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Showing 61 to 80 of 1286 Records
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2024 (1) TMI 1226 - MADRAS HIGH COURT
Reopening proceedings against deceased assessee - proceedings against legal representatives of the deceased assessee - Writ Petition challenging the notice issued u/s 148 in the name of the deseased assessee, the wife of the petitioner - as submitted that the deceased assessee had not filed return of Income in her name as she had no income of her own.
As after the death of the deceased assessee, the Permanent Account Number of deceased assessee was no longer valid. It is submitted that although the legal heirs of the deceased assessee are deemed to be the assessee as per Section 159 the appeal filed is not getting linked with the PAN Card and Aadhar Card number of the deceased assessee and therefore the petitioner as the Legal Representative is remediless.
HELD THAT:- After the death of an assessee, the respective Legal Representatives must register themselves in the Income Tax Portal by submitting the PAN of the deceased assessee along with their PAN as the Legal Representative of deceased assessee and produce a death certificate of the deceased assessee together with their legal heirship Certificate.
It is only after such compliance, appeal against an assessment order passed in the name of a deceased person can be numbered and heared. The petitioner as legal heir of the deceased assessee ought to have complied with the same along with other legal representatives of the deceased assesse Mrs. Nirmala Subramanian.
Petitioner as the legal representative of the deceased assessee along with the other legal representatives thus ought to have to filed an appeal against the Assessment Order dated 14.03.2023 by following the prescribed procedure. The petitioner has however filed a defective appeal on 14.06.2023 before the Commissioner of Income Tax (Appeals).
Having, opted to correctly challenge the Assessment Order dated 14.03.2023 before the Commissioner of Income Tax (Appeals) by filing an appeal though with defects, it is not open to the petitioner to challenge the assessment order and/or the notices that preceded the impugned assessment order and/or the subsequent notice issued under section 221(1) of the Income Tax Act, 1961 in the name of the deceased assesse.
This writ petition is therefore without any merits and is therefore liable to be dismissed. However, liberty is given to the petitioner to work out the remedy before the Commissioner of Income Tax (Appeals) by curing the defect in the appeal filed on 14.06.2023. Defects pointed out shall be cured by the petitioner within a period of 45 days of receipt of a copy of this order.
The Office of the Commissioner of Income Tax (Appeals) is to be suo moto impleaded as third respondent and is directed to number the appeal subject to the petitioner and other legal representatives complying with other statutory requirements for the filing of appeal as the legal representatives of the deceased assessee namely Mrs.Nirmala Subramanian. On the appeal being numbered, it shall be disposed on merits within a period of six (6) months from the date of receipt of a copy of this order. Needless to state petitioner/legal representatives or their Authorsised representatives shall be heard.
Recovery proceedings against the petitioner and legal representatives of the deceased assessee namely Mrs.Nirmala Subramanian shall be kept in abeyance for a limited period of six (6) months from today.
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2024 (1) TMI 1225 - ITAT MUMBAI
Validity of reopening u/s 147 r.w.s. 148 - addition as income from business by treating sale consideration in respect of property owned by the firm which was given for the development and addition on account of deposits made in the bank account - HELD THAT:- AO despite taking note of the fact of the sale deed which was between the two partnership firms and not by the assessee in his individual capacity nor anything pertain to the assessee in his individual capacity qua the said transaction, he still proceeded to entertain his ‘reason to believe’. Even the partnership deed and the PAN of M/s. Sai Developers were also filed during the course of assessment proceedings, which AO has ignored.
Once, assessee has brought the facts on record, then ld. AO could not have proceeded to tax the above transaction in the hands of the assessee, because the agreement and transaction was not with the assessee, albeit between two partnership firm. In fact, AO should have issued notice u/s. 148 to the partnership firm. He has simply gone by ITS records, i.e., information from the individual transaction statement and that there is no return of income filed by the name of Sai Developers. Therefore, he presumed that all the transactions belong to assessee.
Once the sale deed or the agreement is between the two partnership firms, then how the transaction can be viewed in the individual hands by the ld. AO, is beyond comprehension. Even the reasoning given by the AO as incorporated above is not based on rationale reasoning either on facts or in law. Thus, reasons recorded by the ld. AO based on certain information that assessee has entered into transaction of immovable property itself is incorrect and based on such incorrect assumption of facts, notice u/s. 148 cannot be issued nor the same amount can be taxed in the hands of the assessee.
At least when assessee has raised this objection and has filed all the documents like partnership deed, PAN of the partnership firm and more specifically the developer’s agreement entered between two different parties. When all these documents were filed before him then how the assessment can be made u/s. 148 in the hands of the assessee. Accordingly, the reasons recorded itself in the case of the assessee do not give jurisdiction to the ld. AO to make any assessment or issue notice u/s. 148 and accordingly, same is quashed. Accordingly, the entire proceedings u/s. 148 is held to be invalid. Appeal of the assessee is allowed.
