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2021 (6) TMI 1112 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI
Seeking a temporary injunction to restrain the Opposite Party No. 1 and 2 (Appellants herein) and any person acting on their behalf from in any manner, initiating, continuing arbitral proceedings commenced under the purported Drag Notice and purported Conversion Notice - Whether the impugned orders are against the settled principles governing the law on Anti-Arbitration Injunctions? - Whether the impugned orders are ultra virus the scope of Sections 241 and 242 of the Companies Act 2013?
Validity of the Order passed by the National Company Law Tribunal in issuing Anti-Arbitration Injunction Order, which restrains the Appellants from initiating, commencing and continuing of Arbitration proceedings - HELD THAT:- In the instant case, the Learned NCLT has yet not decided to refer the matter to Arbitration. However, both the parties have placed reliance on several cases of the Hon'ble Supreme Court on reference to the Arbitral Tribunal. Whether dispute should be referred to Arbitral Tribunal or not this is not the issue in this Appeal.
The issues in the Arbitration proceedings are relating to the enforcement of contractual provisions. In contrast, the issues in the Investors Petition deals with oppression and mismanagement by Promoter Respondents who are in the majority on the Board of Respondent No. 6 and allegedly abused their majority to the detriment of other Shareholders. The Promoter Respondents have failed to show a commonality of issues between the proceedings. Since the issues raised in the proceedings before the NCLT and Arbitration are distinct and separate, there is no question of any commonality of issues within the Investors Petition and Arbitration proceedings.
The powers of the NCLT under the Sections 241 and 242 of the Companies Act operate in a different realm compared to an Arbitral Tribunal under the Arbitration and Conciliation Act, 1996. The NCLT under the Companies Act is concerned only with the affairs of the Company and does not have the jurisdiction to deal with the issues relating to the enforcement of contractual provisions between the parties. Therefore, there does not exist any commonality of issues in the proceedings in the NCLT due to the dressed-up Petition filed by the Promoter Respondents, i.e. Promoters petition - It is pertinent to mention that in the Investor's Petition, no prayer or relief with respect to the breach of rights pertaining to the conversion notice has been sought by the appellants. This was a subsequent event and not within the scope of the Investor Petition. The fact was merely brought to the attention of the Learned NCLT in the rejoinder to the Investors Petition to demonstrate the conduct of the Promoter Respondents. The Appellant's legitimately exercised their rights under the Arbitration Agreement.
Since the issues arising out of the Investors Petition and the Arbitration are distinct, a party invoking the jurisdiction of the NCLT and contending oppression and mismanagement under the Companies Act cannot be held to waive its rights to arbitrate a contractual dispute arising out of an Agreement. Even otherwise, assuming that the appellants have waived their rights to arbitrate, the said determination cannot be made by the NCLT. It can only be decided by an Arbitral Tribunal in keeping with the principles of Kompetenz-kompetenz - There are ample precedents to suggest that averments concerning the maintainability of the Petition and the fact that the action covered in the Petition is subject of an Arbitration Agreement, thereby seeking reference to Arbitration, raised at the 1st instance, i.e. in the response filed by the Respondents, qualified as a valid Application in terms of Section 8 of the Act. There is no requirement to file a separate Application to this effect.
The impugned Order granting an Anti Arbitration Injunction and further passing an order that Interim Application shall be decided along with Company Petition after disposal of the Company Appeals are arbitrary self-contradictory. The 1st of the impugned Order grants an interim order to understand that the matter would be finally heard on the next date - the illegality is compounded by containing the interim Order endlessly. Therefore, such an order is grossly unjust and illegal and cannot be sustained in law. Therefore, the impugned orders are against the settled principles governing the law on Anti-Arbitration Injunctions and are ultra virus the scope of Section 241 and 242 of the Companies Act 2013.
The impugned orders are against the settled principles that govern Section 8 of the Arbitration and Conciliation Act, 1996. Thus, the NCLT erred in holding that in the absence of either party filing an Application under Section 8 of the Arbitration and Conciliation Act, it would not be able to refer the matter to Arbitration. The NCLT further held that "parties cannot be permitted to initiate arbitration"; it is contrary to the settled principles of law, which mandates a judicial authority to refer the matter to Arbitration if a valid arbitration agreement existed between the parties - Appeal allowed.
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2021 (6) TMI 1111 - ITAT DELHI
TP Adjustment - selection of MAM - onus to justify selection of MAM - HELD THAT:- A perusal of the finding of DRP show that the DRP had put the onus on the assessee whereas the onus lies on the TPO to justify the adoption of “other method” as the most appropriate method and not on the assessee. Further the comparable used by the TPO and accepted by the DRP related the payment of royalty relating know-how, patent and process technology and therefore, such comparables cannot be accepted on the business profile of the assessee.
