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Punjab Sind Diary Products Pvt Ltd Versus Deputy Commissioner of Income-Tax

Rejection of books of accounts u/s 145(3) - estimation of profit of the business - Held that:- Books of accounts along with the register, which gives the entire details of day-to-day purchase, production/consumption and sales have been not only maintained but were also filed before the AO as well as CIT(A). Another reason for justifying the application of estimation of GP rate by the Tribunal, was that the assessee has failed to submit detail in respect of sale of milk to the tune of ₹ 12, .....

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of account of the assessee to see the nature of entry and recording of transactions.

Therefore, under such facts and circumstances prevailing in this year, the finding of the Tribunal in the earlier years will not apply in the impugned assessment year. Otherwise also, if the assessee's books of accounts were not found properly maintained in the earlier years then, it cannot be ipso facto presumed that the books of accounts are defective or not properly maintained in this year also. T .....

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essment year, i.e. A.Y. 2008-09. Each year have to be examined independently based on facts and materials on record, because, the matter pertaining to rejection of books of accounts are factual issues, which need to be examined every year. Thus, in view of our above finding, we hold that books of account and the book result, as shown by the assessee should be accepted and consequentially the estimation of the undisclosed income of ₹ 8,30,742/-, as submitted by the CIT(A) is deleted.
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the assessee company, which aggregated at ₹ 32,72,780/-. The reply of the assessee as filed before the AO has not been properly rebutted or examined. Further, from the statement of cash balance of various persons, it is seen that, the availability of cash as per their books maintained and claimed by the assessee appears to be correct. In all the personal Balancesheets and cash balance as appearing in the cash-book belonging to the family members of the Directors and Director themselves su .....

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. 599/PN/2013 - Dated:- 11-6-2015 - Sanjay Arora, AM And Amit Shukla, JM For The Petitioner : Shri K KLalkaka For The Respondent : Shri A C Tejpal ORDER Per Amit Shukla The aforesaid appeal has been filed by the assessee against impugned order dated 17.09.2010, passed by CIT(A)-41, Mumbai for the quantum of assessment passed u/s 143(3) for the assessment year 2008-09. 2. At the outset, Ld. Counsel for the assessee, Shri K KLalkaka submitted that Ground no. 1 & 2 as raised by the assessee are .....

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red in confirming the addition made of ₹ 8,30,742/- as estimated undisclosed income on irrelevant and consequential grounds. 5. On the facts and in the circumstances and in law, the learned CIT(A) erred in confirming the action of the Assessing Officer in making the addition of ₹ 8,73,500/- u/s 69A of the I.T. Act, although the source of investment was properly explained. 6. On the facts and in the circumstances and in law, the interest charged u/s 234A, 234B, and 234C of the I.T Act .....

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on the same date. The search and seizure operation was carried out not only on the business premises of the assessee, but also on residential premises of the Directors and family members. During the course of search & seizure and survey operation conducted by the Investigation Wing, statements of various persons including Directors and employees were recorded and certain papers/documents were also seized. In pursuance of such search and seizure action, notices u/s 153A were sent and assessm .....

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s the year of search and, therefore, the assessment proceedings was commenced under normal provisions of the Act, i.e. u/s 143(3). The starting point of the AO as stated in the assessment order was that the gross profit shown by the assessee in the relevant assessment year was 19.09%, which is lower as compared to last year's gross profit of 20.45%, for which the assessee had not given any proper reasons for such a fall in the gross profit rate. Further, the AO observed that, during the cour .....

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by the Director reads as under: Q. No. 9: During the course of survey action at your premises, it is noticed that M/s Punjab Sind Diary Products Pvt. Ltd. is not having any inward register, production/consumption register and also outward register. You are requested to certify if such registers are maintained and, if so, please produce the same? Ans: It is very difficult to maintain such registers and so I do not maintain such registers. Q. No. 10: Please give details of all your dairy products .....