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2024 (1) TMI 1224 - ITAT AHMEDABAD
Eligibility for deduction u/s 80IA - contracts entered with Airports Authority of India (AAI) - constitute as a Central / State Government or not? - HELD THAT:- The Government of India constituted the International Airports Authority of India (IAAI) in 1972 to manage the nation's international airports while the National Airports Authority of India (NAAI) was constituted in 1986 to look after domestic airports. Both the above organizations were merged in April 1995 by an Act of Parliament, namely, the Airports Authority of India Act, 1994 and has been constituted as a Statutory Body and was named as Airports Authority of India (AAI). Therefore, AAI is a statutory body and in terms of the plain language of Section 80-IA(4) and if other conditions of eligibility are satisfied by the assessee, it would be eligible for claim of deduction u/s 80-IA(4) of the Act, if the assessee has entered into an agreement with any statutory body for carrying out development work.
Therefore, in our considered view, claim of deduction u/s 80-IA(4) cannot be denied to the assessee only on the ground that since the assessee has entered into a contract with AAI, which does not constitute as a Central / State Government, the assessee is not eligible for claim of deduction under Section 80-IA(4) of the Act.
Satisfaction of other conditions for eligibility of claim - qualifying as a “developer - whether the assessee qualifies as a “developer” or the assessee is a “works contractor” within the meaning of Explanation to Section 80-IA of the Act? - Evidently the contract has not been awarded to the assessee for carrying out any repairs, maintenance or upkeep etc. of existing airport facility, but the assessee has been awarded contract for bringing into existence a new infrastructural facility in place being new domestic arrival block at Sardar Vallabhbhai Patel International Airport. Accordingly, the assessee in our view is has been entrusted the responsibility of bringing into existence and “new infrastructure facility” being a new domestic arrival block at Sardar Vallabhbhai Patel International Airport.
Assessee has undertaken to bring into existence a new infrastructure facility being new domestic arrival block at Sardar Vallabhbhai Patel International Airport, Ahmedabad and further the assessee is also undertaken various financial and entrepreneurial risks required to be borne by a “Developer” of a project viz. providing bank guarantee to AAI, procurement of certain materials by the assessee at it’s own cost during the construction phase, preparation of various architectural designs relating to the project for approval of AAI etc. which all support the fact that the assessee is in the instant facts is a “developer” within the meaning of Section 80-IA of the Act and is eligible for claim of deduction u/s 80-IA(4).
We observe that Ld. CIT(A) undertook a detailed analysis of the scope of work undertaken by the assessee and the various risks and responsibilities undertaken by the assessee and then came to conclusion that assessee qualifies as a “developer” and is eligible to claim of deduction u/s 80-IA(4), thus confirmed.
Assessee appeal allowed.
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2024 (1) TMI 1223 - ITAT AHMEDABAD
Revision u/s 263 by CIT - Right Issue of shares - invocation of provisions of section 52(2)(viib) by debunking the calculation of fair market value of shares done by the assessee and accepted by the AO, under Rule 11UA of IT Rules - addition on account of the shares being issued at a value less than its fair market value - CIT set aside the assessment order passed by the ld.AO u/s 143(3) holding it as erroneous and prejudicial to the interest of the Revenue as AO had failed to make proper inquiries regarding valuation of fair market value of shares issued by the assessee during the year at a premium, which valuation as per the ld. Pr. CIT was not in accordance with law as done by the assessee - assessee argued CIT held that the assessment order was erroneous without dealing with the arguments made by the assessee before him.
HELD THAT:- We are not in agreement with the contention of assessee that the contentions made by the assessee before the ld. Pr. CIT were not dealt with by him while holding the assessment order to be erroneous. He has specifically referred to the contentions made regarding non-applicability of section 56(2)(viib) to the Right Issue issued, that there is no mala fide intention involved in the Right shares which is said to be brought in the ambit and scope of the deeming provision of section 56(2)(viib) of the Act.
As for the decision cited in the case of Sudhir Menon HUF [2014 (3) TMI 534 - ITAT MUMBAI] we have noted from the ld. Pr. CIT order, that the issue in the said case related to the invocation of the provisions of 56(2)(vii) which relates to the receipt of any money or property without any consideration or without adequate consideration. While in the present case, the issue relates to the provisions of section 56(2)(viib) of the Act which deems the amounts received in lieu of the issue of shares in excess of their FMV as income of the assessee. CIT, therefore, has rightly found the facts of the case to be different and distinguishable from that in the present case before us. Therefore, we do not agree with the assessee that the ld. Pr. CIT has held the assessment order erroneous without dealing with averments made by the assessee before it.
