether it is allowed when the assessee had opted for composition scheme under Uttarakhand VAT laws? BR BR....... + More

  2. 2018 (6) TMI 705

    Classification of goods - implants for joint replacements - rate of tax - whether the products get covered under Serial No. E(9) of List 3 of Entry 257 of Schedule I of Notification No. 0112017 - Central Tax (Rate) dated 28.06.2017 attracting GST at the rate of 5% or Serial No. 221 of Schedule II of the Notification No. 0112017 - Central Tax (Rate) dated 28.06.2017 attracting GST at the rate of 12%? BR BR Held that - The implants for joint replac....... + More

  3. 2018 (6) TMI 704

    Classification of goods - Lightning Arrester - Earthing Pipe - Solid Rod Earthing - Back Fill Compound - service of installation of Earthing System. BR BR Lightning Arrester - whether classified under Chapter Heading 8535 or otherwise? - Held that - The Tariff Heading 8535 covers the products Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, fuses, ....... + More

  4. 2018 (6) TMI 703

    Classification of goods - Lightning Arrester - Earthing Pipe - Solid Rod Earthing - Back Fill Compound - service of installation of Earthing System. BR BR Lightning Arrester - whether classified under Chapter Heading 8535 or otherwise? - Held that - The Tariff Heading 8535 covers the products Electrical apparatus for switching or protecting electrical circuits, or for making connections to or in electrical circuits (for example, switches, fuses, ....... + More

  5. 2018 (6) TMI 702

    Supply of goods - inter-state trade - Exemption from GST - outward supplies made to ocean going merchant vessels on foreign run, Indian Naval Ships and Indian Coast Guard Ships - Reverse charge - Whether appellant are exempted from tax under GST on their outward supplies made to ocean going merchant vessels on foreign run, Indian Naval Ships and Indian Coast Guard Ships or not? - If at all they are liable for GST on their outward supplies whether....... + More

  6. 2018 (6) TMI 687

    Anti-Profiteering - Non-discharge of GST - it has been alleged that Respondent had not charged GST on the base price of the lift ordered by him from the Respondent, after excluding the pre-GST Excise Duty on the material component and thus he had been charged tax twice on the same material - Held that - It is clear from the perusal of the record that the Applicant had paid advance for purchase of this lift and he was charged the Service Tax which....... + More

  7. 2018 (6) TMI 624

    Classification of goods - Ice Cream Making Machines - rate of GST - Whether the aforesaid goods fall under Chapter Heading 8438 of GST Tariff? - Whether the applicant is liable to pay GST at the rate of 18% on supply of goods in question? - Held that - It is evident that the Explanatory Notes for Tariff Heading 8418 includes ice-cream makers - It is also observed that in the First Schedule to the Customs Tariff Act, 1975, industrial ice cream fre....... + More

  8. 2018 (6) TMI 623

    Supply of goods - inter-state trade - Exemption from GST - outward supplies made to ocean going merchant vessels on foreign run, Indian Naval Ships and Indian Coast Guard Ships - Reverse charge - Whether appellant are exempted from tax under GST on their outward supplies made to ocean going merchant vessels on foreign run, Indian Naval Ships and Indian Coast Guard Ships or not? - If at all they are liable for GST on their outward supplies whether....... + More

  9. 2018 (6) TMI 622

    Classification of goods - Cereals, pulses, spices, copra, jaggery (Gur), groundnuts (with or without shell), groundnut seeds, turmeric dried and ginger dried (soonth), cashew, almond, kismis, jardalu, anjeer (fig), date, ambli foal - Whether all cereals, pulses, spices, copra, jaggery (Gur), groundnuts (with or without shell), groundnut seeds, turmeric dried and ginger dried (soonth), cashew, almond, kismis, jardalu, anjeer (fig), date, ambli foa....... + More

  10. 2018 (6) TMI 621

    Admissibility of Advance Ruling Application - High Seas Sales - place of supply - Whether the authority is within jurisdiction to admit application especially on the issue of place of supply ? - Whether the issue is related to Customs or is related to Goods and Services Tax? - Held that - The applicant is well aware that the issue is related to place of supply - the question raised in the application for advance ruling pertains to the Customs dom....... + More

  11. 2018 (6) TMI 620

    Release of detained goods - Section 129 of the CGST Act as also the Kerala SGST Act - Held that - An identical matter has been disposed of by a Division Bench of this Court in THE COMMERCIAL TAX OFFICER AND THE INTELLIGENCE INSPECTOR VERSUS MADHU. M.B. 2017 (9) TMI 1044 - KERALA HIGH COURT , directing expeditious completion of the adjudication of the matter and permitting release of the goods detained pending adjudication, in terms of Rule 140(1)....... + More

  12. 2018 (6) TMI 619

    Seizure of goods - non-payment of U.P.G.S.T. - inter-state transportation - Held that - appellant may seek instructions and file counter affidavit within a month - List immediately thereafter for admission/final disposal........ + More

  13. 2018 (6) TMI 560

    Rate of GST - poly propylene non-woven fabrics - Held that - The Test Report of the Centre for Biopolymer Science & Technology reveals that the product of the applicant i.e., non woven carry bag is made of polypropylene. In Customs Tariff Act, sacks and bags made of polypropylene strip or the like is classified under Chapter 63 of the Act. BR BR In the present case, since the sale value of non-woven carry bags made of polypropylene is less th....... + More

  14. 2018 (6) TMI 559

    Supply of services - Works Contract - determination of time of supply of services - scope of the word supply - Transitional Credit - credit of material bought in pre-GST era - post-implementation situation - Held that - A contract for any immovable property wherein transfer of property in goods is involved in the execution of such contract fall within the definition of works contract - The underground pipeline network created by joining the pipes....... + More

  15. 2018 (6) TMI 558

    Appealable Order or not? - seizure of vehicle passed by the authorities exercising jurisdiction under Section 129(3) of the Central Goods and Services Tax Act, 2017 - Section 107 of the Act - Held that - Section 107 of the Act allows any person aggrieved by any decision or order passed under the Act of 2017 or the State Goods and Services Tax Act to file an appeal before the appellate authority as may be prescribed. It appears that, the State has....... + More

  1. 2018 (6) TMI 823

    Absolute Confiscation - Gold jewellery in question was not declared - whether the Gold Jewellery will be allowed to be re-exported - non-prohibited item - Held that - It is not the Revenue s case that the gold jewellery in question is prohibited item. In terms of the liberalized policy, jewellery can be brought and cleared on payment of duty. BR BR The only offence on the part of the respondent is that the jewellery in question was not declared b....... + More

  2. 2018 (6) TMI 822

    Benefit of N/N. 21/2002-Cus dated 01.03.2002 - import of Asphalt Hot Mix Plant - construction and maintenance of PMGSY Road in Raibareli and Barabanki district in the state of Uttar Pradesh - goods imported not used for intended purpose - violation of import conditions - Penalty - Held that - As per the conditions of the exemption notification, an importer can claim the benefit of exemption provided they are named as sub-contractor for constructi....... + More

