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Showing 21 to 40 of 2052 Records
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2019 (3) TMI 2039 - ITAT AHMEDABAD
TP Adjustment - Interest paid by the assessee towards loan - assessee has paid interest at the rate LIBOR + 3% p.a. as agreed with the AE - scope of rule of consistency - TPO has benchmarked the rate of interest for the assessee at the rate of LIBOR + 0.77 percent and accordingly the excess interest was disallowed - HELD THAT:- It is an undisputed fact that the assessee has paid interest on the money borrowed from its AE at the rate of LIBOR+300 basis points in the assessment year 2006-07 which was accepted by the TPO in the assessment framed u/s143(3) r.w.s. 92CA(3).
Thus, the order of the TPO for the assessment year 2006-07 has reached its finality. Therefore, in our considered view the TPO cannot take different view until and unless there is a change in the facts and circumstances.
There is also no ambiguity that the assessee has paid the interest in the year under consideration which was also there during the assessment proceedings for the assessment year 2006-07. As there was no change in the facts and circumstances, we are of the view that no disallowance on account of interest expenses for the year under consideration is warranted.
We are of the considered opinion that the rate of interest paid by torrent pharmaceutical Ltd cannot be compared with the rate of interest on the money borrowed with the assessee.
Thus we hold that the rate at which the interest paid by the assessee to AE is at arm's length and no adjustment is warranted. We also make clear that the finding should not be used /quoted as a precedent in other cases as we are allowing the appeal of the assessee on the basis of the rule of consistency. Hence, the ground of appeal of the assessee is allowed, and the ground of appeal of the Revenue is dismissed.
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2019 (3) TMI 2038 - CESTAT ALLAHABAD
Maintainability of appeal - appeal rejected for non-deposit of 7.5% of the confirmed demand - Section 35F of the Central Excise Act - HELD THAT:- The appellant has now deposited 10% of demand at the time of filing of appeal before Tribunal. As such, the impugned order set aside and the matter remanded to Commissioner (Appeals) for decision on merits.
Appeal allowed by way of remand.
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2019 (3) TMI 2037 - ITAT CHANDIGARH
Reopening of assessment u/s 147 - change of opinion - assessee had claimed deduction u/s 35AD - HELD THAT:- As reasons recorded by the AO reveals that the AO had come into the knowledge of escapement of income of the assessee while conducting the assessment proceedings u/s 143(3) of the Act for the subsequent assessment year. Hence, it cannot be said that no information had come to the knowledge of the AO or that it was a case of change of opinion. Though before forming the opinion, the AO has also noted that the aforesaid issue escaped the attention of the AO for the year under consideration and the AO was of the view that the assessee was not entitled to the aforesaid claim of deduction u/s 35AD of the Act. In view of this, it cannot be said that it is a case of change of opinion or that no tangible information had come into the possession of the AO to form the belief of escapement of income for the year under consideration.
Sanction of the competent authority has been obtained by the AO for reopening under the provision of Section 151(1) of the Act whereas the sanction had to be obtained u/s 151(2) - Admittedly, the approval for re-opening of the assessment in this case has been given by the Joint Commissioner which is the Competent Authority as provided under the relevant provisions of Income Tax Act. Mere mentioning of the Section as 151(1) instead of 151(2), in our view, is nothing more than a clerical mistake and has not caused any prejudice to the assessee.
Joint Commissioner has sanctioned the reopening of the assessment in a mechanical manner without application of mind - As gone through the form of recording reasons and grant of approval u/s 148 of the Act and find that the AO has recorded reasons in detail for forming of belief that the income of the assessee has escaped assessment and where upon the Joint Commissioner, in his own hand-writing has written that he is satisfied that it was a case for issue of notice u/s 148 - we do not think that the Joint Commissioner has not read over the reasons or he had not applied his mind to the reasons recorded by the AO. Whether the approval has been granted in a mechanical manner or after application of mind is subjective and depends upon the facts of each case - we do not think that the Joint Commissioner has not applied his mind while granting approval.