Now coming to the aspect of the decision of Chhatisgarh Metaliks and Alloys P.Ltd [2023 (4) TMI 74 - ITAT RAIPUR] holding the provision of the section 56(2)(viib) of the Act not applicable on Right Issue, and its impact on revisionary order passed in the present case, it is evident that in the absence of any contrary decision cited by the Revenue before us, the entire exercise of revision in the present case on identical set of facts fails considering the categorical finding of the ITAT that section 56(2)(viib) of the Act cannot be invoked on a Rights Issue. The finding of the error in the assessment order by the ld. Pr. CIT on account of an identical issue clearly does not survive.
Thus the impugned order of the ld. Pr. CIT passed under section 263 of the Act is set aside, and the appeal of the assessee is allowed.
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2024 (1) TMI 1222 - ITAT DELHI
Validity of assessment orders without quoting DIN - validity of subsequent generation of the DIN - Application of Board’s circular - principles of functional or purposeful interpretation - HELD THAT:- As decided in Abhinav Chaturvedi and others[2023 (8) TMI 378 - ITAT DELHI] forwarding of the intimation of generation of the DIN in ITBA is only a subsequent action and that is not part of assessment order. The manner in which the word 'communication' is defined shows every notice, order, summons, letter and any correspondence from Tax authorities should have a DIN quoted and it is for this reason that the Intimation issued about the DIN of assessment order itself has a DIN quoted on it
Board’s circular application - Argument raised is against now crystallized proposition of law that as far as the Circulars of the Board are concerned, they are binding upon the officers of the Revenue Department without any exceptions whatsoever.
Once it is concluded that the Circular of the Board is binding upon the Revenue Authorities, then, its non-compliance brings the consequences which the Board Circular itself manifests and it is that the ‘communication’, which in the present case is ‘assessment order’ will be deemed to have been never issued. Thus, when Board lays down what shall be the format of any such ‘communication’ and also provides that if the ‘communication’ is not in that format the same will be considered as not issued at all, then it is not a mere technical flaw liable to be corrected but it vitiates the communication, i.e the ‘assessment order’ in the present form.
Once assessee has a statuary right to be conveyed such ‘communication’, as far as the immediate consequences of the communication not bearing DIN is concerned, as the same is presumed to have never been issued, such communication has no legal foundation left and becomes a voidable communication at the instance of the assessee, irrespective of assessee establishing the plea of prejudice.
The difference pointed out in the passing of an order and issuing communication of order is very much clarified by the Circular as the word ‘communication’ has been primarily used in the sense of a ‘Noun’, specifying what all sorts of orders, notices etc. will require DIN on the body. It is not used in the form of a ‘verb’ indicating the mode of transmission of information or delivery or transmitting a copy thereof as ‘service of the notice’ referred u/s 282 of the Act. Thus to say that there is merely an improper manner of service and such rigour is mitigated by Section 292BB is quite misconceived. See BRANDIX MAURITIUS HOLDINGS LTD. [2023 (4) TMI 579 - DELHI HIGH COURT]
This ground is allowed as the assessment order in question is invalid and is deemed to have never been issued as per the CBDT Circular dated 14/08/2019(supra) for non-mentioning of DIN on the body of the order.
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2024 (1) TMI 1221 - SC ORDER
Violation of principles of natural justice - appellant's request for cross-examination of parties, whose statement has been relied upon, has not been considered - In the writ appeal, while acknowledging that cross-examination is a part of natural justice, the High Court noted that there is no absolute right to cross-examination, and it depends on each case's facts. - However, High Court permitted the appellant to file appeal before the Appellate Authority, within a period of 30 days from the date of receipt of a copy of this judgment - HELD THAT:- There are no reason to interfere with the impugned judgment passed by the High Court. Hence, the Special Leave Petition is dismissed without prejudice to any other alternative remedy that the petitioner may seek to avail.
The time granted by the High Court to avail the remedy is extended by 30 days from the date of this order.
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2024 (1) TMI 1220 - CESTAT CHENNAI
Levy of penalty under Regulation 18 (1) of the CBLR 2018 - failure to comply with the obligations mandated under Regulation 10 (d) and 10 (e) of CBLR 2018 - misclassifying ‘Match Skillets’ exported by them under CTH 36050090 instead of under CTH 48192010 - HELD THAT:- The stand of the appellant from the very beginning was that CTH adopted by the appellant was based on the assessment practice for Match Skillets made out of white board. The appellant has also given justification for the said classification. Further, it is found that the assessing officers were well aware of the classification and they allowed the said classification without any objection. The respondent did not raise any objection to the adopted classification even though the description of the export goods was correctly declared. Further, it is not only the appellant who has followed this classification with regard to impugned goods rather other exporters were also adopting the same classification which was followed at Tuticorin port during the period from April 2015 to October 2020.