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in liter/kgms. Ans: I shall submit the details of purchase of milk at the earliest. I shall submit the sales register details at the earliest. Q.No. 12: It is once again requested that you should provide quantitative details of milk and quantitative details of sales? Ans: We shall provide you all the details and prior to that we shall show you all the registers and we shall give you details on your guidance". AO, further noted that assessee has sales outlets at various places (as per the d .....

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based on statement given by some of the staffs, upon which Directors have already clarified that it is not correct. It was further stated that, trading in milk and income generated from sale of milk has always been offered in the return of income also. This was further clarified vide letter dated 16.11.2009, which has been reproduced by the AO in para 6.3 and further elaborated in the reply given vide letter dated 07.12.2009, which too has been reproduced by the AO in para 7.1. 4. However, the .....

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his claim that complete movement of analysis of milk is attached herewith is not reliable. The assessee's claim that the milk was sold to some of the parties through cheques, cannot be accepted as the sale invoices do not corroborate the assessee's claim in absence of signatures of the other parties on such invoices. Lastly, he held that in the statement of four Salesmen, recorded during the course of survey, they have stated that, no milk is sold from these outlets or at least they hav .....

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during the course of assessment proceedings. The day-to-day details of milk purchase, quantity of milk product produced and the milk sold was also filed before the CIT(A). The assessee's submissions in this regard have been incorporated at pages 6 to 8 of the Appellate Order. However, the Ld. CIT(A), confirmed the action of the AO after observing and holding as under: "4.5 I have considered the submissions of the appellant, assessment order of the Assessing Officer and facts of the case .....

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who has promised to submit the statement of sale and purchase of milk and admitted that no inward register, production/consumption register and outward register has been maintained by the company. The statement of salesmen at six other placed was also recorded who have stated that only milk products are sold on those counters and no milk was sold. During the assessment proceedings, the Assessing Officer has again called for quantitative details of sale of milk with documentary evidence. However .....

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ground before the Assessing Officer to reject the books of accounts of the Assessee". 4.10 The second issue is regarding the estimation of profit of the business. To compute the profit the Assessing Officer has adopted the difference of Gross Profit between the milk sale and sale of remaining items gross profit and computed the Gross Profit @ 16.31% of ₹ 50,93,449/-. Since the appellant has failed to submit the required details before the Assessing Officer during the assessment procee .....

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statement were given by salesmen of the assessee company during the course of survey, negating the sales of milk and relevant books and registers were not filed before authorized officers. Further this premise of the AO has been duly clarified again before him and was explained that day-to-day purchase and sale of milk and milk products have been maintained by the assessee on the regular basis and same were also filed before him. It was also brought on record that bulk of the sale of the milk w .....

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clarified that the sale of milk has never been denied by the Directors or the Manager Sales. It was made clear to the concerned authority that sale of milk is done in the early hours of the morning from the factory premises itself, prior to the opening of the shop. In support, he referred to the reply filed by the assessee before the AO. These averments of the assessee have not been properly rebutted either by the AO or by the CIT (A). He further submitted that a detailed statement of purchase a .....

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see. However, the said finding will not act as a res judicata and will not be applicable in the impugned assessment year for the reason that, in the matter of rejection of books of accounts, the AO should not be influenced by the decision arrived in the past assessment as each assessment year is a separate and distinct and the facts of each year needs to be examined to see the book results. The assessee, in this year has not only produced the entire books of accounts and details but also the sto .....

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uced before the authorized officers. The entire reasoning of the AO for rejecting the books of accounts cannot be sustained in this year, as the assessee has already clarified these aspects vide various replies filed before the AO, which has not been rebutted properly. Now in wake of these facts and circumstances the decision of the earlier years should not be followed without prejudice he submitted that the earlier decision of the Tribunal is contrary to facts and to highlight the discrepancy c .....

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TTJ (Mum) TM 455. wherein it has been held that if the subsequent Bench of the Tribunal finds that the facts and material on record and argument based on such material has not been given due consideration, then the Bench can reverse its earlier decision if the material facts point out that the earlier decision cannot be followed being contrary to the facts on record. In any case, he submitted that, in this year, the matter needs to be verified and examined afresh in the light of the documents a .....