  3. 2018 (6) TMI 821

    Principles of Natural Justice - non-grant of personal hearing - case of appellant is that the impugned order has been passed without giving them a copy of the test report of the samples drawn from the imported goods and without granting them cross examination - Held that - A perusal of the show cause notice shows that no reliance has been placed on the test report. While it is mentioned that samples were drawn, but there is no mention of any test....... + More

  4. 2018 (6) TMI 820

    Mis-declaration of imported goods - D. C. Defibrillators (DCD) with Standard Accessories - N/N. 21/2002-Cus dated 01.03.2002 - mentioning of wrong serial number of notification - case of Revenue is that the goods has been mis-declared by showing them for internal use whereas on going through the catalogue of the imported goods it was observed that the goods are for external use - demand of Differential duty - Confiscation - Penalty - Held that - ....... + More

  5. 2018 (6) TMI 819

    EOU/STP/EHTP scheme - import of Lead Acid Batteries - non-production of registration certification issued by the Ministry of Environment and Forest, Govt. of India to permit clearances - Held that - Only a person who imports lead acid batteries for the purpose of sale is required to furnish a certificate as provided under section 5 - The appellant has obtained certificate and intimated the department by filing a copy of the same. The appellant be....... + More

  6. 2018 (6) TMI 818

    Quantum of penalty u/s 114 of CA - The original authority had imposed penalty of ₹ 8,500/- under section 114 of the Customs Act, 1962 which was enhanced to ₹ 3,74,786/- by Commissioner (Appeals) - export of 24 cartons of goods of goat finished upper leather - it was reported that the samples do not satisfy the norms as there was absence of protective coating - Held that - Only in a few items the defect of not having protective coating....... + More

  7. 2018 (6) TMI 817

    Smuggling - eletronic goods - prohibited goods - personal baggage or not? - goods imported in Commercial Quantity - Baggage Rules - Absolute Confiscation - Penalty - Held that - There can be no doubt that the quantity of 1100 numbers of 1 GB RAMs, 201 numbers of 2GB RAMs, 50,227 numbers of Kingston 2 GB SD Micro Memory cards and 7097 numbers of PQ1 2 GB SD memory cards can by any stretch of imagination be considered as a normal personal baggage b....... + More

  8. 2018 (6) TMI 759

    Principle of merger - interim order merging with final order - Release of seized Gold - Held that - It is well settled that an interim order passed, merges with the disposal of the main case - In South Eastern Coalfields Ltd v. State of MP and Others 2003 (10) TMI 638 - SUPREME COURT OF INDIA , where it was held that The validity of an interim order, passed in favour of a party, stands reversed in the event of a final decision going against the p....... + More

  9. 2018 (6) TMI 742

    100% EOU - Goods consumed within EOU - levy of additional duty on the clearance of High Speed Diesel - N/N. 52/2003 dt. 31.03.2003 - Held that - The duty demand is not sustainable as the goods were not cleared outside EOU. The Goods are consumed within the EOU and hence there is no reason to demand duty. BR BR Reliance placed in the case of STI INDIA LTD. VERSUS COMMISSIONER OF C. EX., INDORE 2007 (10) TMI 482 - CESTAT, NEW DELHI , where it was h....... + More

  10. 2018 (6) TMI 741

    Suspension of CHA License - penalty u/s 114(i) of the CA 1962 - The allegation on the appellant is that they have not advised their client (exporter) regarding the prohibition of the goods, therefore they have violated the provision of CHALR, 2004 - Held that - No proceedings were carried out under CHALR 2004 for revocation of licence during the last 8 years. Even though this Tribunal has stayed the suspension of the licence ordered by the impugn....... + More

  11. 2018 (6) TMI 737

    Project Import - Concessional rate of duty - Regulation 7 of Project Import Regulations, 1986 - Held that - The installation of goods is of prime importance as the goods should be used for the intended project. In the present case the same has not been disputed by the revenue. Further the reconciliation statement gives all the details of the documents/ Bill of Entry even though the same was not submitted - The reconciliation statement, installati....... + More

  12. 2018 (6) TMI 735

    Exemption from BCD - N/N. 26/2000-Cus. dated 1.3.2000 - BCD paid under protest - The department has denied the concessional rate of duty on the ground that the respondent has not complied with the condition that they have not availed credit on inputs and capital goods - whether the respondents are eligible for the concessional rate of duty? BR BR Held that - Issue decided in the case of M/S SRF LTD., M/S ITC LTD VERSUS COMMISSIONER OF CUSTOMS, CH....... + More

  13. 2018 (6) TMI 727

    Duty Drawback - All Industry Rate (AIR) - Excise portion of AIR - FIBCs exported by the appellants - CENVAT credit used - whether the appellants will be entitled to AIR only for the customs component (in case Cenvat credit was used) or for the higher rate including the excise as well as customs components? - Held that - The circular has clarified the payment of drawback in respect of the goods which are purchased by merchant exporters from trader....... + More

  14. 2018 (6) TMI 720

    Suspension and Revocation of CHA License - time limitation - case of appellant is that the Commissioner of Customs has not completed the proceedings within the period prescribed in Regulation 20 of Customs Brokers Licensing Regulation, 2013 - Held that - Regulation 20(1) requires issuance of the show-cause notice within 90 days from the date of receipt of the offence report - The offence report was forwarded by DRI on 02.12.2016 and as per the Re....... + More

  15. 2018 (6) TMI 715

    Valuation of imported goods - knitted fabric (100% knitted polyester) - knitted fabric (97% Rayon and 3% Spandex) - enhancement of value based on contemporaneous NIDB data - Held that - It is well settled that NIDB data cannot be used to enhance the value of imported goods in number of decisions - reliance placed in the case of M/S. SARDA ENERGY AND MINERALS LTD. VERSUS CCE, RAIPUR 2017 (9) TMI 1142 - CESTAT NEW DELHI - appeal allowed - decided i....... + More

  1. 2018 (6) TMI 732

    Oppression and mismanagement - application filed for waiver - application for waiver subject to the question whether (proposed) application under Section 241 relates to oppression and mismanagement - Held that - Except for appellants 2 and 3 none of the other shareholders can maintain an application of oppression and mismanagement. As per the judgment of Cyrus 2017 (9) TMI 1500 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI other minority s....... + More

  2. 2018 (6) TMI 679

    Serious fraud on the securities market - off-loading the fraudulently dematted excess shares of SCCL to innocent investors - whether SEBI has unduly favoured the violator who are found to have committed serious fraud on the securities market? - Held that - Issuing shares in excess of authorised share capital and further dematting those unauthorized excess shares and allowing those shares to be sold on-market to innocent investors is a serious fra....... + More

  3. 2018 (6) TMI 678

    Share Transfer and allotment legality to director - application of section 59 of Companies Act - Held that - The petitioner as well as the 2nd respondent are admittedly present during Board Meeting in question to transact the business of the Company. Accordingly the business of the Company was conducted duly following the above articles of Association of the Company. It is also relevant to point out here that the petitioner is not disputing the a....... + More