We find conflicting findings of the DRP for example in the case of L 1 7961 Maciej Zalewski Trustee; Maciej Zalewski - DRP says that this comparable was rejected by this panel during A.Y. 2015-16 on the ground that licensee is a manufacturer of machinery and equipment whereas for the same profile the DRP has accepted L6245 Zbigniew Torkaz, an individual and Trustee and Polymer Energy has submitted that this agreement is identical to Sr. No.1 and should therefore, be excluded. The agreement is regarding know-how, patent and process technology. Atagencer, LLC; Mehmet Gencer an individual and Polymer Energy LLFC Rate 3.75% the assessee has submitted that this agreement is identical to Sr. No. 1.
Thus we are of the considered view that the lower authorities should have accepted TNMM as the most appropriate method on the business profile qua the international transaction of the assessee as was accepted in A.Y.2009-10 to 2014-15. We accordingly direct the AO/ TPO to delete the TP adjustment of Rs.361320620/- appeal filed by the assessee is accordingly allowed.
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2021 (6) TMI 1110 - KARNATAKA HIGH COURT
Extended period of limitation - details of trading was available in the Balance Sheet of the respondent during the relevant period and that there was much confusion during the relevant period as to whether credit could be availed in respect of trading activities and the issue was in litigation leading to perversity? - mere availability of details of trading in Balance Sheet is sufficient to drop the demand for extended period on the ground that there was no suppression or not - Whether the CESTAT is right in attributing the prior knowledge of trading activity of the respondent ignoring the fact that the respondent produced the Balance Sheet only during the investigation and not prior to that? - demand for extended period of limitation and penalty.
HELD THAT:- Undisputed facts of the case are, as recorded in paragraph 6 of the show cause notice, it was issued based on the balance sheet for the year ending 2008. Thus, the contentions of the Revenue that respondents trading activity was not known to the department and that it was learnt based on intelligence report are not tenable.
In Shriram Value Services Pvt. Ltd. [2019 (8) TMI 1174 - MADRAS HIGH COURT], the Madras High Court has held that at the relevant period of time. Viz., from April 2009 to March 2011, the Assessee was, obviously, under bona fide belief in view of the conflicting decisions of the Tribunals during that period and taking the trading activity as Exempted Services, availed the CENVAT Credit which is sought to be reversed and recovered by the Department invoking the extended period of limitation. Such a bona fide belief cannot be held to be done with ulterior purpose for evading the Duty and therefore, the extended period of limitation would not be available to the Revenue Authority in view of the aforesaid decision rendered by the Hon’ble Supreme Court.
The substantial questions raised by the Revenue are answered in favour of the assessee - Appeal dismissed.
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2021 (6) TMI 1109 - DELHI HIGH COURT
Validity of Faceless Assessment u/s 144B - Violation of the principles of natural justice - denial of granting personal hearing to petitioner and on considering his submissions - HELD THAT:- We had put to Mr. V. Lakshmikumaran, who appears for the petitioner, as to whether it would suffice if we were to set aside the impugned order, and direct the Assessing Officer to consider the petitioner’s reply to the show cause notice-cum-draft assessment order, dated 12.03.2021.
Mr. Lakshmikumaran says that such a direction would satisfy the petitioner. Therefore, the assessment order, passed under Section 143(3) of the Act, dated 13.03.2021, is set aside.
AO will be at liberty to pass a fresh order, after considering the reply/submissions, filed by the petitioner, dated 12.03.2021. The AO will accord a personal hearing to the authorized representative of the petitioner, and for this purpose, he/she will indicate, in writing, the date and time of the hearing. The AO will transmit this information via the registered e-mail ID of the petitioner. Furthermore, the A.O. will ensure that the link for the hearing is also sent to the petitioner.
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2021 (6) TMI 1108 - KERALA HIGH COURT
Seeking issuance of a writ in the nature of habeas corpus for the release of petitioner's brother - Smuggling - Gold - smuggling gold by concealing the same in diplomatic cargo which is not normally subjected to detailed customs examination - illegal detention - COFEPOSA Act - whether there was awareness in the mind of the detaining authority that detenu is in custody and he had reason to believe that detenu is likely to be released on bail and if so released, he would continue to indulge in prejudicial activities? - HELD THAT:- The detaining authority was aware of the fact that the detenu was in judicial custody; that he is likely to be released on bail; and that if so released, he would engage in prejudicial activity - If the grounds of detention show that the detaining authority was alive to these facts, and was satisfied that there was a real likelihood of the detenu being released on bail, we will not substitute our satisfaction for that of the detaining authority for what the law requires is only the subjective satisfaction of the detaining authority.
