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Showing 41 to 60 of 1513 Records
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2022 (12) TMI 1473 - DELHI HIGH COURT
Applicability of time limit prescribed under Section 27 of the Customs Act 1962, in case of refund of Special Additional Duty of Customs (SAD) - HELD THAT:- This court is informed that the special leave petition was preferred by the appellant against the decision in M/s Sony India Pvt. [2014 (4) TMI 870 - DELHI HIGH COURT]. The said special leave petition was dismissed by an [2016 (11) TMI 500 - SC ORDER] on the ground of delay however, the question of law was kept open - This court is also informed that the Bombay High Court has taken a different view in M/S. CMS INFO SYSTEMS LIMITED VERSUS THE UNION OF INDIA & OTHERS [2017 (1) TMI 786 - BOMBAY HIGH COURT].
This court finds no reason to differ with the aforesaid view - Appeal dismissed.
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2022 (12) TMI 1472 - ITAT SURAT
Suppression of professional receipts from the patients under OPD category - assessee has shown some “Zero Receipt Patients” in IPD” indoor patient department - On analysis of disc of computer during the search action, it was noted that many patients were operated but payments made by them, are not accounted in the books of account and such patients were referred as “Zero Receipt Patients-IPD” - CIT(A) restricted the addition to the extent of 30% of alleged suppressed receipt by taking view that only profit element of reasonable basis should be taxed - HELD THAT:- AO has granted concession of two patients in respect of other hospitals for treatment of free patients, however, no such concession was allowed in case of assessee-hospital. It is a common factor that a privately managed hospital has to treat second category of patients as free-of-cost, which may include relatives of doctors, para-medical staffs, close relatives or family friends etc., During the hearing, we also find that certain patients which were closely related with the partners of assessee-hospital.
Thus, we find that the Assessing Officer has made addition without being confronting information collected by her at the back of assessee-hospital. No show cause notice before making such addition on account of suppressed addition, therefore the addition is not justified.
We further find that allegation of suppressed income for A.Y 2008-09 is of Rs. 148,000, however, the assessee-hospital had paid the tax of Rs. 33,17,496/-and the partners had paid tax of Rs. 28,22,084/-thus total tax of Rs. 61,39,580/-was paid. Thus, we find merit in the submission made by Ld. AR for the assessee that allegation of suppress receipt of IPD patients of is not tenable. Hence, we direct the Assessing Officer to delete the entire addition of suppressed receipt on account of IPD patients. In the result, the grounds of appeal raised by assessee are allowed.
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2022 (12) TMI 1471 - AUTHORITY FOR ADVANCE RULINGS CUSTOMS, MUMBAI
Eligibility for BCD exemption rate of 25% vide Notification No. 50/2017-cus dated 30-6-2017 Sl. No. 524 - import of dump trucks designed for off-highway use in CKD form, with the engine and alternator, control cabinet and wheel motor (i.e., alternate technology used in place of gearbox and transmission system) in pre-assembled condition but not mounted on a chassis in a completely knocked down form - HELD THAT:- The Motor Vehicles for the transport of goods are classified under CTH 8704. Further, there is a specific entry for Dumpers designed for off-highway use under CTH 8704 10. Therefore, the Dump truck proposed to be imported as CKD kit will merit classification under the CTH 8704.
Further, the subject dump truck is not an electrically operated vehicle. The dump truck shall be built with an electrical AC drive system where power is supplied from the engine to the alternator to produce electricity and drive the three-phase induction motor. In this electrical AC drive system, the control cabinet and wheel motor play the role of the gearbox and transmission system. Hence, it shall not comprise of a gearbox and transmission system, and this would instead be replaced by the alternate technology explained above, i.e., a control cabinet and wheel motor - In the instant case, the subject dump truck proposed to be imported in CKD form shall continue to be driven by fuel only and no electrical energy is derived from any external source or from batteries to run such dump trucks. This truck does not operate solely on electrical energy to be called electrically operated vehicle.
