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p Exemption u/s 11 - ITAT held that the Assessee was involved in imparting education when it was engaged in activities of selling and publishing, which was in the nature of business and trade within the meaning of Section 2 (15) as amended? - Assessee is the Association of Indian Universities, a charitable trust registered under the societies Registration Act, 1860 and Section 12A since 28th January 1981 - Assessee has got an approval under Section 80G (5) (vi) with effect from AY 2010-11 - HELD THAT - CIT (A) holding that the Assessee was a charitable association. AO was directed to allow the exemption u/s 11 (1) as it was found as a matter....... + More p TP Adjustment - royalty payment - withdrawal of appeal - principle of aggregation of closely linked transactions using Transactional Net Margin Method - HELD THAT - Petitioner has placed before this Court copy of a letter dated 2nd May 2019 received by the Petitioner from the office of the Deputy Commissioner of Income Tax Section 13(2) in regard to the settlement reached between the Assessee and the department under the Mutual Agreement Procedure (‘MAP’) between the Competent Authority (CA) of India and CA of UK under Article 27 of the India - UK Double Taxation Avoidance Agreement (‘DTAA’). This specifically deals....... + More p Remand made by the ITAT to the AO - addition of unexplained expenditure based on seized document HELD THAT - It is seen that the ITAT remanded the matter to the AO was after examining the complete books of accounts and vouchers of M/s. Rashiwa International Ltd. asked to be produced by the Assessee. The ITAT was of the view that the exercise of reconciling the amounts appearing in the seized documents with the books of accounts of M/s.Rashiwa International Ltd. had to be actually carried out by the AO. That not having been done, due to failure of the Assessee, the matter required to be remanded to the AO. /p p The Court is, therefore, unab....... + More p Prosecution u/s 276B r.w.s. 278B - failure to deposit TDS deducted to govt account - consequences of failure to deduct or pay u/s 201 - HELD THAT - In order to get over the penal consequences that follow on account of non-payment of tax deducted at source, it is open for the accused persons to come clean of the said charge by showing reasonable cause for failure to deposit the said amount. In the light of this provision, contentions urged by the learned counsel for the petitioners cannot be accepted. /p p Since the material placed on record prima facie discloses that the petitioners have deducted tax at source but failed to credit the same....... + More p Benefit of deduction u/s 80IA - condition laid down in Section 80IA(4) - recognised as transferee or assignee of the principal contractor - HELD THAT - Controversy involved in the present Appeal is covered by the Judgment of this court in the case of the same Assesse reported in M/S. CHETTINAD LIGNITE TRANSPORT SERVICES PRIVATE LIMITED a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 378239 target blank 2019 (4) TMI 683 - MADRAS HIGH COURT /a wherein this court has has held that the power generating companies are entitled to deduction u/s 80IA of the Act in different sub clauses viz., under Section 80IA(4)(iv) of t....... + More p Addition u/s 69B - Amount of investments, etc., not fully disclosed in books of account - HELD THAT - As categorically recorded by the Tribunal that the agreement seized was only a photo copy of the original which was not seized from the assessee. The seller, buyer and the witnesses refused to identify the same. The assessee was neither a party nor witness to the agreement. The assessee was not related to either party. /p p The assessee purchased the land directly from PISCO at the prevalent circle rate. In the purchase deed of the assessee, the rate was ₹ 4 crore per acre ₹ 2.50 lacs per marla as against that of ₹ 11.05 ....... + More p Additions u/s 69C - fresh opportunity to examine addition u/s 68 - treatment of alleged purchases as bogus expenses - HELD THAT - Purchases were debited in the regular books of account of the assessee. The sales out of the purchases were accepted by the A.O. Find that the notices issued by the A.O on the address of M/s Kumar Sales were duly served. Nothing prevented the A.O to issue summons to M/s Kumar Sales to force its attendance and examine the transaction. I further find that the CIT(A) realizing that Section 69C is not applicable on the facts of the case invoked Section 68 /p p The power of the CIT(A) are co terminus to that of the A....... + More p Penalty u/s 271(1)(c) - AO make addition of payment made towards sub-brokerage by treating it as bogus and not incurred for the purpose of business - Tribunal deleted 90% of addition and sustain 10 % on estimated basis - HELD THAT - It is relevant to observe, against the aforesaid decision of the Tribunal, the Revenue went in appeal before the Hon'ble Jurisdictional High Court u/s 260A. While deciding the appeal of the Revenue, the Hon'ble Jurisdictional High Court not only sustained the decision of the Tribunal in allowing 90% of the sub-brokerage payment but has also observed that there is no dispute regarding the genuineness of ....... + More p Penalty u/s 271(1)(c) - tax liability of the assessee is ultimately computed on the book profit under section 115JB - whether penalty imposed u/s 271(1)(c) on the basis of disallowance made under the normal provisions of the Act would survive? - HELD THAT - On the basis of additions/disallowances made under the normal provisions of the Act, AO imposed penalty u/s 271(1)(c). However, while giving effect to the order passed by the Commissioner (Appeals), AO in his order dated 26th July 2017, a copy of which is placed before us by the AR has computed the total loss of the assessee under the normal provisions of the Act at ₹ 74,77,297, a....... + More p Disallowance of deduction claimed u/s 35(1)(ii) - retrospective withdrawal of approval granted by the prescribed authority - Donation to the research Institute - HELD THAT - If at the time of giving the donation to the research Institute it had a valid registration granted under the Act, subsequent withdrawal of such approval would not be a reason to deny deduction claimed by the donor. /p p In case of Chotatingrai Tea a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 6095 target blank 2002 (10) TMI 3 - SUPREME COURT /a the Hon'ble Supreme Court while dealing with the deduction claimed under section 35CCA of the....... + More p Penalty u/s. 271(1)(c) - CIT-A exparte order - HELD THAT - There is no doubt that assessee remained non-cooperative before the lower authorities and therefore, CIT(A) has passed the exparte order, without discussing in detail the facts and circumstance of the case and also did not deal the issue on merit and passed a non-speaking order, which in my opinion, is not in accordance with the principles of natural justice and it is an erroneous approach. After reading Section 250(6), I am also of the considered view that Assessee’s case should be decided on merits, which the Ld. CIT(A) has not done. /p p Remit back the issues in dispute to....... + More p Penalty u/s 271(1)(c) - AO had not struck off the relevant column of the show cause notice - HELD THAT - AO had not struck off the relevant column of the show cause notice cannot be a valid reason for deletion of the penalty u/s.271(1) (c) of the Act /p p We are of the considered opinion that ld.CIT(A) ought not have deleted the penalty based on the decision of Manjunatha Cotton and Ginning Factory a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 235462 target blank 2013 (7) TMI 620 - KARNATAKA HIGH COURT /a and therefore we remand the matter back to the ld. Commissioner of Income Tax (Appeals) for adjudication of the appeal on merits. Appeal of the Revenue is partly allowed for statistical purpose. /p p Assessment of trust - Set off brought forward excess application of income and carry forward the excess application of income - HELD THAT - This issue is no longer res-integra as per the decision of Hon’ble Supreme Court in the case of CIT vs. Subros Educational Society, a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 277649 target blank 2018 (4) TMI 1622 - SC ORDER /a wherein it is held that eligible trust which are enjoying the registration u/s.12AA of the Act are entitled to carry forward and set off of the excess application of income. Thus, we do not find any merits in the grounds of appeal. Therefore g....... + More p Revision u/s 263 - unexplained cash deposits - lack of enquiry - HELD THAT - The assessee was unable to substantiate the source of deposits and he accepted 8% net profit of the total deposits. AO is not only an adjudicator, but also an investigator. It is the duty of the Assessing Officer to ascertain true facts stated in the return when the circumstances of the case are such as to provoke any enquiry. From the order of the AO, it is clear that the assessee has taken different stands at different points of time. /p p At once occasion, the assessee states that different parties deposited cash in assessee’s account so as to facilitate ....... + More p Levy of penalty u/s 271AAB - no prior approval taken from the concerned Joint Commissioner of Income Tax (JCIT) - HELD THAT - Penalty u/s 271AAB which falls in Chapter XXI of the Act shall not be imposed by the Assessing Officer until and unless prior approval is taken from the concerned Joint Commissioner of Income Tax (JCIT). The use of word “shall” make it mandatory to take the prior approval of the JCIT / Additional CIT before passing the order imposing the penalty under section 271AAB of the Act. /p p In the present case it is crystal clear from the penalty order passed by the Assessing Officer that the order was passed on....... + More p Disallowance of interest paid expenses u/s. 36(1)(iii) - Contention of the assessee’s counsel that borrowed funds were not used for the purpose of giving advance and that the advances were given out of reserves and surplus - HELD THAT - It is evident that the interest bearing funds were used for the purposes of giving advance for non business purposes. Therefore, the disallowance was made by the AO was accordingly rightly confirmed by the CIT(A), which does not need any interference hence, the ground no. 2 is dismissed. /p p Disallowance on account of rent payment - assessee had failed to furnish any documentary evidence with regard ....... + More p Penalty u/s. 271(1)(c) - denial of exemption under s.11 & 12 - difference of opinion regarding applicability of proviso to section 2(15) r.w.s. 13(8) of the Act in respect of such cricket bodies and consequently the action of the assessee is to be regarded as bonafide - whether penalty action can be taken against the assessee while fastening liability to tax as a result of any retrospective amendment in law especially when the assessee could not foresee such law at the time of filing of return of income? - HELD THAT - Coordinate Bench in a detailed and voluminous order in Gujarat Cricket Association a href https //www.taxmanagementindi....... + More p Disallowance u/s 14A r.w.r. 8D - non recording requisite satisfaction as to how the computations made by the assessee were not correct - HELD THAT - As relying on em Godrej & Boyce Manufacturing Company Ltd. Vs. DCIT /em a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 342665 target blank 2017 (5) TMI 403 - SUPREME COURT /a and MAXOPP INVESTMENT LTD. a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 357102 target blank 2018 (3) TMI 805 - SUPREME COURT /a AO, without having recorded requisite satisfaction as to how the computations made by the assessee were not correct, could not be clinc....... + More p Penalty u/s 271(1)(c) - claim of deduction u/s 54 - quantum addition deleted by Tribunal - HELD THAT - It is evident, the basis for imposition of penalty under section 271(1)(c) of the Act is the disallowance of assessee’s claim of deduction under section 54. /p p Tribunal while deciding assessee’s quantum appeal in the order referred to above has allowed assessee’s claim of deduction under section 54 - the very foundation on which the penalty under section 271(1)(c) of the Act was imposed no longer exists. That being the case, the penalty imposed under section 271(1)(c) of the Act cannot also survive. Accordingly, we del....... + More p Penalty u/s. 271(1)(c) - bogus purchases from Hawala dealers - plausible explanation - HELD THAT - Upon perusal of assessee’s submissions during appellate proceedings, we find that the assessee’s plea revolve around the fact that the purchases were made under bona-fide belief and in good faith that the suppliers were genuine. The suppliers used to visit assessee’s shop to supply the material as per routine practice. The TIN of the suppliers was found active at the time of purchase of goods. We find the explanation to be plausible one and the overall conduct of the assessee do not inspire us to confirm the penalty /p p Unexplained jewellery - addition based no source of the jewellery given - HELD THAT - Gold jewellery which was intercepted by the Police Authorities under suspicious circumstances, has been declared by Hon’ble Judicial Magistrate as belonging to Sh. Dhiraj Kumar, the possessor thereof which is evident from the orders of Hon’ble court as placed on record. /p p Nothing on record suggest that Sh. Dhiraj Kumar was not an employee of the assessee company and the said jewellery did not belong to assessee company. In fact, the statement of Sh. Dhiraj Kumar as well as the director of the assessee company, in unison, confirm the said fa....... + More p Re-assessment proceeding u/s 147 - reopening within period of four years - no sanction u/s 151(2) - Bogus purchases - HELD THAT - We concur with the stand taken by Ld. first appellate authority. The proceedings were triggered within 4 years from the end of relevant AY and therefore, sanction u/s 151(2) was not required and also, the first proviso to Section 147 was not applicable since the original return was processed u/s 143(1). AO was clinched with tangible information in the shape of information from Sales Tax Authorities which prima-facie suggested possible escapement of income in the hands of the assessee. Hence, no infirmity could b....... + More p Disallowance of legal & professional fees - assessee was advertising agency rendering various services - payment to a marketing and PR consultants - HELD THAT - We find that the assessee, during assessment proceedings, had placed on record the copies of bills issued by em Ms.Sharon Dias /em indicating the nature of expenditure etc. The copy of agreement entered into with em Percept Ltd. for provision of services /em was also placed before Ld. AO. However, the Ld. AO, completely disregarding the same, proceeded on wrong footing that the assessee had not carried out any business during the year and therefore, the expenditure was not allo....... + More p Penalty u/s 271(1)(c) - Addition of interest received on fixed deposit and interest received from other parties - HELD THAT - Undisputedly, in the assessment order, while initiating penalty proceedings under section 271(1)(c) in respect of the aforesaid addition, AO has not recorded any satisfaction with regard to the exact offence committed by the assessee requiring imposition of penalty under section 271(1)(c) - AO has simply mentioned “initiate penalty u/s 271(1)(c)”. He has not stated whether initiation of penalty proceeding is for furnishing of inaccurate particulars of income or for concealment of income or for both. Only....... + More p Addition u/s 80-I &80-IA - in respect of industrial unit No. 1 & 2 - grinding units for soap stone - AO denied the claim by holding that the process of crushing boulders to obtain stones of smaller size termed as “gitti” cannot be regarded as a process manufacturing or production - CIT(A) upheld on the ground that primarily the certificate in Form No. 10CCB was incomplete to the extent of computing of amount of deduction was not mentioned in the said certificate and secondly unit no. 2 was not having the necessary infrastructure to carry out the activity has been claimed by the assessee - proof of production or manufact....... + More p Detention Order - Section 129 (3) of CGST Act - Part B/E-Way Bill was also generated and produced for inspection - HELD THAT - The issues raised are at preliminary stage and this Court is not convinced to entertain the writ petition and adjudicate upon merits at this stage. To confirm to the scheme under the Act, the writ petition is disposed of by directing that petitioner submits bank guarantee for the tax and penalty as shown in Ext.P12 and applies for release of goods by enclosing a copy of this order within two days from today. /p p The 1st respondent shall release the goods detained under Ext.P11 and subjected to enquiry in Ext.P12 w....... + More p Detention of goods alongwith vehicle - the validity of the e-way bills had expired - HELD THAT - A Division Bench of this Court in RENJI LAL DAMODARAN, DAMU & SONS SALES CORPORATION VERSUS STATE TAX OFFICER, KOTTARAKKARA AND ASST. STATE TAX OFFICER, KARUNAGAPALLY a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 365673 target blank 2018 (8) TMI 1145 - KERALA HIGH COURT /a had occasion to deal with an identical issue, where It is directed to release the goods on the appellant furnishing Bank Guarantee for tax and penalty found due and a bond for the value of goods in the form as prescribed under