|
Advanced Search Options
Case Laws
Showing 21 to 40 of 1386 Records
-
2020 (10) TMI 1366 - SUPREME COURT
Pronunciation of final orders without a reasoned judgment - Deprivation from seeking further judicial redressal in the next tier of judicial scrutiny - HELD THAT:- A Constitution Bench of this Court as far back as in the year 1983 in the STATE OF PUNJAB VERSUS JAGDEV SINGH TALWANDI [1983 (12) TMI 332 - SUPREME COURT] drew the attention of the High Courts to the serious difficulties which were caused on account of a practice which was increasingly being adopted by several High Courts, that of pronouncing the final orders without a reasoned judgment where it was held that If the object of passing such orders is to ensure speedy compliance with them, that object is more often defeated by the aggrieved party filing a special Leave Petition in this Court against the order passed by the High Court. That places this Court in a predicament because, without the benefit of the reasoning of the High Court, it is difficult for this Court to allow the bare order to be implemented. The result inevitably is that the operation of the order passed by the High Court has to be stayed pending delivery of the reasoned judgment.
It cannot be countenanced that between the date of the operative portion of the order and the reasons disclosed, there is a hiatus period of nine months! This is much more than what has been observed to be the maximum time period for even pronouncement of reserved judgment as per ANIL RAI VERSUS STATE OF BIHAR [2001 (8) TMI 1330 - SUPREME COURT] - The appellant undoubtedly being the aggrieved party and prejudiced by the impugned order is unable to avail of the legal remedy of approaching this Court where reasons can be scrutinized. It really amounts to defeating the rights of the appellant to challenge the impugned order on merits and even the succeeding party is unable to obtain the fruits of success of the litigation.
The appeal is allowed.
-
2020 (10) TMI 1365 - SC ORDER
Grant of validity certificate in favour of the Petitioners, resultantly invalidating the tribe claim of the Petitioners - HELD THAT:- The Registrar of the Aurangabad Bench are called upon to verify the aforesaid fact and communicate to this Court forthwith as to why the order has not been uploaded. The Supreme Court Registry to send the message immediately and obtain the necessary copy of the order, if available.
List on 13th October, 2020.
-
2020 (10) TMI 1364 - ITAT BANGALORE
Exemption u/s 11 - whether proviso to section 2 (15) is not applicable in the present case? - HELD THAT:- As decided in own case [2020 (11) TMI 483 - KARNATAKA HIGH COURT] the proviso to section 2 (15) is not applicable in case of this assessee.
Depreciation claim - Second issue is also squarely covered in favour of the assessee by the tribunal order in assessee’s own case in which, the tribunal has followed a judgment of Hon’ble Supreme Court rendered in the case of CIT vs. Rajasthan and Gujarat Charitable Foundation Poona [2017 (12) TMI 1067 - SUPREME COURT] Hence, we decline to interfere in the order of CIT (A).
Appeal of the revenue is dismissed.
-
2020 (10) TMI 1363 - MADRAS HIGH COURT
Power of CIT(Appeals) to enhance the assessment - Power vested in the CIT (A) u/s 251(1)(a) - Tribunal holding that the CIT (Appeals) cannot enhance the assessment on a reference made by the AO especially when the provision of Section 251(1)(a) confers the power to enhance on the CIT(A) and there is no bar in the AO from reporting the shortcoming in the order passed for the purpose of enhancement - Revenue contended that the power of the CIT(A) u/s 251 is of very wide that in disposing of the appeal, his powers are co-equal to that of the Assessing Authority,and is bound to consider the request of the ITO to enhance the assessment and if he failed to do so without any reasonable cause, it is open to the Revenue to file a second appeal before the Tribunal from the order passed by the Commissioner of Income-Tax (Appeals) in appeal - HELD THAT:- The Commissioner of Income-tax (Appeals) is exercising a quasi-judicial function. He should have adverted to the request made by the Income-tax Officer in his letter dated February 2, 1983, and disposed of the matter fairly and reasonably. It was his statutory duty to do so. On the other hand, he failed in his duty and disposed of the appeal even without adverting to the said request made by the Income-tax Officer.
We are of the view that it is a patent jurisdictional error. CIT (Appeals) has abnegated in discharging the duty Imposed on him by law. Since the Revenue was prejudiced by the failure of the Commissioner of Income-tax (Appeals) to discharge his statutory duty aforesaid, it is open to the Revenue (Income tax Officer) to file an appeal from the order passed by the Commissioner of Income-tax (Appeals) and assail the same. Against the order of the Commissioner of Income-tax (Appeals), the appeal filed by the Revenue under Section 253(2) of the Income-tax Act is competent and maintainable.
As observed by us earlier, we do not propose to consider the first substantial question of law framed because the issue has become academic in the assessee’s case. Therefore, we leave the first substantial question of law open for consideration.