Whether the goods imported as Completely Knocked Down (CKD) kit by the applicant contains all the necessary components, parts or sub-assemblies, for assembling a complete vehicle with engine or gearbox or transmission mechanism in pre-assembled form but not mounted on a chassis or a body assembly? - HELD THAT:- In the present case, the role of a gearbox and transmission system is performed by an alternate technology in the subject motor vehicle. The dump truck shall be built with an electrical AC drive system, wherein power is supplied from the engine to the alternator to produce electricity and drive the three-phase induction motor - In this case, the function of a traditional gearbox and transmission system is being achieved through other components such as alternator, control cabinet and wheel motor, although a gearbox and transmission system - the eligibility of concessional rate should be determined on the basis of the functions and characteristics of the key components and mere fact that one of the internal systems uses an alternate technology should not impact the benefit available.
It is not mandatory to import gearbox and transmission system, in view of technological advancement leading to replacement of these parts by parts based on different technology, to qualify for the concessional rate of duty provided under Sl. No. 524(1)(b) of the Notification as long as the essential items are imported. Applicant itself has submitted that the role of a gearbox and transmission system is performed by an alternate technology in the subject motor vehicle. In order to qualify for the concessional rate of duty as provided under Sl. No. 524(1)(b) of the Notification, it is only mandatory that the product is imported in CKD form comprising the essential components, sub-assemblies, etc.; and at least one of the three key components (i.e., engine or gearbox or transmission system) is imported in pre-assembled form but not mounted on a chassis - The CKD kit proposed to be imported, as described in para 3.1 of this ruling, satisfies the test laid down by the CBEC Circular from F. No. 5281/128/97 Cus - TRU, dated 5-12-1997 that the components mentioned in this kit will bring into effect a motor vehicle.
Thus, applicant are eligible to claim concessional rate of basic Custom duty at 25% on import of dump truck designed for off-highway use in CKD form, with the engine and alternator, control cabinet and wheel motor (i.e., alternate technology used in place of gearbox and transmission system) in pre-assembled condition but not mounted on a chassis, as per Sl. No. 524(1)(b) of the Notification No. 50/2017-Customs dated June 30, 2017.
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2022 (12) TMI 1470 - ITAT RAJKOT
Levy of penalty u/s 270A - misreporting of income in case of property sold jointly by brothers - search conducted at third party - CIT(A) deleted penalty levy - HED THAT:- We observe that search was conducted at the premises of the third party and on the basis of diary seized during the course of search, certain additions were offered to tax by the assessee in order to buy peace. Since the search was conducted during the year under consideration, the accounts of the assessee were not finalised and there was still time for the assessee to file return of income. Accordingly, the addition amount offered to tax was reflected in the return of income filed by the assessee on 08-03-2018.
On a perusal of the conditions laid out u/s 270A case of the assessee does not fall under any of the provisions of section 270A of the Act. Since the search took place during the year under consideration at the premises of third party, and there was still time to file return of income, the said income in respect of on-money receipts was included in the income offered to tax by the assessee in the return of income.
Even the AO in the penalty order has failed to specify under which specific clause of section 270A of the Act does the case of the assessee fall under. CIT(Appeals) in his appellate order has analysed the non-applicability of the provisions of section 270A of the Act in the instant set of facts. Accordingly no infirmity in the order of Ld. CIT(Appeals) deleting penalty imposed under section 270A Decided in favour of assessee.
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2022 (12) TMI 1469 - SC ORDER
Money Laundering - accused in the prescribed offence or not - Sections 406, 420, 468 471 and 506 of IPC - HELD THAT:- In the given circumstances, at least there cannot be any prosecution against the present petitioner under Sections 3 and 4 of PMLA Act.
Issue notice.