Addition u/s 35AD - Deduction in respect of expenditure on specified business - HELD THAT:- A perusal of the above provisions of Section 35AD reveals that assessee is eligible to claim deduction in respect of capital expenditure if the same is incurred wholly and exclusively for the purpose of any specified business carried out by him during the previous year in which such expenditure is incurred. However, in cases where such expenditure is incurred prior to the commencement of its operations by the assessee and amount is capitalized in the books of account of the assessee on the date of commencement of operations, then such expenditure is allowable as deduction in the previous year in which the assessee commences operations of his specified business.
Lower authorities have wrongly interpreted the relevant provisions of the Act. There are two parts of the above said provisions. In the first part, it has been mentioned that an assessee is eligible to claim deduction of the capital expenditure if such an expenditure has been incurred wholly and exclusively in a specified business.
There is no condition of any date or year of commencement of specified business. However, in the second part, it has been provided that if such an expenditure has been incurred prior to the commencement of business and has been duly capitalized in the books of account, the claim will be allowed in the year in which the assessee commences operations of his specified business. There is neither any overlapping nor any contradiction in the aforesaid provision. The assessee is covered in the first part i.e. the assessee has incurred the expenditure on the specified business during the year in which operations of his business of warehousing were already going on.
No justification on the part of the lower authorities in denying the deduction to the assessee u/s 35AD - This ground is, accordingly, allowed in favour of the assessee.
Disallowance of Prior Period Expenses - HELD THAT:- As per the relevant part of the finding of the Tribunal [2016 (7) TMI 1687 - ITAT CHANDIGARH] it is the contention of the assessee that assessee is a public sector undertaking and is a vast organization. The expenses when not reported or identified up to the close of the year are subsequently booked under prior period expenses. This system of accounting of the assessee has been regularly accepted by the Department in the past. There is no change in the facts and circumstance of the case.
As submitted that necessary details were duly submitted before the AO that all of the expenses are supported by proper vouchers supporting evidence. It is not the case of the Assessing officer that any short coming has been noted in the vouchers. This is also not the case that any distortion in profit has been observed as compared to preceding year in view of the above said expenditure. Revenue has no cogent reason why the prior period expenses claimed by the assessee which have been consistently so claimed and allowed by the Department in earlier years should be disallowed in the current year.
Addition on account of work in progress - AO noted that the assessee in the balance sheet had shown Rs. 6,80,90,888/- on account of machinery work in progress while on other hand the assessee had incurred huge interest expenses of Rs. 2,11,65,306/- during the year on various loans, thus interest expenses should not be disallowed and capitalized as the machinery had not been put to use during the year - As submitted that the assessee is a Government organization and if a loan is taken, that is used for that specific purpose only for which it has been taken. The assessee being a government organization, cannot deviate the funds for other works - HELD THAT:- We restore this issue to the file of the AO to verify the aforesaid contentions raised by the assessee and if it is found that during the year the assessee has not taken any fresh loan and further that the own funds of the assessee were sufficient to meet the investment in capital work in progress, then no disallowance is to be made on this issue. In view of our finding given above, the appeal of the revenue is treated as partly allowed for statistical purposes.
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2019 (3) TMI 2036 - SUPREME COURT
Seeking permission to withdraw the suit - no cause of action - appellant argued that the transaction concerning defendant Nos. 3 to 6 having taken place much after the institution of the suit, these defendants have no cause of action against defendant Nos. 1 and 2 and hence, they cannot be transposed as plaintiffs - HELD THAT:- On the facts and in the circumstances of this case, upon the existing plaintiffs seeking permission to withdraw under Order XXIII Rule 1 CPC, the defendant Nos. 3 to 6 have rightly been allowed to be transposed as plaintiffs under Order XXIII Rule 1-A read with Order I Rule 10 CPC and to continue with the suit, as originally filed against the defendant Nos. 1 and 2.
The present one is clearly a case answering to all the basics for applicability of Rule 1-A of Order XXIII read with Rule 10 of Order I CPC. As noticed, the principal cause in the suit is challenge to the sale deed executed by defendant No. 1 in favour of defendant No. 2, with the original plaintiff asserting his ownership over the property in question. After the demise of original plaintiff, his sons and daughters came to be joined as plaintiff Nos. 2 to 8 with plaintiff No. 5 being the power of attorney holder of all the plaintiffs. After the suit was decreed ex parte, the plaintiff No. 5 transferred the property in question to the aforesaid three purchasers, who were joined as plaintiff Nos. 9 to 11 when the ex parte decree was set aside and suit was restored for bi parte hearing.