Rule 140(1) of th....... + More p Scope of Section 17(5)(d) - construction of immovable property (shopping malls) intending for letting out for rent - input tax credit from construction against output GST on rental income - it was alleged that the opposite parties without considering the provisions u/s 17 (5)(d) of the CGST Act held that the provisions regarding input credit of the CGST Act is not applicable - purpose of letting out he is earning out commercial rent income and he has to pay 18% GST on that - HELD THAT - The very purpose of the Act is to make the uniform provision for levy collection of tax, intra state supply of goods and services both central or State and....... + More p Release of detained goods with vehicle - petitioners submitted that the petitioners have filed representation on 06.03.2019 to respondent No.3 - HELD THAT - The writ petition disposed off by directing respondent No.3 to take a decision on the representation dated 06.03.2019 (taken on record today) and pass a speaking order after affording an opportunity of hearing to the petitioners within a period of 15 days from the date of receipt of certified copy of order, in accordance with law. /p p Classification of goods - Bags made of Cotton - whether the Cotton Bags manufactured by the appellant and classified by the Original Authority under CTH 42022220 is legal and proper or requires modification? - challenge to AAR decision. /p p The first contention of the Appellant is that Chapter 42 of Customs Tariff covers only articles of leather or composition leather or articles which are characteristically of leather trade - HELD THAT - Classification of goods for the purposes of GST is based on the entries in the First Schedule to the custom Tariff Act 1975. In terms of explanation (iii) and (iv) to Notification No. 1/2017 - Central Ta....... + More p Levy of GST on ocean freight whereas the value of import goods includes Ocean Freight - Vires of N/N. 8/2017-Integrated Tax Rate dated 28th June 2017 and Entry 10 of the N/N. 10/2017-Integrated Tax Rate also dated 28th June 2017 - HELD THAT - Similar issue decided in the case of MOHIT MINERALS PVT LTD VERSUS UNION OF INDIA a href https //www.taxmanagementindia.com/visitor/detail case laws.asp?ID 355349 2018 (2) TMI 770 - GUJARAT HIGH COURT /a wherein, similar question of facts and law are involved and this Court had issued notice. /p p Under the circumstances, issue strong Notice /strong , returnable on 19.6.2019. /p p Energy Performance Contract - Applicability of entry no. 3 of Notification No 12/2017-Central Tax - services provided by the applicant by way of providing energy saving street lighting services including operation and maintenance of the street lighting installations to Bhubanewsar Municipal Corporation (BMC) - Pure services - HELD THAT - The appellants have not made any supply of goods either under a works contract or under a contract for composite service involving supply of goods. There is no transfer of property or effective control or possession in the goods during the execution of the contract for BMC. Therefore, the appellants have m....... + More p Release of detained goods with Truck - direction to generate new e-way bill and/or to amend the e-way bill - HELD THAT - The present petition disposed off by directing respondent No.2 to take a decision on the reply dated 3.5.2019 (Annexure P-5), in accordance with law by passing a speaking order and after affording an opportunity of hearing to the petitioner within a period of one week from the date of receipt of the certified copy of the order. /p p Classification - rate of tax - Frozen Chicken sold in packaged form - Whether frozen chicken as sold by the company is exempt under Entry No. 9 of Notification No. 02/2017-CT(R)? - HELD THAT - Frozen chicken in meat form is covered under Chapter 2 of Section I heading Live Animals, Animal Products of Customs tariff Act, 1975 - The gallus domesticus is a technical name for chicken and is type of domesticated fowl. Thus frozen meat of chicken is covered under entry 0207 of the Customs tariff Act, 1975. /p p The carcass of the chicken supplied by the applicant in a HDPE bag is frozen and is also branded thus fulfills two of the three necessar....... + More p Scope of Advance Ruling Authority - Levy of IGST or SGST & CGST? - sale of Hand-made Cutting Knives for Shoe industries - inter-state supply or intra-state supply? - appellant get orders from overseas customers, but delivery is made locally (within Tamil Nadu) and payment is received in foreign currency - HELD THAT - Section 97 of the CGST Act / Tamil Nadu GST Act (TNGST) has given the scope of Advance Ruling Authority, i.e., the question on which the Advance Ruling can be sought. /p p The Act limits the Advance Ruling Authority to decide the issues earmarked for it under Section 97 (2) and no other issue can be decided by the Advance ....... + More p Constitutional validity of Section 174 of the KSGST Act - Time limitation - HELD THAT - The issue decided in the case of M/S. SHEEN GOLDEN JEWELS (INDIA) PVT. LTD. VERSUS THE STATE TAX OFFICER (IB) -1, AND OTHERS a href https //www.taxmanagementindia.com/records/View case laws1.asp?ID 374673 strong 2019 (2) TMI 300 - KERALA HIGH COURT /strong /a where it was held that the petitioner's plea is rejected that the State lacks the vires to graft Section 174 into KSGST Act, 2017. /p p It is appropriate to remit the matter for a fresh consideration and disposal by the Single Judge, on the question of limitation provided under Section 25(1) of the KVAT Act. /p p Levy of GST - Khadi fabric, sold through Khadi and Village Industries Commission (KVIC) and KVIC certified institutions/ outlets - N/N. 02/2017 Central Tax (Rate) dated 28.06.2017 further amended vide Notification No. 28/2017-Central Tax (Rate) dated 22.09.2017 - HELD THAT - Heading 50 to 55 includes only khadi fabrics and not readymade garments of khadi. The readymade garments of khadi does not fall under the entry 130A of Notification No. 02/2017 -Central Tax (Rate) dated 28.06.2017 and hence not exempted. /p p The entry for readymade garments is mentioned at Serial No. 170 (GST @ 5%) and Serial No. 223 (GST @12%) (GST of Schedule-I and ....... + More p Classification of goods - rate of tax - items made of vulcanized rubber like Rubber Ring/ GASKET/ Seal, Rubber Foot Batten Washer and Rubber Grommets - whether classified under the heading 4016 are taxable as specific rubber items having a GST rate of 18% or as components of sprinkler/ Drip irrigation system having a tax rate of 12% under heading 84249000? /p p HELD THAT - While going through the Entry No. 195B of Schedule II of Notification No.01/2017 dated 28.06.2017 read with Circular number 81/55/2018-GST dated 31st December, 2018, it is observes that the Sprinkler Irrigation System/ drip irrigation system including laterals only will ....... + More p Classification of goods - parts of sprinkler system sold by us like Latch Clamp, C-Clamp, Foot Batten, Riser Pipe, Aluminum Rivet and Mini Sprinkler Rod etc. exclusively meant for use in Sprinklers and drip irrigation system but sold in isolation as parts and not as a complete system - whether classified under the heading 8424? - rate of tax when such components/ parts when sold separately and not as a part of the sprinkler/ drip irrigation. /p p HELD THAT - While going through the Entry No. 195B of Schedule II of Notification No.01/2017 dated 28.06.2017 read with Circular number 81/55/2018-GST dated 31st December, 2018, we observe that th....... + More p Classification of goods - Kalava Raksha Sutra (Sacred Thread) - N/N. 1 /2017-Central Tax (Rate) dt. 28-06-2017 - HELD THAT - The commodity manufactured by the Applicant is a braided yarn made by a braiding machine which takes in dyed yarn of multiple numbers (8 or 12 or 16). The items are not by themselves Kalva raksha sutra sold directly to consumers but long lengths of thread of various composition sold in loose rolls to the Applicant’s buyers who need to be further cut to individual sizes to make them Kalava Sutra. As per Section Note (B)(1) and (2) to Section XI covering Chapter 50 to 63, braided textile yarn are not included in ....... + More p Classification of goods - rate of tax - Polypropylene Mat which are plaited using Polypropylene Straw - Whether HSN Code for Polypropylene Mat which are plaited using Polypropylene Straw falls under Chapter Heading 4601 or 3902? - HELD THAT - In the case at hand as per the manufacturing process furnished, it is seen that pellets on application of heat & air on an extruder machine are converted into the polypropylene tubes(straws)which is used as plaiting material. These are then woven or bound together in sheet form by placing them parallel to each other. After weaving the mats are cut into market size requirement. The subject goods ar....... + More p Consideration of other grounds apart from Constitutional validity of Section 174 of the KSGST Act - Time limitation - power to cancel the compounding etc. - HELD THAT - The issue decided in the case of M/S. SHEEN GOLDEN JEWELS (INDIA) PVT. LTD. VERSUS THE STATE TAX OFFICER (IB) -1, AND OTHERS a href https //www.taxmanagementindia.com/records/View case laws1.asp?ID 374673 strong 2019 (2) TMI 300 - KERALA HIGH COURT /strong /a where it was held that the petitioner's plea is rejected that the State lacks the vires to graft Section 174 into KSGST Act, 2017. /p p It is submitted that the learned Single Judge has not adverted to the other gr....... + More p Refund of wrongly paid CGST and SGST - adjustment of the said amount towards IGST - HELD THAT - A decision shall be taken on the request for refund of CGST and SGST within a period of one week. It is also open for the respondent to consider the request for adjusting the amount towards IGST as well. /p p Petition disposed off. /p p Input Tax Credit - lease rent during pre-operative period for the leasehold land on which the resort is being constructed to be used for furtherance of business - the said rent is capitalized and treated as capital expenditure - Challenge to AAR decision. /p p HELD THAT - WBHIDCL holds the ownership title of the land only and holding no proprietary interest in the immovable property constructed or being constructed on it. The Appellant is not providing any construction service to the WBHIDCL and also will not be operating the hotel on behalf of the latter. Further the Eco Resort comes not only with hotel building but also with swimming poo....... + More p Permission for withdrawal of Advance Ruling Application - supply or not - activity of construction of complex or building intended for sale to a buyer wholely or partly, where the entire consideration has been received / receivable after completion of construction - HELD THAT - The application filed by the Applicant for advance ruling is disposed off as withdrawn. /p p Bail application - specific allegation is that the applicant herein, while holding a high office in the office of customs, collected Passenger Manifest Data from from Airline Operators and handed it over to the licensee to enable them to manipulate their sales data in respect of foreign made foreign liquor sold by them from the duty free shops - HELD THAT - The allegations against the applicant, cannot, at this stage, be stated to be frivolous or vexatious. Certain incriminating materials are produced before this Court showing his complicity. The contention of the learned senior counsel appearing for the applicant that his personal relatio....... + More p Refund of Anti-Dumping Duty paid - Polished Porcelain Tiles - Central Government vide Notification No. 12/2016 Cus. (ADD) dated 29.03.2016 notified Anti-Dumping Duty on Polished Porcelain Tiles, but on the date of filing of Bill of Entry, the Notification was not in force - application for refund was rejected on the ground that the date of Notification appearing in the Gazette is 29.03.2016 and since the appellant has neither challenged the original assessment in the Bill of Entry nor had paid the duty under protest hence not eligible for refund in terms of Circular No. 24/2004 Cus. dated 18.03.2004. /p p Effective date of Notification of ....... + More p Provisional release of goods - allegation of the Department that the price value declared as well as the classification declared by the appellant is incorrect, is without any factual basis - Powers of Tribunal under Rule 41 of the CESTAT - HELD THAT - It is seen that the Bill-of-Entry was filed on 09.11.2016. The appellant has not filed any application for provisional release of the goods during the pendency of the proceedings before the authorities below. In case the appellant had filed such an application and the same was rejected, the appellant could have filed an appeal before the Tribunal against such rejection of provisional release ....... + More p Retention of goods at Port - inaction on the part of revenue to classify the goods - it was alleged that the import is not accompanied by essential documents required for this product - Sl.No.36 of official gazette notification dated 13.08.2018 - sum and substance of the grievance is continuous inaction of the respondent in dealing with Exts.P5 and P11 bills of entries submitted by the importers/petitioners - HELD THAT - Though some attempt has been made to convince this Court with the respective versions of the parties, this Court is not persuaded to examine these submissions, however is of the view that the respondent could be directed t....... + More p Smuggling - Gold - Illegal importation into India - Baggage rules - release of seized Gold - service of SCN not made to petitioner - seized Gold disposed off without issuing SCN to petitioner - HELD THAT - The record reveals that the seizure of the gold was made on 5th January, 2015. An SCN had to be served within a period of six months thereafter in terms of Section 110 (2) read with Section 124 (1) (a) of the Act. This is a mandatory requirement as has been explained in several decisions of this Court including Iqbal Hussain v. Union of India a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 340201 target blank 20....... + More p Applicability of Notification dated 16.2.2019 (Annexure P-8) - Import from Pakistan - Basic Customs Duty @ 200%, Social Welfare Surcharge @ 10% and IGST @ 28% - goods already entered into India on or before 16.2.2019 and bill of entry had already been filed - Release of the goods - HELD THAT - We dispose of the present petition by directing respondent No.2 to take a decision on the representation dated 21.2.2019 (Annexure P-10), in accordance with law by passing a speaking order and after affording an opportunity of hearing to the petitioner within a period of 15 days from the date of receipt of the certified copy of the order. /p p Levy of penalty - Warehousing of goods - Goods missing when it was in their custody - Demand of duty along with interest on the missing bonded cargo - HELD THAT - No enquiry was conducted by the Commissioner under Regulation 12 which is envisaged and the procedure as prescribed under Regulation 12 has not been complied with. Further, the impugned order is contradictory because the Commissioner in para 21 of the impugned order has dropped the proceedings against the appellant under Regulation 11 & 12 but in the order portion, he still imposed penalty of ₹ 50,000/- under Regulation 12(8) of the Handling of Cargo in Customs Area Reg....... + More p Refund of SAD - N/N. 102/2007-Customs dated 14/09/2007 amended by Notification No. 93/2008-Customs dated 01/08/2008 - Rejection on the ground that the refund has not been filed within one year of SAD payment - correctness of the order of original Adjudicating Authority - HELD THAT - The refund claim of additional duty due to the exemption flowing out of Notification No. 102/2007 has to be filed within one year in view of the subsequent Notification No. 93/2008-Cus which still holds good and also in view of Section 27 of the Customs Act, 1962 - The Commissioner (Appeals) has committed an error while giving an expanded interpretation qua lim....... + More p Waiver of Penalty u/s 114A as well as dropping confiscation/redemption find under Section 111(o) of the Customs Act, 1962 - demand of duty alongwith Interest - import of goods for repair, and re-export the goods thereafter - benefit of N/N. 158/95-Cus dated 14.11.1995 - it was alleged that the goods were neither re-exported after repairs/reconditioning nor there was a request for the extended period by the appellant - HELD THAT - The goods have been imported by the respondent by claiming benefit of duty exemption under Notification No. 158/95-Cus dated 14.11.1995 so as to re-export the same after doing the necessary repair which the respon....... + More p Condonation of delay in filing appeal - Service of order - order of finalization of provisional assessment not served on appellants - HELD THAT - The order of finalization of provisional assessment have not served on the appellants and from the records produced by Ld.AR, the proof of service of adjudication orders is not available - the delay in filing the appeals before the Commissioner (Appeals) is condoned. /p p The Commissioner (Appeals) has not passed the orders on merits. Therefore, the impugned orders is set aside and the matters remanded back to the Commissioner (Appeals) to pass the orders on merits - appeal allowed by way of remand. /p p Violation of import conditions - actual user condition - import of Hot Mix Plant Batch Type with Electronic Control and Bag Type with Filter Arrangement - it was found