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Showing 321 to 340 of 1430 Records
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2023 (12) TMI 1110
Waiver of demand for service provided by the appellant as a sub-contractor for the period prior to the Board Circular No. 23/3/97-ST dated 13.10.1997 - Circular prescribes that when the Service Tax on the entire value was discharged by the main contractor the sub-contractor is not required to pay service tax - applicability of clarification via Circular No. 96/7/2007-ST dated 23.08.2007 - HELD THAT:- It is found that this case can be decided even without going into merit of the case that whether the service provided by the sub-contractor is liable to Service Tax or otherwise.
It is found that including the case laws cited by the respondent this Tribunal taking consistent view that during the period prior to 2007 when the Circular No. 23/3/97-ST dated 13.10.1997 dated 23.08.2007, was in force which clarified that sub-contractor is not required to pay Service Tax when the main contractor has discharged the Service Tax. In this case this fact is not under dispute - on this similar fact this Tribunal has taken view that there is no mala fide on the part of the assessee.
The demand for extended period was set aside - appeal of revenue dismissed.
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2023 (12) TMI 1109
Levy of service tax - construction of complex service - construction of flats at Uttar Pradesh Awas Vikas Yojna - demand dropped by the Commissioner on the ground that they were constructed by the Government for their personal use and hence were exempted from service tax - HELD THAT:- The assessee did not pay service tax on the plea that there were not more than 12 dwelling units in one block constructed by them. According to the Revenue, block and complex are not one and the same. As per the letter issued by the UP Awas Vikas Yojna to the assessee there were five separate agreements for construction of 42 blocks comprising 504 residential units in total at different locations in Gonda District for providing accommodation to weaker sections. There was no specific exemption to the services rendered by the assessee and, therefore, the Commissioner should have confirmed the demand on the services under construction of complex service.
Business of construction of civil structures either residential or commercial - demand dropped holding that the income declared to the income tax department has no co-relation with the service provided - HELD THAT:- The land in question was agricultural land. It was not converted into non-agricultural land. In some cases the agreements specifically provided that the site formation was meant for agricultural purposes. It, therefore, appears that the assessee had rendered these services on agricultural land for the real estate developers. The case of the assessee is that the intention of the client is irrelevant to taxability and as long as the service is rendered on agricultural land, it is non-taxable. On the other hand, according to the revenue, the demand on ‘site formation service’ has been correctly confirmed in the impugned order because although the land was agricultural land during the relevant period, the nature of the contracts makes it abundantly clear that it was rendered to real estate developers for investment purpose which is undisputed.
Whether the services rendered by the appellant are excluded as being provided in relation to agriculture? - HELD THAT:- Nothing in the records suggests that the service recipient builders were engaged in agriculture, although the land was during the relevant period was agricultural land. Evidently, the land was meant for developing into real estate although such development can take place only after the land was is got converted into non-agricultural land by the land revenue authorities. Unsurprisingly, the contracts do not mention that the site formation must be done by the appellant for non-agricultural purposes because non-agricultural activities could not have been taken up on the land before it was converted to non-agricultural land. Seeing the contracts as a whole, it is evident that the purpose of site formation was for the builder to develop it into real estate and it was not for agricultural purposes - the demand cannot be sustained and hence needs to be set aside.
Dropping of service tax under three heads. Under “commercial or a industrial construction service - demand was dropped on the construction of three buildings for Aligarh, Muslim University, hostels at IIT Roorkee and construction in respect of Tehri Hydro development corporation - HELD THAT:- Section 65 (25b) is very clear. ‘Commercial or Industrial construction’ means the service which is rendered for construction, prepare alteration etc., of a building which is used or is to be used, occupied or is to be occupied or engaged or is to be engaged primarily in commerce and industry or works intended for “commerce or industry”. By no stretch of imagination can we call the amounts collected by the Aligarh Muslim University when the buildings are used for campus recruitment as commercial activity. Even if it is considered as a commercial activity, the building is not primarily for commerce or industry. Similarly universities, as a matter of course, provide consultancy services as a part of their extension programmes and do collect some consultancy fee when such services are provided. That does not make them organizations primarily engaged in commerce or industry nor can a building which is used for providing such consultancies be considered as a building primarily for commerce or industry.