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2022 (12) TMI 1468 - AUTHORITY FOR ADVANCE RULING CUSTOMS, NEW DELHI
Classification of goods proposed to be imported - Data Projector [Model (i) Optoma SA520. (ii) Optoma X400LVe, (iii) Optoma W400LVe and (iv) Optoma VV319ST] - eligibility of exemption from duties vide Sl.No.17 of exemption Notification No. 24/2005 dated 1-3-2005, as amended by Notification No. 67/2016 dated 31-12-2016 - HELD THAT:- It is evident that the projectors in question are designed for use with an automatic data processing machine. It also appears that the subject goods has got additional ports which make it capable of being a video projector, classifiable under 8528 69 00. In this regard, it may be mentioned that rule 3 of General Rules for Interpretation of Import Tariff states that, "the heading which provides the most specific description shall be preferred to headings providing a more general description" - Though, these projectors appear to have additional features to act as video projector, however, presence of such additional features cannot dis-entitle the subject goods from classification under Sub-heading 8528 62 00.
Applicability of exemption notification - HELD THAT:- It is noted that vide SI. No. 17 of Notification No. 24/2005, as amended, all goods of a kind solely or principally used in an automatic data processing system of heading 8471, falling under 852862 are given exemption.
The projectors in question are machines working in conjunction with an automatic data processing machine and performing a specific function other than data processing, thus the same merit classification in the headings appropriate to their respective function i.e 85286200. Moreover, subject goods are eligible for exemption from duties vides SI. No. 17 of Notification No. 24/2005-Cus. dated 1-3-2005, as amended.
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2022 (12) TMI 1467 - ITAT MUMBAI
Disallowance u/s 14A r.w.r. 8D - Suo moto disallowance of the assessee - Mandation of recording satisfaction by AO - HELD THAT:- We find justification in the order of the ld. CIT(A) in upholding the A.O.’s action in invoking the provision of Rule 8D(2)(ii) by rejecting the assessee’s contention that suo moto disallowance by the assessee warrants no further disallowances.
The assessee’s alternate claim is that the disallowance u/s. 14A r.w.r. 8D(2)(iii) should be restricted only to those investments on which exempt income was earned by the assessee during the impugned year, by placing reliance on the decision of Vireet Investments Pvt. Ltd. [2017 (6) TMI 1124 - ITAT DELHI] is acceptable.
We uphold the order of the ld. CIT(A) in directing the A.O. to recompute the disallowance only to the investments which have yielded exempt income during the impugned year. Appeal filed by the Revenue is dismissed.
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2022 (12) TMI 1466 - DELHI HIGH COURT
Reopening of assessment u/s 147 - allegation against the petitioner is that it has received bogus entry from an entry provider one Mr Ramesh Kumar Bagri - HELD THAT:- As would be evident upon perusal of the certificate CBI has stated that the amount was neither remitted nor credited from the accounts of the petitioner maintained with it.
Insofar as the other certificate CBI makes the same assertion and goes on to confirm that the remittance was not made to the account number said to be maintained by Mr Ramesh Bagri.
As we have before us, in the very least, the certificate dated 01.08.2022, which indicates that the petitioner had not remitted Rs.1,76,00,000/- on 12.08.2015 from its bank accounts maintained with CBI, it appears that, at least at this juncture, there was no information or material available with the concerned authority to trigger proceedings u/s 148/148A(d) of the Act..
List the matter on 11.04.2023.
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2022 (12) TMI 1465 - CALCUTTA HIGH COURT
Seeking grant of bail - Corruption - appointment of assistant teachers in Classes IX and X under the auspices of the Commission - HELD THAT:- Perusal of the charge sheet and materials collected during investigation show petitioner was the Chairman of the Commission from January, 2014 till July, 2018. Under his supervision selection process for appointment to the post of assistant teachers for Class IX and X in Secondary and Higher Secondary Schools was initiated - undeserving candidates were issued recommendation letters to attend counselling and were given appointments.
The present case involves offences under Prevention of Corruption Act and would not fall in Category A but Category D. In the said report, the Court referring to the observations in P. CHIDAMBARAM VERSUS DIRECTORATE OF ENFORCEMENT [2019 (12) TMI 186 - SUPREME COURT], inter alia, held the gravity of the offence, object of the special law and attending circumstances are to be taken note of in addition to the period of sentence. Each case has to be decided on its own merit.