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processed for milk products, consumption of milk products, sale of milk and closing balance. These details have been maintained on day-to-day basis, wherein quantity-wise and value-wise details have been given. The stock register itself shows the veracity of the purchase, consumption, production and sale. The copy of register/stock register for the financial year 2007-08 has been kept on record. Lastly, Mr Lalkaka submitted that one very important fact which needs to be noted that in the case o .....

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and without there being any change in the facts and circumstances, the said decision should be followed or else the matter should be referred to a larger bench. In support of this proposition, he strongly relied upon the ITAT Mumbai SB decision in the case of DCIT vs Summit Securities Ltd reported in [2011] 132 ITD 1. On merits, he submitted that the findings of the AO as well as ld. CIT(A), is categorical that the quantitative detail of sale of milk and documentary evidences were filed inspite .....

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for rejecting the books of accounts and has estimated the profit. Thus, he strongly relied upon the order of the AO as well as CIT(A) and also the order of the Tribunal for the AYs 2006-07 and 2007-08. 9. We have carefully considered the rival submissions, perused the relevant findings given in the impugned order and also the material placed on record. The main issue for adjudication is, whether the books of account of the assessee have been rightly rejected u/s 145(3) on the ground that assess .....

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d, whether the assessee company is having any inward register, production/consumption register and also the outward register. In response, it has been stated that it is very difficult to maintain such register; Secondly, he was asked to provide quantitative details of milk and the quantitative details of products sold to which it was stated that the same shall be provided after some time. The AO has also referred to the extract of certain statements of the salesmen, who have denied any sale of m .....

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milk. 11. On the contrary, the assessee before the AO vide letter dated 16.11.2009 had stated as under: "Your query regarding the statements made by the staff that they have not sold the milk is wrong in nature as you have collaborated the statement from one unit of one person without ascertaining the facts from other outlets. Moreover, the nature of selling the milk is also different as small consumable packets are sold at the outlets, moreover bulk quantities are sold directly wherein ou .....

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sale of milk has been done to various established parties from whom payment has been received through account payee cheques. For the relevant financial year 2007-08, the assessee had given the following details in its reply before AO: "In the financial year 2007-08 sale milk has been executed in the name of Asian Chemist Prop., Godrej Natures Basket - Kandivli, Kailsah Parbat, Nanda Distributors, R.K. Shashank Diary the amount for the same was received by cheque, which is duly reflected in .....

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e in the early hours of the morning, prior to the opening of the retail shops and the boys or staff was paid the incentive directly to execute the supplies. The sales have been made mostly from the source i.e. from the factory premises and payment of cash on such sale has been duly accounted for. Assessee's detailed submission has been even reproduced at page 5 of the assessment order. Though, some of the employee's at the outlets have denied the sale of milk, however, the Manager, Shri .....

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received on an average on daily basis 20 kgs of Paneer for my sales counter. The manager at the Durga Niwas shop delivered me Paneer with a small sheet of white paper on which the weight is written on it. In a whole day, I sell the product at my counter as a retail as per requirement of the customer say 100 gms., 250 gms., 500 gms. Etc. at the rate of ₹ 170/- per kg. At the end of the day while closing, I submit the cash and the balance paneer at the shop at Durga Niwas from where I took i .....

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e AO with any material facts or evidence on record and have been rejected simply on the ground that some of the employees have denied the sale. 13. From the records and the replies filed before the AO, it is seen that the assessee had filed the entire statement of purchase and sale of milk products and milk showing day-to-day purchase of milk, sale of milk and the products manufactured. All these details have neither been examined nor have been commented upon either by the AO or by the CIT(A). S .....

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were filed also. Further when the assessee before the AO had claimed that bulk of sale of the milk have been given to established parties and payment have been received through account payee cheques, then, it was incumbent upon the AO to carry out necessary enquiry from such buyers of the milk or else, he should have accepted such a vital evidence of the sale of milk. The AO seems to be largely guided by the statement recorded by the authorized officer without verifying the records submitted bef .....