In the given status of parties and the subject matter of the suit, when the plaintiffs entered into an arrangement with defendant Nos. 1 and 2 and sought permission to withdraw under Order XXIII Rule 1 CPC, the right of defendant Nos. 3 to 6 to continue with the litigation on their claim against defendant Nos. 1 and 2 immediately sprang up and they were, obviously, entitled to seek transposition as plaintiffs under Order XXIII Rule 1-A CPC.
It is also noteworthy that even if some question is sought to be raised as regards the rights of the subsequent purchasers (defendant Nos. 4 to 6), the right of the defendant No. 3 (earlier the plaintiff No. 5) to prosecute the suit as a plaintiff remains rather indisputable in view of his status as one of the legal representatives of the original plaintiff. The right of the said defendant No. 3 (earlier the plaintiff No. 5) to challenge the sale deed between defendant No. 1 and defendant No. 2 did not get annulled only by his earlier transposition as the defendant; and he cannot be considered bound by the arrangement between the existing plaintiffs and the defendant Nos. 1 and 2. In the given set of circumstances, the Trial Court had been justified in allowing the prayer for transposition and the High Court has rightly declined to interfere.
Appeal dismissed.
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2019 (3) TMI 2035 - SUPREME COURT
Grant of decree in terms of the Arbitration Award though in a modified way in respect of certain claims raised by the Appellant set aside - decision of the sub-Court refusing to make the Award decree of the Court in regard to certain claim also rejected.
Claim 1 - Claim for extra lead for carrying out the work of quarrying stone and metal from a quarry located at a greater distance from the work site - HELD THAT:- Coming to Section 15 of the Act, the power available to the Court to modify the award was available inter alia when a part of the award is not referred to arbitration and such part can be separated from the other part and clearly Clause (a) is applicable as it is not the case of either party that the matter relating to the amount to be paid by way of extra lead was not a matter which was referred to arbitration - Under Clause (c), an award can be modified if it contains a clerical mistake or there is an error which arises from an accidental slip or omission. There cannot be any doubt that this is not a case where there is clerical mistake or an error arises from an accidental slip or omission. Lastly, the power of the court to modify extend to a case where the award is imperfect in form. Certainly, it is not the situation in the facts of the case. Of course, where the award contains an obvious error which can be amended without affecting such decision. Court has power to modify. When the Sub court modified the sale at which the amount is to be calculated would affect the 'decision' of the 'arbitrator'. It is not the sale of Rs. 15/C.M., not an essential part of the 'decision' of the arbitrator - there is no power to modify the award, the legality and correctness of the civil court decreeing the claim would be considered in regard to Claim No. 1 by modifying the award of the arbitrator.
Claim-2 - whether the arbitrator has actually awarded Rs. 15/- cu.m. over and above the amount which the Appellant already received on the basis of the actual lead in the contract? - HELD THAT:- The arbitrator, in fact, found that the claim of the Appellant for higher rates at Rs. 15/- per cu.m. is reasonable and legal and on the basis of the tabular statement which was prepared by the Appellant and awarded different sums under the three different contracts. It would appear that the claim for Rs. 15/- per cu.m. is based on abnormal increase in transport charges due to increase in cost of fuel, automobile spare parts etc. If escalated rates are claimed, then it may attract the wrath of Clause 59 - The claim of Rs. 15/- per cu.m., if it is over and above the amount which is already received will be in the teeth of the contractual provision which is relied on by the sub Court for which he has not taken any exception to in which case we would think that the amount as ordered by the sub Court is to be awarded to him under this claim. This means the amount is to be worked out as provided in the letter dated 13.11.1982. In other words, the amount must be awarded on the basis of the cost of conveyance being calculated at the rate of Rs. 13.75 and the amount must be calculated and paid.