The next contention raised by the learned counsel for the petitioner is that the learned counsel for the detenu was not given an opportunity for hearing before the Advisory Board constituted under Section 8 of the COFEPOSA Act, 1974 - HELD THAT:- Though the hearings before the board were concluded on 22.1.2021, it was only on 29.1.2021 that a request was received from the Advocate for the detenu enclosing a detailed representation on behalf of the detenu and requesting for a hearing. It is obvious that considering the time limit imposed under Section 8 of the COFEPOSA Act, 1974 the Board was not in a position to grant any further adjournment to accommodate any request of the detenu. It is also clear that the Advisory Board had also considered the representation dated 29.1.2021 despite the fact that the representation was received after the hearing was concluded on 22.1.2021 - The contention of the learned counsel for the petitioner that proceedings of the Advisory Board are vitiated on account of the failure to permit the detenu to be represented by an Advocate of his choice, cannot be accepted. - It can only be held that the opportunity extended to the detenu to be represented by a counsel was not availed by the detenu.
The last and final contention of the learned counsel for the petitioner is that the Advisory Board which considered the case of the detenu under Section 8 of the COFEPOSA Act is not competent to consider the same - HELD THAT:- On reading of the provisions of Art. 22 of the Constitution and the various provisions of the COFEPOSA leads to conclude that neither the Constitution nor the COFEPOSA Act require that in every case where the detention order is passed by the Central Government, its confirmation must be by an Advisory Board constituted by the Central Government under Section 8(a) of the COFEPOSA Act. Art. 22(4) of the Constitution of India only provides that no law providing for preventive detention shall authorise the detention of a person for a period longer than three months unless 'an Advisory Board' consisting of persons who are, or have been, or are qualified to be appointed as Judges of a High Court have reported before the expiration of the period of three months that there is, in its opinion, sufficient cause for such detention. Art. 22(4) was sought to be amended by the Constitution (44th Amendment) Act, 1978 by which, among other things, it was provided that the Advisory Board shall consist of a Chairman who has to be a serving Judge of the 'appropriate High Court' and further providing that 'appropriate High Court' means, in case of an order of detention made by the Government of India or an officer or authority subordinate to that Government, the High Court of Delhi and in case of an order of detention issued by the State Government, the High Court for that State.
The provisions of Section 8(a) of the COFEPOSA Act provide for the constitution of Advisory Boards. Significantly, those provisions do not use the words 'appropriate Government'. Section 8(b), no doubt says that the reference to the Advisory Board shall be by the 'appropriate Government' and uses the words 'the Advisory Board'. Any significance cannot be given to the word 'the' before the words 'Advisory Board' to hold that the Advisory Board must be one constituted by the appropriate Government - The provisions of Art. 22(4) of the Constitution and Section 8 of the COFEPOSA only requires that the case of the detenu could be considered by an Advisory Board consisting of persons having the qualifications mentioned in Art. 22(4) and constituted by appropriate notification under Section 8 of the COFEPOSA Act. The Learned Counsel for the petitioner has no case that the Advisory Board which considered the case of the detenu has not been constituted under Section 8 of the COFEPOSA Act. At any rate, the detenu cannot be said to be prejudiced in any manner as his representation was duly considered by an Advisory Board comprising of such members as are recognised both by the unamended and amended provisions of Art. 22(4) of the Constitution.
There is no merit in the contention of the learned counsel for the petitioner that only the Board constituted under the notification dated 17.3.2020 was competent to consider the case of the detenu - Petition dismissed.
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2021 (6) TMI 1107 - APPELLATE AUTHORITY FOR ADVANCE RULING, GUJARAT
Classification of goods - PAPAD of different shapes and sizes manufactured/ supplied by the appellant - tariff heading/HSN Code - Applicable rate of GST - HELD THAT:- Though, traditionally Papad has been prepared manually, in round shape. However, when ingredients and process are similar in case of PAPAD and impugned product, then the product in question is nothing but a kind of PAPAD irrespective of their shape and sizes - As submitted by the appellant, when the consumer desires to eat the said products of the appellant, the said products are required to be fried or roasted before consumption. Thus, these products are not meant to be eaten without frying or roasting - The products under consideration become crispy when these products are fried or roasted.
The products of the appellant has found its use as an alternative to regular round shaped Papad or as an additional variety of Papad in the Indian meal, especially the meals served during the community functions. The caterers, who prepare the meals for the community functions, as well as the people in general, consider such products as a different type or variety of Papad only - applicant’s products of different shapes and sizes of papad, whose pictures are reproduced, are nothing but Papad, classifiable under Tariff Item 1905 90 40 of the Customs Tariff Act, 1975.