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ident from the replies filed before the AO and also the statement of purchase and sales filed before the AO. Such a sweeping statement of CIT(A) is not only uncorroborated but also divorced from the facts on record. 14. At the time of hearing, this Bench had asked the Ld. Counsel of the assessee to produce the stock register and kinds of details, which are being maintained by the assessee for recording the day-to-day purchase and sales of milk and various milk products. As per the direction, the .....

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these details have been maintained on quantitative-wise and value-wise. From the perusal of the stock register, it is seen that so far as sale of milk is concerned, the quantity of sales is quite less as compared to the quantity used for manufacturing of various milk products. For example, in the month of April 2007, the quantity of milk sold is 560 liters on 04.04.2007 and 481 liters on 30th April, 2007. Similarly, in the month of May 2007, there is only one instance of milk which was sold on .....

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nly allegation of the Department is that there is no sale of milk by the assessee. Such an allegation of the AO cannot be sustained, firstly, for the reason that the sale of milk has been duly shown in the books of account, which have been maintained on regular basis and the relevant entry of sale of milk is duly corroborated by invoices of purchase and sale. Secondly, the bulk of the milk sold is evidenced by the invoices which have been sold on credit and payment has been received through acco .....

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007, the following question regarding books of account were asked for which it was categorically stated that the books accounts have been regularly maintained. The relevant statement appears in the paper book, Volume III at page 18 to 26. The relevant questions and answer in this regard are reproduced hereunder: "Q. 7 In what form where are the books of the private company maintained? Ans: The books of accounts are maintained in the electronic form as tally on the mezzanine floor at the reg .....

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nt to Khar for being checked by Mr. Jaswinder Singh Bajaj Computerized entries are, therefore, not being seen on computer at this premises as the papers are sent to Khar." Q. 11 What are the daily reports of production and dispatch, stock and sales for the current financial year maintained? Please produce the same. Ans: I am producing the respective papers for the current F.Y. The same are as per inventory in Annexure A." Q. 22 Do you want to say anything else? Ans: The accounts are re .....

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ture of details before the AO, are also reproduced hereunder: "Letter dated 5th November, 2009 please note that as per your earlier questionnaire a question was put up whether the inventories are maintained in which we had specified the inventories are maintained and inward and outward register is maintained, we hope our answer to this subject shall not be misunderstood as we maintain the rough sheets of production records daily but are being disposed after entering properly and we have alr .....

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e are hereby also submitting the item wise monthly summary of sales and purchase copies for the F.Y. 2005-06 Pages Nos. 7 to 58." Letter dated 19th November, 2009 "During the proceedings you had initiated some queries regarding the production register comparing the same with Annexure A - 15. Sir, I wish to remind you that the stock registers maintained in the accounts are the true and factual figures, moreover the Annexure A - 15 are the stock dispatch registers to our various outlets, .....

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the financial year 2005-06 sale of milk has been executed in the name of Punjab Sweet &Farsan the amount for the same was received by cheque, which is duly reflected in the books of accounts. The complete movement analysis of milk is also attached which is evident that there are also parties to whom cash sale is made, hence cash sale of milk cannot be dropped out rightly. In the financial year 2006-07 sale of milk has been executed in the name of Amritpal Singh Nanda, Kay Bee Export & P .....

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he amount for the same was received by cheque, which is duly reflected in the books of accounts. The complete movement analysis of milk is also attached which is evident that there are also parties to whom cash sale is made, hence cash sale of milk cannot be dropped out rightly and all evidences are paged from pg. no. 37 to 39. The copy of the statement of BalkrishnaShinde, Pratap, Malkar, Prashant BalkirshnaChavan, RamugrahMaurya, Baldev Singh is attached herewith which is evident that the sale .....

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he pattern adopted for accounting purpose is not known to s as we paid the cash directly to the factory" which may have been misinterpreted during the course of investigation. It seem that you have already come to a conclusion that the sale of milk is not in existence and all the same amount should be added as undisclosed cash, which is untrue from the facts submitted and evidences provided, moreover the law can be interpreted either ways, the conclusion derived will have an adverse result .....