Claim-3 - non-supply of food grain - HELD THAT:- The sub Court is right in holding that the correspondence referred to by the arbitrator did not show that the food grains were actually available with the department and department was only trying to get the food grains from the administration with which the food grains was available. As long as there is some material which substantiated Appellants claim before the Arbitrator, the Court hearing the petition Under Article 30 and 32 would not reappraise the material to come to the conclusion that the arbitrator went wrong in arriving at a finding of fact. At the same time, if virtually there were no material then it becomes a case of no evidence. No doubt the contractual provision which provides that the Appellant is to keep accounts and produce accounts relating to receipts and distribution may assume relevance when Appellant receives food grains from the department and distributes - There would certainly be material to evidence the actual purchase and further actual supply to the workers or payment as alleged. Even assuming everything that the Appellant says is correct about the fact of the negotiated settlement, there is virtually no material except the Appellants statement that the Appellant paid for the price of food grains to the workers. Further, the claim involves payment of price of rice at escalated rates for period beyond the contract also and it invites the wrath of Clause 59 - the award of the claim by the arbitrator cannot be sustained.
Claim-4 - alleged short supply of cement - HELD THAT:- A party is supposed to produce the best evidence or rather the evidence which under the contract is contemplated. The failure on the part of the Appellant to produce the ledger has fatal consequences. The matter becomes further aggravated by the failure on the part of the Appellant to even produce vouchers or bills in support of the claim to purchase the cement from outside sources. This is even if we are to ignore the fact that there is no written permission for purchase of cement from outside. We proceed on the basis that a contractor may without written permission but for the purpose of the work purchased cement from outside. But certainly, the fact that there are neither vouchers nor any ledger entries nor bills produced which persuades us to hold that the matter may warrant interference with the award Under Section 30 - the claim cannot be accepted.
Claim-7 - Appellant collected materials and it was lying at the site - HELD THAT:- Insofar as the Appellant has not used any of the materials to carry out the work and sets up the claim only on the basis of assurance which has not been admitted, the action of the Appellant in purchasing the materials cannot result in establishing his claim for compensation. It is to be noticed that the Appellant raised a claim for enhanced compensation. He alleged that there was delay on the part of the Respondent on various grounds. This is apart from alleging other factors like breakout of malaria, unfavourable weather and delay in taking decision by the departmental officers, which contributed to escalation in cost. Correspondence was exchanged with the Executive Engineer and the Superintending Engineer, the Superintending Engineer and the Chief Engineer and finally between the Chief Engineer and the Government. It appears that at that stage Appellant invoked the arbitration Clause and a panel of arbitrators gave their award. In fact, the work itself was stopped. Clause 59 prevents the Court from awarding compensation on account of any factor relating to the delay which may be due to any cause whatsoever. In such circumstances, the Appellant has also not made out any cause for compensation in regard to this claim.
Claim-9 - question relating to interest - HELD THAT:- The sub Court set aside the award of interest for the period from 26.4.1988 till the date of the award namely 19.8.1988 which is the pendente lite interest. This is on the basis that arbitrator has no power to award interest on amounts found due - This Court took the view that entering upon reference is to be taken as the date of commencement of arbitration proceedings for calculation of interest. And this Court took the view therein that there is no power to grant interest from the date of commencement of arbitration.
Appeal allowed in part.
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2019 (3) TMI 2034 - CESTAT CHENNAI
Exemption benefit on captive consumption - benefit on N/N. 67/95 denied - non-compliance with the reqiuirement of notification - control panels are cleared to Mega Power Projects which are exempt under Notification 6/2002 and 6/2006 - HELD THAT:- The issue stands decided in M/S. AREVA T AND D INDIA LTD. VERSUS CCE & ST, LTU, CHENNAI [2018 (2) TMI 209 - CESTAT CHENNAI] where it was held that the eligibility of the appellant-assessee for exemption under Notification No. 67/1995 cannot be disputed. They have followed the provisions and complied with the provisions of Rule 6 and all the connected requirements of the Notification No. 67/1995.
Thus, the demand cannot sustain - appeal allowed.
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2019 (3) TMI 2033 - CENTRAL ADMINISTRATIVE TRIBUNAL, NEW DELHI
Prayer to reinstate into service and to enhance the subsistence allowance - HELD THAT:- Whenever an employee is arrested and kept under detention for a period exceeding 48 hours, he shall be deemed to be under suspension. It is in the said context, that the impugned order dated 16.07.2018 is passed. Thereafter, the suspension was extended for another 180 days through order dated 28.09.2018. Rules 10 (6) empowers the Government to extend the suspension beyond 90 days, for reasons to be recorded.