The Commissioner in the impugned order has held that the appellants are not directly benefited by their contravention hence there is no mens rea on the part of the appellant and therefore the imposition of penalty on the appellant for violation of Regulation 10 (d) and 10 (e) of CBLR 2018 is not warranted. Further, it is settled law that the classification is a question of law and cannot be treated as misdeclaration or misstatement.
Once it has been observed by the learned Commissioner that there is no mens rea on the part of the appellant then in that case imposition of penalty of Rs.25,000/- for violation of Regulation 10 (d) and 10(e) of CBLR 2018 is not sustainable in law. Therefore, the penalty imposed on the appellant is set aside - appeal allowed.
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2024 (1) TMI 1219 - CESTAT AHMEDABAD
Absolute Confiscation of the seized gold and foreign currency - Prohibited item or not - Baggage Rules - appellant denied having any dutiable goods, his body and baggage were screened - first proviso to sub-clause (a) of clause (1) to Section 129A of the Customs Act, 1962 - HELD THAT:- Any passenger entering into India is required to make a declaration of his baggage before entering into India as provided under Section 77 of Customs Act, 1962. Further if it is found that the goods accompanying him which are also called as baggage, import of which is prohibited and in respect of which true declaration has been made under Section 77 the proper officer may at the request of the passenger detain such articles for the purpose of being returned to him on his leaving India under Section 80 of Customs Act, 1962 - In the instant case, the passenger is neither a habitual offender nor carrying the said goods for smuggling purpose. In this circumstance the Order of the Ld. Commissioner for absolute confiscation of gold chains legally not correct. Further the gold is not a prohibited item. It can be imported only with certain conditions as prescribed under Exim Policy as well as guidelines laid down by the RBI.
In the case of YAKUB IBRAHIM YUSUF VERSUS COMMISSIONER OF CUSTOMS, MUMBAI [2010 (10) TMI 650 - CESTAT, MUMBAI], it has been held that prohibited goods refers to goods like arms, ammunition, addictive drugs, whose import in any circumstance would danger or be detriment to health, welfare or morals of people as whole, and makes them liable to absolute confiscation. It does not refer to goods whose import is permitted subject to restriction, which can be confiscated for violation of restrictions, but liable to be released on payment of redemption fine. The gold does not fall under the prohibited category and therefore it cannot be absolutely confiscated.
In the present case considering the facts and circumstances, the order of absolute confiscation is not sustainable in law and therefore the order of absolute confiscation is set aside and an option given to the appellant to redeem the Gold Chains on payment of redemption fine of Rs.3,00,000/-.
Confiscation of foreign currency worth USD 11,325 - HELD THAT:- Section 111 of the said Act, under which the impugned foreign currency has been confiscated, which provides for confiscation of improperly imported goods. Thus, unless the improper importation is proved with evidence, the said section is not applicable, there is no evidence on record to prove that the impugned foreign currency was improperly imported. Mere improper procurement, if at all, in contravention of FEMA, will not attract Section 111 of the said Act.
In the present matter Revenue has not advanced any evidence to show that the foreign currency, in question, was smuggled into the country by the appellant. In the absence of such evidence, confiscation of the same cannot be upheld. Hence the confiscation of the currency is set aside. Accordingly the revenue shall release the currency of $11,325/- to the appellant.
Penalties imposed on appellant under Section 112(a) and Section 114AA - HELD THAT:- Having regard to the totality of the facts and circumstances of the impugned matter the penalty imposed is reduced to a sum of Rs. 1,00,000/- under Section 112(a) of the Act and the penalty of a sum of Rs. 50,000/-, under Section 114AA of the Act.
The appeal is partly allowed.
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2024 (1) TMI 1218 - CESTAT AHMEDABAD
Classification of imported goods - Encoder/Multiplexer under different Model - classifiable under Tariff Heading No. 85 17 6290 as declared by appellant or under 85 28 of Customs Tariff Act, 1975, as claimed by the revenue? - entitlement for exemption Notification No. 24/2005-CUS (Sr.No.13) dated 01.03.2005 - HELD THAT:- This issue in the appellant’s own case has been decided by this Tribunal in M/S MODERN COMMUNICATIONS & BROADCAST SYSTEMS P. LTD VERSUS C.C., - AHMEDABAD [2018 (12) TMI 172 - CESTAT AHMEDABAD] where it was held that it is clear that as the impugned goods are having the function of transmission of data and other functions and hence the same would merit classification under CTH 8517. Accordingly, we hold that the goods are classifiable under CTH 8517.
From the above decision, it can be seen that this Tribunal has decided the classification of the goods in question under CTH 85 17 6290. Following the above decision in the present appeal also appellant’s goods are correctly classifiable under CTH 85 17 6290.
Moreover, in the revenue’s appeal, the revenue has proposed to classify the goods under CTH 85 28 7100. However, in the show cause notice, it was proposed to classify under CTH 85 28 7390. Therefore, the new grounds in the appeal cannot be made which is beyond the scope of show cause notice.