that just after the import, the said Hot Mix Plant were directly sent to and installed and used at Lonihkand Taluka, Haveli, Pune, instead of NHAI Project at Hyderabad - benefit of 21/2002-Cus dated 01.03.2002 (Sl.No.230) - HELD THAT - On perusal of the Letter of Acceptance dated 29.06.2005 of NHAI, we find that the contract was for balance work of 4 laning of Nagpur - Hyderabad section and Hyderabad - Bangalore section of NH-7, in the State of Andhra Pradesh. But it was fou....... + More p Valuation of imported goods - rejection of declared value - recording in writing the grounds for doubting the truth or accuracy of the value declared and intimation to the importer under Rule 12 (2) - aluminium scrap - inclusion of value of commission, brokerage, engineering, design work, cost of transportation, etc. in declared value - scope of 'reason to believe' - provisional assessment of duty - HELD THAT - Section 18 provides for provisional assessment of duty in cases specified in sub-section (1) of the Section. Clause (c) of sub-section (1) deals with cases where importer or exporter has produced necessary documents and furn....... + More p Monetary amount involved in the appeal - Instructions dated 11-07-2018 issued by the C.B.E. & C - HELD THAT - The Instructions dated 11-07-2018 issued by the C.B.E. & C. in exercise of the powers conferred by Section 35R of the Central Excise Act, 1944 fixing monetary limits below which appeal shall not be filed in the Tribunal. The monetary limit has been enhanced to ₹ 20 lakhs through the said Instructions. Further, the said Instruction clarified that the said instructions will apply to all pending cases. /p p The Hon’ble High Courts of Madras, Karnataka and Gujarat have held that the litigation policy containing mone....... + More p Monetary amount involved in the appeal - HELD THAT - In each appeal, amount involved is less than ₹ 10 lakhs. In terms of Board’s circular on Government’s litigation policy instruction F.No. 390/Misc/163/2010-JC dated 17.12.2015, as amended, Revenue is not supposed to file appeal where the amount involved is not exceeding ₹ 10 lakhs. /p p The appeals are dismissed on the ground of Government’s litigation policy without going into the merit of appeal. /p p Imposition of safeguard duty - vires of N/N. 30.7.2018 as also Instruction No.14/2018-Customs dated 13.9.2018 - increased imports of Solar Cells - scope of “domestic industry” as defined under section 8B(6)(b) of the Customs Tariff Act, 1975 - HELD THAT - The Director General after considering the material on record has recorded a categorical finding that the two applicant units meet with the requirement of major share of Indian industry. At this stage of considering the question of confirmation or vacation of the interim relief, the issue need not be gone into in detail. However, having regard to the above findings recorded by....... + More p Attachment of Bank Accounts - de-freezing of attached Bank Accounts - conditional or un-conditional de-freezing - requirement of furnishing security - HELD THAT - The impugned orders dated 16th and 31st March 2017 of the learned Single Judge to the extent that they require SLML to furnish security in the sum of ₹ 10 crores to the satisfaction of the DRI as a condition to operate its bank accounts are hereby set aside. It is directed that all of SLML’s bank accounts shall be permitted to be operated by the Respondents without any pre-condition - Petition disposed off. /p p Extending the order of em Settlement Commission to the co-notice - /em Concessional rate of customs duty - Import of Crude Palm Oil - diversion of import conditions - imposition of penalty - Was the CESTAT justified in declining to extend the benefit of the order passed by the Settlement Commission to the present Appellant? - HELD THAT - The Court is of the view that the mere fact that the Settlement Commission permitted the Department to proceed against the co-noticees in accordance with law did not mean that the co-noticees could not rely on the said order to argue, on the basis of the judgment of this Court in M/s Lesag HBB (I) Ltd. and....... + More p Valuation of imported machinery - EPCG Scheme - addition of 50% of the supervision charges to the assessable value - post-importation charges - contract which appellant have entered into with their supplier includes an amount of EUR 460,000 towards supervision of erection, commissioning and performance guarantee tests of the equipment and machinery - HELD THAT - It is not in dispute that the charges for supervision of erection, commissioning and performance guarantee tests need not be included in the assessable value to the extent they represent post importation charges and to the extent they represent any charges for services rendered pri....... + More p Import of restricted item or not - shafts - import before the restrictions were placed - HELD THAT - It is a settled principle that goods are to be assessed in the way, it is presented unless the contrary is established. Invoice copy annexed to the appeal indicates 4 varieties of shafts being imported from M/s CRYOSTAT S.A.S., France and it is not understood as to why all those 4 categories of shafts which appellant claims to have been parts of its centrifugal pumps were all classified as transmission shafts, thus attracting policy restriction and why provision contained in para 1.5 of the Foreign Trade Policy cannot be pressed into servic....... + More p Refund of excess paid duty - unjust enrichment - machines sold at a loss - HELD THAT - Once the sale price is less and that the one out of five machines could not fetch any money, as it could not be sold, it is clear that the appellant had suffered. It is settled principle that when there is an element of loss, there arises no question of any unjust enrichment. /p p Section 27 (2) of Customs Act, 1962 stipulates that the refundable amount shall be credited to Consumer Welfare Fund but only in a condition where it is shown that the burden of duty paid has been passed on by the importer. As per Customs Manual also, the condition of holding u....... + More p Winding up petition - principal sum was due - interest amounts to a crystalised sum of money which the company has been unable to pay - HELD THAT - On query from Court petitioning creditor has not been able to show admission by the company of any settled sum on account of interest at agreed rate except that learned advocate appearing on its behalf before said co-ordinate Bench on 24th January, 2019 had said, entire amount of ₹ 18,16,927.63P shall be paid to petitioning creditor within 15th February, 2019. This, Court finds, is an admitted debt on interest. As such, the company is liable to be wound-up for not having paid it deeming it unable to pay. /p p List under heading ‘For Orders’ on 2nd May, 2019. /p p Oppression and mismanagement - whether the actions of the contesting Respondents are oppressive in nature? - allotment of shares - rectification of Register of Members - validity of Board Meetings and General Meeting that are held without issuing notices to the Petitioner Directors - HELD THAT - The affairs of the Company are not being conducted in accordance with law as the Petitioners are out of the Country and they are not permitted/given sufficient opportunity to be involved in the affairs of the Company. The contention of the Respondent that they were given due notices and they have participated in all the meetings is not born out of ....... + More p Maintainability of present application - HELD THAT - This disposed of company application has been listed under heading “To Be Mentioned” at instance of valuer. /p p Oppression and mismanagement - person who has failed to subscribe capital and failed to extend personal guarantee in accordance with an agreement entered into between the promoters, finally captured the Company with the help of banks and FIs - HELD THAT - While the petitioners would now argue that the acts are oppressive in nature and what was before the civil courts was not the oppressive nature of the acts but only the legality thereof, I am not inclined to accept this fine distinction that is now sought to be created. The erstwhile Company Law Board did enjoy the same powers in substance as the National Company Law Tribunal constituted ....... + More p Misfeasance proceedings against the Ex-directors of the Company (In Liquidation) - HELD THAT - The office reports, regarding investigation against ex-directors of the company (in liquidation), as submitted by auditor, in absence of statutory books and records of the company prior to liquidation period, it is difficult for the auditor to detect quantum of misfeasance. Ms. Das De, learned advocate appearing on behalf of Official Liquidator relies on section 455 of Companies Act, 1956, which provides for official liquidator to file preliminary report, report thereafter and, if necessary, further report - The report filed does not satisfy or c....... + More p Winding up of the respondent Company - debt remains due and payable by the respondent and is not paid inspite of issuing notices to respondent - whether the goods supplied by the petitioner remained defective? - HELD THAT - One thing strikes out immediately. If the goods supplied by the petitioner remained defective, the respondent ought to have returned the goods back to the petitioner. It cannot continue to retain the goods without making the full the payment thereof. In the present case, one cannot help but notice that substantial payments have already been made by the respondent to the petitioner. What is left, is a small amount as com....... + More p Restoration of name of an assessee company in the Register of ROC, Gujarat, Ahmedabad - case of escapement of income - HELD THAT - In the present matter, it is undisputed position in the matter that the income tax department has already taken a conscious/ administrative decision against the Respondent No. 2 company on alleged escapement of income from assessment during the relevant financial year, hence, its name ought not to be removed in the light of above stated proviso - Hence, by considering the public interest involved in the present matter and also to protect adequately the interest of the Revenue/ Central Government, the name of th....... + More p Compounding of offence - non-compliance with the CSR initiatives - for violation of provisions of section 134(3)(o) read with section 135 of the Companies Act, 2013 - delay in amount required to be spent for CSR Activities - HELD THAT - As per section 441(1) this Tribunal has power to compound any offence under the Companies Act, 2013 except an offence punishable with imprisonment only or punishment with imprisonment and also with fine. The present offence does not fall in the above two categories and hence the offence can be compoundable. /p p The respondent already instituted prosecution in the Court of Special Judge for Economic Offence....... + More p Striking off of name of Company - Section 560 of the Companies Act, 1956 - HELD THAT - The appellant has not filed the statutory returns and financial statement as required under Companies Act, 1956. We noted that the consent of the shareholders and the creditors have been filed by the appellant. We noted that the shareholders and creditors are all family members. As regards the plea taken by the appellant that the appellant has deposited lease rentals with the HSIDC, we further observe that the lease rentals have been deposited only after when the NCLT asked for proof in its order dated 19.5.2017. Subsequent event to deposit the lease ren....... + More p Restoration of name of the Company - allotment of land - appellant submitted that even though the appellant company is not carrying on any business, the appellant company should be considered to be fully operating and that the same is sufficient in view of Section 252(3) of the Companies Act to restore the appellant company - HELD THAT - The appellant is continuously taking efforts to set up industry and also observing that the appellant had applied for land and submitted project report in 2013 and the land was allotted in 2016. Further the company is depositing balance instalments towards the allotment of land. However, we observe that th....... + More p Oppression and mismanagement - allotment of shares - Declaration, cancellation and mandatory injunction against the requisition under section 169 of the Companies Act - allotment/transfer of shares - Sections 397/398 of the Act - voting rights - sections 286, 300 and 108 of the Companies Act - financial mismanagement or not - HELD THAT - The Company Law Board as well as the High Court have found that the provision of notice under Section 286 of the Companies Act was not complied with. The High Court has observed that the interested Directors have participated in the meeting. Mr. R.P. Mittal and Mrs. Sarla Mittal were in a fiduciary capacit....... + More p Offence of theft - oppression and mismanagement - Theft of documents - immovable property - respondents herein are alleged to have used the documents of appellant-Corporation without calling upon them to produce the documents in accordance with law - cognizance of the offence u/s 380 IPC - quashing of FIR u/s 482 Cr.P.C. /p p HELD THAT - The High Court, in our view, was not right in holding that the replication of the documents or use of information in the documents No.1 to 28 and the contents thereon are not corporeal property and would not amount to theft qua documents No.1 to 28. The documents and the replication of the documents and th....... + More p Grant of Leave to the Original Petitioner to bring the Official Liquidator of the Company on record in a suit - winding up of Company - HELD THAT - It is ex facie clear that Section 430 of the 2013 Act, which was not even a statutory provision in force at the relevant time of orders in the present Company Petition, can have no bearing on the authority or jurisdiction of this Court to grant leave under Section 446 of the 1956 Act in a petition that was and continues to remain within the jurisdiction of this Court. At the relevant time this Court undoubtedly had jurisdiction to consider the Application for leave under Section 446 of the 1956....... + More p Liability of Stamp Duty - scheme of amalgamation between the transferor and the transferee companies - interpretation of statute - It is the contention of the parties that, the words “whichever is higher” used in the two sub-clauses in the column of proper stamp duty leviable, is causing problems, both for the person seeking to register the order sanctioning the scheme as also for the registering authority. /p p HELD THAT - The words “whichever is higher” used in those two sub-clauses cannot be read to mean that, the highest stamp duty of six per cent as prescribed in Article 23 is payable in respect of the four sce....... + More p Oppression and mismanagement - whether the issues raised in the Company Petition qua allegations of oppression and mismanagement are arbitrable? /p p HELD THAT - The Tribunal, empowered under Section 242 (2) of Companies Act, 2013 may, with a view to bring to an end the matters complained of, make such order as it thinks fit - On a plain reading of Section 242, it is manifestly clear that the facts should justify the making of a winding up order on just and equitable grounds. Admittedly, Arbitrator would have no jurisdiction to pass a winding up order on the ground that it is just and equitable which falls within the exclusive domain of th....... + More p Oppression and mismanagement - transfer of entire shareholding to the original Respondents or their nominees as per the Valuation Report dated 20.07.2012 - fair value of shares - HELD THAT - It is clear that the learned NCLT was not articulate when it directed the Petitioners to sell their entire shareholding held in the Respondent No.1 Company to “the Respondents”. It was necessary for NCLT to clearly identify the Respondents as Respondent No.1 was a Company and the other Respondents were shareholders. Rights and Procedure for Company to buy back its shares and Rights and Procedure for sale of shares inter-se shareholders are ....... + More p Rectification of Register of Members - allotment of shares made to 146 persons - Section 59 of Companies Act, 2013 - HELD THAT - The appellant has not placed copy of the power of attorney and also the copy of the deed of assignment before the Appellate Tribunal to enable us to come to the definite conclusion. We further observe that the alleged allotees has not placed any shares certificates before the Tribunal. We also observed that the appellant have also not agitated that the shares certificates have not been received by them. We further observe that the shares are freely tradeable and the same can be transferred. /p p The appellant is ....... + More p Applicability and construction of Section 396 of the Companies Act, 1956 - compulsory amalgamation of companies by a Central Government order - HELD THAT - The Central Government’s satisfaction must be as to the conditions precedent mentioned in the Section as correctly understood in law, and must be based on facts that have been gathered by the Central Government to show that the conditions precedent exist when the order of the Central Government is made. There must be facts on which a reasonable body of persons properly instructed in law may hold that it is essential in public interest to amalgamate two or more companies. The forma....... + More p Transfer of shares - whether the shares were transferred in the first