The respondents are yet to make up their mind whether or not to institute the departmental proceedings. That would be possible only when they get to know the relevant facts that led to the detention of the applicant. Initiation of the departmental proceedings in a hasty manner is certain to become futile. The proceedings in a criminal case on the other hand, would depend upon the nature of the progress of the investigation. Therefore, the application of the rule of 90 days in the instant case becomes a bit doubtful.
Be that as it may, it is for the concerned department to decide whether or not to continue an employee under suspension. They have to weigh the gravity of the charges on one hand and interest and need of the department on the other. If the charges are frivolous and the work of the officer would be useful to the department, a decision for reinstatement may be taken. If on the other hand, if the charges are serious, a decision is bound to be in a different way.
Application disposed off.
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2019 (3) TMI 2032 - CESTAT ALLAHABAD
Reversal of CENVAT Credit - sludge/waste under the provisions of Rule 6(3) of CCR, 2004, inevitably arising during manufacture of paper and paperboard - HELD THAT:- The issue is no res integra and is decided in favour of the appellant in M/S. STAR PAPER MILLS LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE MEERUT-I [2018 (3) TMI 2004 - CESTAT ALLAHABAD] where it was held that emergence of sludge and pulper waste during the course of manufacture of paper or paper board cannot be held to the result of any manufacturing activity.
Appeal allowed.
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2019 (3) TMI 2031 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
Direction to hand over the property in question to the Resolution Professional - whether the said property belongs to the corporate debtor? - HELD THAT:- Since Mr Gaurav Dave and Vishal Dave, have intentionally avoided appearing in the court and his action is in complete disregard of the Court order. The notices under Contempt of Court Act have already been issued against them. However, despite that, they are avoiding to attend the court. Since contempt notices have been issued against Mr Garav Dave and Vishal, but they in violation of the Court order failed to appear in the court, therefore in ensuring their presence we are compelled to pass following order so that action may be taken against them under the Contempt of Court Act.
At this moment, Mr Sandeep Shah, Statutory Auditor of the company directed to remain present in person in the Court on 15.4.2019. Advocate appearing on behalf of Mr Gaurav Dave is being directed to inform the statutory Auditor of the company for his presence on 15.4.2019.
List on 15.4.2019 for the appearance of Mr Gaurav Dave, Mr Vishal Dave and Mr Sandeep Shah.
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2019 (3) TMI 2030 - CESTAT NEW DELHI
CENVAT Credit - input services - architectural services - financial consultant services -Revenue by entertaining a view that inasmuch as the services of ‘school education’, being provided by the appellant, are not taxable, the availment of cenvat credit in respect of input services, which have been used for providing school education service was not available to assessee - Time Limitation - HELD THAT:- Admittedly the plea of limitation was not raised before the authorities. However, the same being a mixed question of fact and law, we permit the appellant to raise the same at Tribunal level - It is further noted that as the various facts are required to be examined for arriving at the question of demand being barred by limitation and inasmuch as the same was not raised before the lower Authorities and as such the views of the Adjudicating Authority are not available, we set aside the said part of the impugned order covered by the Show Cause Notice dated 18/04/13 and remand the matter to the Adjudicating Authority for fresh decision. Inasmuch as we have not gone through the merits of the case and the matter is being remanded only for consideration of the limitation fact, the merits are left open for the appellant to contest the same before the Adjudicating Authority, if they choose to do so.
Demand to the extent of Rs. 7.35 Lakhs covered by second Show Cause Notice - HELD THAT:- The same is upheld along with upholding of the interest as not contested by the Ld. Advocate - It is further noted that as the entire credit was being availed by the assessee by reflecting the same in their cenvat credit account and inasmuch as the issue involved is a bonafide issue of interpretation, imposition of penalty was not justified. Accordingly, while upholding the demand along with confirmation of interest, we set aside the penalties imposed upon them in respect of said Show Cause Notice.
The appeal is disposed of partly by way of remand and party rejected/allowed.
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2019 (3) TMI 2029 - ITAT JAIPUR
On-money payment - addition u/s 69 - in search at business premises incriminating documents were found and seized which revealed that the assessee made payment towards boundary expenses through cheque as ‘on-money’ - HELD THAT:- Lower authorities have not placed any material on record to show that the assessee had paid alleged ‘on-money’ - Neither in the seized documents found from Shri Madan Mohan Gupta nor in the statement recorded u/s 132(4), he admitted that he received any amount from the assessee by way of ‘on- money’.