Allowability of contribution made towards superannuation fund - ITAT treated it as business expenditure and is to be allowed u/s 37 - whether Tribunal is proper especially when as per Section 36(1)(iv), the employer's contribution towards recognized provident fund or approved superannuation alone is to be allowed as a deduction subject to the conditions prescribed thereunder which is not the case on hand ? - HELD THAT:- Issue decided in favour of assessee as in the assessee’s own case [2020 (10) TMI 798 - MADRAS HIGH COURT], by common judgment dated 08.10.2020,
-
2020 (10) TMI 1362 - SUPREME COURT
Right of pre-emption in case of sale of immovable property - time limitation - whether the right of pre-emption can be enforced for an indefinite number of transactions or it is exercisable only the first time? - HELD THAT:- The stipulation in Section 21 is that the right of pre-emption has to be exercised, in case of a sale, within one year from the date of sale and if the sale is not by a registered deed, on the purchaser taking the physical possession of any part of the property sold. Since the period has to be as per Article 97, the wordings of the Article show that it is one year from the date when the sale is registered (in case such registration takes place as is in the present case). It is this expression, which is sought to be construed by the Respondent No. 1 as well as by the High Court to mean that it is a recurring right for every sale - A reading of the Section 9 shows that the loss is only occasioned, when, within two months from the date of service of the notice, the price is not tendered. However, that is the loss of the right, vis-à-vis the transaction in question. The moot point is whether such a right of pre-emption is a recurring right, i.e. every time the property is sold, the right would rearise, in a case the pre-empting Plaintiff himself has chosen not to exercise such right over the subject immovable property when sold to another purchaser earlier.
It would not be appropriate or permissible to adopt legal reasoning making such a weak right, some kind of a right in perpetuity arising to a Plaintiff every time there is a subsequent transaction or sale once the Plaintiff has waived his right or pre-emption over the subject immovable property. The loss of right mandated Under Section 9 of the Act is absolute. A plain reading of the said provision does not reveal that such right can re-arise to the person who waives his right of pre-emption in an earlier transaction. To do so would mean that a person, whether not having the means or for any other reason, does not exercise the right of preemption and yet he, even after decades, can exercise such a right.
So far as the case of Kutina Bibi [1960 (7) TMI 68 - ASSAM HIGH COURT] is concerned, the factual basis of that decision does not fit with the legal controversy involved in this proceeding. In that case, by a previous transaction the entire land had been sold. It was held in that perspective, that the Plaintiff's right as a co-sharer had become disputed in absence of challenge to the previous transaction. It is opined that such a right is available once-whether to take it or leave it to a person having a right of pre-emption. If such person finds it is not worth once, it is not an open right available for all times to come to that person. The aforesaid being the position, this would itself be an impediment in exercise of the right of preemption in a subsequent transaction.
The judgments referred to by the Respondent of Bishan Singh [1958 (5) TMI 52 - SUPREME COURT] and Barasat Eye Hospital [2019 (10) TMI 1560 - SUPREME COURT] are only for the proposition that the right of pre-emption is a right of substitution-no doubt exists over this proposition. The question is whether this right of substitution can be exercised recurringly or only once. Our answer to the query is 'only once'.
The right of pre-emption is only exercisable for the first time when the cause of such a right arises, in a situation where the Plaintiff-pre-emptor chooses to waive such right after the 1966 Act becoming operational. Section 9 of the said Act operates as a bar on his exercising such right on a subsequent transaction relating to the same immovable property.
Appeal allowed.
-
2020 (10) TMI 1361 - SC ORDER
Maintainability of SLP - writ petition has been decided in the meantime - HELD THAT:- Since the Special Leave Petition is rendered infructuous, it is dismissed as such. This would not preclude recourse being taken to the remedies available to any of the parties against the final judgment and order of the High Court.
The Special Leave Petition is dismissed as infructuous.
-
2020 (10) TMI 1360 - ITAT DELHI
Reopening of assessment u/s 147 - as per assessee notice was not properly served - service of notice u/s 148 issued through notice server, assessee refused to receive the notice, subsequently, notice was sent through speed post which was not received back - HELD THAT:- No infirmity in the order of the lower authorities in rejecting the contention of the assessee that notice was not properly served. The revenue has made three different attempts to serve the notice. Firstly, by notice server on 22.03.2007 which was not accepted by the assessee. This is not disputed by assessee. Secondly, notice was sent through speed post which is not received back by the AO. Thirdly through fixtures on 30.03.2007. Same is also not disputed by the assessee. There is no reason given to us that whether all the three actions of the ld AO were not correct. Accordingly, we dismissed ground No. 1 of the appeal.
Taxation of interest on enhanced compensation - assessee has not produced any evidence whether the interest on enhanced compensation is received u/s 34 or u/s 28 of the Land Acquisition Act - HELD THAT:- Interest u/s 28 is unlike interest u/s 34 is accretion to the value, hence, it is part of enhanced compensation whereas the interest u/s 34 of the Act is interest. As no information is available on record, we set aside the whole issue back to the file of the ld AO with a direction to the assessee to show that with reference to various order, under which section of the Land Acquisition Act interest is received by the assessee.