place? - whether the Respondents could rightly claim that all due procedure under the Companies Act was followed for omitting the name of OP1 and entering the name of OR2 in the register of members? /p p HELD THAT - We are unable to accept the defence of the Appellants in the Company Petition that OP1 had transferred his shares to the Appellant No.1. The Appellants - original Respondents 2 and 3 first took defence to claim that in alleged normal and general practice of the Company, the shares were transferred; then subsequently they took a defence of handing over of shar....... + More p Non-distribution of dividend to the complainant - Whether the process and summons issued under section 127 of the Companies Act without taking into account the provision of section 127(c) of the Companies Act can be granted? /p p HELD THAT - There is a dispute regarding the right to receive dividend, as the matter was referred to National Company Appellate Law Tribunal and if the dispute regarding right to receive dividend exists, then no offence under the section shall be deemed to have been committed. Thus, non-payment of dividend to the shareholder is an offence, which invites penal action. However, non-payment of dividend to the shareh....... + More p Admission of application under Section 9 of Insolvency and Bankruptcy Code, 2016 - settlement reached prior to the constitution of the ‘Committee of Creditors’ - HELD THAT - The parties have reached settlement prior to the constitution of the ‘Committee of Creditors’. Following the decision of the Hon’ble Supreme in SWISS RIBBONS PVT. LTD. AND ANR. VERSUS UNION OF INDIA AND ORS. a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 374343 target blank 2019 (1) TMI 1508 - SUPREME COURT /a , we allow the ‘Operational Creditor’ to withdraw the application. /p p The impugned dated 7....... + More p Initiation of Corporate Insolvency Resolution Process - declaration of ‘Moratorium’ - debt amount in default for Financial Creditor - HELD THAT - This Bench has not been informed whether any Information Memorandum is prepared by the Ld. RP and whether advertisement has been made inviting Expression of Interest (EoI). It is also not on record whether any Valuation Report is procured by RP. Rather as of now, as informed, the ‘Insolvency Process’ is heading towards ‘Liquidation’ of the company. /p p On verification of description of the expenses, it is noticed that “D&P fees” claimed at S....... + More p Initiation of Corporate Insolvency Resolution Process (CIRP) against the Debtor - Section 7 of the Insolvency & Bankruptcy Code, 2016 - HELD THAT - For there being no defence from the Debtor side, since this Bench having found the material furnishing the existence of debt and default against the Debtor, we are of the view that this petition is fit for admission, therefore, for the Creditor have filed Consent Form of the proposed Resolution Professional, we admit this petition - Moratorium declared. /p p Reduction of claim - 'existence of dispute' between the 'Corporate Debtor' and the 'Operational Creditor' with regard to supply of coal - HELD THAT - This Applicant was directed to produce the invoices against the claim mentioned in the Original Company Petition but whereas this Applicant produced the invoices dated 04.11.2013 and 01.02.2014 which are not part of the Original Company Petition. /p p It is also pertinent to mention that this Applicant also filed an appeal over the order passed by this Bench and that was dismissed, therefore it goes without saying that the order dated 18.09.2018 has attained finality. ....... + More p Admission of application - Operational Creditor - Invocation of provisions of Section 9 of the Insolvency & Bankruptcy Code, 2016 against the Corporate Debtor - HELD THAT - The default as defined u/s. 3(12) of The Code is established. Demand Notice has been issued to the Respondent Debtor, however, not replied to the said Demand Notice within the prescribed time period of 10 days u/s.8(2) of The Code nor made the payment. /p p Keeping the admitted facts in mind that the Operational Creditor had not received the outstanding Debt from the Corporate Debtor so far and that the formalities as prescribed under The Code have been completed by....... + More p Initiation of Corporate Insolvency Resolution Process (CIRP) - Corporate Debtor - Default in repayment of amount - proposal for restructuring of financial assistance availed by the Corporate Debtor on 30.12.2014 - HELD THAT - On 13.04.2017, the Financial Creditor cancelled the restructuring arrangement since the Corporate Debtor has continuously defaulted in repayment obligations beyond the allowed cure period. On this ground, the Corporate Debtor cannot claim that restructuring period is still persistent. /p p However, for the purpose of IBC 2016, in the case of Financial Creditor, it has to be proved by them that there is an outstanding ....... + More p Submission of resolution plan as approved by the Committee of Creditors (CoC) - prayer in this application is for withdrawal of CA No.364 of 2018 in the light of the fact that Liberty House Group PTE (LHG) has been unable to comply with even the basic requirement of furnishing the Performance Guarantee, which was required to be given by the resolution applicant on approval of the resolution plan by the CoC - to exclude the time period spent, in negotiating with LHG and in litigation w.e.f. 18.05.2018 till passing of the final order /p p HELD THAT - There is a clear default by the LHG in not complying with the essential terms and conditions....... + More p Recovery proceedings - attachment orders - notices to the petitioner under Section 226(3) - in second writ petition the applicant-petitioner prayed for a mandamus directing the respondent nos.3 and 4 to revive the financial facility provided to the petitioner in terms of a housing loan for purchasing a flat and to withdraw the letter of cancellation of allotment of the said flat. The respondent nos.3 and 4 were officers of Housing Development Financial Corporation Limited strong em (HDFC) - /em /strong HELD THAT - Admittedly, the opposite party nos.1, 2, 3, 4 and 5 were not parties in the first writ petition. The second writ petition discl....... + More p Initiation of corporate insolvency resolution process (CIRP) - Corporate Debtor - section 7 of the Insolvency and Bankruptcy Code, 2016 - whether the financial creditor is to first approach the Adjudicating Authority under Section 8 of PMLA, 2002 for seeking appropriate orders/permission to take any action for resolution of the assets of the corporate debtor attached under provisional attachment order passed by the ED? - whether the proceedings in CP(IB) No. 73/Chd/CHD/2018 be kept in abeyance till the final decision of the Adjudicating Authority under Section 8 of the PMLA Act, 2002? /p p HELD THAT - The plea in the instant application is....... + More p Initiation of Corporate Insolvency Resolution Process - Corporate Debtor - Corporate Debtor failed to make payment of ₹ 4650.66 lakhs (including interest) - HELD THAT - The Hon’ble Supreme Court in the matter of Innoventive Industries Limited V. ICICI Bank & Anr. a href https //www.taxmanagementindia.com/records/View case laws1.asp?ID 347301 strong 2017 (9) TMI 58 - SUPREME COURT /strong /a , has held that the provisions of Section 7 become applicable as soon as a financial debt is established and there is an existence of a default. The Hon’ble court has expressed that the moment the Adjudicating Authority is satisfie....... + More p Admission of Application under Section 9 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT - Although the Appellant claims that the Adjudicating Authority did not give Appellant a hearing, the Impugned Order shows that the Adjudicating Authority had proof of service on the Corporate Debtor - Although the Appellant claims existence of a dispute and the Appeal claims that a letter like Annexure - A5 dated 23rd December, 2017 was sent to the Operational Creditor, there is no proof of service of such letter filed on record. The plea is thus unsupported by evidence. /p p Remitting back the matter would not serve any purpose and the learne....... + More p Non-compliance with the provisions of Section 9(3)(c) by the ‘Operational Creditor’ - validity of demand - Demand Notice under Section 8(1) was issued by the Appellant on 24th April, 2017 without attaching the invoices relating to debt which are payable - time limitation - HELD THAT - There is nothing on the record to suggest that the invoices dated 23rd July, 2014 were forwarded or received by the Respondent- ‘Spicejet Limited’. Therefore, the Demand Notice issued on 24th April, 2017 as relates to invoice dated 23rd July, 2014, though it cannot be held to be barred by limitation, but in absence of specific evidence....... + More p Liquidation - expiry of lime limit for resolution - case of appellant is that without placing the matter under provisions of Section 30(2) of the ‘I&B Code’ before the ‘Committee of Creditors’ for voting, the ‘Resolution Professional’ applied for liquidation - HELD THAT - The ‘Corporate Insolvency Resolution Process’ against the ‘Corporate Debtor’ was initiated on 9th January, 2018 and on 13th November, 2018, when the ‘Resolution Professional’ filed Miscellaneous Application under Sections 33 & 34 of the ‘I&B Code’ by that time approximately 270....... + More p Admissibility of petition - corporate debtor - amount due to the financial creditor from the corporate debtor - matter heard ex-parte - HELD THAT - There is existence of default in the sense that debt is due. The default is defined in section 3(12) in very wide terms as meaning non-payment of a debt once it becomes due and payable, which includes non-payment of even part thereof or an instalment amount, as the debt is a liability and obligation on the part of the corporate debtor towards financial creditor. The Code gets triggered the moment default is of rupees one lakh or more (section 4). The corporate insolvency resolution process may ....... + More p Permission to withdraw application - Non-constitution of Committee of Creditors when the parties reached the settlement - HELD THAT - As the parties have settled the matter prior to constitution of the ‘Committee of Creditors’, in the light of the decision of the Hon’ble Supreme Court in SWISS RIBBONS PVT. LTD. AND ANR. VERSUS UNION OF INDIA AND ORS. a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 374343 target blank 2019 (1) TMI 1508 - SUPREME COURT /a , we allow the prayer as made on behalf of the Respondent to withdraw the application as was filed by him under Section 7. /p p Appeal allowed. /p p Eligibility in terms of Section 29A (c) & (h) of Insolvency & Bankruptcy Code, 2016 - HELD THAT - We are not inclined to grant any relief in this appeal nor intend to express any opinion with regard to delay in preferring the appeal. However, we are of the view that liquidator is required to act in accordance with decision of this Appellate Tribunal passed in Y. SHIVRAM PRASAD AND ASSET RECONSTRUCTION COMPANY (INDIA) LTD. VERSUS S. DHANAPAL & ORS. AND SERVALAKSHMI PAPER LTD. & ORS a href https //www.taxmanagementindia.com/records/View case laws1.asp?ID 379658 2019 (5) TMI 386 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW D....... + More p Initiation of Corporate Insolvency Resolution Process - Financial Creditor - failure of the ‘Principal Borrower’ to pay the financial debt taken in the form of term loan - HELD THAT - There is a debt which is more than ₹ 1 Lakh and the matter has been brought to the notice of the ‘Corporate Debtor’, the Adjudicating Authority wrongly rejected both the applications under Section 7 preferred by the Appellant; one against the ‘Principal Borrower’- (‘M/s. Cedar Infonet Private Limited’) and; another against ‘M/s. Golf Technologies Pvt. Ltd.’. /p p Matter remanded to the Adjudica....... + More p Initiation of Corporate Insolvency Resolution Process (CIRP) - Default on the part of Corporate Debtor to make the payment - appointment of qualified Interim Resolution Professional - HELD THAT - As per section 2 of the Code, the provisions of this Code shall apply to any Company incorporate under provisions of the Companies Act, 2013 (18 of 2013) or under any previous Company law; any Limited Liability Partnership incorporated under the Limited Liability Partnership Act, 2008 etc. in relation to their, liquidation, voluntary Liquidation or bankruptcy as the case maybe. /p p The instant claim relates to the year 2012 and the Petitioner its....... + More p Arbitral Award - interest on delayed payments - Section 9 of Insolvency and Bankruptcy Code, 2016 - pre-existing dispute with regard to quantum of liability - HELD THAT - As per Section 9 of the IBC, the only requirement for Adjudicating Authority is to see in such application under Section 9, if there is record of dispute. In the present matter, when the Notice under Section 8 was sent by the Appellant, the Respondent sent Reply (Copy at Annexure - A-6) referring to the litigation between the parties. /p p It is a simple matter where there is an Award and Sections 34 and 37 proceedings under the Arbitration Act have been disposed of. The ....... + More p Initiation of Corporate Insolvency Resolution Process - Corporate Debtor - declaration of moratorium - appointment of Interim Resolution Professional - HELD THAT - The Operational Creditor has fulfilled all the requirements of law for admission of the Application. This Bench is satisfied that the Corporate Debtor has committed default in making payment of the outstanding debt as claimed by the Operational Creditor. Therefore, the Application is admitted and the commencement of the Corporate Insolvency Resolution Process is ordered which ordinarily shall get completed within 180 days, reckoning from the day this order is passed. /p p The mo....... + More p Offence under PMLA - attachment of Appellant's residential property - . Procedure prescribed under Section 5 of the PMLA was not followed by the Adjudicating Authority - HELD THAT - Copy of reason to believe were not produced before this tribunal nor any copy was served. The same were not re-produced in the notice issued under section 8(1) of the Act nor those are either mentioned in the counter-affidavit or annexed therewith. Counsel of respondent submits that there is no requirement to record the reasons to believe separately. /p p The same are to be mentioned in the provisional attachment order only. /p p PMLA is a preventive measur....... + More p Offence under PMLA - attachment orders - denial of natural justice - immovable property of a person has been made part of a prosecution complaint for confiscation without making that person as a party and affording that person an opportunity to defend his case - HELD THAT - It is clear from the written submission of the respondent as well as oral submissions made by the respondent that ED has filed Prosecution Complaint only against Shri Bimal Ramgopal Agarwal, not against the present appellant but the property of present appellant has been made part and parcel of the said prosecution complaint. /p p It is strange to note here that an immo....... + More p Offence under PMLA - Look Out Circular as issued without statutory sanction or not? - Existence of scheduled offences - possibility of the petitioner fleeing from India, and hence, as a precautionary measure, a Look Out Circular was issued against him and accordingly he was detained by Immigration Authorities at Delhi Airport, while he was trying to board a flight to Nepal - HELD THAT - The entire investigation is related to offences under Sections 10, 13 and 18 of the Unlawful Activities Prevention Act, 1967 and under Section 153A of IPC against Dr.Zakir Naik and others, vide the FIR No.5 dated 18.11.2016. As per the said FIR, the activit....... + More p Offence under PMLA - outer limit upto the date for deciding the application for retention of property within the meaning of sub-section 4 of Section 21 is 180 days from the date of seizure of any property or records. The said period is not extendable - HELD THAT - The person concerned/aggrieved party of such order, is entitled to file the appeal u/s 26 of the Act. The same shall be heard and after giving an opportunity of being heard, the appellant Tribunal shall pass the order either to confirm the order of retention or to modify or setting aside the same. /p p Where the Adjudicating Authority decides by an order confirm the retention und....... + More p Prevention of Money Laundering Act - application for retention of property within the meaning of sub-section 4 of Section 21 is 180 days from the date of seizure of any property or records - HELD THAT - It is clear from the reading of Sections 17 to 21 that outer limit upto the date for deciding the application for retention of property within the meaning of sub-section 4 of Section 21 is 180 days from the date of seizure of any property or records. The said period is not extendable. /p p The person concerned/aggrieved party of such order, is entitled to file the appeal under Section 26 of the Act. The same shall be heard and after giving ....... + More p Offence under PMLA - Provisional Attachment Order - whether any proceedings against the appellant survived once his father was not convicted under any offence? - HELD THAT - It is not denied by the respondent that his father expired before competition of trial and final order. He was not convicted accused when expired. /p p In the present case, there was no FIR against the appellant. No