Would it be judicious to stick that the product which are having Round shape, manufactured by using ingredient of cereal flour only are PAPAD and the products having the same characteristic and uses but shape and size is different cannot be termed as “PAPAD”? - HELD THAT:- Reliance can be placed in the case of M/S. SHIV SHAKTI GOLD FINGER VERSUS ASSTT. COMMISSIONER, COMMERCIAL TAXES, JAIPUR [1996 (5) TMI 419 - SUPREME COURT] where it was held that irrespective of the shape of PAPAD and irrespective of ingredients used, the PAPAD still remains PAPAD - the decision is squarely applicable in the instant case as such the impugned product having different shapes and size PAPAD as compared to round shape Papad however are similar to Papad in respect of the ingredient, manufacturing process and use.
Further, in entry No. 96 of Notification No. 02/2017-CT (Rate) dated 28.06.2017, the description of the product is “PAPAD by whatever name called”. To understand the term “whatever name called” the principle of “Noscitur a sociis” is to be applied. As per the said principle, the meaning of an unclear word or phrase must be determined by the words that surround it. In other terms, the meaning of a word must be judged by the company that it keeps. Therefore, in this entry, only a product called by name of PAPAD would not be covered but all types of product which are similar to PAPAD in respect of ingredient, manufacturing process, use and common parlance would be covered irrespective of their shape and size and even name. As such, the appellant’s product is similar to the traditional round shaped Papad in all respect - the impugned product i.e. different shapes and sizes of papad is eligible to be covered under entry No. 96 of Notification No. 02/2017-CT (Rate) dated 28.06.2017.
The rule of interpretation for classification is that when a product is eligible to be classified under specific entry then classification under general entry should not be preferred. It is found that in the case at hand, the product “different shapes and sizes Papad” is “Papad” of different shapes and size and find specific entry at CTH No. 19059040, therefore as per rule of interpretation, the product is to be classified under CTH No. 19059040 only and not under CTH No. 21069099 of the Customs Tariff Act, 1975 as classified by the GAAR.
The product ‘different shapes and sizes Papad’ involved in the present case merit classification under Tariff heading No. 19059040 of the Customs Tariff Act, 1975. It is already held that the product in question is classifiable under CTH No. 1905 of the Customs Tariff Act, 1975, the said CTH No. 1905 is covered under entry No. 96 of Notification No. 02/20178-CT (Rate) dated 28.06.2017 and accordingly chargeable to NIL rate of Goods and Services Tax.
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2021 (6) TMI 1106 - CESTAT KOLKATA
CENVAT Credit - inputs - welding electrodes - period from April 2010 to December 2012 and from January 2013 to October 2013 - HELD THAT:- The issue stands decided in favour of the appellant as held by the Tribunal in the case of CCE, MEERUT VERSUS M/S. BAJAJ HINDUSTAN LTD. [2013 (11) TMI 943 - CESTAT NEW DELHI] where the issue pertaining to eligibility of welding electrode for repair and maintenance activity during the year 2008 (i.e. prior to amendment from 1st March, 2011) has been examined.The Tribunal while taking note of the decision in the case of M/S STEEL AUTHORITY OF INDIA LTD. VERSUS COMMR. OF CENTRAL EXCISE, JHARKHAND [2008 (7) TMI 16 - SC ORDER] took a view in favour of the assessee considering the decision of three High Courts wherein it has been held that credit is eligible on welding electrodes. It has also been observed therein that mere dismissal of SLP by the Supreme Court against the decision rendered by the Tribunal will not be considered to be law since not decided by the Apex Court.
Since the issue is no longer res integra and the eligibility of Cenvat Credit on welding electrode has been squarely decided in favour of the assesse even for the period prior to 1st March, 2011, there is no reason to disallow credit in the present case. The demand of excise duty, interest and penalty is thus set aside.
Appeal allowed - decided in favor of appellant.
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2021 (6) TMI 1105 - DELHI HIGH COURT
Levy of GST - onboard catering services provided by the respondent under a temporary license - requirement of serving welcome drink to the passengers who boarded the subject trains - Entitlement to claim Goods and Services Tax (GST) on production charges/supply of meals after 01.07.2017, when the Goods and Services Tax Act, 2017 [GST Act] came into force - who to face financial burden concerning the food which got wasted due to cancellation or the failure of the passengers to turn up - claim for interest as well.