In SANJAY CHANDRA VERSUS CBI [2011 (11) TMI 537 - SUPREME COURT] the Apex Court observed bail ought not to be denied merely on the sentiments of the community. A decision against the petitioner cannot be arrived at only on the score of sentiments of the community - Petitioner has been implicated in another case involving similar allegations. Enforcement Directorate has also been directed to initiate enquiry in the matter. He is in custody barely for three months.
It is not prudent to release the petitioner on bail at this stage - bail application dismissed.
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2022 (12) TMI 1464 - ITAT MUMBAI
TP Adjustment - ALP for corporate guarantee determined by the Appellant - HELD THAT:- Respectfully following the above said decisions of the co-ordinate benches of the Tribunal in the case of the Appellant for the Assessment Years 2011-12 [2021 (10) TMI 822 - ITAT MUMBAI], 2012-13 [2021 (4) TMI 254 - ITAT MUMBAI], 2013-14 [2021 (10) TMI 453 - ITAT MUMBAI] and 2014-15 [2021 (4) TMI 254 - ITAT MUMBAI], we hold that corporate guarantee commission determined by the Appellant at the rate of 0.35% per cent per annum is at arm’s length not requiring any transfer pricing adjustment. Consequently, the transfer pricing additions made by the AO and confirmed by the DRP is deleted.
Disallowance u/s 14A r.w.r. 8D - mandate of recording dissatisfaction - HELD THAT:- In the present case the dissatisfaction has been recorded, however, the same is not in accordance with mandate of Section 14A(2) of the Act as the Assessing Officer has acted in a mechanical manner based upon conjecture/surmise and has recorded dissatisfaction without having regard to the accounts of the Appellant and/or the computation of suo moto disallowance made by the Appellant u/s 14A of the Act.
The general hypothesis made by the AO fails to meet the mandate of Section 14A(2) of the Act in view of the methodical computation of disallowance furnished by the Appellant taking into the account the actual expenditure incurred by the Appellant. Accordingly, we delete the addition made by AO u/s 14A read with Rule 8D of the Rules. Thus, Ground raised by the Appellant are allowed.
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2022 (12) TMI 1463 - CESTAT MUMBAI
Availing wrongful SSI benefit - resorting to the incorrect valuation of the goods cleared - electrical accessories, bells, chokes and street light fixtures - relevant date for assignment of ttrademark - possession of registered trademark - HELD THAT:- The trade mark No. 622155 KALKI registered in the name of Shri Mohanlal Gosar Gosrani and Smt. Hemlata Gosrani has been assigned in the name of Shri Chandrakant Gosrani and this fact has been duly intimated in the affidavit filed before Registrar of Trade Marks, Mumbai. Affidavit of 11.05.2011 also refers to the earlier deed and says that it was assigned on 06.05.2011. Reliance by Commissioner on the affidavit of 2011 to deny the fact of assignment of the trade mark in the name of the appellant on 06.05.2011 is contrary to the facts.
From the perusal of the certificate of registration it is clear that the brand name KALKI was registered in the name of the appellant from 01.07.2009 - Commissioner has given no plausible reason for denying SSI exemption.
Only during the financial year 2009-10 appellant had crossed the exemption limit as provided in terms of Notification No.8/2003-CE dated 01.03.2003. Accordingly central excise duty is demandable only for the said year and value of clearances which is beyond the exemption limit of Rs.1.5 crores.
The total duty demand and interest and penalty under Section 11AC for the duty so short paid would be within the amount already deposited and appropriated by the Commissioner by the impugned order. Learned counsel has undertaken not to claim any refund in respect of the amount of Rs.3,00,000/- deposited and appropriated by the Commissioner - after allowing the benefit of Notification No.8/2003-CE dated 01.03.2003, the appeal is partly allowed.
Appeal allowed in part.