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and details, filed before the AO and reiterated several times, goes to show that neither the AO nor the CIT(A) had examined this issue in proper perspective. Accordingly, the reasons for rejecting the books of accounts in this year, sans any verification of the records produced cannot be sustained. In fact when during the survey certain information/ material is found, which has been rebutted or denied by the assessee, then it is all the more incumbent upon the AO to enquire and verify the conten .....

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se and inquiry and then onus is heavily upon the assessee to controvert such information or material. Here in this case as discussed above, assessee has been able to controvert and substantiate the claim of sale of milk. Thus, the reasons given by the AO as well as CIT(A) for disturbing the book results is rejected and we hold that the assessee's books of accounts and book results are liable to be accepted. 15. Now, coming to the decision of the Tribunal for the AYs 2006-07 & 2007-08, we .....

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no.3 is dismissed. 13. Ground no.4 relates to merits of addition of ₹ 12,15,244/- confirmed by the CIT (A) as per the estimations discussed above. We have already extracted the finding of the AO as well as the CIT (A) in the preceding paragraphs of this order. So far as, we have not only upheld the validity of the search assessment but also confirmed the act of rejection of books of accounts. Once the books of accounts are rejected under the provisions of section 145(3) of the Act, best j .....

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to the tune of 12,15,244/-. Thus, the said assessee's failure clubbed with the statements of the employees given on oath became relevant. The arguments relating to the retraction of the said statements by the employees are not sustainable considering the fact that the retraction was done in undated letters without giving sustainable reasons for such retraction. Therefore, in principle, the allegation of the Revenue on utilization of milk for making of the milk products by addition of 12,15,2 .....

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nd no.4 raised by the assessee is dismissed". 16. The Tribunal has decided the issue against the assessee on the premise and the ground that, the books pertaining to production, issuance and consumption have not been maintained by the assessee. Such a ground for rejection of books of account are non-existent in this year, as we have already stated above that the books of accounts along with the register, which gives the entire details of day-to-day purchase, production/consumption and sales .....

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een made through account payee cheques and secondly, day-to-day sales have been recorded, were also produced before the AO. No specific defect or discrepancy has been highlighted by the AO nor any enquiry has been made. Further, we have also called for the records and books of account of the assessee to see the nature of entry and recording of transactions. Therefore, under such facts and circumstances prevailing in this year, the finding of the Tribunal in the earlier years will not apply in th .....

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but also its income from sale of milk. If in the subsequent year, the factum of sale of milk have been accepted then with the same logic, the finding of the assessment year 2006-07 and 2007-08 that there is no sale of milk, cannot be held to be applicable in the impugned assessment year, i.e. A.Y. 2008-09. Each year have to be examined independently based on facts and materials on record, because, the matter pertaining to rejection of books of accounts are factual issues, which need to be examin .....

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onse to the show cause notice to reconcile the cash found with the evidence, the assessee submitted that cash balance available with the assessee group and all the family members, as per cash book was ₹ 32,67,379/- and cash balance of the assessee company itself was ₹ 25,32,868/-, therefore, there is no question of unexplained cash. The AO held that the assessee could not explain the source of this cash by showing cash balance showing in the hands of the individuals of the company ba .....

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nd all the family members of the Directors therefore, cash held by the each family member will have to be taken into consideration and no addition can be made in the hands of the company. He further submitted that, this was specifically pointed out before the AO vide letter dated 7th December, 2009 wherein the assessee gave the details of cash in hand held by each individual and the company, which aggregated to ₹ 32,72,780/-. The relevant extract of the letter is as under: "C) As per .....

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as ₹ 190460/- &Bhupenderkaur Bajaj, the total cash in hand was ₹ 268095/- &Gurpreetkaur Bajaj, the total cash in hand was ₹ 246898/- & Punjab Sind dairy products pvt ltd the total in hand was ₹ 2528269/- Hence the total cash in hand by the group is 32,72,780/- (thirty two lakhs seventy two thousand seven hundred eighty only) all the relevant details are enclosed in (page no. 47 to 51) which gives complete details regarding the cash in hand. On the date of sear .....