  4. 2018 (6) TMI 647

    Winding up of company - according to the petitioner, the allegation made by the company that the said memorandum of settlement is vitiated by any fraud or coercion or undue influence or that the said memorandum of understanding is not binding upon the company or that the latter paid ₹ 8.5 lakhs to the petitioner independent of the said memorandum of settlement or that after payment of ₹ 8.5 lakhs the company owes no money to the petit....... + More

  5. 2018 (6) TMI 85

    Transfer of cases - where an application under Section 230-232 of the Companies Act, 2013 can be filed if the registered office of two companies are situated within the territorial jurisdiction of two different NCLT Benches? - Held that - From clause (d) of Rule 16, we find that the Hon ble President of the NCLT has power to transfer any case from one Bench to other Bench when the circumstances are so warranted. The cases in hand circumstances wa....... + More

  6. 2018 (6) TMI 25

    Winding up recalled - compromise or arrangement with creditors and members - Held that - Section 391 of the Act deals with the power to compromise or make arrangement with creditors and members. This provision on its cursory reading by itself would reveal that it can have no application to the facts of this case where apparently even despite the publication of notice there are no other creditors apart from EDC and the State Bank of India and the ....... + More

  7. 2018 (6) TMI 24

    Tribunal s power to review its order - mistake apparent from the record - Held that - Tribunal in the order dated 29.05.2017 held that the question of limitation in this case is mixed question of fact and law. Delay aspect has to be considered at the final hearing, the authority of Ashok Kumar Khosla to file this petition is upheld subject to the challenge pending in other courts. This Tribunal also held that the controversy regarding convening o....... + More

  8. 2018 (5) TMI 1571

    Fraudulent issue of 6,715 Nos. of equity shares - direction to company as well as the office of the ROC not to give effect in the Company s records on fraudulent issue of shares and declare those shares as null and void - validity of Resolutions fraudulently passed by the respondent without the approval of the existing shareholders - regulation of the conduct of the Company s affairs in future. BR BR Whether in seeking relief from this Tribunal, ....... + More

  9. 2018 (5) TMI 1308

    Shareholders right to sell shares - Interim order dated 28-04-2016 passed by Hon ble Company Law Board questioned - change of shareholding pattern - Held that - The case on hand, Vadodara Stock Exchange Limited is a public limited company although it is not a listed company, Therefore, shareholders of Vadodara Stock Exchange Limited have got every right to sell their shares. BR BR The main objection of the original petitioner and respondent No. 7....... + More

  10. 2018 (5) TMI 1249

    Non filing Appeal within the time granted - extend the time granted for compliance given under sub-rule (2) to rule 26 of the NCLAT Rules, 2016 seeked - delay of one day - Held that - In the case on hand, the initial presentation of the appeal under Rule 22 on 02.04.2018 and the subsequent presentation after curing the defects on 11.04.2018 are well within the period of limitation of 45 days, even if the limitation is computed on the basis of the....... + More

  11. 2018 (5) TMI 997

    Rectification of the defects causing delay in presenting the Appeal - condonation of delay - Computation of period of limitation - computation of period of 45 days for filing the Appeal - Is the time given for complying the direction to cure the defects liable to be extended under sub-rule (3) to rule 26 of the Rules? - Held that - In the case on hand, the initial presentation of the appeal under Rule 22 on 19-02-2018 is within the period of limi....... + More

  12. 2018 (5) TMI 931

    Satyam Scam - Penalty for insider trading - Prohibition of Insider Trading Regulations, 1992 - appellant was roped in by the Whole Time Member of the SEBI as well as the Appellate Tribunal as he happened to be an executive director of SCSL from 1993 upto 31.8.2000 and a non-executive director from 1.9.2000 to 23.1.2003. He also happens to be the co-brother of B. Ramalinga Raju as the two of them have married two sisters - Held that - We are of th....... + More

  13. 2018 (5) TMI 734

    Oppression and mismanagement - Whether the prime property of the company was sold to R6 and R7 for lesser value than the original value for which it was purchased? - Held that - As per the sale deed dated 14.07.2000, the sale consideration was ₹ 9.85,400/- which is the registered value and subsequently the same property was purchased by the R6 and R7 for ₹ 21,22,500/- which is more than the registered value. The learned Counsel for R1....... + More

  14. 2018 (5) TMI 733

    Professional misconduct in relation to Company Secretaries in Practice - quantum of punishment - Held that - Disciplinary Committee has taken a different view in this case though the nature of professional misconduct relates to certification of Forms. BR BR After perusing all, we are of the considered view that punishment awarded to the Appellant in the present matter is certainly on the higher side, enormous and harsh in comparison with the puni....... + More

  15. 2018 (5) TMI 621

    Winding up petition - outstanding eligible debt - Held that - The settled legal position is that the debts claimed should be payable by the respondent company. It is only where the respondent company raises a bona fide dispute then no winding up petition would lie. BR BR As noted the respondent company has failed to show any bona fide dispute. Accordingly, admit the present petition and the Official Liquidator attached to this Court is appointed ....... + More

  1. 2018 (6) TMI 677

    Contravention of the RBI instructions - remittance for the one share of Mr. Leonid Beyzer had not come in as a foreign direct investment nor had it been made as a debit from his NRE/FCNR account maintained with an authorised dealer/authorised bank - Held that - The appellants are not disputing the charge but have stated that Mr. Leonid Beyzer had transferred the above remittances from his personal account to the account of the company i.e. M/s. T....... + More

  2. 2018 (6) TMI 389

    Validity of proceedings - non-recording of reasons and its non-communication - whether the adjudicating Authority is bound to record his reasons for formation of an opinion under sub-Rule 3 of Rule 4 of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 in writing and also communicate the same to the noticee if required by the noticee before proceeding with an enquiry? BR BR Held that - The adjudicating Authority is....... + More

  3. 2018 (5) TMI 1531

    Violation of Section 3(a), FEMA - Penalty - Burden of Proof - Prevention of Money Laundering Act, 2002 - amount received in foreign currency from unknown persons and same was spent when in India - Held that - It is settled legal principle that onus of proof, in both civil and criminal law, is on the person who wishes to prove a particular fact - There is no statutory provision in FEMA imposing reverse evidentiary burden upon an accused person, as....... + More

  4. 2018 (5) TMI 1530

    Identity of the offender - appeal filed mainly on the ground that ED had booked a case against them on a wrong presumption and was a case of mistaken identity - Held that - it is clear that ED has not been able to prove that the appellant and Shri Farooque Memon, who seems to be the offender, are one and the same person. This is strengthened by the order of the Additional Chief Metropolitan Magistrate at Ahmedabad in the bail application. BR BR A....... + More

  5. 2018 (5) TMI 730

    Proof of goods purchased by remitting the foreign exchange brought into India - offence under FEMA - Held that - The two consignments have been auctioned by the Customs/CWC as the appellant failed to clear the goods within the bond period and the authorities have recovered the customs duty and other charges payable on the two consignments. In these circumstances, it cannot be said that the appellant has failed to prove that the goods purchased by....... + More