charge-sheet was filed against the appellant. He was not charged. He had purchased the property after selling two properties owned by him. The Supreme Court judgment U. SUBHADRAMMA AND ORS. VERSUS STATE OF A.P. AND ORS. a href https //www.taxmanagementindia....... + More p Offence under PMLA - Provisional Attachment Order - HELD THAT - Respondent No. 1 and the Adjudicating Authority have not complied with the mandatory statutory requirement of the Proviso to Section 8(2), PMLA. /p p The appellant had interest in the property in question, but no mandatory notice required under section 8(2) was served. Section 8(2) is a mandatory provision, it is mandated under the proviso that if property is claimed by a person other than accused, he shall also be given an opportunity of being heard to prove that the property is not involved in money laundering. Despite of above, no notice was given. /p p The appellant is, no....... + More p Offence under PMLA - applications filed by the respondent under Section 17(4) for retention of document - application for retention of property is 180 days from the date of seizure of any property or records - HELD THAT - No report against the appellants has been forwarded to the Magistrate. No complaint against the appellants was filed before a Magistrate. No cognizance of schedule offence was taken by any authority or Additional Secretary to the Government of India. /p p Under Section17(1) (A), it is the duty of the officer authorised if where it is found that it is not practicable to seize such property, can make such order that the per....... + More p Disproportionate assets case filed by CBI against the Retired Army officer Appellant No. 1 - Appellant No. 2 is the wife of Appellant No.1 and Appellant No.3 is the son of Appellant No.1. - assets of Appellant Nos. 2 & 3 have been incorrectly attributed to Appellant No.1, income of the Appellant No.1 has been suppressed and several other errors have been made in computation of income, assets and expenditure of the appellants - mandation of prescribed period of 180 days for adjudication - HELD THAT - The CBI in its final report has merely charged the appellants for having committed the offences punishable under sections 12(2) r/w 13(1)(....... + More p Prevention of Money Laundering - freezing of bank account - Copy of reason to believe not produced - permission to lease-out the property to third party denied - HELD THAT - Despite of interim order on 26.3.2018 passed by this Tribunal, has issued a communication to other authority not to grant the approval/license to the appellant. The said act of the respondent is clearly in breach of interim order passed by this Tribunal. The respondent has no jurisdiction for violation of the order. /p p The explanation given by the counsel that since the appellant during retention proceeding entered into an agreement with third party, therefore, the r....... + More p Prevention of Money Laundering - retention of the records seized from the residential premises of the Appellant - Application of the Respondent under Section 17 4 of the Act seeking retention of documents, Hard Disk Drive HDD and Indian Currency seized from the residential premises of the Appellant - HELD THAT - In the present case, no report against the appellant has been forwarded to the Magistrate. No complaint against the appellant was filed before a Magistrate. /p p A mere reading of Sections 17 to 21 that the strong outer limit upto the date for deciding the application for retention of property is 180 days from the date of seizure o....... + More p Offence under PMLA - attachment orders - assets acquired prior to enactment of PMLA - HELD THAT - There is a requirement that an action may be taken by an officer only when there is reason to believe, especially in the context of a statute where stringent procedures are laid down, the requirement of having reason to believe must be strictly complied with. PMLA is exactly such a statute where stringent procedures have been laid down. /p p No reason why the essence of the definition contained in section 26 of the IPC should not inform the interpretation of the same phrase in section 17 of the PMLA. It is noteworthy that the phrase reason to ....... + More p Offence under PMLA - attachment of property - HELD THAT - Section 8 deals with adjudication by the adjudicating authority which as per Section 8(3) authorizes, the adjudicating authority to confirm the attachment of the property if it is involved in money laundering. Hence, while the attachment powers are with the adjudicating authority the power to confiscate, release or restore to a claimant of the said property lies specifically with the Special Courts. This Tribunal has not been assigned any specific powers under PMLA, 2002 with relation to confiscation, release or restoration of the property attached. /p p Since the Special Court has ....... + More p Offence under PMLA - attachment of property involved in money laundering - HELD THAT - The assets which have been the subject matter of attachment in the appeals at hand are not tainted property , the same having been seemingly acquired prior to the criminal activity giving rise to accusations of money-laundering. But, they are sought to be attached and subjected to eventual confiscation on account of they being the alternative attachable properties or deemed tainted properties, which is permissible in law. /p p The audi car (subject matter of first appeal) was acquired by a transaction which has no direct connection with the case of money....... + More p Prevention of Money Laundering - retain the records without recording any reason to believe - HELD THAT - In the present case, the statutory obligations laid down in section 20 (1), 20(2), 20 (4) and 21(4) of PMLA have not been complied with. An attempt has been made to retain the records without recording any reason to believe . /p p The provisions of section 8 (3) (a) provides that the attachment or retention of property or record seized shall continue during the investigation for a period not exceeding ninety days. /p p The said prescribed period has already been expired as more than a year has already elapsed but the properties and rec....... + More p Offence under PMLA - attachment or property pre-mortgaged with bank - HELD THAT - In the present case, this Appellant - HELD THAT - Bank is an innocent party since it had already lent its own money to the Predicate Offender and the property in question being mortgaged to the Bank which is provisionally attached by the Respondent- Deputy Director ought to have been released by the Adjudicating Authority under Section 8(2) of PMLA. The proceedings before the authority and this tribunal are of civil proceedings. It is wrong to allege that this tribunal has no jurisdiction to pass such order. /p p The Bank in its usual course of business provi....... + More p Offence under PMLA - provisional attachment order - proceeds of crime - Appellant Bank priority over the mortgaged property - Attaching the mortgaged properties without any valid reasons - HELD THAT - In order to recover the monies taken by the Respondent Nos. 5&6, the only recourse the Bank has is the Mortgaged properties and if the same is attached the Bank will have no other recourse and will lose large amounts without any fault of the Bank. The consequence of the attachment would be borne by the general public and depositors. /p p The Bank in its usual course of business provides finance and credit facilities to its customers. The Appe....... + More p Prevention of Money Laundering - no cogent evidence provided by the ED in order to show that the appellant has any link and nexus with any alleged accused parties - HELD THAT - No plea of the appellant has been referred wherein it was stated that the appellant was the buyer of the property and Mrs. Nirmala Jain was the seller of the said property and due to personal reasons on the part of the seller the sale of the property did not take place in favour of the appellant. Thus, her name should be deleted as respondent. The appellant thus before this Tribunal claiming no right in the property. She was arrayed as defendant no. 50 in the applic....... + More p Prevention of Money Laundering - retention of records - non specification of reasons - HELD THAT - No report against the appellant has been forwarded to the Magistrate. No complaint against the appellant was filed before a Magistrate. No cognizance of schedule offence was taken by any authority or Additional Secretary to the Government of India. /p p If the Act, if one will read in meaningful manner, no civil or private disputes between two parties and any criminal proceedings can become subject matter of PMLA, unless the officer authorized has reason believe on the basis of information and material available in his possession to the effec....... + More p Prevention of Money Laundering - Mis-management especially as regards payment of royalties with number of complaints were registered against - retention of documents seized by the Directorate of Enforcement against the appellant - non recording any reason to believe for retention of documents seized - HELD THAT - No civil or private disputes between two parties and any criminal proceedings can become subject matter of PMLA, unless the officer authorized has reason believe on the basis of information and material available in his possession to the effect that the person concerned has committed an offence under Section 3 of the Act; and the ....... + More p Maintainability of appeal - alternative statutory remedy - Penalty for contravention of Section 7 (1)(a) of the FEM 1999 read with Regulation 16(1) (i) & (iii) of Foreign Exchange Management (Exports of Goods and Services) Regulations, 2000 - HELD THAT - An appeal against the order impugned herein is maintainable before the Special Director (Appeals), O/o the Commissioner of Income Tax (Appeals), Aayakar Bhawan, Delhi. /p p In view of the above, we are not inclined to entertain the present writ petition and dispose of the same by relegating the petitioner to avail alternative statutory remedy in accordance with law. /p p Foreign Direct Investments (FDI) - Non-compliance of the condition of minimum capitalization - requirement of prior permission and allowing automatic route for FDI by foreign companies in township development - Guilty of the charge in respect of the transaction of transfer of shares - liability of director - guilty of the provisions of Reg. 3 & Reg. 5(1) r/w Schedule 1 of FEMA 20/2000 - Restriction on issue or transfer of security by a person resident outside India - HELD THAT - The minimum amount of FDI is required to be brought in “within a period of six months of commencement of business of the company”. It is evident fr....... + More p Contravention of Section 3(a) and (b) of FEMA, 1999, contravention of Section 6(3)(g) of FEMA, 1999 and Section 10(6) of FEMA, 1999 - HELD THAT - There is no statement or document or admission on record to substantiate the said allegations. In this regard, no investigation was done by the department in India or abroad. No show cause notice has been issued for alleged under valuation by the customs authorities and there is no dispute on this aspect. If department wished to prove the aforesaid allegations. As per department they had all information in this regard, which fact is apparent from the impugned complaint however department did not ....... + More p Stay petition - Offence under FEMA - amount imposed towards penalty against the appellants - HELD THAT - The appellant has no case on merit, however, it is admitted by the counsel for the respondent that in para-9 of the impugned order, the findings are beyond the charge made in the show cause notice. /p p A perusal of para 9 of impugned order under heading ORDER shows that the penalties on the appellants have been imposed without referring to the provisions of sub paras of para 4 of Schedule 1 of which the appellants have been held guilty of contravention of the provisions of each and every sub paras of para 4 of Schedule 1 to Regulation ....... + More p Offence under FEMA - writ petition in the High Court against the Union of India and sought therein a writ of mandamus claiming refund of the pre-deposit amount - High Court allowed the appeals, set aside the order of the Tribunal and restored the order of the Adjudicating Authority - Whether the High Court was justified in allowing the appeals filed by the Union of India. /p p HELD THAT - High Court did not examine the case of the parties in the context of material placed by the appellants, though the Tribunal in Para 29 of its order has considered the said material. /p p High Court should have taken into consideration the said material wi....... + More p Cancellation of the Passport - investigation being conducted under FEMA - Request for an alternate mode of examination by video conferencing - HELD THAT - In the present case, the petitioner is a non-resident Indian and contends that the provisions of FEMA are inapplicable. Notwithstanding the aforesaid contention, Mr. Tripathi, learned Senior Counsel for the petitioner had made a statement before this Court on 14.08.2018 that the petitioner would provide all documents as required by the respondents even though, according to the petitioner, the same are not required to be disclosed. /p p It is not disputed that in compliance with the afore....... + More p Detention orders u/s 3 read with Section 12A of COFEPOSA - orders made during the period of Emergency proclaimed under Article 352(1) of the Constitution of India - grounds of detention were not communicated to the detenu in a language known to him - notice under Section 6(1) of SAFEMA to show cause why properties be not declared to be illegally acquired properties and forfeited to the Central Government under the provisions of SAFEMA - HELD THAT - In the present case the order of detention under COFEPOSA was passed on 19.12.1974 and the petition challenging the detention was filed on 29.04.1975 i.e. before the proclamation of emergency wa....... + More p Guilty pf provisions of section 8 and section 40 of FERA - diaries relied upon by the prosecution as an evidence - HELD THAT - The present proceedings are an offshoot of the Jain Hawala Diaries‟ case 2013 (8) TMI 400 - DELHI HIGH COURT which ended in quashing of the criminal proceedings as a result of the judgment of the Hon‟ble High Court in L.K. Advani vs. CBI 1997 (4) TMI 524 - DELHI HIGH COURT wherein, it was held that the diaries relied upon by the prosecution are inadmissible in evidence and cannot be called books of accounts. /p p On the basis of the entries of the dairy M-207/93 two criminal complaints bearing CC No. 61....... + More p Contravention of the provisions of Section 18(2) & 18(3) of FERA, 1973 - failure to realize the export proceeds - HELD THAT - Appellant neither has the finances to carry on a protracted litigation in Doha, Qatar. (Additional affidavit in this regard has also been filed). /p p The Appellant has addressed numerous letters to its Advocate Ahmed Ali Morafi to enquire about the current status of the matter but unfortunately had not received any written response from him. The Appellant has also tried to contact the said advocate on his phone number mentioned in his letter head but is unable to reach him on the same. /p p It has come on recor....... + More p Offence u/s 3(a) of FEMA - domestic supply of goods in India against amount received in foreign exchange from the overseas buyer - no general or special permission of Reserve Bank dealt in receipt of foreign exchange - Proof of compilation of conditions prescribed under Regulation 12 - HELD THAT - It is the obligation of the Authorised Dealer to ensure compliance of all conditions before acceptance of documents for negotiations. It is a matter of fact that Letter of credit opened by the overseas buyer was negotiated by the Authorised Dealer against Shipping Bill No. 1862349 dated 30.07.2002, therefore presumption must be that all condition....... + More p Violation of S.18 of the FERA - non-recovery of the export proceeds relating to various items of exports made to Iraq, USSR etc. - waiver applications pending - penalty imposed on the Appellant Company for the alleged violation - personal penalty on directors - Held that - No penalty could be imposed in respect of outstanding recovery from Iraq for which extension of time had already been granted and the extended time was not yet over. No penalty could also have been imposed for outstanding amounts from other 5 countries in respect of which waiver application was pending. /p p The appeal filed in the appellant-Hindustan Lever Ltd. is allow....... + More p Offence under FEMA - appellant had without any general or special permission of RBI, received amounts ₹ 2,47,99,350/- in India, otherwise than through an authorised person, by order or on behalf of his friend Madan, a person resident outside India - penalty imposed - HELD THAT - From the documents/statements the Investigating Officer became aware of the identity of various persons from whom Shri Harish Kumar had been receiving payments in India, under instructions of his friend Madan, residing in USA, who was earlier residing in Mohali. In view of other certain searches were conducted and a number of persons examined and their statem....... + More p Offence under FEMA - transaction in foreign exchange undertaken by the Varanasi branch with another company holding no license from the RBI to conduct the said business of money exchange - penalty imposed - separate license