Whether onboard catering services provided by the respondent under a temporary license issued to it also obliged the respondent to serve a welcome drink to the passengers who boarded the subject trains? - HELD THAT:- It is only on 06.04.2017, when IRCTC indicated to the respondent, that unless it gave its unconditional acceptance to the policy framework captured in its communication dated 07.02.2017, its temporary license, which was expiring on 18.06.2017, would not be extended, that the respondent agreed to provide a welcome drink and bear the financial burden qua the same - Faced with this difficult choice, and having regard to the fact that it had already invested funds in the contractual arrangement arrived at with IRCTC, on 12.04.2017, the respondent accepted the terms indicated in the communication dated 07.02.2017, concerning the supply of welcome drink for the period that was to extend beyond 18.06.2017
The claim of the respondent qua welcome drink was restricted to the period spanning between 19.12.2016 and 18.06.2017. To be noted, the temporary license was extended by IRCTC till 04.07.2018 - The learned arbitrator, to our minds, correctly concluded that IRCTC could not have deducted the amounts expended by them towards serving welcome drink to the passengers from the bills of the respondent.
Whether IRCTC is obliged to reimburse the amount deposited by the respondent towards GST levied, with effect from 01.07.2017, on production charges? - HELD THAT:- GST is a central tax, whereas VAT is a local tax, which various states would have levied at the relevant time, when the 2017 Act had not been enacted. It appears, that because the VAT rates varied from state to state, production charges were made inclusive of tax at the relevant point in time. Since VAT, amongst other taxes, stands repealed, the respondent, rightly claims, that it should be reimbursed GST upon proof of payment of the same - as correctly concluded by the arbitrator, GST from 01.07.2017 would have to be reimbursed to the respondent by IRCTC, upon the proof of deposit of the same with the concerned statutory authority.
Given the fact, that IRCTC has already factored GST in the train fare, lends heft to the stand taken by the respondent, that it should be reimbursed -
Whether the respondent was entitled to claim Goods and Services Tax (GST) on production charges/supply of meals after 01.07.2017, when the Goods and Services Tax Act, 2017 (GST Act) came into force? - HELD THAT:- GST deposited by it with the concerned statutory authority. Furthermore, as noticed hereinabove, IRCTC was in a position to, in fact, perhaps, claim ITC, at least for the period spanning between 01.07.2017 and 31.03.2018.
As regards other issues, it is not required to deal with the same, as the respondent has neither made any submissions, nor filed any cross appeal qua the same.
Appeal dismissed.
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2021 (6) TMI 1104 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI
Direction for payment of electricity charges - Respondent No. 1 submits the Liquidator may be directed to pay the electricity charges as per Section 53 of IBC - HELD THAT:- Prayer allowed.
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2021 (6) TMI 1103 - ITAT SURAT
Addition on account of depreciation - depreciation on intangible assets purchased by the assessee company - HELD THAT:- Issue decided in favour of assessee [2019 (10) TMI 1519 - ITAT SURAT] and by the judgement of the Hon'ble Gujarat High Court in assessee’s own case [2019 (5) TMI 1208 - GUJARAT HIGH COURT] - we delete the addition made by AO/TPO on account of depreciation - Decided in favour of assessee.
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2021 (6) TMI 1102 - CESTAT AHMEDABAD
Rectification of mistake in the cause title - HELD THAT:- Accordingly, all the names of the respondents are incorporated, miscellaneous applications are allowed. Registry is directed to serve the notice along with copy of appeal papers to other respondents whose names have been incorporated in the cause title. All the appeals be listed together on 16th July, 2021.
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2021 (6) TMI 1101 - APPELLATE AUTHORITY FOR ADVANCE, RAJASTHAN
Input Tax Credit - blocked credit or not - Input services - construction or works contract procured for the development of an Industrial area or the special maintenance expenses of the area - mechanism for apportionment of ITC between exempt and taxable supplies as in an industrial area - whether leasing of 'industrial plot' of land is exempt under N.No. 12/2017-Central Tax (Rate) but leasing of 'non-industrial plot' of land/commercial plot of land is a taxable supply? - HELD THAT:- Section 16 (1) of the CGST Act provides for entitlement of registered person to take credit of the input tax charged on any supply of goods or services or both made to him, which are used or intended to be used in the course or furtherance of his business subject to fulfillment of certain conditions such as possession of invoice, receipt of goods/service, payment of tax to Government etc. as provided under Section 16 (2) of the GST Act, 2017. However, certain inward supply of goods or services, as enumerated under Section 17 (5) of CGST Act, 2017, has been specifically barred from taking Input tax credit. These supplies may also be termed as blocked credit.