  6. 2018 (5) TMI 729

    Offence under FERA - Whether appellant had any knowledge or role in distribution of foreign exchange? - Held that - There is no allegation in the Show Cause Notice or the Adjudicating Order that Appellant either made any payment of any such foreign exchange or was aware about any such payment. In any case, a person who had done the whole transaction has been let off and the same Adjudicating Order against him has been quashed, the order against t....... + More

  7. 2018 (4) TMI 1342

    Seizure of bank account due of the suspicion that foreign exchange was suspected to be held outside India in contravention of Section 4 of the FEMA, 1999 - Liberalise Remittance Scheme (LRS Scheme) - Exercise of powers conferred upon him in terms of the provisions of Section 37A(1) of FEMA, 1999 - Held that - The main error in the impugned order is that RBI scheme has not been discussed at all. The impugned order is totally silent about the schem....... + More

  8. 2018 (4) TMI 1110

    Violation of the declared FDI Policy - Held that - Enforcement Directorate has taken action against the violators. The Enforcement Directorate has also filed a counter affidavit pointing out that it is inquiring into e-commerce entities which are guided by self gain or motive other than in public interest and that the Bangalore Zonal office of the answering respondent had initiated enquiries against ten (10) e-commerce entities and in 5 out of th....... + More

  9. 2018 (4) TMI 681

    Violation of FERA - lending against the deposit without taking any primary security - Held that - Bank had lent money against the security of deposits in the NRNR accounts. There was no bar in such type of lending as is apparent from the RBI s Notification. The bank was required to comply with the condition attached to such lending as prescribed by the RBI under the FERA/FEMA. One such condition was that the bank could grant loan facilities to re....... + More

  10. 2018 (4) TMI 421

    Violation of Section 9(1)(e) of Foreign Exchange Regulations Act, 1973 - failure to comply with the mandatory requirement of Section 61(2) of FERA - Held that - The subject complaint was filed on 29.05.2002. Since petitioners were never granted an opportunity, as mandated by Section 61(2) of FERA, there is clearly a breach of the mandate of law. Since the requirements of Section 61(2) of FERA have not been complied with, reliance placed by the re....... + More

  11. 2018 (4) TMI 232

    Stay petition - Held that - This is is an arguable case on merits and hence cannot also be stated to be prima facie in their favour. They are accordingly required to pre-deposit the penalty of ₹ 10 lakhs within a period of four weeks from today failing which the appeal shall be disposed off as per the provisions of FEMA........ + More

  12. 2018 (4) TMI 162

    Order passed by an officer coram non judice - gross violation of the principles of natural justice. These orders have been passed without complying with the statutory requirements - Held that - Though a writ of certiorari can be issued by this court despite the presence of alternate and equally efficacious remedy, that is not a prohibition or rule, but a matter of prudence, still, whether to issue such a writ or not depends upon the facts and cir....... + More

  13. 2018 (3) TMI 1291

    Appeal for non-compliance of pre-deposit of penalty - Held that - All the information provided proves that the conduct of the appellant/his counsel has not been very honest and they have tried to misguide the tribunal. That they have failed to file a review petition within a reasonable time is apparent from above, and are now coming up with some ground or the other. The judgements relied upon by the learned counsel of the appellant during hearing....... + More

  14. 2018 (3) TMI 1251

    Public authority excluded from the purview of Right to Information Act - Held that - Section 24(1) of the Act expressly excludes intelligence and security organizations specified in the Second Schedule of the Act from the purview of the Act. Admittedly, the Directorate of Enforcement is included in the Second Schedule to the Act and, thus, cannot be called upon to disclose information under the provisions of the Act. The only exception carved out....... + More

  15. 2018 (3) TMI 1250

    Maintainability of Appeal under Section 19 of FEMA Act - Held that - Provisos to Section 19(1) of the Act, an appeal can be maintained/heard only when the issue of pre-deposit of penalty has been examined/addressed. BR BR In the instant case, the conditions for filing Appeal has not been satisfied as no penalty has been imposed in the absence of an order . As the provisions laid down in Section 19(1) of the Act have not been fulfilled, the appeal....... + More

  1. 2018 (6) TMI 846

    Corporate insolvency process - eligible debt - Held that - As admitted factual position thus emerges that the Debt as defined U/s 3(11) of The Code under consideration have been classified as Non-Performing Asset by the Consortium of Banks, listed hereinabove and there was a Default as defined U/s 3(12) of The Code of non-payment. Therefore, the basic requirement of Admission of an Application under Section 7 appears to be fulfilled for initiatio....... + More

  2. 2018 (6) TMI 845

    Initiating Corporate Insolvency Resolution Process - existence of operational debt - Held that - Here in this case the applicant claim refund of an advance with interest at 24% p.a. Admittedly there is no purchase agreement enabling the applicant to claim refund of advance in the case of failure of supply of materials or in case of shortfall of materials received by the applicant on account of the purchase orders issued by the applicant. The clai....... + More

  3. 2018 (6) TMI 844

    Insolvency Resolution Process - outstanding debt - satisfaction of the ingredients as provided under section 9(5) (i) of the Code - Held that - The operational creditor succeeds in proving that the application is complete, that there is no payment of the unpaid operational debt, that the demand notice has been delivered by the operational creditor, that no notice of dispute has been received by the operational creditor and that there is no discip....... + More

  4. 2018 (6) TMI 843

    Insolvency Resolution Process - discrepancies in the xerox copy of the account furnished - whether the handwritten additions and omissions are against the specific provisions of The Bankers Books Evidence Act, 1891 and therefore, such an account is liable to be rejected? - Held that - A certified copy of entry in a banker s books is to be regarded as prima facie evidence in all legal proceedings with regard to the existence of such entry. As evid....... + More

  5. 2018 (6) TMI 842

    Corporate insolvency resolution process - allegations against the resolution professional for not preparing Information Memorandum within 14 days of the first meeting of the COC as required by Section 25 (2) (g) of the Code - obligation on the ex-personnel of the corporate debtor, its promoter or any other person associated with the ex-management including ex-directors to extend all assistance and cooperation to the interim resolution professiona....... + More

  6. 2018 (6) TMI 763

    Corporate insolvency procedure - Moratorium period - Held that - Order of Moratorium will be applicable only to the proceedings against the Corporate Debtor and the Personal Guarantor , if pending before any court of law/Tribunal or authority but the will not be applicable for filing application for triggering Corporate Insolvency Resolution Process under Sections 7 or 9 or 10 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to a....... + More

  7. 2018 (6) TMI 734

    Corporate Insolvency Resolution Process - Resolution Plan already been approved - Held that - The order of Moratorium will be applicable to the proceedings against the Corporate Debtor and the Guarantor , if pending before any court. However, such order of Moratorium will not be applicable for triggering Corporate Insolvency Resolution Process under Section 7 or 9 of the Insolvency and Bankruptcy Code, 2016 against the Guarantor or the Personal G....... + More

  8. 2018 (6) TMI 731

    Initiating of insolvency resolution process - Held that - The application filed by the operational creditor is complete in all respects and the defects pointed out have been removed. Learned counsel for the respondent submits that the corporate debtor is not to raise any objections. The petitioner has also filed with this petition copies of all the invoices of sales. The petitioner has also complied with the requirements of Section 9(3)(b) and 9(....... + More