From the reading of the statement of Shri Madan Mohan Gupta and the papers found from him, it is evident that there is nothing to suggest that allottees of the plot have paid any ‘on-money’ on purchase of the plot. In fact, the assessee has not purchased any plot from Shri Madan Mohan Gupta rather he was allotted the plot by the Rajasthan Tehsildar Sewa Parishad and thus, there is no privity of contract between the assessee and Shri Madan Mohan Gupta. Therefore, no question of payment of alleged ‘on-money’ by the assessee to Shri Madan Mohan Gupta arises for consideration.
Annexure-A-3 referred by the AO in his order is a register where the details of the plot allotted to various persons is noted. This Annexure nowhere suggests that any ‘on-money’ has been received by Shri Madan Mohan Gupta from the allottees of plot. At the time of possession of the plot, the final receipt is issued for the entire amount received and that receipt no. is also mentioned in this register. Thus, in these papers there is no evidence that any ‘on-money’ has been paid by the assessee. Further, opportunity to cross examine Shri Madan Mohan Gupta was not provided even when specifically asked for on the ground that he is not a third party ignoring that assessee has not purchased any plot from him rather it is the Rajasthan Tehsildar Sewa Parishad who have allotted the plot to the assessee under the scheme framed by them.
No merit in the addition so made by the AO and confirmed by the ld. CIT(A), hence, the Assessing Officer is directed to delete the same. - Decided in favour of assessee.
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2019 (3) TMI 2028 - ITAT PUNE
TP Adjustment - Comparable selection - Universal Print System Ltd - HELD THAT:- There is no specific findings as to the analysis regarding the functioning of Universal Print Systems Ltd vis a vis the function of the assessee company before holding it to be a comparable company.
As M/s XL Health Corporation India Pvt. ltd [2018 (4) TMI 82 - ITAT BANGALORE] we direct the AO/TPO to exclude the Universal Print System Ltd from the list of comparables with regard to the assessee herein.
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2019 (3) TMI 2027 - CALCUTTA HIGH COURT
Prosecution of appeal in High Court - scope of Section 12AA after its amendment with effect from 1st June, 2010 - HELD THAT:- This sub-section has retrospective effect and covers activities of the trust right from the time of insertion of 12A of the said Act till the date of the said amendments and thereafter.
Circular No.1 of 2011 of the Central Board of Direct Taxes in paragraph 7.4 thereof states with regard to the said amendment as follows this amendment has been made applicable with effect from 1st June, 2010 and shall accordingly apply for assessment year 2011-12 and subsequent assessment years.
The subject assessment year is 2010-11. Revenue is bound by its circular, in our opinion, and cannot prosecute the appeal for this period.
This appeal under Section 260A of the Income Tax Act, 1961 and the connected application are dismissed.
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2019 (3) TMI 2026 - CESTAT MUMBAI
CENVAT Credit - availment and distribution of credit - input services - Air Travel Agency - Membership & Club Association - Rent-a-cab - Event Management - Car Insurance - invocation of provisions of Rule 14 ibid read with Section 73 ibid for recovery of the alleged amount of Cenvat Credit availed by the appellant - HELD THAT:- The provisions for recovery of Cenvat Credit wrongly taken by the assessee are contained in Rule 14 ibid. The said statutory provision mandates that irregularly availed or utilized Cenvat Credit can be recovered from the manufacturer or the provider of output service. In this case, the corporate office of the appellant is registered with the service tax department as an Input Service Distributor and distributed the Cenvat Credit in respect of service tax paid on the input services among its manufacturing units. It is not the case of the department that the appellant is either avails or utilizes the Cenvat Credit of service tax paid on the input services. Input Service Distributor neither provides any service nor engages in manufacture of excisable goods. Thus, the question of payment of service tax or Central Excise duty on the taxable services or the manufacturing activities respectively do not arise.
The provision of Rule 14 is applicable only to the manufacturer or service provider and not to the Input Service Distributor, who merely distributes the credit. Since, the provisions of Rule 14 ibid was invoked for effecting recovery of the Cenvat Credit amount from the appellant, such proceedings initiated by the department are not in conformity with the Cenvat statute and accordingly, both the orders passed by the lower authorities cannot be sustained.