Sub-section 17 (5) carves out certain exceptions to Section 16 (1) by way of the non-obstante clause - “notwithstanding”, making it clear that the restriction imposed herein is absolute in nature as it seeks to override Section 16 (1) which entitles a registered taxpayer to avail credit on works contract services/goods or services used or intended to be used in the course or furtherance of business. Though the appellant was directed to submit copies of works contracts also, but they have not supplied the same; and it would appear from the facts of the case that they are not providing output service of works contract - it is found that input tax credit in general is not available for construction of an immovable property, in view of the above said provisions. The only exception to this provision is 'plant and machinery'. In other words the input tax credit is available to the taxpayer in respect of works contract services/goods or services used for construction of 'plant and machinery' in spite of their being an immovable property.
It is found that Input Tax Credit is not only restricted to the goods and services used for construction of immovable property (whether capitalized or not) but also restricted for those goods and services which are used for re-construction, renovation, additions or alterations or repairs, to the extent of capitalization, to the said immovable property. It is not the other way round that the Input Tax Credit is available to all the goods and services used for construction of immovable property which is not capitalized in the books of accounts. It is not the case of the appellant that said works contract is related to repair, reconstruction, renovation, etc.
The appellant's undertaking of development work of the land to be leased out to various industrial/ non-industrial users, is construction of an immovable property and any goods and services or both / works contract, used for construction of an immovable property shall attract the provisions of clauses (c) and (d) under sub-section (5) of Section 17 of the CGST Act, 2017 which specifically deny such input tax credit.
The appeal filed by the appellant is liable to be rejected for want of any merit, and hence rejected.
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2021 (6) TMI 1100 - NATIONAL COMPANY LAW TRIBUNAL, NEW DELHI
Seeking to direct the Respondents to cooperate and provide signed copy of the financial statements for FY of 2019-2020 - Section 19(2) of I&B Code - HELD THAT:- Since CIRP/Liquidation is to be completed in time bound manner, the AA cannot grant time to file Reply/Replies to various IAs filed by aggrieved Parties during the process of CIRP. It is settled position of law that in terms of provisions of Section 19 of Code, the personnel of CD, its promoters or any other person associated with the management of CD shall extend all assistance and co-operation to IRP as may be required by him in managing the affairs of CD. Therefore, in order to avoid further delay, it would be just and proper to direct the Respondents to extend the requisite co-operation to the Applicant in discharge of his functions including to provide signed copy of Financial Statements for the FY of 2019-20.
Application is hereby disposed by directing the Respondents to cooperate and provide signed copy of the financial statements for FY of 2019-2020, within a period two weeks from the date of receipt of copy of this order.
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2021 (6) TMI 1099 - MADRAS HIGH COURT
Conversion of free shipping bills into Advance Licence/DEPB/DFRC/Drawback shipping bills - effective date that has to be taken into account in deciding the cut-off point when the unit in question would cease to be an Export Oriented Unit and assume status of a unit under the EPCG Scheme - the relevant date would be date of in-principle approval, being 10.04.2007 or final exit order, being 01.01.2008? - Rule 12 of the Customs and Central Excise Duties and Service Tax Drawback Rules, 1995 - HELD THAT:- Rule 12 deals with the declarations to be made on shipping bills specifying the nature of the export transaction. In the present case, all shipping bills between April and end December, 2007 were free shipping bills for the reason that the petitioner had yet to receive the final order of exit. In any event, the proviso to Rule 12 states that the Commissioner of Customs, if satisfied that the exporter or authorised agent has failed to comply with Rule 12 for reasons beyond its control, might well exempt the exporter/authorised agent from the rigour of the clause. According to the petitioner, had the authorities taken it upon themselves to issue the final exit order well in time, then the petitioner would have ensured compliance with provisions of Rule 12 and there would have been no necessity to file free shipping bills as against EPCG bills.
Though Rule 12 (1) clearly vests discretion in the Commissioner to grant exemption by way of duty drawback even in respect of free shipping bills, such discretion must be extended by way of a reasoned speaking order - neither of the impugned orders dated 09.08.2019 and 02.03.2020 satisfy this requirement.
The Customs Act, 1962 is a central enactment and there must thus, be uniformity in the exercise of discretion by officers in different stations. If an officer in a particular station has thought it fit to accept an assessee’s claim in an identical circumstance, then any variation from this point of view only be after a process of detailed reasoning to justify the difference in stand.
The dichotomy in the stand adopted by the different authorities as well as the fact that there is no reasoning to support the conclusion in the impugned order, is fatal to the respondents’ case - impugned orders are set aside - petition disposed off.