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2022 (12) TMI 1462 - TELANGANA HIGH COURT
Recovery of Tax - waiver of interest - CIT had partially allowed the claim of the petitioner for waiver of interest charged under Section 220(2) - quantum of depreciation on theatre building - As in the two assessment years, the assessee had claimed 15% and 25% respectively, depreciation was allowed by the Assessing Officer to the extent of 10 per cent. only in the two orders of assessment
HELD THAT:- As decided in Anand Theatres [2000 (5) TMI 4 - SUPREME COURT].a building used for running of a hotel or carrying on cinema business could not be held to be a plant.Thus the question decided in favour of the Revenue and against the assessee by holding that the building which is used as a hotel or as a cinema theatre cannot be given depreciation as a plant.
For the Principal Chief Commissioner or the Chief Commissioner or the Principal Commissioner or Commissioner to exercise jurisdiction under Sub-Section (2A) for reduction or waiver of interest, the said authority must be satisfied that Payment of such amount would cause or has caused genuine hardship to the assessee, Default in the payment of the amount on which interest has been paid or was payable under Sub-Section (2) of Section 220 was due to circumstances beyond the control of the assessee and assessee had co-operated in any enquiry relating to the assessment or any proceeding for the recovery of any amount due from him.
Considering the status of the petitioner, a view can be taken that none of the above pre-conditions were attracted in its case. Nonetheless substantial relief has been granted by the CIT/1st respondent.
Writ petition dismissed considering the status of the assessee, none of the preconditions mentioned in section 220(2A) were satisfied in its case. No good ground to interfere with the order passed by the Commissioner granting partial waiver of interest.
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2022 (12) TMI 1461 - CALCUTTA HIGH COURT
Jurisdiction - allegation is that Commissioner of Customs (AA) issuing notice of hearing is the same person and same officer who has filed the alleged offence report against the petitioner customs broker and has passed the interim order of suspension - Suspension of petitioner’s licence - HELD THAT:- This writ petition is disposed of by directing the Chief Principal Chief Commissioner of Customs concerned to appoint another officer having the same rank to hear the case of the petitioner relating to suspension of his licence. Time for personal hearing on the basis of the aforesaid impugned notice dated 22nd November, 2022 is extended by 30 days from date. For the limitation purpose the period from the date of initial notice dated 22nd November, 2022 till the date of issuance of fresh notice for personal hearing shall be excluded.
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2022 (12) TMI 1460 - GUJARAT HIGH COURT
Reopening of assessment - petitioner was a beneficiary of accommodation entries - HELD THAT:- On facts, the case on hand is not the case where the assessee willfully made any false or untrue statement at the time of original assessment or that falsity has come to the notice, which may justify the assessing officer to exercise the powers.
The case is not only of reopening the completed assessment on the same facts without availability of fresh and tangible material, it was reopening acted upon beyond period of four years from the end of the relevant assessment year. The law requires, in such cases, that the reopening is permitted only if the assessee had not disclosed fully and truly all the material facts. There was no failure on the part of the petitioner (i) to make return under section 139 or in respect to notice u/s 142(2) or u/s 148 or that (ii) he had not disclosed fully and truly all material facts necessary for the assessment concerned.
The assessee in the present case furnished complete details in his letter dated 08.10.2014 during the assessment with respect to the transaction occured with Shubh Dristi Complex Pvt. Ltd.[alleged accomodation entry provider] - There was no omission on the part of the petitioner as to full and true disclosure for the year under consideration which were necessary for the assessment concerned.
Thus it has to be held that the action of reopening by the AO was bad in law, mainly for the reason that it was passed on a mere change of opinion on the same set of facts, which was disclosed and considered by the assessing officer during the assessment year 2012-13. Decided in favour of assessee.
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2022 (12) TMI 1459 - CALCUTTA HIGH COURT
Reopening of assessment - Validity of order passed u/s 148A - why two PAN numbers were obtained by the appellants / assessee? - HELD THAT:- Order passed u/s 148A(d) is a non-speaking order. Appellants had submitted a reply to the notice issued u/s 148A (b) wherein assessee has pointed out as to how and under what circumstances two PAN numbers were applied and the fact that one of the PAN numbers was surrendered, was also set out.