The impugned order is set aside - Assessee’s appeal is allowed and revenue’s appeal is dismissed.
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2024 (1) TMI 1217 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Initiation of CIRP - Date of default - Existence of restructuring proposals - NCLT admitted the application u/s 7 - pre-implementation conditions as stipulated in the restructuring proposals were mandatory or not - failure in its compliance tantamounted to non-execution of the restructuring approvals automatically or not - date of default was covered under Period stipulated under Section 10A of the Code or not - payments of Rs. 50 Crores made by the Corporate Debtor to the financial creditors i.e., the Respondent No. 2 and PFC resulted in automatic extension of restructuring approvals or not - financial viability of the Corporate Debtor as claimed by the Appellant would have impacted the impugned order in deciding the application filed under Section 7 of the code by the Respondent No. 2 or not.
Existence of restructuring proposals - pre-implementation conditions as stipulated in the restructuring proposals were mandatory or not - failure in its compliance tantamounted to non-execution of the restructuring approvals automatically or not - HELD THAT:- The period from the date 25.03.2020 to 24.03.2021, is the period which is required to be excluded for the purpose of initiation of CIRP under Section 7, 9 and 10. Section 10A of the Code also clearly mandates that no application shall ever be filed for initiation of CIRP of a Corporate Debtor for the said default occurring during the said period. It is significant to note that the explanation provided under Section 10A of the Code stipulate that provision of Section 10A shall not apply to any default committed under the said Sections before 25.03.2020. Hence, date of default become critical.
On the failure of the Corporate Debtor to fulfil its obligation to the original common loan agreement and subsequently, further failure to comply with the first restructuring proposal dated 21.02.2020 and further failure to comply with the second restructuring approval dated 29.09.2020, the Appellant, at this stage, cannot take the plea of continuation of all agreements/proposals. Normally, when the restructuring proposal is agreed upon, the same is in supersession to the previous loan agreement/restructuring proposal. Here, it is critical to understand that pre-implementation condition are conditions precedent, which are meant to be followed and it cannot be the case of the borrower that despite his failure to fulfil the conditions precedent, the restructuring proposal should be deemed to be valid, continuing and further deemed to be converted into agreement - In the present case, undisputedly the Corporate Debtor could not make the required payments to the lenders i.e. the Respondent No. 2 as well as PFC and also could not meet with pre-implementation conditions and therefore, the restructuring approval ceased to remain alive and the only valid agreement which survived was the common loan agreement dated 19.06.2013.
Default period falling within period specified under Section 10A of the Code or otherwise? - HELD THAT:- It is evident that the Respondent No. 2 clearly indicated date of default to be 31.03.2018, which is not covered under Section 10A of the Code. Incidentally, the Respondent No. 2 also gave date of NPA of Corporate Debtor i.e., 30.06.2018, which is also out of purview of Section 10A of the Code - the date of default as indicated in Part IV by the Appellant is 31.03.2018 based on first default as per original common loan agreement. The Adjudicating Authority has considered 31.03.2021 as a date of default based on the second restructuring approval dated 29.09.2020. We have already noted that as per Section 10A of the Code, the period is specified is from 25.03.2020 to 24.03.2021. Thus, either of the dates i.e., 31.03.2018 or 31.03.2021 are clearly out of purview of Section 10A of the Code.
Payments of Rs. 50 Crores made by the Corporate Debtor to the financial creditors i.e., the Respondent No. 2 and PFC resulted in automatic extension of restructuring approvals or not - HELD THAT:- The plea of the Appellant regarding existence and continuation of default under first restructuring proposal is wrong as the Corporate Debtor itself has submitted in I.A. No. 1020/KB/2020 filed by the them before the Adjudicating Authority in which the Corporate Debtor sought reliance solely on the Second Restructuring Proposal submitting that the Corporate debtor was required to make payment from 31.03.2021, without contending that there was any payment obligations or default continuing from first restructuring proposal - there are no force in the pleading of the Appellant on this issue.
Financial viability of the Corporate Debtor as claimed by the Appellant would have impacted the impugned order in deciding the application filed under Section 7 of the code by the Respondent No. 2 or not - HELD THAT:- It is recaptured from pleadings of the appellant that the Corporate Debtor has raised bills of Rs. 916.95 Crores from WBSEDCL and during Financial Year 2022-23, the Corporate Debtor earned EBITDA of Rs. 308 Crores and therefore, the company was solvent. During averments, the Appellant also agreed to pay outstanding amounts as per restructuring approvals around Rs. 103 Crores lying in the credit of TRA account - there has been continuous and repeated failure on the part of the Corporate Debtor to meet its obligation in making payment of principals and interest as per original common loan agreement and also failure to meet obligations as per first and second revised Restructuring Approvals. In backdrop of all these information, it is not found that so-called claim made by the Appellant about viability of the Corporate Debtor has any legal or factual force to impact the outcome of Section 7 application as contained in the Impugned Order.