  9. 2018 (6) TMI 730

    Corporate insolvency process - Default in repayment of the outstanding amount - Admission of winding up petition - Held that - Prior admission stage of pendency of winding up proceeding against corporate debtor under the Companies Act, 1956 cannot come in the way of the Code. In the present case the applicant vide affidavit dated 01.03.2018 has affirmed that till date no order of liquidation or admission of winding up petition has been passed by ....... + More

  10. 2018 (6) TMI 681

    Initiation of Corporate Insolvency Resolution Process - default in payment of salary - Held that - From the definition of Operational creditor and Operational Debt , it can be seen that the applicant being in employment in the respondent company and having provided service to the respondent company clearly comes within the definition of Operational Creditor. Similarly the claim of outstanding salary due to him comes within the definition of Opera....... + More

  11. 2018 (6) TMI 680

    Corporate Insolvency Resolution Process - appellants had failed to file their respective claim within the prescribed period - Held that - In spite of receipt of their claim much beyond the period prescribed under the I & B Code, the Resolution Plan has taken care of the claim of the appellants, we are not inclined to interfere with the order passed by the Adjudicating Authority. In a particular case, what should be the percentage of claim amo....... + More

  12. 2018 (6) TMI 537

    Corporate Insolvency Resolution Process - Held that - It is not the case of the Appellant- Mr. Aditya Kumar Jajodia that they do not owe any debt to the Financial Creditor or there is no default. The Adjudicating Authority being satisfied that a default has occurred admitted the application which was complete. BR BR Another ground taken by the Appellant is that the Form 7 was not signed by the authorised person. However, we are not inclined to se....... + More

  13. 2018 (6) TMI 536

    Corporate Insolvency Resolution Process - Held that - Once the Resolution Process reaches finality and the Committee of Creditors reject the Resolution Plan in view of Sections 30 & 31 of the I&B Code , the Adjudicating Authority had no other option but to order for initiation of Liquidation Process. In such case, there is no occasion to grant further extension of time, as all the procedural has been followed in letter and spirit. No merit in....... + More

  14. 2018 (6) TMI 493

    Corporate insolvency procedure - liquidation proceedings - no person applied as a Resolution Applicant nor filed any Resolution Plan - Held that - Corporate Debtor had been incurring huge loss every year and the Audited Balance Sheets of the Corporate Debtor show that they had been incurring recurring losses every year and the losses have eroded its reserves and surplus BR BR Directors have committed various falsification of accounts irregulariti....... + More

  15. 2018 (6) TMI 492

    Initiation of Corporate Insolvency Resolution Process - whether an application under Section 7 of the I&B Code is maintainable when winding up proceeding against the Corporate Debtor has already been initiated? - Held that - In the present case, admittedly the High Court of Bombay has already been ordered for winding up respondent- Corporate Debtor , which is the second stage of the proceeding. For the said reason, we hold that initiation of Corp....... + More

  1. 2018 (6) TMI 814

    Refund of CENVAT credit - export of services - rejection on the ground that they had not debited the CENVAT credit amount from their books of accounts at the time of making the claim as required - It is further alleged that the refund claim amount was not reflected in the Service Tax returns filed by the appellant during the relevant period and the general ledger of the assesse to show that the duty has been debited cannot be considered as eviden....... + More

  2. 2018 (6) TMI 813

    Business Auxiliary Service - recovery of the Service Tax allegedly not paid by the appellant - Rate of tax - Held that - The rate of Service Tax has been reduced w.e.f 25/02/2009 and hence the appellant will be entitled to lower rate from that date - claim of appellant allowed. BR BR Service tax on Commission - case of appellant is that Service Tax amounting to about ₹ 5 Lakhs will not be payable since this pertains to the Commission amount....... + More

  3. 2018 (6) TMI 812

    Refund of unutilized CENVAT credit - Export of services - Rule 5 of Cenvat Credit Rules, 2004 readwith N/N. 27/2012-CE (NT) dated 18/06/2012 - Held that - The exporter has fulfilled the substantial conditions of the N/N. 27/2012-CE (NT) readwith Rule 5 and therefore the refund for accumulated Cenvat credits under Rule 5 of the Cenvat Credit Rules, 2004 need to be refunded to them - Since substantial condition of Rule 5 and N/N. 27/2012-CE (NT) ha....... + More

  4. 2018 (6) TMI 811

    Refund of service tax paid - services used in the export of their various export consignments - denial on the ground that the appellant/assessee is not registered with the Export Promotion Counsel which is the basic requirement under the Provision 2 (i) (B) of the N/N. 17/2009-ST dated 07/07/2009 readwith Section 11B of CEA 1944 - Held that - Since, the required registration-cum-membership certificate has been produced before us and we find a men....... + More

  5. 2018 (6) TMI 810

    Renting of immovable property - joint ownership - SSI exemption - Clubbing of clearances - threshold limit of ₹ 10 lakhs under SSI exemption N/N. 8/2008 dated 01/03/2008 in each case - Held that - The ownership title of the property which is on lease with M/s ICICI Bank Ltd. is individually in the name of the four appellants who has entered into a joint lease agreement with the tenant namely M/s ICICI Bank Ltd. and the amount of rent on mon....... + More

  6. 2018 (6) TMI 809

    Clearing and Forwarding Agency Service - whether the appellant-assessee, a Clearing and Forwarding agent have been rightly subjected to demand of additional Service Tax as short paid? - Held that - The appellant is not liable to service tax on the ground that the payments they have received on the pure agent basis by way of reimbursement of expenses incurred on behalf of the principal - the appellant is liable to pay service tax on the amount of ....... + More

  7. 2018 (6) TMI 808

    Jurisdiction - security agency service - cum-tax benefit - whether impugned adjudication order passed by Commissioner, Raipur which also determines liability for their office at Nowrozabad within Bhopal jurisdiction, whether the demand to that extent is without jurisdiction? - Held that - So far the demand raised in the impugned order relating to Bhopal Commissionerate, of the Amlai office of the appellant, in respect of services in the state of ....... + More

  8. 2018 (6) TMI 807

    Levy of Service Tax - certain receipts by the appellant, a dealer of motor vehicles, for the disputed period, under the fact that they have filed their ST-3 returns periodically and paid the admitted taxes - extended period of limitation - Held that - The appellant have made proper compliances by maintaining proper books of accounts, recording all the transactions and also filed their periodical returns, which have not been found to be untrue by ....... + More

  9. 2018 (6) TMI 806

    Classification of services - Appellant is engaged in conducting various courses some of which are approved by the AICTE or by Education Institute of American Hotel and Lodging Institute (EL AHLA) or by International Air Transportation Institute (IATA) - whether the services would be taxable under the head commercial coaching and training services or otherwise? - Held that - During the relevant period not only the degree/ diploma courses recognize....... + More