AO should examine the correctness of the stand taken by the appellants, which according to the appellants, was an inadvertent mistake. As we are satisfied that the order is a non-speaking order, we are inclined to interfere with the same and remand the matter back to the assessing officer for fresh consideration and preserving the direction issued by the learned Single Bench directing the appellants to submit a representation.
Appeal along with the connected application are disposed of by setting aside the order passed u/s 148A(d) of the Act and the matter stands remanded and restored to the file of the assessing officer.
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2022 (12) TMI 1458 - ITAT MUMBAI
Taxability of profits of life insurance business - transfer from Share Holders Account to Policy Holder’s Account and shown as part of ‘surplus’ in the actuarial valuation’ - Whether was only transfer asset and not taxable u/s 44 of the act read with Rule 2 of the First Schedule? - HELD THAT:- Said position qua the issue in question as decided by co-ordinate bench of Tribunal vide order [2017 (3) TMI 1696 - ITAT MUMBAI] has not been controverted by Ld.DR, we are of the considered view that when undisputedly, the assessee is carrying on life insurance business, its income is to be determined u/s 44 of the Act by taking into account total surplus as arrived at by actuarial valuation and further income from share holder account was also to be taxed as part of the life insurance business. So finding no illegality or perversity in the impugned findings returned by Ld.CIT(A), grounds 1 & 2 raised by the Revenue are dismissed.
Addition u/s 10(23AAB) - Loss from Pension Fund - HELD THAT:- As we are of the considered view that Ld.CIT(A) has rightly deleted the addition made by the Assessing Officer on account of loss from Pension Fund being exemption under section 10(23AAB) of the Act. So we find no scope to interfere into the finding by Ld.CIT(A).
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2022 (12) TMI 1457 - MADRAS HIGH COURT
Reopening of assessment - shorter period to file the reply - HELD THAT:- Writ petitioner-assessee had time till 31.03.2022 to send a reply. To put it in perspective, the writ petitioner-assessee had time till 59 minutes past 23 hours on 31.03.2022. There is also no disputation that the writ petitioner's reply was sent on 31.03.2022 and it has been duly acknowledged by the respondent at 21:19:24 hours but the respondent has made the impugned order about over an hour earlier i.e., at 19:56 hours on the same day. This means that the respondent has made the impugned order before the time given to the assessee for replying to the 148A(b) notice dated 25.03.2022 elapsed. Therefore, the impugned order deserves to be interfered with on this sole ground
Impugned order and impugned notice are set aside on the sole ground that the impugned order has been made before the time for writ petitioner-assessee to reply to the 148A(b) notice elapsed and the writ petitioner-assessee has in fact sent a reply before the time elapsed.
Impugned order and impugned notice are set aside solely to facilitate the de novo drill after taking into account the reply of writ petitioner. To be noted, the impugned notice is a consequence or a product of the impugned order and therefore, impugned notice also perishes with the impugned order.
The respondent shall proceed with the de novo drill from the 148A(b) notice dated 25.03.2022 by taking into account the reply of the writ petitioner-assessee dated 31.03.2022 sent on 31.03.2022 [acknowledged by respondent at 21:19:24 hours].
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2022 (12) TMI 1456 - SC ORDER
Issuance to the first respondent 72 hours’ notice in the event that the State intends to arrest him on the registration of an FIR making out a cognizable offence - HELD THAT:- The direction issued by the High Court to the effect that 72 hours’ notice should be given to the first respondent in the event that the State finds it necessary to arrest him in connection with any complaint pertaining to a cognizable offence at the behest of the Joint Registrar (Audit) is manifestly incorrect in law. Such a direction could not have been issued by the High Court.
The direction to the effect that 72 hours’ advance notice should be given to the first respondent before effecting an arrest, in the event of a complaint being registered in respect of a cognizable offence, is accordingly vacated and set aside.
The petition is accordingly disposed of.