AO may examine the whole issue with respect to taxability of the same and decide it afresh. The assessee is directed to submit the complete information before the ld AO within 3 months from the date of this order and thereafter the issue may be decided on the merits of the case. Accordingly, ground No. 2 and 3 of the appeal are allowed with above direction.
-
2020 (10) TMI 1359 - ITAT JAIPUR
Reopening of assessment u/s 147 - legal necessity to issue notice u/s 143(2) - DR submitted that where the return of income has not been filed and the best judgment order has been U/s 144 of the Act, there is no legal necessity to issue notice U/s 143(2) - HELD THAT:- In the instant case, the Assessing officer has not taken cognizance of the return of income so filed by the assessee on 12.12.2018 stating that such a return of income has been filed beyond the stipulated time frame of thirty days as specified in the notice u/s 148 for filing such return of income. In our view, such a return of income even though filed belatedly would still qualify as return furnished under section 139 of the Act and should therefore be taken cognizance of by the Assessing officer.
Even where it is held that no return of income has been filed in response to notice u/s 148, the return of income so filed on 12.12.2018 shall be taken as return filed in response to notice u/s 142(1) dated 11.12.2018 and therefore, in either case, the return of income has to be taken cognizance of by the Assessing officer. Where the return of income has been filed u/s 139 or in response to notice u/s 142(1), where the Assessing officer finds that there are certain matters which require explanation by the assessee, then in such cases, he has to comply with the provisions of section 143(2).
The assessee by filing the return of income and not claiming the carry forward of losses pertaining to A.Y 2005-06 has admitted to the wrong claim made and assessed earlier. Thereafter, there assessment has been completed u/s 147 where the only finding of the A.O is that only losses for A.Y 2013-14, and not of any earlier years, can be carried forward accepting the very position taken by the assessee in the return so filed on 12.12.2018. Therefore, in the facts of the present case, where the return filed by the assessee has been accepted and the reassessment order has been passed u/s 147accepting the returned income and there is no variation or addition made by the Assessing officer to the returned income, we do not see any necessity for the Assessing Officer to call for the explanation from the assessee and for the purposes, issue notice u/s 143(2) of the Act.
Thus where the reassessment order has been passed u/s 147 accepting the returned income, we don’t see any infirmity in the order so passed in absence of notice u/s 143(2) of the Act as there is no legal necessity as so envisaged as applicable in the facts of the present case and the same is hereby affirmed. In the result, sole ground of appeal is dismissed.
-
2020 (10) TMI 1358 - ITAT BANGALORE
Deduction u/s 10A - excluding travel, telecommunication expenses etc., for computing total turnover and export turnover and excluding loss earned from non-eligible unit - HELD THAT:- DRP by following decision of CIT v. Tata Elxsi Ltd. [2011 (8) TMI 782 - KARNATAKA HIGH COURT] held that, if any expenditure is excluded from export turnover, then the same needs to be excluded from total turnover as well, accordingly, directing Ld.AO to exclude expenses deducted from export turnover from total turnover for computing deduction u/s 10A of the Income-tax Act, 1961.
Further in respect of exclusion of loss earned from noneligible unit for computing profits of eligible unit under section 10A, DRP relied on decision of Hon’ble Karnataka High Court in case of and CIT v. Yokogava India Ltd. [2011 (8) TMI 845 - KARNATAKA HIGH COURT]
No infirmity in view taken by DRP/AO as it is supported by ratios held by Hon’ble jurisdictional High Court. There is nothing on record brought by revenue to establish any distinguishing factors to deviate from ratio of Hon’ble jurisdictional High Court.Grounds raised by revenue stands dismissed.
-
2020 (10) TMI 1357 - ITAT DELHI
TP adjustment made to the transactions entered into with the AEs in US and TP adjustment made to the transactions entered into with non US AEs - HELD THAT:- TP adjustment with AE in USA is concerned, the dispute is now settled by MAP. Communications from the Government of India, Ministry of Finance, Department of Revenue, CBDT are placed on record. To this extent, the appeals are dismissed as withdrawn.
TP adjustment with AEs which are non USA AEs and other corporate grounds - As the assessee is contemplating to settle the dispute under Vivad se Vishwas Scheme, for the time being we dismiss these grounds as withdrawn with liberty to the assessee to approach the Tribunal and revive the appeal, if for some technical reason the dispute could not be settled under the Vivad se Vishwas Scheme.
All the appeals of the assessee stand dismissed as withdrawn.
-
2020 (10) TMI 1356 - ITAT BANGALORE
TP Adjustment - comparable selection - HELD THAT:- Companies functinally disimilar of assessee's software development services to its Associated Enterprises (AEs) and if RPT was beyond the threshold limit of 15% need to be deselcted from final list.