Appeal dismissed.
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2024 (1) TMI 1216 - SC ORDER
Validity of the decision High Court deciding the appeal on admission state itself on merit - Substantial question of law - not permitting to raise the additional questions related to extended period of limitation to the appellant-Department for recovery of dues and for receiving penalties imposed by the Adjudicating Authority - HELD THAT:- The High Court ought to have raised the substantial questions of law as sought for by the appellant herein in the first instance and thereafter considered the same on merits by answering the same one way or the other. This is said for the reason that when the appeals were admitted and the main appeals are pending adjudication before the High Court, it was unnecessary for the High Court to have passed detailed reasons as to why the aforesaid two substantial questions of law would not arise for consideration, at the stage of admission. No prejudice would have been caused to any of the parties if the substantial questions of law, as raised by the appellant, had been considered and answered by the High Court on merits at the time of final adjudication of the appeals. Sometimes substantial questions of law may have a bearing on each other and if a particular substantial question of law is not permitted to be raised at the stage of admission of the appeal, it may prejudice the case of the appellant while considering the case on merits.
The portion of the order of the High Court declining to raise the substantial questions of law as sought for by the appellant-Revenue herein is set - aside and the High Court is now requested to hear the parties by raising the substantial questions of law on the issue of extended period of limitation as well as on the issue of imposition of penalty.
The appeals are disposed off.
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2024 (1) TMI 1215 - MADRAS HIGH COURT
Sabka Viswas (Legacy Dispute Resolution) Scheme, 2019 - case falling under “arrears of tax” within the meaning of section 121(c)(i) is correct or not as the petitioner had admittedly filed a statutory appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) - HELD THAT:- The change in the category of case from “Litigation” in Form SVLDRS-1 to “Arrears” in Form SVLDRS-3 is impermissible as admittedly appeal before Customs and Excise, Service Tax Appellate Tribunal (CESTAT) was filed on 29.08.2019.
As per Sabka Viswas (Legacy Dispute Resolution) Scheme, 2019 read with Sabka Viswas (Legacy Dispute Resolution) Scheme Rules, 2019, if the amount of duty is more than Rs. Fifty Lakhs where the tax dues are relatable to a show cause notice or one or more appeals arising out of such notice which is pending as on the 30th day of June 2019, the relief available to a declarant under the Scheme shall be calculated at fifty percent of the tax dues - A reading of SVLDRS-3 indicates that the petitioner has been given 40% relief on Rs. 88,04,491/- to arrive at the tax due of Rs. 34,32,590/- and on the same, a further relief of 60% has been given to arrive at Rs. 20,59,554/- and the amount payable by the petitioner has been estimated as Rs. 13,73,036/-.
The impugned communication in SVLDRS-3 dated 28.04.2020 is set aside with the direction to the respondents to issue Form SVLDRS-3 quantifying the above amount of Rs. 22,17,857/- as payable by the petitioner.
Petition disposed off.
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2024 (1) TMI 1214 - CESTAT ALLAHABAD
Levy of service tax - services on which service recipients have discharged tax liability - main contractors have already paid the tax on their behalf - time limitation - HELD THAT:- The Tribunals / Courts have been accepting tax payment by the service recipient as valid payment as the same was revenue neutral exercise till 2020, thereafter, the issue stands settled and it is service provider / sub-contractor to pay tax even if the main contractor / service recipient has discharged the tax liability on his behalf (Appellant) - this was a legal dispute which involved interpretation of law and mala-fide intention or suppression with intent to evade payment of service tax cannot be attributed to the Appellant.
Extended period of limitation - HELD THAT:- The Court has observed that extended period of 5 years is not invokable when there is no willful misstatement or suppression involved. Mere failure to pay duty without any collusion, fraud or willful misstatement not sufficient to invoke extended period of limitation.
Thus matter was in the knowledge of the department in 2010 when the first audit was conducted and thereafter regular audit was conducted every year, but the show-cause-notice was issued in 16.10.2014 without carrying out any investigation and without adducing any new corroborative evidence for invoking any suppression in the show-cause-notice in as much as service tax was also demanded on the exempted services valued at Rs.11,67,04,375/- pertaining to construction of PMGSY roads.
The impugned order holding that the extended period has been correctly invoked, therefore, cannot be sustained and is set aside. It would, in such circumstances, not be necessary to examine the issues on merits that have been raised by the learned counsel for the Appellant.
Appeal allowed.