This Tribunal in the case of MAHINDRA & MAHINDRA LTD. VERSUS COMM. OF SERVICE TAX, MUMBAI [2017 (7) TMI 167 - CESTAT MUMBAI] has held that Rule 14 ibid can be made applicable only on the person who avails or utilizes the Cenvat Credit wrongly and the show cause notice cannot be issued to the Input Service Distributor for recovery of Cenvat Credit.
The above disputed services were used/utilized by the appellant for accomplishing the business purpose of ultimate manufacture of final products, removed from the factory on payment of appropriate Central Excise duty. All the disputed services are falling under the definition of input service for taking of Cenvat Credit of service tax amount paid thereon. The issue with regard to consideration of the disputed services as defined ‘Input Service’ is no more res integra in view of the decisions relied upon by the Ld. Advocate for the appellant. Therefore, as per the settled principal of law, denial of Cenvat Credit on this ground also is not sustainable.
There are no merits in the impugned order passed by the Ld. Commissioner (Appeals) - appeal allowed.
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2019 (3) TMI 2025 - SC ORDER
Gambling or not - playing rummy - visit by respondent police, in the club, every now and then, under the guise of inspection - Preventing police personnel in doing their lawful activity - HELD THAT:- Permission to file the special leave petition is granted.
The special leave petition is dismissed both on the ground of delay and merits.
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2019 (3) TMI 2024 - ITAT JAIPUR
Deduction u/s 80IB - Denial of claim as assessee has failed to file the audit report in Form No. 10CCB online as required in Rule 12(2) of the Income Tax Rules, 1962 - HELD THAT:- Since AO has out rightly declined the assessee’s claim of deduction U/s 80IB of the Act merely for non-filing of report electronically, there is no merit in the action of the AO to decline claim of deduction U/s 80IB, unless the assessee had failed to fulfill the conditions stipulated U/s 80IB in respect of housing project.
No where the AO has pointed out failure of the assessee to fulfill any of the conditions required to be fulfilled for claim of deduction u/s 80IB accordingly, there is no merit in the action of the AO in declining the claim of deduction U/s 80IB. In the substantial interest of justice, we restore the matter back to the file of the AO with a direction to allow the claim of deduction U/s 80IB of the Act if the conditions specified therein are fulfilled by the assessee like completion certificate etc. Appeal of the assessee is allowed for statistical purposes only.
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2019 (3) TMI 2023 - DELHI HIGH COURT
Offence under FEMA - Department has already registered and initiated investigation under the provisions of FEMA - HELD THAT:- The issues raised in this petition are under investigation as stated in para 5 of the counter affidavit filed by the respondent no.1, which reads as follows:
“5. I humbly submit that Respondent No.1 Department has already registered and initiated investigation under the provisions of FEMA, 1999 against the Respondent No.2 and Respondent No.3 to ascertain that whether the Respondent no.2 and Respondent no.3 have been contravening any provisions of FEMA, 1999 or contravening any Rule, Regulations, Notification, Direction or order issued in exercise of the powers under FEMA, 1999 or contravening any condition subject to which an authorisation issued by the Reserve Bank of India etc. for which the investigation under FEMA, 1999 is under progress.”
Nothing further survives in this petition for adjudication. Dismissed.
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2019 (3) TMI 2022 - SUPREME COURT
Appointment of Arbitrator in exercise of power Under Section 11(6) of the Arbitration and Conciliation Act, 1996 - whether the discharge in the present case upon acceptance of the compensation and signing of the discharge letter was voluntary or under coercion or undue influence and the Respondent was justified in invoking Section 11(6) of the Act? - HELD THAT:- It is true that execution of full and final agreement, receipt or a discharge voucher in itself cannot be a bar to arbitration and it has been observed by this Court in NATIONAL INSURANCE CO. LTD. VERSUS M/S. BOGHARA POLYFAB PVT. LTD. [2008 (9) TMI 864 - SUPREME COURT] that mere execution of a full and final settlement receipt or a Discharge Voucher is a bar to arbitration, even when the validity thereof is challenged by the claimant on the ground of fraud, coercion or undue influence. Nor do they lay down a proposition that even if the discharge of contract is not genuine or legal, the claims cannot be referred to arbitration.