to companies and all its branches - HELD THAT - Considering that the RBI grants license to the company as well as its branches separately, a fact which was reiterated by the learned counsel for the appellant, RMEL, Varanasi cannot take shelter under the main RMEL company located at Mumbai. /p p From the emails it is clear that the consignment was sent from Varanasi. It belies common sense that if the transaction had bee....... + More p Refund of amount deposited - FERA - Grievance of the applicant is that the department has not returned the seized cash of ₹ 6,000/, nor refunded ₹ 20,000/deposited by her as per interim directions of FERA Board not release her original title deeds - Held that - Learned counsel for the department stated under instructions that the department has already initiated steps for refunding such amounts. /p p This application is disposed of with certain directions. /p p Taxability -Transfer of of Land Development Rights - Tri-partite agreement - it was alleged that the appellant has transferred development rights, therefore, they are liable to pay service tax on the said activity - Imposition of penalty - whether the appellant has transferred any land development right in favour of M/s DLF Ltd. or not? /p p HELD THAT - As per the business module of M/s DLF Ltd. they are engaged in the business of Real Estate Development of integrated township and construction. As per their business module, they appointed the appellant to purchase the land on their behalf and thereafter to obtain certain permissions from v....... + More p Refund of accumulated CENVAT Credit - Rule 5 of the Cenvat Credit Rules, 2004 - denial on account of nexus between input services and output services exported - HELD THAT - CBEC Circular No. 334/1/2012-TRU dated 16.03.2012 elaborately explains the changes made in the service tax the Government of India, Tax Research Unit. /p p The impugned order to the extent it is contested is liable to be set aside and accordingly set aside - appeal is allowed /p p Refund of unutilized CENVAT Credit - input services - Construction Services - rejection on the ground that no documentary evidence was filed to substantiate the nature of work involved and that no nexus established between input service and the output - HELD THAT - There is force in the contention of the appellant that the requirement of establishing nexus between input service and the output has been done away with by the Board itself vide D.O.F. No. 334/1/2012-TRU dated 16.03.2012. There is no requirement to demonstrate the nexus between the input services and the output - Construction Services were used in modernization and renovation o....... + More p Refund of unutilized CENVAT Credit - Rule 5 of the CCR, 2004 read with Notification No. 27/2012-CE (NT) dated 18.06.2012 - rejection on the ground that the appellant has not complied with Clause 2(h) of the Notification - HELD THAT - The only issue on which the refund claims have been rejected is that the appellant has not complied with condition 2(h) of Notification No. 27/2012-CE (NT) dated 18.06.2012. The said condition does not require the assessee to reflect the amount debited in their ST-3 returns. It is sufficient if the assessee/appellant debits the amount claimed as refund in their accounts. There is no dispute that the appellant ....... + More p Rebate Claim/refund of service tax - export of goods - para 3 of Notification No.41/2012-ST, dated 29.06.2012 - services availed beyond the place of removal - HELD THAT - The words “beyond the place of removal” has been deleted and instead by the amendment notification the definition of “specified services” is defined to mean as “the taxable services that have been used beyond factory or any other place or premises of production or manufacture of the said goods for their export”. Thus when the taxable services have been used beyond factory or beyond any other place, the same would be eligible for rebate/....... + More p CENVAT Credit - duty paying documents - credit availed on the basis of manufacturer’s invoices - extended period of limitation - suppression of facts - HELD THAT - A perusal of the Show Cause Notice dated 19.10.2016 reveals that even though the same refers to the appellant’s reply dated 05.12.2013 wherein the details of the credit taken by the appellant were submitted, the only lacuna pointed out is the non-production of original documents. Undisputedly, the appellant did not import ATM machines and consequently, there was no Customs Duty liability on the appellant. A perusal of the reply also makes it very clear that based on ....... + More p Commercial Training or Coaching Service or not - consideration received from the students towards the conduct of a test known as ‘International English Language Testing System’ (IELTS) - HELD THAT - A perusal the relevant clauses of the agreement clearly show that the agreement is with regard to the holding of the IECTS Test by the Appellant. There is nothing in the agreement which may require the Appellant to coach or train any candidate desires of appearing at the IELTS Test nor any consideration in terms of money is earmarked for this purpose. /p p What has, therefore, to be determined is whether conduct of a test would amou....... + More p Non-payment of service tax - Steamer Agent Service - period April 2001 to December 2005 - Review order under Section 84 of the Finance Act 1994 - Revenue sharing basis - HELD THAT - There is no mention of the activity of booking of space by the appellant and sharing of profit for that purpose. The tenor of the agreement is on the lines of sharing of information and providing documents. Provision of documents as mentioned above is incidental to the Cargo Agent Service to shipping lines - we find force in the argument of learned AR that the services rendered by the appellant are directly or indirectly to a shipping line. /p p Alternate claim....... + More p Extended period of Limitation - Refund to SEZ unit - consumption of services wholly in the SEZ - Service tax on finance charges paid for borrowing funds - demand confirmed by invoking the extended period of five years under the proviso to Section 73(1) of the Finance Act, 1994 - period of dispute is from 19 May, 2006 to 31 March, 2011 - Lending services received from International Finance Corporation and Asian Development Bank to the extent of ₹ 3,46,84,459/- - Lending services received from PROPARCO to the extent of ₹ 30,06,192/-. /p p Lending services received from International Finance Corporation and Asian Development Bank ....... + More p Maintainability of appeal - the appeal had been filed beyond the period of two months from the date of receipt of the order - no application for condoning the delay in filing the appeal before the Commissioner is filed - Section 85(3A) of the Finance Act, 1994 - HELD THAT - The appellant claims to have received the order dated 30 April 2014 passed by the adjudicating authority on 12 June, 2015. The period of two months as contemplated under Section 85(3A) of the Act would expire on 11 August, 2014. The appeal was filed before the Commissioner (Appeals) on 3 September, 2014. /p p The appellant claims that an application for condoning the de....... + More p Erection, commissioning and installation Service - non-payment of service tax - HELD THAT - The Dy. Commissioner of Service Tax Division, Udaipur have verified the records and after verification of balance sheet, bills and various assessment orders passed by Commercial Tax Department, Udaipur have stated that the appellant has paid sales tax/VAT on certain quantities cleared by them and these are sales - Along with that report the Dy. Commissioner has enclosed the documents, which have been examined and verified by the Dy. Commissioner, which shows that the report filed by Dy. Commissioner is on the basis of verification of documents and s....... + More p Valuation - charge for the diesel reimbursed by the service recipients - Management, Maintenance and Repair Service - Business Auxiliary Service - Section 67(1) of the Act read with Rule 5 of the Service Tax (Determination of Value) Rules, 2006 - HELD THAT - The appellants were required to perform various services including diesel filing. It needs to be remembered that the scope of this service was limited to the activity of strong “filling” /strong the diesel in DG sets for which the appellants were paid service fee of ₹ 500/- or ₹ 750/- per site. The diesel was to be procured from the filling stations authorised b....... + More p Demand of Service tax - short term accommodation services - the contention of the appellant in respect of the same was that the tariff was less than ₹ 1,000/- per room per day in respect of the said services and there were exemption under N/N. 31/2011 dated 25th April, 2011 for tariff billow ₹ 1,000/- and exemption resulted in nil rate of duty - HELD THAT - The learned Commissioner (Appeals) has not rejected the ledgers maintained. Further, learned Commissioner (Appeals) should have verified the said ledgers & vouchers and satisfied himself than believe in the information available on the website. /p p The said observation ....... + More p Non-compliance with mandatory pre-deposit - Section 35F of Central Excise Act, read with Section 83 of the Finance Act, 1994 - service tax has been paid by M/s Hindustan Unilever Limited under GTA services on Reverse Charge basis - HELD THAT - It is seen that in the appellant’s own case vide Miscellaneous Order No. M/30067-30068/2019 a href https //www.taxmanagementindia.com/visitor/detail case laws.asp?ID 380369 strong 2019 (5) TMI 1097 - CESTAT HYDERABAD /strong /a , the Tribunal had allowed the plea of the appellant that since M/s Hindustan Unilever Limited has paid up the service tax demand under GTA services, the same may be tre....... + More p Classification of services - Franchise service or Business Support services - demand of service tax on Central Rights Income - Revenue Sharing basis - case of the Revenue is that the appellant-assessee is having franchise relationship and by way of maintaining a team is supporting business of BCCI in IPL tournament - HELD THAT - In the case of Sir Ganga Ram Hospital a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 352240 target blank 2017 (12) TMI 509 - CESTAT NEW DELHI /a , wherein it was held that if there is Revenue sharing by the doctors wherein some part of fees retained by the hospital and some is given to th....... + More p Condonation of delay in filing appeal - appeal was filed beyond the maximum time limit stipulated under the statute even after the condonable extent of delay - power to condone such delay - scope of Section 85(3A) of the Act, 1994 - scope of interference by this Court in exercise of the discretionary/extraordinary jurisdiction under Article 226 of the Constitution of India - HELD THAT - There is no dispute to the fact that the appeal came to be filed before the appellate authority only after 253 days beyond the stipulated period of 'two months' and hence, it was sought to be condoned by filing an application. The maximum condonable....... + More p CENVAT Credit - service tax paid on Business Support Service - denial on the ground that cost of rent paid for residence of employee is not taxable for which credit is not admissible - HELD THAT - As found from the order-in-original, denial of CENVAT credit on rent paid for residential accommodation was justified by the adjudicating authority on the ground that Service Tax was not payable to the owner of the property for rending the residential accommodation to Dr. Puri. It was not known if such Service Tax collected on such rent has been paid to the property owner who, in tern, had paid the same to the department. Liability of discharge o....... + More p Demand of service tax - brokerage received on IPO related service - demand set aside on the ground that the appellant is not covered by the definition as shares will become goods only if allotment was made - Scope of 'Business Auxiliary Services' as per Section 65(19) of the Finance Act, 1994 - scope of SCN - HELD THAT - The appellant’s activity is not covered by subsection (i) as they are not promoting or marketing or selling any goods. It is only an initial / offer and until the rights are issued to the subscribers such as share certificate do not assume the character of goods. Therefore, as rightly held by the lower author....... + More p Imposition of penalty u/s 76 and 78 of FA - revision of order - differential service tax and interest demanded were paid well before the issuance of show-cause notice - Classification of services - Rent-a-Cab Scheme Operator service or ‘Tour Operator’ service? - HELD THAT - We find that service tax has been paid along with interest before issuance of show-cause notice. The original adjudicating authority has gone into the facts of the case and in exercise of his discretion imposed penalty under Section 77 of the Finance Act, 1994 and refrained from imposing penalty under Sections 76 and 78 of the Finance Act, 1994. /p p We find....... + More p Business Auxiliary Service - charges recovered by the Appellants as Commission for sale of goods of associated group of companies abroad - Export of Services - reimbursements made by the associated group companies to the appellants - reverse charge mechanism - time limitation - penalty. /p p Whether the charges recovered by the Appellants as Commission for sale of goods of associated group of companies abroad are leviable to service Tax under category of Business Auxiliary Service provided in India or the same are in respect of Export of Services as defined from time to time and thus exempt from payment of Service Tax? - HELD THAT - The se....... + More p Was the CESTAT justified in declining to extend the benefit of the order passed by the Settlement Commission to the present Appellant? - HELD THAT - The Court is of the view that the mere fact that the Settlement Commission permitted the Department to proceed against the co-noticees in accordance with law did not mean that the co-noticees could not rely on the said order to argue, on the basis of the judgment of this Court in M/S. LESAG HBB (I) LTD. & OTHER VERSUS COMMR. OF CENTRAL EXCISE DELHI & OTHER a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 334663 target blank 2016 (11) TMI 681 - DELHI HIGH COURT ....... + More p Manufacture of disposable syringe as also syringe components - N/N. 6/2006-CE dated 01/03/2006 - Revenue entertained a view that parts of syringes were being cleared by the appellant to only two companies of the appellants group at Gorakhpur and Guwahati - HELD THAT - If the Jurisdictional Commissioner (Appeals) of the buyers unit of the appellants has held the processes undertaken at the buyer’s premises as amounting to manufacture, it has to be held that the manufacture of the complete syringe takes place at the buyer’s premises. In such a scenario, it cannot be held that what was being cleared by the appellant was a complete....... + More p Clandestine removal - shortage of 3135 Kgs of writing and printing paper - demand of duty has been confirmed on the basis of documents/ledger recovered during the course of investigation and on the basis of the records recovered from Transport Union Munsi Shri Mohan Singh - cross-examination denied - imposition of penalties - HELD THAT - The appellants sought cross examination of the persons from whom the documents have been recovered and the buyers of the goods whose statements have been relied upon by the Revenue, but no such cross examination has been granted, therefore, there is a gross violation of procedure laid down under Section 9-....... + More p Clandestine removal - chewing Tobacco and packing - It appeared to revenue that said quantity of packed chewing tobacco had been clandestinely manufactured and was intended to be removed clandestinely - Cross-examinations denied - extended period of limitation. /p p HELD THAT - The Original Adjudicating Authority did not allow the cross examination of any of the whiteness, whose statements were relied upon for issue of show cause notice. The Original Authority has relied upon statements recoded on 12.09.2014 which is date the search was conducted in the premises situated at 328 KA Churamanpur, Varanasi, premises belonging to Shri Srikant C....... + More p Valuation - clearances to sister units - cost of production arrived by taking 16.96% of the material cost as shown in the invoices for the goods cleared - Rule 8 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - HELD THAT - The demand of duty is calculated on the basis of cost of production arrived after taking 16.96% of the value of goods cleared as the material cost. There is no provision in the Valuation Rules to arrive at such valuation of materials on such basis. Assessee has not produced CAS-4 certificate. It is the bounden duty of the department to appoint a Cost Accountant and obtain a CAS-4 cert....... + More p Refund of amount paid under protest - undervaluation - principles of unjust enrichment - HELD THAT - It is an undisputed fact that the payment was made under protest by the assessee during investigation and a perusal of one of the earliest Order-in-Original dated 30.01.2014 clearly reflects appropriation of payments made by the appellant towards the duty liability and the said order also incorporates the major payment being recovered by way of appropriation, except perhaps penalty. /p p There are no disputes with regard to the CA certificate furnished by the assessee, on which the adjudicating authority has tried to