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2022 (12) TMI 1455 - SUPREME COURT
Murder - acquittal of the accused - prove beyond reasonable doubt - circumstantial evidence - HELD THAT:- Undisputedly, the present case is a case based on circumstantial evidence - It has been held by this Court in a catena of cases including SHARAD BIRDHI CHAND SARDA VERSUS STATE OF MAHARASHTRA [1984 (7) TMI 401 - SUPREME COURT], that suspicion, howsoever strong, cannot substitute proof beyond reasonable doubt.
In the present case, if the evidence of Jagdish Chander (PW - 4) is to be appreciated wherein he has stated that the Accused came to his house and informed him that he has killed the deceased-Om Prakash, such statement does not find any mention in the oral report. Apart from this, the delay of 14 hours in lodging the oral report has not been sufficiently explained. The only witness of the last seen theory, i.e. PW-5, has turned hostile and has thus been disbelieved.
Apart from that, the trial court disbelieved the very same evidence in so far as the other four Accused were concerned. The said acquittal has also been found to be valid by the High Court.
The High Court as well as the trial court were not justified in convicting the Appellant. The appeal is allowed
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2022 (12) TMI 1454 - COMMISSIONER (APPEALS) PANCHKULA
Refund of IGST - Rejection on the ground that Appellant had not made any excess payment of GST in the instant case - time limitation - rejection also on the ground that refund claim had been filed beyond the prescribed period of 2 years and hence, the same was time barred.
Whether the refund application dated 08.09.2021 is time barred or not? - HELD THAT:- The refund to be filed in terms of the provisions contained in Section 54 of CGST Act, 2017 which provides that any person claiming refund of any tax and interest, if any, paid on such tax any other amount paid by him, may make an application before the expiry of two years from the relevant date in such form and manner as may be prescribed. Further, Clause (e) to Explanation 2 of Section 54 defines "relevant date" for the purpose of filing refund application under inverted duty structure as the due date for furnishing of return under section 39 for the period in which such claim for refund arises. The adjudicating authority has calculated the relevant date in accordance with law and the refund application filed by the appellant was beyond the prescribed time limit.
Hon'ble Supreme Court in IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2022 (1) TMI 385 - SC ORDER] has extended the period of limitation excluding the period from 15.03.2020 to 28.02.2022 (lockdown period) - during pendency of this appeal before this office, CBIC vide Notification No. 13/2022-Central Tax dated 05.07.2022 has excluded the period from 01.03.2020 to 28.02.2022 for computation of period of limitation for filing refund application under section 54 or section 55 of the said Act.
Thus, refund application in the present case has been filed on 08.09.2021 is within time extended by the Hon'ble Apex Court and CBIC. And the order of the adjudicating authority is liable to be set aside.
Whether the party has paid excess payment, which has to be refunded or not? - HELD THAT:- The adjudicating authority held that there appears to be no excess payment made by the party. The adjudicating authority did not mention any valid justification about the decision made that "there appears to be no excess payment". The same reply has been submitted by the Assistant Commissioner, CGST Division Panchkula, vide its letter dated 17.10.2022 - thus, neither any calculation any reconciliation has been provided with the O-I-O dated 26.10.2021 - the appellant has paid an amount of Rs. 74,423/- under reverse charge on account of Ocean Freight. The entry of the said amount has been duly made in the Electric Credit Ledger on dated 18.04.2022. The appellant vide their explanation letter dated 17.11.2022 clarified that out of 74,423/-, Rs. 41,870/- was paid through Challan dated 18.04.2019 and balance amount of 32,553/- was paid vide cash deposited in the form of TCS.
The levy of IGST on struck down by Supreme Court in case of UNION OF INDIA & ANR. VERSUS M/S MOHIT MINERALS PVT. LTD. THROUGH DIRECTOR [2022 (5) TMI 968 - SUPREME COURT], on the grounds that such levy created a double taxation and is violation of principles of composite supply under Section 2 (30) read with section 8 of the CGST Act. The payment made against the Entry ID of the Notification No. 10/2017 — Integrated Tax (Rate) dated 28th June 2017, was not required to pay by the appellant, hence the amount so paid Rs. 74,423/- (reverse charge), is available to be refunded to the appellant.
Refund allowed - appeal allowed,
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