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2024 (1) TMI 1213 - CESTAT CHANDIGARH
Rejection of refund of the appellant being time barred - claim filed after stipulated period of one year as prescribed under the law - HELD THAT:- Admittedly, the appellant has filed the refund claim beyond the stipulated period of one year as prescribed under the law and consequently, the Original Authority as well as the Appellate Authority have rejected the refund claim only on the ground of limitation. Further, both the Notification No. 52/2011-ST dated 30.12.2013 and the subsequent Notification No. 41/2012-ST dated 29.06.2012 clearly provides that the refund claim shall be filed within one year from the date of export of goods and in the present case, admittedly, the refund has been filed after the limitation period is over. The prayer of the Learned Counsel for the appellant that he may be allowed to take the cenvat credit at this stage, cannot be entertained because it would amount to allowing rebate which is not provided in the notification.
There are no infirmity in the impugned order which is upheld by rejecting the appeal of the appellant - appeal dismissed.
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2024 (1) TMI 1212 - SC ORDER
Clandestine removal - Whether the Hon’ble CESTAT is correct in holding that confirmation of demand of duty on impugned goods was not sustainable merely on the basis of presence of machines and certain statements of laboureres and accountants whereas there were evidences in form of verification and still photography of machines and confessional statement of Shri Rajesh Goyal, Director? - HELD THAT:- The impugned judgment and order passed by the High Court upholding the decision of the CESTAT, need not be interfered in view of the long pendency of the matter inasmuch as the show cause notice relates to the year 2011.
SLP dismissed.
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2024 (1) TMI 1211 - CESTAT NEW DELHI
Excisable goods or not - Soap Stock arising during the manufacture of groundnut refined oil - period April 2006 to February 2015 - benefit of the Notification No. 89/95 CE dated 18.05.1995 - HELD THAT:- The Larger Bench of this Tribunal in the case of M/S RICELA HEALTH FOODS LTD., M/S J.V.L. AGRO INDUSTRIAL LTD., M/S KISSAN FATS LIMITED VERSUS CCE, CHANDIGARH, ALLAHABAD [2018 (2) TMI 1395 - CESTAT NEW DELHI] had considered the issue as to whether the fatty acids, Waxes and gum arising in the manufacture of refined vegetable oil are to be treated as ‘WASTE’ for the purpose of exemption under Notification No. 89/95 CE or otherwise. The Larger Bench held that it is clear that the value that the product may or may not fetch cannot be a determinative factor to decide whether the same as manufactured final product/byproduct or a waste/refuse arising during the course of manufacture of final products.
Relying on the judgement of the Apex Court in COMMISSIONER OF CENTRAL EXCISE VERSUS INDIAN ALUMINIUM CO. LTD. [2006 (9) TMI 6 - SUPREME COURT], the larger bench held that removal of unwanted material resulting in products like gum, wax, and fatty acid cannot be called as process of manufacture of such items. As such, incidental products are nothing but waste arising during the course of refining of rice bran oil and on applying the ratio of the Apex Court, this cannot be considered as manufactured excisable goods.
The impugned order set aside - appeal allowed.
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2024 (1) TMI 1210 - CESTAT AHMEDABAD
CENVAT Credit - Time limitation of Six months for availing the Cenvat credit in terms of 3rd Proviso to Rule 4 of Cenvat Credit Rules, 2004 brought into effect from 18.09.2014 - applicability to duty paying documents issued prior to 18.09.2014 - Cenvat credit of renting of immovable property service in respect of warehouse located outside the factory - denial on the ground that the invoice from which the credit was availed at the address of head office and hence was not in accordance with Rule 9(1) of the Cenvat Credit Rules, 2004.
Whether the limitation of Six months for availing the Cenvat credit in terms of 3rd Proviso to Rule 4 of Cenvat Credit Rules, 2004 brought into effect from 18.09.2014 is applicable to duty paying documents issued prior to 18.09.2014? - HELD THAT:- In view of the judgment in AALIDHRA TEXTOOL ENGINEERS PVT LTD VERSUS C.C.E. & S.T. -DAMAN [2020 (1) TMI 1617 - CESTAT AHMEDABAD] and ROQUETTE RIDDHI SIDDHI PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, BELGAUM [2022 (3) TMI 358 - CESTAT BANGALORE], it is settled that the provision for limitation of Six months/ One Year for availment of credit from the date of invoice, is applicable only in respect of the invoices issued after 18.09.2014. In the present case, since the invoices are prior to 18.09.2014, the limitation of six Months/ one year shall not apply. Hence, the credit on this issue is admissible to the appellant.
Whether the Cenvat credit of renting of immovable property service in respect of warehouse located outside the factory is available to the appellant? - HELD THAT:- From the judgments in SAURASHTRA CEMENT LIMITED VERSUS C.C.E. & S.T. - BHAVNAGAR [2018 (8) TMI 460 - CESTAT AHMEDABAD] and SWISS GLASCOATE EQUIPMENTS VERSUS C.C.E. & S.T. -VADODARA-I [2022 (3) TMI 47 - CESTAT AHMEDABAD], it can be seen that even though services were provided outside the factory premises but the same is in relation to the manufacture of the final product of the appellant the credit was allowed. Following the said judgments, in the present case also the appellant are entitled for the Cenvat Credit in respect of renting of immovable of property i.e. warehouse located outside the factory premises.