make an issue. But on t....... + More p Refund of CENVAT Credit - Rule 5 of the CENVAT Credit Rules, 2004 read with Notification No. 27/2012-C.E. (N.T.) dated 18.06.2012 - rejection on the ground that there was delay in reversing the availed credit - case of appellant is that this requirement was nothing but a procedural requirement - HELD THAT - This very Bench in the case of M/S. SYNTHESIS HEALTHCARE SERVICES LLP VERSUS THE COMMISSIONER OF GST & CE, (CHENNAI SOUTH) a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 377302 target blank 2019 (3) TMI 1323 - CESTAT CHENNAI /a strong em /em /strong Chennai has considered an identical issue in the light of....... + More p Refund of CENVAT Credit - Rule 5 of the CENVAT Credit Rules, 2004 read with Notification No. 27/2012-C.E. (N.T.) dated 18.06.2012 - rejection on the ground that there was delay in reversing the availed credit - case of appellant is that this requirement was nothing but a procedural requirement - HELD THAT - This very Bench in the case of M/S. SYNTHESIS HEALTHCARE SERVICES LLP VERSUS THE COMMISSIONER OF GST & CE, (CHENNAI SOUTH) a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 377302 target blank 2019 (3) TMI 1323 - CESTAT CHENNAI /a strong em /em /strong Chennai has considered an identical issue in the light of....... + More p Doctrine of Bias - Refusal to transfer appeal from Commissioner (Appeals) Ludhiana to some other Commission (Appeals) - transfer sought on the ground that wife is holding the charge of Commissioner (Appeals) and the officer who reviewed the order passed by the Assistant Commissioner and directed him to file appeal on his behalf before the Commissioner (Appeals) is her husband - there is reasonable apprehension in the mind of the petitioner about bias in deciding his appeal pending before Commissioner (Appeals), Ludhiana - principles of natural justice. /p p HELD THAT - In view of the settled legal position enunciated above, the following b....... + More p CENVAT Credit - inputs - heavy duty racks used in their factory where they are manufacturing wiring harness and battery cable/terminal - HELD THAT - It stands held in various decisions that racks are required to be used for handling of raw materials as also their final product, which is a process integrally connected with the manufacture of final product and there is nothing in the definition of “input”, which would exclude the same. /p p Even in terms of the said Exclusion (E), the goods, which have no relationship with the manufacture of a final product, have to be excluded from the definition of “Input”. As such,....... + More p CENVAT Credit - duty paying documents - credit availed on the strength of supplementary invoices issued by the subsidiary companies of Coal India Limited i.e. M/s. South Eastern Coalfields Limited (M/s. SECL) against the coal receipts despite that the appellants units has been closed since June, 2013 - HELD THAT - In the present case, admittedly the supplementary invoices on which credit has been availed were issued in March and May 2013 and the credit there upon has been availed in March 2014, December, 2014 and January, 2015. Thus, the credit has neither been availed immediately on the receipt of inputs nor has been availed within the si....... + More p Service/communication of Order - relevant date - dismissal of appeal on limitation - whether the date of communication of the order-in-original has to be taken as 12 September, 2017, when the order was served on the security guard, as the factory was lying closed? - HELD THAT - Section 37C provides that all notices shall be served by tendering or sending it by registered post with acknowledgement due or by speed post or approved courier to the person to whom it is intended or his authorised agent, if any. /p p In the present case, it appears that the appellant also has neglected in making proper arrangement for receipt of their mail/dak. H....... + More p Refund of duty paid for non-operative period - manufacture of SS Patta/ Patti - Compound Levy Scheme - Department formed the opinion that there is no provision in the said Notification for refund of duty paid for the non operative period of the machines during the month - HELD THAT - There is no dispute about the fact that the appellant had regularly been opting for the compounded levy scheme as provided vide Notification No. 17/2007-CE dated 01 March, 2007. It is also an admitted fact that for the month of October 2016 and February 2016 for which the refund has been applied for by the appellant, all the cold rolling machines of the appell....... + More p SSI Exemption - use of brand name - Manufacture of Homeopathic Medicines - Medicaments used in ‘Bio-chemic System’ and not bearing the brand name - benefit of N/N. 03/2005-CE dated 24.02.2005 - HELD THAT - Admittedly, SBL stands as an abbreviation of the assessee’s name and the expression ‘WORLD CLASS HOMOEOPATHY’ cannot be considered to be a brand name or trade name in the light of the explanation attached to the notification - appeal dismissed - decided against appellant. /p p Valuation - inclusion of subsidy in the assessable value - disbursement of the sales tax amount as ‘Subsidy’ - section 4 of CEA - HELD THAT - In the present case, the Appellants in terms of the Scheme had deposited the entire amount of VAT collected. It is this amount that is used as a measure for granting financial assistance to be subsequently provided. /p p The learned Authorised Representative has, however, placed reliance on the decision of the Tribunal in CCE & ST, RAIPUR VERSUS. M/S. JAYASWAL NECO INDUSTRIES LTD. a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 263046 target blank 2015 (8) TM....... + More p Captive consumption - benefit of N/N. 67/95 of the Central Excise - manufacture of Toolings which have been captively used for manufacture of final product and invoice was raised for the same - HELD THAT - The Adjudicating authority as well as the learned Commissioner (Appeal) have not applied their mind and perused the records and pass the order in routine manner. /p p As we have found from the record that appellant are not manufacturer of the tooling in question therefore, question of payment of duty does not arise - Appeal allowed - decided in favor of appellant. /p p Excisability - Job-work - scrap generated at the end of job worker - Rule 4 (6) of Cenvat Credit Rules, 2004 - Revenue entertained a view that scrap generated at the end of job worker is dutiable in the hands of the appellant and appellant has not pay duty thereof - HELD THAT - Admittedly, in this case, the job worker has paid duty on the scrap, which is generated during the course of job work. As duty has already been paid on the said scrap, therefore, no duty is payable by the appellant, otherwise, it will be the duty has been demanded twice. /p p Similar issue has been dealt by this Tribunal in the case of M/S. NATIONAL ENGINEERING INDU....... + More p Condonation of delay of 578 days in filing appeal - Section 35B(5) of the Act, 1944 - HELD THAT - In the present case, the appellant who is the Director of the Company was aware of the order passed by the adjudicating authority as it was received by him on 12 May, 2017. The Director was also aware that an appeal could be filed before the Tribunal, as the Director was a party in Writ Petition in the Delhi High Court where it was sought to be contended that the Writ Petition should be entertained since the requirement of pre-deposit before the Tribunal was onerous. Even after the decision of the Supreme Court on 23 January, 2018 that require....... + More p CENVAT credit of the CVD part of the differential duty - benefit of Concessional rate of duty of BCD and CVD under N/N. 12/2012-Cus dated 17.03.2012 - Import of Bituminous coal in the guise of Steam coal - re-assessment of the Bill of Entry - Applicability of provisions of Rule 9 (1) (b) and Rule 3 of the CCR, 2004 - HELD THAT - The appellants have imported the coal as ‘steam coal’ since 2004 but an investigation was conducted after an Alert Circular was issued by DRI alleging that the appellants are importing ‘Bituminous coal’ in the guise of ‘Steam coal’ in order to avail benefit of concession rate of ....... + More p CENVAT Credit - payment of duty through CENVAT Account - appellants contended that they had a credit on the goods lying in stock as on 01.06.2006 and they are eligible to pay the applicable duty through CENVAT also. Therefore, they have ended up paying more interest - HELD THAT - The appellants have submitted that they have paid interest of ₹ 74,61,293/- and are entitled for refund of ₹ 62,36,018/- as there was huge stock of materials lying in stock as on 01.06.2006 the credit on which is available to them therefore the duty paid by them in cash should only be reckoned for the purpose of calculating interest as this is the duty....... + More p Refund claim - finalization of provisional assessment - power to remand the matter to the VATO - refund is sought to be denied by creating fresh demands which for some periods is ‘nil’ and for others on completely untenable grounds for which orders have already been set aside by the OHA and ATVAT - HELD THAT - The order passed by the OHA remanding the matter to the VATO is dated 21st February 2017. Although no time limit was set, it is clear that the fresh order to be passed within 1 year from the date of the order was not passed. As far as the order passed by the ATVAT is concerned, it is dated 30th July 2015 and within 1 year....... + More p Validity of assessment order - rejection of books of account as well as the declared turnover - HELD THAT - Admittedly the applicant runs a bar with the restaurant, which in normal course runs at least 12 to 16 hours per day. It starts in the noon and it continued till late night. The location of the place of the business of the applicant is a very prestigious place situates at R.D.C., Ghaziabad. The place of business is surrounded by the commercial activities as well as residential. /p p The estimate is based on the basis of the material recovered at the time of survey dated 19.10.2005 and the substantial relief has been allowed by the ap....... + More p Levy of Turnover Tax - turnover of old, discarded materials (Stores) - taxable at the ate of 10% or not - N/N. 1225 dated 31.03.1992 - benefit of declaration certificate of C.S.D. filed before him along with application under Section 12B - principles of natural justice - HELD THAT - None of the authorities have taken care of the amended notification or even the original notification which clearly provides the rate of tax at the rate of 6%8% and after amendment at the rate of 4% with effect from 1st April, 1992. /p p The present dispute relates to the period starting with effect from 01.04.1997 which ended on 31st March, 1998, therefore, th....... + More p Invocation of Section 10-B of U.P. Trade Tax Act - revision by Commissioner - validity of assessment order - it was alleged by Deputy Commissioner (Executive) that the order of assessment was bad as the same has been passed by the assessing authority completely ignoring the inquiry report as well as the survey report - HELD THAT - No case is made out to interfere as the finding recorded by the Deputy Commissioner (Executive) as well as by the Tribunal are finding of fact and are based on the material found at the time of inquiry and survey, which was not at all considered by the assessing authority while passed the assessment order. The De....... + More p Time Limitation - ignoring limitation of five years available u/s 28 of the HGST Act, 1973 for the purpose of proceeding with the assessment - Haryana VAT Act - delay in filing the appeals ranging from 58 days to 436 days for which no satisfactory explanation has been given by the learned counsel for the appellant-revenue - whether the assessment orders passed by the assessing authority on 26.3.2009, for the assessment years 1999-2000 to 2002-03, were barred by limitation or not? - applicability of limitation prescribed under HVAT Act in order passed under HGST Act. /p p HELD THAT - It is well settled that the law of limitation is a proced....... + More p Imposition of penalty u/s 12(3)(b)(iv) of the TNGST Act - return filed by the Petitioner, not rejected - HELD THAT - It is very clear that the Assessing Officer proceeded to impose penalty by impugned order dated 26.06.2006 without rejecting the return filed by the Petitioner. This course of action is contrary to the provisions of Section 12(2) of the TNGST Act. Consequently, penalty cannot be imposed under Section 12(3) of the said Act. /p p Hon'ble Division Bench of this Court in APPOLLO SALINE PHARMACEUTICALS VERSUS COMMERCIAL TAX OFFICER (FAC) AND OTHERS a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 1486....... + More p Maintainability of appeal - non-compliance with the pre-deposit - Section 62(5) of Punjab VAT Act - HELD THAT - The Tribunal while dismissing the appeal of the appellant noticed that protection under Section 62(5) of the Act cannot be granted in each case but only in rare of the rarest cases where the impugned order is void and without jurisdiction and such deposit would frustrate the purposes of filing of appeal and that the appellant was suffering from any financial incapacity or was under any other hardship on account of poverty or insolvency - The law required the entertainment of appeal only when compliance under Section 62(5) was mad....... + More p Classification of goods - narrow woven fabric labels - classified under heading '58.06' of the First Schedule to the Additional Duties of Excise (Goods of Special Importance) Act, 1957 or not - exemption from sales tax under Entry 11 of Part A of the Third Schedule to the Tamil Nadu General Sales Tax Act, 1959 - case of the Respondent is that the exemption applies to narrow woven fabric, which is classified under heading 58.06 of the Additional Duties of Excise Act but not to woven labels, which are classifiable under heading 58.07 of the Central Excise Tariff Act, 1944. /p p HELD THAT - On perusal of Entry 11 of the Part A of the ....... + More p Input tax credit - scope of amendments made to restrict the credit - benefit of credit which was rightly reversed by the assessing authority - Assessment Year 2013-14 - whether grant of input tax credit (ITC), according to Section 13(1)(f) of the Act or the benefit to be extended as granted by the Tribunal applying the provisions of Section 13(3)(b) read with Explanation (iii)of Section 13 of the Act - HELD THAT - As the Apex Court in the case of Jayam & Co. a href https //www.taxmanagementindia.com/visitor/detail case laws.asp?ID 332147 2016 (9) TMI 408 - SUPREME COURT /a has categorically held that the claim of ITC is not the right o....... + More p Refund of pre-deposit alongwith interest - interest from date of refund OR from date of filing Form DVAT-21 - HELD THAT - Issue decided in the case of SHAILA ENTERPRISES VERSUS COMMISSIONER OF VALUE ADDED TAX a href https //www.taxmanagementindia.com/visitor/detail case laws.asp?ID 331042 2016 (8) TMI 426 - DELHI HIGH COURT /a , where it was held that refund is to be allowed - Accordingly, as far as the refund by the Revenue in the sum of ₹ 2 lacs of the Petitioner is concerned, it is directed that it shall be done forthwith, and in any event, not later than 31st May, 2019. /p p Interest on refund - HELD THAT - It is directed that si....... + More p Imposition of penalty u/s 10-A of the Central Sales Tax Act - purchase of "Rough C.I. Casting" - HELD THAT - Hon'ble Apex Court in the case of strong Commissioner of Sales Tax, U.P. Vs. Sanjiv Fabrics /strong a href https //www.taxmanagementindia.com/visitor/Detail Case Laws.asp?ID 203297 target blank 2010 (9) TMI 461 - SUPREME COURT /a strong /strong . In the said case the Hon'ble Apex Court has held that the penalty provisions are penal in character and unless the filing of an inaccurate return is accompanied by a guilty mind, the section cannot be invoked for penalty. /p p The Apex Court, therefore, concluded that a fi....... + More p Compliance with the pre-deposit - Maintainability of appeal - stay on recovery - denial of CENVAT Credit on the basis of alleged negative cross check reports - section 11(7A) of the GVAT Act - HELD THAT - Having regard to the fact that at the time when the assessment order was made, the petitioners did not have the copies of the assessment orders made in the case of the vendors, the petitioners did not have any opportunity to prove the genuineness of such transactions. /p p Subsection (7A) of section 11 of the GVAT Act envisages disallowance of tax credit in excess of the amount of tax paid in respect of the same goods. Therefore, to disal....... + More p Imposition of penalty u/s 15 A(1)(a)of the U.P. Trade Tax Act - absence of reasoning in the impugned order - HELD THAT - Reason is the very life of law. When the reason of a law once ceases, the law itself generally ceases - Such is the significance of reasoning in any rule of law. Giving reasons furthers the cause of justice as well as avoids uncertainty. As a matter of fact it helps in the observance of law of precedent. Absence of reasons on the contrary essentially introduces an element of uncertainty, dissatisfaction and give entirely different dimensions to the questions of law raised before the higher/appellate courts. /p p The cour....... + More p Levy of purchase tax - purchases made from unregistered dealers - assessment on the sales suppression - Whether the sales turnover arrived at by the Appellants on the purchases from registered dealers