Deduction u/s 10A - whether the Ld DRP was justified in directing the AO to follow the decision of Tata Elxsi Ltd, [2011 (8) TMI 782 - KARNATAKA HIGH COURT] i.e., exclusion of expenses incurred in foreign currency from both export turnover and total turnover - HELD THAT:- The Hon'ble Supreme Court has settled this issue in the case of CIT vs. HCL Technologies Ltd [2018 (5) TMI 357 - SUPREME COURT] held even in common parlance, when the object of the formula is to arrive at the profit from export business, expenses excluded from export turnover have to be excluded from total turnover also. Otherwise, any other interpretation makes the formula unworkable and absurd. Hence, we are satisfied that such deduction shall be allowed from the total turnover in same proportion as well.
On the issue of expenses on technical services provided outside, we have to follow the same principle of interpretation as followed in the case of expenses of freight, telecommunication etc., otherwise the formula of calculation would be futile. Hence, in the same way, expenses incurred in foreign exchange for providing the technical services outside shall be allowed to exclude from the total turnover.
Gain/loss arising on account of fluctuation in foreign exchange as operating income/expenses - HELD THAT:- DRP has followed the decision rendered by the Tribunal in the case of Sap Labs India (P) Ltd [2010 (8) TMI 676 - ITAT, BANGALORE] and Cisco Systems Services BV [2014 (10) TMI 852 - ITAT BANGALORE] and accordingly held that the foreign exchange fluctuation gain/loss arising to the assessee on realization of trade debtors, payment to creditors etc were nothing but operation income. DRP has directed the AO to consider the foreign exchange fluctuation gain/loss as operating in nature both in the hands of the assessee and in the hands of comparable companies. Since the ld DRP has followed the decision rendered by the Tribunal in this regard, we do not find any infirmity in its decision rendered on this issue.
Appeal of the assessee is treated as allowed and the appeal of the revenue is treated as partly allowed.
-
2020 (10) TMI 1355 - ITAT INDORE
TDS u/s 195 - Fees for Technical Services under Section 9(1)(vii) - Applicability of provisions of Section 195 on payments towards Instrument Flight Rules ('IFR') paper charts to Jeppessen GmBH, Germany - HELD THAT:- We are of the considered view in the light of decision of Co-ordinate Bench rendered in the case of Elsevier Information Systems Gmbh [2019 (5) TMI 405 - ITAT MUMBAI] and the judgment of Hon'ble Supreme Court rendered in the case of Kotak Securities Ltd. [2016 (3) TMI 1026 - SUPREME COURT] The assessee was not liable to deduct tax. Since the services do not fall within the ambit of ‘technical services’ as envisage u/s 9(1)(vii) of the Act and the article 12 of India-Germany DTAA. Therefore, we direct the assessing officer to delete this addition.
Applicability of provisions of section 195 on payments towards mandatory training for pilots, to CAE simuflite Inc., USA (CAE) - assessee vehemently argued that the authorities below were not justified in making the addition and sustaining the same in respect of payments made towards mandatory training for pilots - HELD THAT:- The requirement of tax in respect of fee for technical services and technical knowledge or skills of the provider should be imparted to and absorbed by the receiver so that the receiver can deploy similar technology or techniques in the future without depending upon the provider. Another requirement is that as per the Article 7 of the India –USA DTAA the service provider should have a Permanent Establishment (PE) in India. We find in the contention of the Ld. counsel for the assessee that the judgment relied by the TDS officer rendered in the case of De Beers [2012 (5) TMI 191 - KARNATAKA HIGH COURT] which in fact helps the case of the assessee. We, therefore, direct the assessing officer to delete this addition.- Decided in favour of assessee.
-
2020 (10) TMI 1354 - ITAT DELHI
TP Adjustment - comparable selection - two comparables viz. R System International and Helios & Matheson Information Technology Limited. have been excluded by the TPO on the ground that these two companies had a different financial year ending - HELD THAT:- It is now a consistent view of the various Hon’ble High Courts as well as of this Tribunal that if a company is otherwise functionally similar, then, it cannot be excluded only on the ground of having a different financial year ending. For this, we agree with the reliance placed by the Ld. Authorized Representative on the order of the Hon’ble Delhi High Court in the case of CIT vs. Mckinsey Knowledge Centre India Pvt. Ltd [2015 (3) TMI 1226 - DELHI HIGH COURT]
It is settled law that if the data is available in the public domain which can be compiled and collated so as to arrive at financial results corresponding to the financial year ending of the tested party and where there are no other factors which would otherwise distort the results, then such companies would have to be included in the final set of comparables. From the order of the TPO and the observations of the Ld. DRP no such factors are evident. Therefore, we restore these two comparables to the file of Assessing Officer/TPO for the purpose of including these two comparables after due verification as per law and after giving proper opportunity to the assessee to present its case.
Company Sonata Software Limited on the ground that although the TPO had himself applied the related parties transactions filter of 25%, in case of this company, the related party transactions as a percentage of sales was 53.83% - We have gone through the annual accounts of this company and we agree with the contention of the Ld. Authorized Representative that the related party transactions in this company case are more than 50% of sales. Accordingly, this company does not pass the related party filter as applied by the TPO. Accordingly, we direct the TPO to exclude this company from the final set of comparables.