Whether the Cenvat credit can be denied on the ground that the invoice from which the credit was availed at the address of head office and hence was not in accordance with Rule 9(1) of the Cenvat Credit Rules, 2004? - HELD THAT:- There is no dispute that the service was received by the appellant in their factory. Even though the address of head office is mentioned but so long the input service was received by the appellant for their factory, the credit cannot be denied. There is no case of the department that the credit on such invoice has been taken in appellant’s other unit. This issue has been considered by this Tribunal in the case of M/S. MADHYA PRADESH CONSULTANCY ORGNISATION LTD. VERSUS CCE, BHOPAL [ 2017 (4) TMI 954 - CESTAT NEW DELHI] where it was held that denial of credit only on the ground that the address of branch office or head office was mentioned instead of appellant’s address cannot be the ground for denial of otherwise eligible Cenvat credit - thus, it is settled that merely because the invoice is bearing the address of head office credit to the appellant’s unit cannot be denied.
The appellant succeeds on all the three issues and the credit on all the three issues are admissible to the appellant. Accordingly, the impugned order is set aside - appeal is allowed.
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2024 (1) TMI 1209 - DELHI HIGH COURT
Cancellation of GST registration of the Petitioner with retrospective effect - non-filing of returns for a continuous period of six months - HELD THAT:- In terms of Section 29(2) of the Central Goods and Services Tax Act, 2017, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. Registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria. Merely, because a taxpayer has not filed the returns for some period does not mean that the taxpayer’s registration is required to be cancelled with retrospective date also covering the period when the returns were filed and the taxpayer was compliant.
It is important to note that, according to the respondent, one of the consequences for cancelling a tax payer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period. Although, it is not considered apposite to examine this aspect but assuming that the respondent’s contention in this regard is correct, it would follow that the proper officer is also required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer’s registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.
The order of cancellation is modified to the extent that the same shall operate with effect from 30.06.2020, i.e., the date on which the petitioner discontinued the business - Petition disposed off.
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2024 (1) TMI 1208 - MADHYA PRADESH HIGH COURT
Demand for excess Input Tax Credit (ITC) along with interest and penalty u/s 74 - Reversal of excess Input Tax Credit availed - Order passed without considering the submissions of petitioner and also without providing an opportunity of hearing to the petitioner - violation of principles of natural justice - HELD THAT:- In the instant case whether or not the petitioners have specifically asked for personal hearing, fact remains that the adverse decision was contemplated against the petitioners. In that event, it was obligatory and mandatory on the part of respondents to provide the petitioners opportunity of personal hearing. Admittedly, no opportunity of personal hearing has been provided in both the matters. Resultantly, the decision making process adopted by the respondents is vitiated and runs contrary to the principles of natural justice and statutory requirement of sub-section 4 of Section 75 of GST Act.
As a result, the impugned proceedings after the stage of reply of show cause notices, in both the cases are set-aside. The respondents shall provide opportunity of hearing to the petitioners in both the cases by some other officer than the officer who has issued the show cause notice as per M/S ULTRATECH CEMENT LIMITED HAVING OFFICE AT UNIT VIKRAM CEMENT WORKS THRU. ITS AUTHORIZED REPRESENTATIVE MR. VINOD KUMAR SONI S/O SHRI OM PRAKASH VERSUS UNION OF INDIA, STATE OF MADHYA PRADESH, DEPUTY COMMISSIONER OF STATE TAX UJJAIN-2 [2023 (1) TMI 1027 - MADHYA PRADESH HIGH COURT].
Both the writ petitions are disposed of.
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2024 (1) TMI 1207 - ALLAHABAD HIGH COURT
Maintainability of appeal before the appellate authority - time limitation - appeal filed by the petitioner dismissed on the ground that the same was time barred as it was filed beyond the period of four months - HELD THAT:- Perusal of the record shows that the appeal was filed beyond time and when there is no dispute with regard to filing of the appeal beyond the time prescribed, this Court under the extraordinary jurisdiction cannot interfere with the appellate authority's order as the application of Limitation Act, 1963 does not apply to Section 107 of the Act.
The Central Goods and Services Act is a special statute and a self-contained code by itself. Section 107 of the Act has an inbuilt mechanism and has impliedly excluded the application of the Limitation Act. It is trite law that Section 5 of the Limitation Act, 1963 will apply only if it is extended to the special statute. Section 107 of the Act specifically provides for the limitation and in the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. Accordingly, one cannot apply Section 5 of the Limitation Act, 1963 to the aforesaid provision.
Thus, no interference is required in this petition and the same is, accordingly, dismissed.
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