and also from unregistered dealers and tax paid on the sales turnover by arriving at Gross Profit to the purchases. Hence levying tax again on the purchases is correct? /p p HELD THAT - It is no doubt true that the petitioner did not appear before the Tribunal. Yet the legal requirement is that the correct turnover has to be taxed and by default, the State cannot be permitted to tax a dealer on the turnover which is not taxable. Therefore, we....... + More p Revision of assessment - reversal of ITC for purchases made by the petitioner from dealers whose TIN were cancelled - TNVAT Act - It is the case of the petitioner that the first respondent without applying his mind and without giving due consideration to the circular of the Commissioner of Commercial Taxes, VAT cell / 39009 / 2017 (VCC No.1060) dated 29.08.2007 has passed the order - HELD THAT - Admittedly, there is an appeal remedy available to the petitioner as against the order dated 03.04.2018 passed by the first respondent in A.P.No.44 of 2018. But instead of filing an appeal on the ground that the impugned order insofar as the allowa....... + More p Revision of assessment order - change of opinion - deemed assessment - reversal of input tax credit mistakenly claimed twice - suppression of sales or not - HELD THAT - The assessment pertains to the year 2013-14 whereas after first revision of assessment, which was completed on 31.03.2017, the second respondent has proposed to revise the assessment once again on 11.07.2018, which is concluded by the impugned assessment order dated 21.12.2018 - As rightly pointed out by the learned counsel appearing for the petitioner, mere change of opinion without new or fresh fact de-horse the records, will not entitle the Assessing Officer to revise th....... + More p Requirement with the pre-deposit - appellant is incurring huge losses as is evident from the Balance Sheets and is not in a position to deposit the amount - reversal of input tax credit - bye products retained by the millers - HELD THAT - The Tribunal while dismissing the appeal of the appellant noticed that the law required the entertaining of the appeal only when compliance under Section 62(5) of the Act was made. Further, the first appellate authority had already granted partial protection by directing the appellant to deposit 25% of the additional tax demand only. Therefore, the appellant was liable to comply with the provisions of Sec....... + More p Service of SCN - grievance of petitioner is that the show cause notice was sent to the previous address and that therefore, they were unable to file a reply - HELD THAT - It was found that Form VAT 112 was not filed by the petitioner. Therefore, the Assessing Officer did not commit a mistake in sending the show cause notice to the address as reflected in their records - But, at the same time, the turnover which the petitioner claimed to be exempted under the Telangana Value Added Tax Act, 2005, has been treated as stock transfer and a levy made under the CST Act, 1956. If the petitioner had promptly informed the change of address and parti....... + More p Recovery of arrears of sales tax and penalty from the Legal Heirs of deceased - HELD THAT - The facts and circumstances of the present case, do not warrant an interpretation of, or adjudication upon the legal submissions made as aforesaid, simply for the reason that the legal representatives of the deceased sole Proprietor have consciously taken it upon themselves to defray the arrears of penalty for the periods in question by carrying forward the litigation and filing and pursuing the Tax Case (Revisions) before this Court - there is no question that the legal representatives are, and have admitted liability to the penalty levied. /p p Th....... + More p Rate of tax - cream milk mixed and flavoured milk - taxable at 8% or 16%? - classification of the goods - HELD THAT - It is not in dispute that the dealer/assessee has sold flavoured milk and cream milk mixed - The department itself has issued a circular clearly holding that the flavoured milk is covered by the entry 'milk'. /p p In the instant case, the Tribunal has rightly dismissed the appeal filed by the Commissioner while affirming the order of the first appellate authority. The first appellate authority has quashed the proceedings under Section 21 of the Act. Assessee itself has admitted the tax on cream milk mixed and flavou....... + More p Maintainability of petition - termination of services of appellant (teachers of affiliated or associated colleges other than those maintained by Government or local authority) - respondent management submitted that the writ petition was not maintainable against a private unaided college as it was not “State” within the meaning of Article 12 of the Constitution - HELD THAT - The High Court held that merely because of affiliation to the CCS University, the writ petition was not maintainable against a private unaided college. The order is cryptic, nonspeaking and devoid of any consideration of the statutory provisions of the Act. ....... + More p Insurance against burglary and/or house breaking - loss or damage was caused without forcible and violent entry to and/or exit from the premises - case of appellant is that conditions of exclusion under the policy document were not handed over to the appellant by the insurer and in the absence of the appellant being made aware of the terms of the exclusion, it is not open to the insurer to rely upon the exclusionary clauses - HELD THAT - The District Forum came to a specific finding of fact that the insurer did not furnish the terms and conditions of the exclusion and special conditions to the appellant and hence, they were not binding. Wh....... + More p Dishonor of Cheque - Jurisdiction - Court having jurisdiction under Sub-section (2) of Section 142 of the Negotiable Instruments Act, 1881 - contention raised on behalf of the petitioner herein is to the effect that when the complaint was instituted in June, 2012, the territorial jurisdiction lay with the Court at Delhi - HELD THAT - The complainant’s base branch of its bank is situated at 612, Ground Floor, Opp. Rani Mill, Delhi Road, Meerut 250002, U.P. /p p In terms of Section 142 (2)(a) of the Negotiable Instruments Act, 1881, the branch of the Bank where the payee or holder in due course maintains the account, is the place where....... + More p Review petition - Appointment of an Arbitrator - applicability of Bihar Public Works Contract Dispute Arbitration Act, 2008 - HELD THAT - Firstly in the present case pertaining to the State of Bihar, the Bihar Public Works Contract Dispute Arbitration Act, 2008 was not reserved for the asset of a President of India, hence, the same has not received the asset of the President of India, as provided for under Article 254 of the Constitution of India, secondly it is clear that in case of conflict between the State Act and the Central Act, Central Act would prevail in view of Section 8 of the Bihar Public Works Contract Dispute Arbitration Act,....... + More p Dishonor of Cheque - Sales tax returns as Proof of transaction between the complainant - Maintainability of an application u/s 311 of Cr.P.C. summoning the Assistant Commissioner of Commercial Tax to explain the process of submitting the returns - production of sale returns from April-2016 to March-2017 - HELD THAT - It is not the case of the petitioner that no tax returns are filed and the very purpose of calling the Assistant Commissioner of Commercial Tax according to the petitioner who is an expert to explain the procedure for submitting the returns and also to explain regarding deficiency, mistakes, false filing or is there any illega....... + More p Benami transaction or not - claim of share in the properties - family dispute - inheritance - purchase of property in the name of wife by the deceased husband - the case on behalf of the plaintiffs that the suit properties were purchased in the name of defendant no.1 out of the funds raised on selling the ancestral properties - whether the transactions/Sale Deeds in favour of defendant no.1 can be said to be benami transactions or not? /p p HELD THAT - the payment of part sale consideration cannot be the sole criteria to hold the sale/transaction as benami. While considering a particular transaction as benami, the intention of the person w....... + More p Levy of Property Tax - ground cable laid for the purpose of providing telephone services or other telecommunication facilities - petitioner is a cellular service provider - case of petitioner is on the basis that the petitioner being not the owner of the land in which under ground cables are laid, the demand of property tax from the petitioner falls foul of Section 132 (1) of the Act, 1956, which implies that the property tax is payable by the owners of building or land - HELD THAT - Since the definition of land in the CG Municipal Corporation Act is pari materia with the definition of land in the Gujarat Act, it is incorrect on the part o....... + More p Criminal breach of trust - disciplinary proceedings commenced by the Institute of Chartered Accountants of India (ICAI) pursuant to a complaint filed by the SFIO with the ICAI - It is the petitioner’s case that he was not complicit with the Management but is also a victim of the fraud perpetrated by the Management of RIC - HELD THAT - This Court is refraining from making any observations regarding the said matter as the same is pending before this Court; but suffice it to state that the petitioner’s case is not on identical footing as the case of the petitioners in that case. Even if it is assumed that the petitioner’s ca....... + More p Levy of unearned increase in respect of the subject property - Merger of companies - change in the shareholding - DDA claims that the subject property was transferred in the year 2005-06, as there was a material change in the shareholding of the petitioner. According to DDA, the said change in shareholding brought about the change in the effective control in the subject property, which is construed as a transfer, thereby entitling DDA to levy unearned increase. /p p Whether any unearned increase is payable on account of the merger of Aquarium Acquisition Corp. (AAC) with Gillette Company, USA (TGC) or the transfer of TGCs shareholding in t....... + More p Representation by a lawyer of own choice - Wilful Defaulter - whether when a person is declared to be a wilful defaulter under the Circulars of the Reserve Bank of India, such person is entitled to be represented by a lawyer of its choice before such declaration is made? /p p HELD THAT - The in-house committees are not vested with any judicial power at all, their powers being administrative powers given to inhouse committees to gather facts and then arrive at a result. Secondly, it cannot be said that the Circulars in any manner vests the State’s judicial power in such in-house committees - No lawyer has any right under Section 30 of....... + More p Inclusion of names in the list of the Reserve Bank of India’s Credit Information Companies list of Wilful Defaulter - Conversion of security for the cash credit facility by illegally clubbing the two accounts - debt was classified as non-performing assets (NPA) - HELD THAT - The petitioner company has been given notice well in advance to appear in the hearing to explain why the petitioner company should not be enlisted as wilful defaulter - complying all the formalities the petitioner company was duly furnished with all documents. In spite of that the petitioner company repeatedly failed, neglected and avoided to appear in the hearin....... + More p Dishonor of Cheque - cheque issued by a proprietorship firm - Proceedings againt the individual / proprietor - Section 138 of NI Act - case of appellant is that the complaint is wholly incompetent since the cheque (giving rise to the complaint) was issued by the 'company' M/s Manoj Rice Mill that was not impleaded as an accused person - HELD THAT - In the first place there is no dispute to the fact that the applicant was running a sole proprietary concern in the name M/s Manoj Rice Mill. It was neither a partnership firm nor a company nor any other association of persons. /p p A plain reading of provision of section 141 of NI Act m....... + More p Issuance of Cheque - who was the Managing Director of the company at the relevant time - Reopening of evidence on the side of the plaintiff - the petitioner sought reopening of their evidence on the ground that at the time when the Memorandum of Understanding was entered into between the plaintiff and the 1st defendant, the 2nd defendant was the Managing Director and defendants 3 and 4 were the Directors of the 1st defendant company - Court below rejected the application on the short ground that the evidence available on record was sufficient to show who was the Managing Director at the relevant point of time when the contract was executed....... + More p Auction - Conditional order of stay - Due diligence to be taken over by highest bidder. /p p HELD THAT - Petition is disposed of permitting the petitioners to make payment of the amounts now offered over and above the highest bid amounts in respect of the aforesaid three properties. The petitioners shall make payments on or before 31.03.2019 to avail this benefit. If the petitioners fail to make payment, it will be open to the bank to proceed further. In the event of the petitioners complying with this order, the bank shall refund the moneys paid by the highest bidders in the auction. However, in the circumstances of the case, there shall be no order as to costs. /p p Common petition against builder - class action or not - Failure to honour commitments of delivering possession of an office space booked by appellant - Section 23 of the Consumer Protection Act, 1986 - According to the National Commission, though all the appellants had a common grievance that the respondent had not delivered possession of the respective units booked by them and thus the respondent was deficient in rendering service, it was not shown how many of the allottees had booked the shops/commercial units solely for the purchase of earning their livelihood by way of self-employment. /p p HELD THAT - In Chairman, Tamil Nadu Housing B....... + More p Capitalization of Foreign Exchange Rate Variation (FERV) - apportionment of FERV into debt and equity after FERV has been calculated and added to capital cost - HELD THAT - Noting the premise on which the Act was enacted and the fact that the Tariff Regulations, 2001 prescribed under the aegis of this Act do not provide for apportionment of FERV in a particular debtequity ratio, this Court is not inclined to interfere in the matter. /p p The present dispute arises with respect to tariff charged between 01.04.2001 and 31.03.2004 on account of FERV calculation and apportionment. Any variation in the apportionment of FERV now, for the aboveme....... + More p Smuggling - poppy straw - psychotropic substance or not - defence of the Appellant was that he was legally transporting the goods of the licensee contractor Bishan Singh who had a valid licence issued by the District Excise Officer. A charge was framed against the Appellant under Section 8 read with Section 15 and Section 8 read with Section 26 of the NDPS Act - HELD THAT - Section 8 of the NDPS Act prohibits cultivation of opium poppy and also prohibits, inter alia, production, manufacture, possession, sale, purchase, and transport of any narcotic drug or psychotropic substance - Section 26 deals with a wilful breach of a condition of the....... + More p Discharge of liability of a secured debt - precedence over the liability of a crown debt or any other debt - Whether the Notification dated 22.06.2015 issued under the MPID Act, which is a State Legislation, could override the provisions of SARFAESI Act, which is a Central Act and under the provisions of the said Act, the property in question was auctioned? /p p HELD THAT - A bare reading of Article 254 of the Constitution of India leaves no manner of doubt that parliamentary supremacy in matters under List III of the Seventh Schedule of the Constitution has to be maintained. In case of a conflict between Centre and a State on a subject ma....... + More p Quantum of punishment - conviction and sentence under Section 21(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 - appellant submits that appellant could not have been awarded sentence of more than ten years which is the minimum sentence provided for offence under Section 21(c), since the Court below did not advert to Section 32B of the Narcotic Drugs and Psychotropic Substances Act, 1985. /p p HELD THAT - A perusal of different provisions of Act, 1985 indicates that various sections provide for different punishments. In Section 21(c) noticed above the provision provides that rigorous imprisonment shall not be “less th....... + More p Whether a Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 is maintainable before the National Commission Dispute Redressal Commission against an Order passed by the State Commission in an execution proceeding? /p p HELD THAT - The nature of execution proceedings is materially different from the nature of proceedings for adjudication of a consumer complaint. Execution proceedings are independent proceedings. Orders passed for enforcement of the final order in the Consumer dispute, cannot be construed to be orders passed in the ‘consumer dispute’ - Execution proceedings even though they are proceedings ....... + More |
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