Granting of working capital adjustment - Respectfully following the decision of the Coordinate Bench in the case of Goldman Sachs Services Pvt. Ltd. [2020 (2) TMI 347 - ITAT BANGALORE] and after duly noting that working capital adjustment had been allowed to the assessee in assessment year 2007-08, we direct the working capital adjustment to be computed and to be allowed as per actuals after considering exclusions/inclusions of comparables companies in the final set of comparables as discussed herein above
Disallowance of expenses of running and maintenance of Motor Cars - HELD THAT:- As in assesee’s own case, for Assessment Year 2008-09 [2016 (2) TMI 1171 - ITAT DELHI] had directed the deletion of this disallowance.
Deduction being claimed towards accounting error - HELD THAT:- Accordingly, in view of the order of the ITAT in AY 2008-09 on identical issue [2016 (2) TMI 1171 - ITAT DELHI] we restore this issue to the file of the Assessing Officer with the direction to allow the assessee’s claim if on verification it is found to be correct.
Addition as a service tax u/s 43B - submission of the assessee that this amount was actually paid and the Ld. DRP has allowed it on payment basis u/s 43B - HELD THAT:- We agree with the contention of the Ld. Authorized Representative in this regard that the amount was deductible on actually payment basis irrespective of whether the same has been deposited under protest or voluntarily. The Department could not show a cogent reason before us as to why the directions of the Ld. DRP were incorrect in this regard. We not are not agreeable with the contention of the Department that this amount represents contingent liability. Therefore, we find no reason to interfere with the directions of the Ld. DRP in this regard and we uphold the same. Thus, grounds raised by the Department on the issue are dismissed.
-
2020 (10) TMI 1353 - ITAT MUMBAI
TP Adjustment - Comparable selection - OP/OC margin of the 4 comparable companies of the assessee be calculated on the basis of the financial data reported in their audited financial statements, and not on the basis of the data reported in the prowess database - HELD THAT:- As the financial data reported in the prowess database involves classification of items of income or expenses as per its own standard format, therefore, the calculation data base may differ from the OP/OC margin as per the audited financial statements. As observed by us hereinabove, the assessee had furnished the “annual reports‟ of the aforementioned comparable companies in the course of the proceeding before the TPO, vide its letter dated 21.12.2012. We are unable to comprehend as to why the lower authorities had shirked from calculating the OP/OC margin of the aforementioned 4 comparable companies on the basis of the financial data reported in their audited financial statements, which would be more authentic as in comparison to that reported in prowess database.
We herein restore the matter to the file of the TPO, with a direction, to calculate the OP/OC margin of the aforesaid 4 comparable companies on the basis of the financial data reported in their “annual reports‟ for the year under consideration. The Ground of Appeal No. 2.1 is allowed for statistical purposes.
Inclusion of 4 insurance broking companies (out of the set of 19 comparable companies selected by the assessee before the TPO), in the backdrop of the fact that the CIT(A) himself had held that insurance broking companies were a valid comparable to business facilitation service segment of the assessee - Now when the aforementioned 5 insurance broking companies viz. (i) Almondz Insurance Brokers Pvt. ltd.; (ii) India Infoline Brokers Ltd; (iii) Aditya Birla Capital Insurance Ltd; (iv) Bajaj Capital Insurance Ltd. and (v) Spectrum Business Solutions Ltd. have been accepted by the CIT(A) as valid comparables for benchmarking the international transactions of the assessee, we find no reason for exclusion of the aforesaid 4 insurance broking companies which were selected by the assessee in the course of the proceedings before the TPO. Accordingly, we are persuaded to subscribe to the claim of the ld. A.R that the aforesaid 4 insurance broking companies (out of 19 companies) which were selected by the assessee in the course of the proceedings before the TPO, viz. (i) Anand Rathi Insurance Brokers Ltd; (ii) Edelweiss Insurance Brokers Ltd.; (iii) Karvy Insurance Broking Ltd.; and (iv) India Infoline Marketing Service ltd., merits to be included in the finallist of the comparables for the purpose of determining the ALP of the international transactions of the assessee for the captioned year. Accordingly, we restore the matter to the file of the A.O/TPO for benchmarking the international transactions of the assessee in terms of our aforesaid observations.
-
2020 (10) TMI 1352 - ITAT BANGALORE
Depreciation on assets leased out under finance lease agreement - Depreciation on the opening written down value (ANDV) of the block of assets leased out under finance lease arrangement - HELD THAT:- As in Assessment Years 2011-12 and 2013-14 in assessee’s own case, [2019 (6) TMI 660 - ITAT BANGALORE] the Tribunal has restored back similar matter to the file of AO for a fresh adjudication with a direction to the AO to examine the arguments entered into by the assessee in light of decision of Hon’ble Apex Court rendered in the case of ICDS Ltd. [2013 (1) TMI 344 - SUPREME COURT] and he pointed out Tribunal order are relevant in this regard and he submitted a copy of this Tribunal order. He submitted that in the present year also, this issue should be restored back to the file of AO with similar directions.