  10. 2018 (6) TMI 805

    Construction Services - Sub-contract - The revenue has carried out an investigation and it was revealed that the respondent had belatedly filed ST-3 return for the period 2005- 06 to 2009-10, the payment of service tax too was made after considerable delay along with interest - Held that - the sub-contractor is independent service provider, the service provided by the sub-contractor is an input service for the respondent and when such service is ....... + More

  11. 2018 (6) TMI 804

    Business Auxiliary Services - manufacture - whether the activities undertaken by the appellant on behalf of the other party amounts to manufacture or not? - whether they get covered under the exclusion clause of Section 65 (29) being an activity to manufacture and thus entitled for exemption from payment of service tax under Business Auxiliary Service? BR BR Held that - Clause (iv) of Section 65 (19) of the Finance Act, 1994 provides that service....... + More

  12. 2018 (6) TMI 803

    Construction of complex Service - contention of the appellant was that each residential unit being a standalone unit and there will be no building or buildings constructed by them having more than 12 units/flats they do not fall under the taxable category of construction of complex service - whether service tax under the category construction of complex as defined under Section 65 (30) (a) readwith Section 65 (105) (zzzh) readwith Section 65 (91a....... + More

  13. 2018 (6) TMI 802

    Refund claim - rejection on the ground of unjust enrichment and time limitation - Commercial & Industrial Construction Services - Held that - The chartered accountant s certificate alone cannot be relied upon in the absence of any corroborative evidence to rule out the doctrine of unjust enrichment. - The appellant did not produce on record any document to show that they revised their bills or refunded them the element of service tax received....... + More

  14. 2018 (6) TMI 801

    Business Auxiliary Services - appellant acted as an agent of ICICI Prudential Life Insurance Limited and ICICI Housing Finance Limited and for service rendered, received commission - Extended Period of Limitation - Held that - It is evident from the facts of the case that the service provided by the appellant is not falling within the category of Insurance Business but is covered by the definition of BAS. Consequently, the plea taken by the appel....... + More

  15. 2018 (6) TMI 800

    Construction of residential and commercial complex - Tri-partite Agreement - non-payment of tax on Construction of 45 flats, which were entitled to the Flat Owners, in lieu of their relinquishing the undivided share of land in favour of the appellant - Department took the view that the appellant is required to discharge service tax in respect of the 45 flats allotted to erstwhile owners on the basis of sale price of remaining 30 flats - Held that....... + More

  1. 2018 (6) TMI 786

    CENVAT credit - inputs - Revenue entertained a view that inasmuch as goods were not received in the factory on or after first day of March 2001, the appellant would not be entitled to avail the credit of the same, in terms of the new provisions of Rule 57AB introduced vide N/N. 6/2001-CE(NT) - Held that - When the inputs were received in the assessee s factory in Jan. and Feb. 2001, they were admittedly entitled to avail the credit of duty paid t....... + More

  2. 2018 (6) TMI 785

    Valuation - removal of MRP stickers - Revenue entertained a view that such removal of MRP sticker amounts to manufacture, in terms of Section 2(f) of Central Excise Act, 1944 which provides a deeming provision of manufacture - labelling/relabelling not done - Held that - There is no allegation that any new MRP sticker were affixed to the goods in question - Admittedly, the provisions of Section 2(f)(iii) provides deemed manufacture definition onl....... + More

  3. 2018 (6) TMI 784

    Penalty u/r 26 of CER - allegation against the appellants are that they have facilitated the fraudulent availment of Cenvat credit to the main noticee viz. M/s Ujala Electricals Ltd. - period involved in this case is from 2005-2006 to 2008-2009 - Held that - The penal provision under sub-rule 2 of Rule 26 was not there in existence for the period 2005-2006 and 2006-2007 and only available for the period after 1.3.2007 - the penalty cannot be impo....... + More

  4. 2018 (6) TMI 783

    CENVAT credit - Rule 4(1) of CCR - entitlement of credit after crossing the SSI Exemption limit - Revenue entertained a view that inasmuch as Rule 4(1) allowed availment of credit only within a period of six months from the date of issuance of the documents, the appellants were not entitled to avail the credit on the basis of more than six months old bills of entry - Principles of harmonious construction and interpretation of rule - Held that - A....... + More

  5. 2018 (6) TMI 782

    Clandestine removal - the entire case of the Revenue is based upon the sole factor that M/s. Vishal Packaging Industries could not establish that during the relevant period, they had entered into an agreement with either M/s. V K Enterprises and M/s. Tambi Powerloom Ltd. - Held that - This factor by itself cannot lead to conclusion that present appellant had cleared PET bottles in the guise of PET preform without payment of duty - It is well sett....... + More

  6. 2018 (6) TMI 781

    Clandestine removal - goods found short - Revenue entertained a view that such short found goods have been cleared by them without payment of duty - Held that - There is no inventory issued by the officers for the purpose of stock taking of goods. Admittedly, such huge stock lying in the factory cannot be weighed and the fact of shortage or excess cannot be arrived at unless the inventories are prepared. There is no explanation of the Revenue as ....... + More

  7. 2018 (6) TMI 780

    SSI Exemption - Confiscation of the raw material, packaging material as also semi finished and finished goods found in the appellant s factory - seizure on the ground that the same was not entered in the statutory record - penalty - Held that - Admittedly the appellant are working under the small scale exemption limit and there is no evidence to reflect upon the fact that the appellants were not entering the goods with an any malafide intention -....... + More

  8. 2018 (6) TMI 779

    Clandestine Removal - The entire case of the Revenue is based upon the records recovered from M/s Monu Steels and M/s. Kailash Traders and based upon the statement of the representative of M/s Monu Steels and M/s. Kailash Traders - Held that - The law i.e. as to whether the third party records can be adopted as an evidence for arriving at the findings of clandestine removal, in the absence of any corroborative evidence, is well established - It s....... + More

  9. 2018 (6) TMI 778

    Classification of manufactured goods - recombinant erythropoietin (r-EPO) - whether classified under heading no. 2937 00 of the First Schedule of the Central Excise Tariff Act, 1985 as hormones or as other blood fractions under heading no. 3002 00 of the Schedule? - extended period of limitation - penalty - Held that - The production of the impugned goods was at a nascent stage with no precedent to assist in classifying the particular heading of ....... + More

  10. 2018 (6) TMI 777

    Refund of Cess paid - Secondary & Higher Education Cess - time limitation - Section 11B of Central Excise Act - Held that - There is no basic provision either in the Excise Act or under the Cenvat Credit Rules relating to the refund of the accumulated credit - In the absence of any such provision conferring jurisdiction on the Tribunal to deal with the refunds of accumulated unutilized credits, it is not possible to go beyond the legislation ....... + More

  11. 2018 (6) TMI 776

    Adjustment of the sanctioned refund claim against outstanding demands - refund of the amount of ₹ 10 lakhs which the appellant was directed to deposit as a condition of hearing their appeal, which stand deposited by them - Held that - Admittedly, the appellant has to pay the Revenue the confirmed demands - Mere filing of appeal before the Hon ble High Court, without there being any stay, cannot be considered as pendency of the appeal. The T....... + More