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he books of accounts of the Director, Jasvinder Bajaj and others have been accepted, which shows the cash balance of ₹ 39,058/-, and ₹ 1,92,460/- on the date of search itself. Further in the hands of the ladies of the family also, cash balance of ₹ 2,68,095/- were also tallied with their books of accounts. Thus, the total cash balance of ₹ 7,44,511/- were found to be accepted in the books of accounts. In such a case, no addition of unaccounted cash can be made in the hand .....

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Circular: List of Reduced Tax Liabilities under GST regime in comparison to present combined Indirect Tax rates

Circular: Works Contract for construction of Flats, Complex — Builders to pass on GST benefit to buyer otherwise anti-profiteering provisions of Section 171 of GST Act to apply

Circular: Clarification regarding applicability of section 16 of the IGST Act, 2017, relating to zero rated supply for the purpose of Compensation Cess on exports – Regarding.

Circular: Clarification on Inter-state movement of various modes of conveyance, carrying goods or passengers or for repairs and maintenance- regarding

News: RBI Reference Rate for US $

Highlight: Addition u/s 23(1)(a) - deemed rent - once the property is let out and at any point of time this remained vacant during the same cannot be brought to tax under the head House properties income.

News: Haryana constitutes screening committee on anti-profiteering

Highlight: Valuation of imported goods - it is necessary to re-examine the matter of both license agreement as well as supply contract simultaneously, to see if the enhanced royalty was in the guise of adjustment of the price of components.

Notification: Levy of anti dumping duty on New/unused pneumatic radial tyres with or without tubes and/or flap of rubber (including tubeless tyres) having normal rim dia code above 16 originating in, or exported from China PR

Highlight: Cenvat credit availed on Club Membership for the Director is not admissible as it cannot be said to be remotely connected with the activity of manufacture

Circular: Amendments in Hand Book of Procedures 2015-20 –reg.

News: Jaitley asks biz not to wait till last day to file GST returns

Circular: Implementing Electronic Sealing for containers by exporters under self-sealing procedure prescribed by Circular 26/2017-Cus dated 1st July, 2017 and Circular 36/2017 dated 28 th August, 2017. — reg.

Article: 20 Things You must know about E Way Bills in GST Law

Article: ‘DUTY DRAWBACK’ CANNOT BE EQUATED WITH ‘REBATE OF DUTY’

Highlight: Notification regarding GST rate for branded cereal, pulses and flour

News: Notification regarding GST rate for branded cereal, pulses and flour

Highlight: Anti-dumping duty on import of bus/truck tyres from China

Highlight: Cabinet approves Extension of time period of the Scheme "Special Industry Initiative for J&K" (Sll J&K) - Udaan

Highlight: Non-payment of service tax - maintenance and repair charges - appellants had knowingly and deliberately shown the repair charges as job work charges to mislead about their taxability - demand confirmed.

Highlight: BAS - execution of the project of smart card for vehicle registration – implementing the SOC-VRC project - The fact that the Government has outsourced some part of the work and paid certain consideration for such outsourced work, does not make the activity subject to service tax.

News: Cabinet approves Extension of time period of the Scheme "Special Industry Initiative for J&K" (Sll J&K) - Udaan

Highlight: Constitution of National Anti-profiteering Authority (NAA) under GST-reg. - Trade Notice

Highlight: Amendments in Hand Book of Procedures 2015-20 –reg. - Various amendments are made in Chapter-4 of Hand Book of Procedures 2015-2020.

Circular: Constitution of National Anti-profiteering Authority (NAA) under GST-reg.

Highlight: Sharing of expenses - BAS - promotion of business of group companies - sharing of expenditure for common facilities cannot be treated as service by one to another in such arrangement.

News: RBI Reference Rate for US $

Article: Credit of unsold stock [Section 140(3)] - Actual Credit as well as Notional Credit - Part-I - GST Transitional provisions

Circular: Certain Clarifications sought on Construction Services provided in the Real Estate Sector – reg.



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