TP adjustment - This is the submission of the learned AR of the assessee before us that in Assessment Years 2010-11 and 2011-12 similar matter is pending before DRP but since we are restoring back the Corporate Tax issue to the file of AO for a fresh decision, we feel it proper to restore back this TP issue in the present year also to the file of AO for a fresh decision and the AO is directed to decide the TP issue in line with the final decision of AO as per the direction of DRP in Assessment Years 2010-11 and 2011-12.
-
2020 (10) TMI 1351 - AUTHORITY FOR ADVANCE RULING, CHHATTISGARH
Classification of services - rate of tax - composite supply of works contract - N/N. 11/2017-Central Tax (Rate) dated 28th June 2017 - HELD THAT:- In response to the कमांक/ राकआ / अविप्रा /03/2020/24 नवा रायपुर अटल नगर, दिनांक 03.09.2020 issued to the Assistant Commissioner, State Tax, Korba Circle-2, Chhattisgarh, the jurisdictional office vide कमांक/ रा.क. – 2/ एफ/2020/460 कोरवा दिनांक 06/अक्टूबर/2020 Opined that since there is no other mention, the date of issue of Notification No. 20/2017-Central lax (Rate), dated 22nd August, 2017 and Notification No. 24/2017-Central Tax (Rate), dated 21st September 2017 would be the effective date of the said Notification.
The GST Rate on composite supply of works contract as defined in clause (119) of Section 2 of the Central Goods and Services tax Act, 2017 is 18% (9% CGST+9% SGST) till 21/08/2017 as stipulated under serial no. 3, Heading 9954 of Notification No. 11/2017-Central Tax (Rate) dated -28/06/2017. Thereafter, the GST Rate on composite supply of works contract as defined in Clause (119) of Section 2 of the Central Goods Services tax Act, 2017 is 12% (6% CGST+6% SGST) from 22/08/2017 as per serial no. 3, Heading 9954 of Notification No. 20/2017-Central Tax (Rate) dated-22nd August, 2017 - The applicant has wrongly interpreted that the tax liability is @ 12% (CGST 6% and SGST 6%) from 01st July, 2017 itself whereas the effective date of the said Notification is the Notification date itself. Notification No. 11/2017-Central Tax (Rate) dated-28/06/2017 is applicable with effect from the notification date viz. 28/06/2017. Similarly Notification No. 20/2017-Central Tax (Rate) dated-22nd August, 2017 is applicable with effect from the notification date viz. 22/08/2017 and Notification No. 24/2017-Central Tax (Rate) dated 21st September, 2017 is applicable with effect from 21/09/2017.
-
2020 (10) TMI 1350 - AUTHORITY FOR ADVANCE RULING, CHHATTISGARH
Taxability under GST - classification of Services - services taken by the applicant from the owner of the Goods transportation vehicle - reverse charge mechanism as per Sec 9(3) of Central Goods and Services Tax, 2017 - rate of GST - claim of ITC for the GST paid on the supply - HELD THAT:- As per Section 65B (26) of the Finance Act, 1994, Goods Transport Agency means any person who provides service in relation to transport of goods by road and issues consignment no e, by whatever name called. Therefore, in the Service Tax regime, issuance of Consignment Note (C/N) was integral and mandatory requirement before any road transporter could be brought within the ambit of GTA - it can be seen that issuance of a consignment note is an indispensable condition and is a must for a supplier of service to be considered as a Goods Transport Agency. If consignment note is not issued by the transporter, the service provider will not come within the ambit of goods transport agency.
The legal position prevailing under Service Tax is being continued under the GST regime. The services of transportation of goods by road (except services of GTA) continue to be exempt even under the GST regime. In so far as he services of CTA are concerned, if the services (of Goods Transportation) are provided (by the GTA) to specified classes of persons, the tax liability falls upon such recipients under the reverse charge mechanism.
If the GTA hires a means of transportation of goods, GST payable would be Nil on such transaction. We thus come to the considered conclusion that the service by way of giving on hire a means of transportation of goods to the applicant GTA, is exigible to Nil rate of GST as stipulated under Notification number 12/2017-CentraI Tax (Rate) dated 28th June 2017. Further when no tax is payable, the question of taking any input tax credit does not arise.