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2021 (6) TMI 1098 - TELANGANA HIGH COURT
Seeking to grant anticipatory bail - cheating and other offences - fraudulent activity in regard to the sanction of loans - HELD THAT:- A perusal of the material on record would show that basing on the complaints lodged by the I.F.C.I. alleging cheating and other offences in respect of to V.N.R. Infrastructures Limited, Hyderabad and Sri Krishna Stockists and Traders Private Limited, Rajahmundry, C.B.I., BSFC, Bangalore, registered two cases. Initially the petitioner was not made as an accused in the complaints, but in the charge sheets filed in both the cases, the name of the petitioner was shown as A.3 and A.5 respectively. The petitioner was arrested and he was released on bail in the said cases. The record further discloses that in the year 2017 itself, the S.F.I.O., issued notice to the petitioner to appear before the S.F.I.O. and in compliance of the said notice, the petitioner had appeared and his statement was recorded. In the year 2020, the S.F.I.O. again issued summons to the petitioner directing him to appear before the S.F.I.O. on 09.11.2020 and apprehending arrest in connection with the said summons, the petitioner filed Crl.P.No.5980 of 2020 and this Court granted anticipatory bail to the petitioner vide order dated 18.03.2021.
Admittedly, entire investigation has been completed and charge sheets were filed by the C.B.I., BSFC, Bangalore and the C.B.I. and seized all the documents connected to the subject loan transactions and those documents were filed along with the charge sheets. Hence, there may not be a chance of tampering with the investigation at this stage.
Considering the facts and circumstances of the case and since the petitioner has already been appeared before the S.F.I.O., in compliance with the notice, dated 18.07.2017 and his statement has already been recorded; entire investigation has already been completed and charge sheets were also filed in both the complaints, the custodial interrogation of the petitioner at present may not be required. In such circumstances, granting anticipatory bail to the petitioner on certain conditions is justifiable - petition allowed.
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2021 (6) TMI 1097 - COMMISSIONER (APPEALS) CENTRAL GOODS AND SERVICE TAX, JAIPUR
Refund of GST - Condonation of delay of 21 days in filing appeal - time limitation - HELD THAT:- In the instant case the appeal has been filed by delay of 21 days from the normal period prescribed under Section 107(1) of the CGST Act, 2017. Though the delay in filing the appeal is condonable only for a further period of one month provided that the appellant was prevented by sufficient cause from presenting the appeal is shown and the delay of more than one month is not condonable under the provisions of sub-section (4) of Section 107 of the Central Goods and Services Tax Act, 2017. With regard to delay in filing of appeal, the appellant has submitted that it was happened due to on going COVID-19 pandemic situation hence he requested for condonation of delay.
The appellant has contended that refund is not time-barred under Section 54 of the CGST Act, 2017 and stated that relevant date in case of refund of ITC on Export of Goods & Services without payment of Tax is the end of the financial year in which the refund claim arises and relevant provision of Section 54, Explanation 2, clause (e); “relevant date means - (e) in the case of unutilized input tax credit under sub-section (3) the end of the financial year in which such claim for refund arises” - Hence the last date for filing of refund application for Zero-Rated Supplies made without payment of Tax under Section 54(3)(i) read with explanation (2) clause (e) for the F.Y. 2017-2018 as an entire period was 31st March, 2020 which was extended due to COVID-19 to 30th June, vide Notification No. 35/2020, dated 3rd April, 2020 and further was extended to 31st August, 2020 by Notification No. 55/2020, dated 27th June, 2020.
As per provision of clause (a) of Explanation 2(2) of sub-section (14) of Section 54 of CGST Act, 2017 in the case of goods exported out of India where a refund of tax paid is available in respect of goods themselves or, as the case may be, the inputs or input services used in such goods - the relevant date shall be calculated as per (i), (ii) and (iii) of clause (a). Whereas, the appellant quoted the unamended clause (e) of explanation (2) of sub-section (14 ) of Section 54 of the CGST Act, 2017 which is applicable only in the case of refund of unutilized input tax credit in respect of inverted duty structure as per clause (ii) of the first proviso to sub-section (3), of Section 54 of the CGST Act, 2017.
In the instant matter the EGMs were filed for the said export consignments on 1-9-2017/29-12-2017 the meaning thereby the export goods left India on 1-9-2017/29-12-2017. As per customs procedure EGM means (Export Goods Manifest) a document which are filed by the carrier of the export consignment before the departure of the carrier (shipments, airlines, etc.,) and it is considered as proof of shipment. From the conjoint reading of Section 54(14)(2) of the CGST Act, 2017 read with Notification No. 35/2020-C.T., dated 3-4-2020 as amended vide Notification No. 55/2020-C.T., dated 27-6-2020 - it is very much clear that refund application has been filed in the instant matter beyond the period of 2 years from the relevant date.