  12. 2018 (6) TMI 775

    Penalty u/r 25 of CER - storage of goods outside factory premises - permission not obtained under Rule 4(4) of the Central Excise Rules, 2002 - Held that - The imposition of penalty on the sole ground of non-observing of procedural requirement of Rule 4(4) cannot be appreciated - also, the penalty was originally imposed under section 11AC of the Act which stand already set aside by Commissioner (Appeals). As such, fresh imposition of penalty unde....... + More

  13. 2018 (6) TMI 774

    CENVAT credit of Education and Secondary & Higher Education Cess - cross-utilisation in terms of provisions of Rule 3(7)(b) of Cenvat Credit Rules, 2004 - Held that - The use of the expression inserted and substituted will have no bearing inasmuch as the end result of the amendments in Rule 3(7) (b) of Cenvat Credit Rule is the same, whether it has come by way of institution or substitution. Otherwise also, there is no ambiguity in the provis....... + More

  14. 2018 (6) TMI 773

    Benefit of N/N. 43/2001-CE(NT) dated 26/06/2001 - whether the export of the goods made under the provisions of Rule and Notification is only a procedural mistake or it is the non-compliance of the conditions mentioned in the Notification which would deny them the benefit contained therein? - Held that - As the goods procured vide the annexure 45 have not been used for intended purpose, there is violation of Rule 6 of (Removal of Goods at Concessi....... + More

  15. 2018 (6) TMI 772

    Excisability/marketability - single ply jute produced by the appellant and captively consumed in the manufacture of multiple fold hank jute yarn - whether the single ply yarn produced by the appellant is marketable and thereby liable to excise duty or not? - Held that - Appellant had an intention of marketing this yarn even if they have not actually sold any. Thus, the excisability of the product in question is established by the declaration by t....... + More

  1. 2018 (6) TMI 561

    Clarification on the rate of Tax - Centrifugal Monoblock Pumpset, Submersible Pumpset - Held that - Entry 26 of Part-B of the First Schedule to the TNVAT Act, 2006 reads as under (a) Centrifugal and Monoblock submersible pumpsets for water handling and parts thereof - 5% (Commodity Code 2026); (b) Pumpsets of 3 HP and 5 HP - 5% (Commodity Code 2026). BR BR It is clarified that Centrifugal and Monoblock Submersible Pumpsets for water handling are ....... + More

  2. 2018 (6) TMI 304

    Levy of sales tax - Inter-state transaction - Whether the Tribunal below ought to have considered the strong prima facie case in favour of the Revisionist in view of the inter-State nature of the transaction, Section 3 of the Central Sales Tax Act and the Specific bar contained in Section 7 of the U.P. VAT Act, the Constitution Bench Decision of the Supreme Court in Kone Elevator India Pvt. Ltd. v. State of Tamil Nadu and Ors. 2014 (5) TMI 265 - ....... + More

  3. 2018 (6) TMI 173

    Clarification for the rate of tax - Ready Mix Concrete - supply to SEZ - TNVAT Act - Held that - It is clarified that Supply of Ready Mix Concrete to SEZ is exempted from tax as per the terms and conditions laid down in G.O. Ms.No.193 dated 30.12.2006........ + More

  4. 2018 (6) TMI 112

    Appeal rejected as time barred - telecommunication services - taxability of rentals of the basic telephone as well as the supply of SIM cards - Held that - When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is ....... + More

  5. 2018 (6) TMI 70

    Stay on Recovery of assessed tax - recovery actions initiated inspite of pending appeals and the applications for stay - Held that - Taking note of similar orders passed by this Court in analoguous situations, it is of the view that the petitioner can be given some respite from the rigor of recovery, at least until such time as his stay petition is considered by the 2nd respondent - the 2nd respondent are directed to take up, consider and pass or....... + More

  6. 2018 (5) TMI 1706

    Attachment orders - Forcibly collection of post-dated cheques by the Department at the time of search - Held that - The question of forcibly collecting cheques from dealers at the time of search operation has occupied the minds of this Court as well as other Courts on multiple occasions. The Courts have deprecated the practice of coercive recoveries, without any order of assessment or without initiation of assessment proceedings. There may be a g....... + More

  7. 2018 (5) TMI 1653

    Validity of SCN - time limitation - initiation of the proceeding by issuance of show cause notice - suo motu revision of original assessment order - whether the notices dated 14-7-2015 seeking to revise the original assessment orders dated 1-5-2009, 1-5-2010 and 22-1-2008, respectively was within the prescribed time period or not? - Held that - In the proviso (a) to sub-section (3) of Section 49 of the VAT Act an embargo has been created for the ....... + More

  8. 2018 (5) TMI 1652

    Revision of assessment - reversal of ITC - suppression of facts - Application of mind by AO - Held that - It is very rare feature that an assessing officer applies the mind to the judicial pronouncements and takes a proper decision, even at the pre-revision stage. This needs to be appreciated. However, in respect of the remaining defects, which were pointed out, the assessing officer has confirmed the proposal. If a little more effective exercise....... + More

  9. 2018 (5) TMI 1616

    Rectification of assessment order - The grievance of the petitioner is that certain amounts paid by the petitioner have not been given credit to in Exts.P1 to P4 modified assessment orders - Held that - the writ petition is disposed of directing the first respondent to take a decision on Exts.P5 to P8 applications within two months from the date of receipt of a copy of this judgment........ + More

  10. 2018 (5) TMI 1614

    Refund with interest - time barred deemed assessment - Held that - In the present case, the initial assessment order dated 26.3.2013 had been set aside which was sent by registered post bearing No. 2791 dated 10.12.2013 as per Annexure P.7 appended alongwith replication. The assessment order in pursuance of remand order passed on 29.12.2016 as per Annexure R.1 attached with the written statement, was clearly barred by limitation as it had not bee....... + More

  11. 2018 (5) TMI 1612

    Condonation of delay in filing appeal - grievance of the petitioner in the writ petition concerns the delay on the part of the appellate authority in taking a decision on Exts.P3 and P4 appeals - Held that - the writ petition is disposed of directing the appellate authority to pass orders on Exts.P5 and P6 applications preferred by the petitioner for condonation of delay in filing Exts.P3 and P4 appeals, within two months from the date of receipt....... + More

  12. 2018 (5) TMI 1611

    Principles of Natural Justice - it was alleged that the petitioner has not produced documents evidencing despatch of goods along with the Form-F declarations as provided for under Section 6A of the Act - Held that - In so far as the assessing authority has no case that the petitioner has not produced the Form-F declarations in respect of the transactions, when it was found that the petitioner has not produced the documents evidencing despatch of ....... + More

  13. 2018 (5) TMI 1610

    Delay on the part of the appellate authority in disposing of Exts.P3 and P4 appeals - Held that - In so far as the delay in filing the appeals viz. Exts.P3 and P4 are only 32 and 29 days respectively, the writ petition is disposed of directing the appellate authority to condone the delay in filing the appeals and pass orders on Exts.P7 and P8 stay petitions preferred by the petitioner in the appeals........ + More