-
2020 (10) TMI 1349 - ITAT KOLKATA
Revision u/s 263 - CIT proposing to revise the assessment order passed u/s 153A/143(3) of the Act on 30/03/2016, for the reason that, the assessee company had not justified, its claim of having incurred expenditure on account of (a) Business Development Expenses & Business promotion expenses and that the AO in the assessment order had not called for the details of expenditure under these head of account to verify the genuineness and nature of the expenses - Legal argument that, order u/s 153A/143(3) of the Act, cannot be revised without cancelling the order of statutory approval given by the JCIT u/s 153D - HELD THAT:- As relying on case SHRI CH KRISHNA MURTHY [2015 (3) TMI 359 - ITAT HYDERABAD],SHRI SURENDRA L. HIRANANDANI [2018 (2) TMI 2025 - ITAT MUMBAI] and DHARIWAL INDUSTRIES LIMITED [2017 (1) TMI 260 - ITAT PUNE] we have no other alternative but to hold that the revision order passed u/s 263 of the Act by the ld. Pr. CIT is bad in law for the reason that the order of statutory approval passed u/s 153D of the Act, based on which the order u/s 153A r.w.s. 143(3) of the Act, dt. 30/03/2016, was passed, was not revised and is a valid and legal order.
Even otherwise, in this case, we find that the ld. Pr. CIT, without making any enquiries on his own, in a mechanical manner has set aside the matter to the file of the Assessing Officer for fresh adjudication. Such general restoration of the matter to the file of the Assessing Officer, without the ld. Pr. CIT making any enquiry by himself or forming any opinion on the issue, is not permitted in law. This is not a case where there is no enquiry. As per the ld. Pr. CIT, this is a case of inadequate enquiry. See JL. MORRISON (INDIA) LTD. [2014 (6) TMI 154 - CALCUTTA HIGH COURT], CHROMA BUSINESS LIMITED. [2003 (10) TMI 256 - ITAT CALCUTTA-C] and SUNBEAM AUTO LTD. [2009 (9) TMI 633 - DELHI HIGH COURT]
Thus we hold that the revision in question is bad in law. Hence, we quash the order passed u/s 263 - Decided in favour of assessee.
-
2020 (10) TMI 1348 - MADRAS HIGH COURT
Validity of arbitral award - Section 34 of The Arbitration and Conciliation Act, 1996 - HELD THAT:- In instant case on hand, that the three months period has to be computed from 14.06.2019 by excluding the date of receipt of award is not in dispute. If one goes by the computation in Himachal Techno Engineers case, 3 months would expire on 13.09.2019 whereas Bibi Salma Khatoon principle suggests that it may be possible to construe that it elapsed on 14.09.2019. However, it may not be necessary to enter into this arena in this case - This Court therefore embarked upon the exercise of examining if sufficient cause qua delay condonation plea has been made out. Before this Court does that, it is made clear that the contention of learned Standing Counsel for Southern Railways that Assam Urban Water Supply case is distinguishable on facts as no recourse to Section 4 of Limitation Act has been taken cannot be sustained as Assam Urban Water Supply case is an authority for the proposition that the last day on which the prescribed period ends being a Court holiday would apply only to prescribed period of limitation and not to further condonable periods post prescribed period of limitation. In instant application, it is not the case of Southern Railways that the last day of the prescribed period of three months fell on a Court holiday.
The argument of learned Standing Counsel for Southern Railways that Sagufa Ahmed [2020 (9) TMI 713 - SUPREME COURT] case is distinguishable as it centres around suo motu orders passed by Hon'ble Supreme Court during the lock down period is of no avail as Hon'ble Supreme Court has comprehensively considered Sections 2(j) and 4 of Limitation Act as well as Section 10 of GC Act and had made it clear that what was extended by Hon'ble Supreme Court during the lock down is the period of limitation and not the period upto which the delay can be condoned in exercise of discretion conferred by a statute.
The pre-application notice under Section (5) has been held to be directory and not mandatory as mentioned supra. Therefore, this Court has repeatedly held that one year period under sub-section (6) should be reckoned from the date of presentation of Section 34 application in cases where Section 34 application is presented without a pre-application notice - Post disposal of Section 34 application also, an intra-court appeal has been provided under Section 37 of A and C Act, but only for very limited kind of orders with a clear embargo by way of a negative connotation 'and from no others' within parenthesis. Sub-section (3) of Section 37 makes it clear that no second appeal shall lie from an order passed in an appeal under Section 37.
These features of A and C Act delineated supra make it clear strict time lines run as a common chord throughout the statute and this common chord is the sublime philosophy and salutary principle underlying the A and C Act. This has been borne in mind in testing the captioned delay condonation application.
Application dismissed.
-
2020 (10) TMI 1347 - SUPREME COURT
Hire purchase agreement - unfair trade practices - whether the Financier is the real owner of the vehicle which is the subject of a hire purchase agreement, and if so, whether there can be any impediment to the Financier, taking repossession of the vehicle, when the hirer does not make payment of instalments in terms of the hire purchase agreement - service of proper notice - HELD THAT:- The Complainant has only made a vague assertion that the action of the Financier in taking possession of the vehicle, admittedly for default in payment of instalments, and in not releasing the vehicle to the Complainant, in spite of the Complainant’s assurance to the Financier to clear outstanding instalments and pay future instalments timely, amounts to an act of unfair trade practice and constitutes deficiency of service - the deficiency has been defined in Section 2(1)(g) set out herein above, as any fault, imperfection or shortcoming or inadequacy in the quality, nature or manner of performance which is required to be maintained by or under any law, for the time being in force, or undertaken to be performed by a person, in pursuance of a contract or otherwise, in relation to any service.