The adjudicating authority has rightly and properly rejected the refund application on the ground of time- barred - there are no force in the contention of the appellant that the date of last date for filing of refund application for Zero-Rated Supplies made without payment of Tax under Section 54(3)(i) read with Explanation (2) clause (e) for the F.Y. 2017-2018 as an entire period was 31st March, 2020 which was extended due to COVID-19 to 30th June, vide Notification No. 35/2020, dated 3rd April, 2020 and further was extended to 31st August, 2020 by Notification No. 55/2020, dated 27th June, 2020 is within the period of limitation.
Appeal dismissed.
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2021 (6) TMI 1096 - CHHATTISGARH HIGH COURT
Direction to provide a copy of ECIR to the petitioners forthwith - HELD THAT:- A careful perusal of writ petition would show that respondent No.2 has been impleaded by his name, but he has not been impleaded in his official capacity, whereas the Assistant Director (Enforcement Directorate) ought to have been impleaded as respondent herein as writ is sought against Assistant Director (Enforcement Directorate) - Likewise, the petitioners have also pleaded that action of respondent No.2 in not supplying a copy of ECIR is arbitrary and irrational, but no quashing has been sought.
In that view of the matter, instead of proceeding further, two weeks time is granted to learned counsel for the petitioners to make the record straight if they are so adviced - List this matter after two weeks.
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2021 (6) TMI 1095 - NATIONAL COMPANY LAW TRIBUNAL HYDERABAD BENCH
Seeking to give directions to the Respondents to resume uninterrupted flow of water to the Corporate Debtor so as to enable the Corporate Debtor to generate electricity, which is the business of the Corporate Debtor - HELD THAT:- The Law is very clear that supplier of goods or provider of service of the Corporate Debtor cannot stop such supply or stop to provide service but the RP has to pay the expenses to procure such supply or services to keep the Corporate Debtor as going concern.
The Respondents are directed to restart the water supply subject to payment of the transport charges as claimed as per 2014 water supply agreement and as per invoices raised by the Respondent.
Application allowed.
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2021 (6) TMI 1094 - ITAT MUMBAI
Penalty levied u/s. 271(1)(c) - addition on bogus purchases - addition sustained @8% of the bogus purchases - HELD THAT:- CIT-A correctly deleted the penalty with reference to bogus purchase addition at ₹ 3,83,388/-, as the addition was done on estimated basis.
Tax effect in this case is below the limit fixed by CBDT for filing appeals before ITAT. Revenue has tried to make out a case that since the addition was made pursuant to information from sales tax department, this penalty appeal falls in the exception carved out in the CBDT circular regarding appeals arising out of additions made pursuant to information from outside agencies. We are of the opinion that this plea is not tenable inasmuch as once revenue accepts that penalty is levied on outside agency information, the penalty levied will have no legs to stand. Revenue appeal dismissed.
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2021 (6) TMI 1093 - APPELLATE AUTHORITY FOR ADVANCE RULING, HARYANA
Valuation - Statutory charges i.e. External Development Charges and Infrastructural Development Charges recovered by the Applicant from buyers and paid further to respective Government Authorities - forming part of value of taxable supplies being made by the Applicant or not - HELD THAT:- In the Appellant's case however the under relevant law viz. the HDRUA (Haryana Development and Regulation of Urban Areas) Act 1975, the External Development and Infrastructure Development charges are meant to meet, respectively, the cost of external development work to be carried out in respect of an individual infrastructure project viz. a colony, and the cost on developing infrastructure projects development in the State - As per the Act, it is charged 'per square metres of the gross area and of the covered area of all the floors in case of flats proposed to be developed by him into a colony'. Further it is to be paid 'in two equal installments. The first installment shall be deposited within 60 days from the date of the grant of the license and the second installment to be deposited within six months from the date of grant of license'. It is not related to the sale of the flats.
Similarly for the EDC the Licensee has 'to pay proportionate development charges if the external development works as defined in clause (g) of section 2 are to be carried out by the Government or any other local authority. The proportion in which and the time within which, such payment is to be made, shall be determined by the Director - Both are not related with the number of flats to be constructed/sold or are to be paid even if the some/all flats kept for personal use. Since, the 'External Development' and 'Infrastructure Development' do contribute to the value of the flats, the charges for these beyond doubt form a constituent of the value of the construction service provided to the flat owners by the Appellant. The GST shall be applicable, as also provided under Section 15(2).
Appeal dismissed.
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