It is true that there cannot be a Rule of thumb and each case has to be looked into on its own facts and circumstances, taking note of the broad principles, it was observed by this Court in UNION OF INDIA (UOI) AND ORS. VERSUS MASTER CONSTRUCTION CO. [2011 (4) TMI 1471 - SUPREME COURT] where it was held that Where the dispute raised by the claimant with regard to validity of the discharge voucher or no-claim certificate or settlement agreement, prima facie, appears to be lacking in credibility, there may not be a necessity to refer the dispute for arbitration at all.
From the proposition which has been laid down by this Court, what reveals is that a mere plea of fraud, coercion or undue influence in itself is not enough and the party who alleged is under obligation to prima facie establish the same by placing satisfactory material on record before the Chief Justice or his Designate to exercise power Under Section 11(6) of the Act - It is true that there cannot be a Rule of its kind that mere allegation of discharge voucher or no claim certificate being obtained by fraud/coercion/undue influence practised by other party in itself is sufficient for appointment of the arbitrator unless the claimant who alleges that execution of the discharge agreement or no claim certificate was obtained on account of fraud/coercion/undue influence practised by the other party is able to produce prima facie evidence to substantiate the same, the correctness thereof may be open for the Chief Justice/his Designate to look into this aspect to find out at least prima facie whether the dispute is bonafide and genuine in taking a decision to invoke Section 11(6) of the Act.
The discharge and signing the letter of subrogation was not because of any undue influence or coercion as being claimed by the Respondent and we find no difficulty to hold that upon execution of the letter of subrogation, the claim was settled with due accord and satisfaction leaving no arbitral dispute to be examined by an Arbitrator to be appointed Under Section 11(6) of the Act.
In the instant case, prima facie no dispute subsisted after the discharge voucher being signed by the Respondent without any demur or protest and claim being finally settled with accord and satisfaction and after 11 weeks of the settlement of claim a letter was sent on 27th July, 2016 for the first time raising a voice in the form of protest that the discharge voucher was signed under undue influence and coercion with no supportive prima facie evidence being placed on record in absence thereof, it must follow that the claim had been settled with accord and satisfaction leaving no arbitral dispute subsisting under the agreement to be referred to the Arbitrator for adjudication.
The High Court has committed a manifest error in passing the impugned order and adopting a mechanical process in appointing the Arbitrator without any supportive evidence on record to prima facie substantiate that an arbitral dispute subsisted under the agreement which needed to be referred to the arbitrator for adjudication - Appeal allowed.
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2019 (3) TMI 2021 - MADRAS HIGH COURT
Refusal to register the second sale agreement - refusal on the ground that the earlier agreement is still in force - HELD THAT:- This Court wanted to know from the learned Government Advocate that if there is any specific provision which enables the Sub Registrar of the Registration Department to deny registration in such cases. The learned Government Advocate brings it to my attention that a circular bearing No.18223/C1/2013-3 dated 08.11.2013 issued by the Inspector General of Registration, calling upon the Registering Authority to satisfy himself that there is no doubt on the title of the executant. But the said circular does not state that the Registering Authority should refuse registration if a prior agreement is still in force.
The second respondent cannot deny registration of the petition mentioned document on the ground that the writ petitioner’s earlier agreement with Ganesan has not been cancelled.
Petition allowed.
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2019 (3) TMI 2020 - CESTAT CHENNAI
Refund of the service tax paid for services used for authorized operations of SEZ - denial on the ground of nexus with authorized operations - HELD THAT:- The service tax paid on services used by the appellants for authorized operations are exempted by N/N. 2/2013 and the precursor Notification No.40/2012 on fulfillment of the conditions stated therein. Para 3(1) states that the services are to be approved by Approval Committee - In the present case all the services listed in the table above have been approved by the Approval Committee. In such circumstances, the department cannot reject the refund claim stating that these are used only for facilitation of employees and not for authorized operations.
The Tribunal in the case of COMMISSIONER OF SERVICE TAX PUNE VERSUS EATON TECHNOLOGIES PVT LTD. [2016 (1) TMI 1191 - CESTAT MUMBAI] had occasion to analyze the very same issue and dismissed the department’s appeal filed against sanction of refund.
The rejection of refund is unjustified. The impugned order to the extent of rejecting the refund in respect of the five services given in the table above is set aside - Appeal allowed.
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