The hire purchase agreement, a copy of which is annexed to the Paper Book, clearly enabled the Financier to take possession of the vehicle, on default in payment of any of the instalments. There is no term in the Hire Purchase Agreement, that requires the Financier to give notice to the Complainant before terminating the Hire Purchase Agreement, upon breach of any term thereof, or before taking possession of the vehicle - the repossession of a vehicle under hire, in accordance with the terms and conditions of a hire purchase agreement, upon default in payment of hire instalments and refusal to release the same on mere assurance of the Complainant to clear outstanding arrears of hire instalments, and pay future instalments in time, does not constitute ‘deficiency’ in service.
The object of a notice before taking possession of a vehicle on hire under a Hire Purchase Agreement, is to enable the hirer, to make a written request to the Financier to revive the hire purchase agreement in terms of Clause 12 of the said agreement, upon payment of all outstanding dues together with damages, as might be mutually agreed upon - Such notice gives the hirer an opportunity to show that the hirer had not, in fact, committed any breach of agreement. For example, the hirer might be able to show that the Financier had erroneously omitted to give credit to the hirer for payments made, or had not presented a cheque in its possession for payment, even though there were sufficient funds in the concerned bank account of the hirer, to honour the cheque.
The evidence to which the Complainant drew the attention of the District Forum is apparent from its judgment and order. The Complainant produced a delivery receipt in respect of the vehicle, some payment receipts, Insurance papers in respect of the vehicle, an FIR unconnected with the Financier and/or copies thereof and some documents relating to the filing of the Complaint and payment of Court Fees etc., none of which establish any deficiency of service or unfair trade practice on the part of the Financier - No adverse inference could have been drawn against the Financier for not producing the Hire Purchase Agreement before the District Forum, when there was no allegation in the complaint of breach by the Financier of the Hire Purchase Agreement, in taking possession of the vehicle. The District Forum did not exercise its power under Section 13(4)(ii) to call upon the Financier to produce the Hire Purchase Agreement. Even otherwise, the District Forum did not direct the Financier to produce the Hire Purchase Agreement.
The Complainant has established that there was a discrepancy and/or error in the address of the Complainant in the notice for repossession, from which all the three fora under the Consumer Protection Act, 1986, that is the District Forum, the State Commission and the National Commission have concluded that possession of the vehicle was taken without notice. It was not the case of the Complainant that the vehicle was sold without notice to or knowledge of the complainant - the error and/or discrepancy in the address is minor and there are no materials on the basis of which the State Commission concluded that the error was deliberate. The finding of the State Commission, of the error in the address being deliberate, is unsubstantiated.
Whether the transaction between a Financier and a purchaser/hirer is a hire purchase transaction, or a loan transaction, might be determined from the terms of the agreement, considered in the light of surrounding circumstances. However, even a loan transaction, secured by right of seizure of a financed vehicle, confers licence to the Financier to seize the vehicle - In this case, the agreement executed by and between the Financier and the Complainant is a Hire Purchase Agreement as will appear from the terms and conditions thereof. In any event, the fora under the Consumer Protection Act, have not arrived at any specific finding to the contrary. There is no discussion of the nature of the agreement between the Financier and the Complainant. Be that as it may, the agreement clearly permits the Financier to take possession of the vehicle, upon default in payment of instalments.
In the instant case, there is no evidence of any loss suffered by the complainant by reason of non-receipt of notice. Admittedly, several instalments, remained unpaid. After repossession the complainant contacted the Financier and was informed of the reasons for the repossession. He only made an offer to pay outstanding instalments and gave an assurance to pay future instalments in time. If the Financier was not agreeable to accept the offer, the Financier was within its rights under the hire purchase agreement. This is not a case where payment had been tendered by the hirer but not accepted by the Financier/lender. The Complainant had not tendered payment - the District Forum was not justified in directing the Financier to pay the Complainant Rs.2,23,335/- being the entire amount paid by the Complainant to the Financier from the inception as well as the payment of Rs.1,04,000/- made by the Complainant to the dealer along with damage of Rs.10,000/- and litigation costs of Rs.1,000/after the Complainant had held and used the vehicle for almost a year. The Complainant, admittedly a defaulter, has in effect, been allowed free use of the vehicle for about a year, plus damages, for an error in the notice of repossession, without considering the prejudice, if any, caused to the complainant by the error and consequential non receipt of the notice, and without making any assessment of the loss, if at all, to the Complainant by reason of the error/omission.
The impugned orders of the National Commission, the State Commission and the District Forum, under the Consumer Protection Act, 1986 cannot be sustained and the same are set aside - Appeal allowed.
........
|