  14. 2018 (5) TMI 1609

    Delay of 68 days in filing the appeal - Held that - Since the delay in filing the appeal is only 68 days, having regard to the peculiar facts of this case, it is appropriate to dispose of the writ petition directing the appellate authority to condone the delay in filing the appeal and pass orders on the application for stay, within one month from the date of receipt of a copy of this judgment - petition disposed off........ + More

  15. 2018 (5) TMI 1608

    Stay application - proceedings have already been initiated for realisation of the amounts covered by the order impugned in the appeal - Held that - the writ petition is disposed of directing the appellate authority to consider and pass orders on the application for stay preferred by the petitioner in the appeal, within one month from the date of receipt of a copy of the judgment........ + More

  1. 2018 (6) TMI 816

    Validity of statutory demand notice dated 10.06.2016 - Held that - In this case, in the statutory notice dated 10.06.2016, the complainant has clearly given the description of the two cheques for ₹ 5 lakhs each. Of course, the complainant has added another cheque for ₹ 2 lakhs and has totally demanded ₹ 12 lakhs from the accused. However, in the complaint and in the sworn statement, the complainant has rested his case only on th....... + More

  2. 2018 (6) TMI 815

    Time Limitation of filing complaint - contention of the petitioners is that since the cheques were returned on 18.12.2009 and the complaint is filed only on 18.02.2010, the complaint is barred by limitation - Held that - The complainant has received intimation from the bank with regard to the dishonour of cheque on 18.12.2009. He has issued the first notice on 28.12.2009 and since the notice was not served to the accused, he issued another notice....... + More

  3. 2018 (6) TMI 346

    Drugs Trafficking - possession of contraband - Bail Application - Sections 21 and 22 of NDPS Act and Sections 307, 34, 427 of IPC - whether the recovery of contraband effected from the petitioner amounts to commercial quantity or otherwise? - Held that - Drug peddlers for a small monetary consideration make the youth to use drugs for a small time excitement/kick. The drug peddlers have successfully destroyed the social fabric of our society and l....... + More

  4. 2018 (6) TMI 13

    Inheritance of property - Execution of sale deed of subject properties in favor of appellant - HUF - defendant was not the sole owner of the subject properties but he was only a karta of the HUF which owned these properties - whether inheritance of property would construe HUF properties or self acquired properties? - Held that - Since Sh. Prithvi Singh/late defendant no.1 inherited the properties from his father Sh. Ram Singh in the year 1943, in....... + More

  5. 2018 (5) TMI 1368

    Partition and separate possession of suit properties - concept of ancestral property - whether the appellants were entitled to claim partition in ancestral property in view of the amendment in the Hindu Succession Act, 1956 by adding Section 29-A vide Chapter II-A under the heading of Succession by Survivorship? - Held that - On a plain reading of the newly added provision i.e., Section 29-A of the Act, it is evident that, inter-alia, daughter of....... + More

  6. 2018 (5) TMI 1241

    Validity of E-auction Sale - validity of Notice issued under Rule 8 (6) of the Rules, 2002 dated 23-09-2016 and 03-11-2016 issued by the Respondent Bank against the alleged secured assets - petitioners argue that the writ petition is maintainable as the statutory alternative remedy proved to be ineffective and that pendency of the same would not bar his clients from invoking the extraordinary jurisdiction of this Court under Article 226 of the Co....... + More

  7. 2018 (5) TMI 1140

    Non-compliance with pre-deposit - whether the order of the National Company Law Appellate Tribunal dismissing the main appeal itself of the appellant herein for non-compliance of the direction to deposit the amount as a condition for grant of stay, is justified and legal? - section 53B of the Competition Act, 2002. BR BR Held that - provisions of Section 53B of the Act confers a right upon any of the aggrieved parties mentioned therein to prefer ....... + More

  8. 2018 (5) TMI 1065

    Interim bail - Sections 21/25/29 NDPS Act - smuggling of heroin - bail is sought on the ground that the wife of the petitioner is unwell and the family of the petitioner comprises of his aged father, wife and eight children - Held that - States report has been filed, which though does not confirm that the wife of the petitioner has tuberculosis, however, confirms the structural picture of the parental house of the petitioner. The picture depicts ....... + More

  9. 2018 (5) TMI 1064

    Bilateral investment treaty arbitrations - Jurisdiction and approach of National Courts or on the nature of arbitrations under such treaties - As the number of investment treaty arbitrations have grown, concerns over the investment treaty system have arisen. These concerns include a perceived deficit of legitimacy given that States are being judged on their conduct by private non-elected individuals. Concerns have also arisen in respect of incons....... + More

  10. 2018 (5) TMI 1063

    Surrender of license to sell Liquor - Recovery of licence fee in addition to the basic licence fee consequent to surrender of licence for country made liquor by the petitioner - contention of the learned counsel for the petitioner is that as a result of surrender of such licence all that can be forfeited/ recovered from the petitioner is the basic licence fee and security amount and not the fee payable by him in respect of the Monthly Minimum Gua....... + More

  11. 2018 (5) TMI 991

    Recovery of amount for supply of goods to partnership firm - the only ground urged before this Court in this appeal, was that the goods which were supplied by the respondent no.1/plaintiff to the appellants/defendant nos.1 and 3 were defective and hence the respondent no.1/plaintiff was not entitled to the amount - Held that - neither in the leave to defend application nor in this Court documents have been filed showing any RFA No.401/2018 Page 5....... + More

  12. 2018 (5) TMI 990

    Entitlement to Executive Car Facility - petitioner-Kulranjan Toppo is holding the post of DGM (IT) in the Grade Pay of ₹ 7600/- and petitioner-Sunil Dwivedi is holding the post of DGM (Finance) in the same Grade Pay - Held that - All that is required as per respondent s Executive Car Policy (Annexure-4) is that the concerned Officer has to be DGM (M3a). It is not the case of respondent that petitioners are not DGM (M3a). It is matter of rec....... + More

  13. 2018 (5) TMI 989

    Genuinity of petitioner - Allotment of flat to petitioner, wife of Late Sh. Gurdial Singh, who had applied for allotment of MIG flat under the New Pattern Registration Scheme, 1979 - It is the case of the petitioner that the non-allotment of the flat to the petitioner and withdrawal of the earlier decision on the basis that the case is not covered under the wrong address policy is absolutely illegal and without merit - whether the respondent was ....... + More

  14. 2018 (5) TMI 988

    Detention of petitioners - Smuggling - COFEPOSA Act - detention of the petitioners stand vitiated on account of non supply of either the printed copies/ hard copies of the documents contained in the CDs. BR BR Held that - It is well settled in law that the RUDs are an integral part and parcel of the GOD. The GOD contains the reasons and justification provided by the Detaining Authority on the basis of which he arrives at his subjective satisfacti....... + More

  15. 2018 (5) TMI 839

    Suit for recovery of borrowed amount alongwith interest - execution of promissory notes - burden of proof - Whether the suit promissory note is true, valid and supported by consideration? - benefits of Act 45 of 1987 and Act 1 of 1990. BR BR Held that - The instant case is a converse case, where, though the plaintiff did not enter the witness box, but the facts were spoken by PW.1 on behalf of the plaintiff and the case of the plaintiff to the ex....... + More

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