The contention of the Revenue that the hostels in IIT constructed by the assessee should be considered as buildings primarily for commerce or industry simply because some hostel fees is collected from students by the IITs. Similarly, Tehri Hydro Electric Development Corporation is national project meant for generating hydro electricity and supplying it - The buildings in hydro electric project cannot, therefore, also be considered as buildings primarily meant for commerce or industry - there are no error in the Commissioner’s order dropping the demand with respect to the commerce or industrial construction service.
Construction of complex service - demand to the extent the services were rendered to Uttar Pradesh Avas Vikas Yojna for construction of residential complexes for weaker sections dropped - HELD THAT:- If there are several buildings and each one fewer than 12 residential units and the total number of residential units in all the buildings together is more than 12, such complexes does not fall under section 65(91a). Therefore, no service tax can be levied on such complex - It is found that the Commissioner committed no error in dropping the demand on construction of complex services on the buildings which the appellant constructed for UP Avas Vikas Yojna.
Demand of service tax on the declaration made to the income tax during survey operation - HELD THAT:- According to the Revenue, the Commissioner had erred in not appreciating the declaration by the Director of the appellant that the amount was collected from various investors for real estate projects to be launched. However, this statement was not considered is not correct as the balance sheet of the noticee for the relevant period revealed that they were into construction of business only and were not developers. Further, even if the statement of the Director is held to be correct, the amounts so collected would have been squarely covered as amounts collected for service to be provided under section 65 (105) of the Finance Act, 1994 - Several services were rendered by the appellant which were exempted from payment of service tax. If Revenue alleges the service tax has to be paid on this income received by the appellant, it has to establish that this income is earned by rendering a taxable service. Revenue has not done so, therefore, the demand was correctly dropped under this head by the Commissioner in the impugned order.
Appeals disposed off.
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2023 (12) TMI 1108
CENVAT Credit - input tax credit availed on common input services such as advertisement, banking and finance, courier service, manpower service, renting of immovable property service, security service, telecommunication service etc. for trading also - non-maintenance of separate accounts as contemplated under Rule 6 (2) - HELD THAT:- There is nothing to show that the department has verified as to whether the trading units have availed credit on input services. It is merely stated that the trading units have provided installation services for which they have collected service tax and paid to the Government and so is engaged in services also - such installation services are output services of the trading unit and not input services. Credit cannot be availed on the service tax paid on output services viz; installation charges. On perusal of records, in the invoices issued for sale of products, the trading unit while collecting service tax on installation charges has mentioned the service tax registration number of the service unit of the appellant. This might have created confusion to the department to assume that the trading unit has availed credit on input services.
Merely because the appellant trading unit had mentioned the service tax registration number of the service unit while issuing invoices, the department has assumed that the appellant trading unit must be availing credit on input services also. The department has made a conclusion that the trading units are also to be considered as service units and the demand has been raised alleging that the appellant has availed credit in regard to activity of trading. It also requires to be mentioned that while quantifying the duty demand the turnover of the trading units has been applied against the total credit availed by the service units. Thus, the appellant has been required to pay 6% of the value calculated by such formula.
The department has failed to establish the allegation in the SCN that credit on common input services have been availed in regard to trading - the demand raised being factually and technically incorrect cannot be sustained.
The impugned order is set aside, the appeal is allowed.
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2023 (12) TMI 1107
Adjustment of excess amount deposited by the petitioner towards the amount demanded - SVLDR provide for adjustment or not - Circular No. 1074/07/2019-CX dated 12.12.2019 - HELD THAT:- The finding of the writ court is that SVLDR was introduced to provide amnesty and resolution of disputes by making mutual adjustment with regard to the disputed pre-deposit made by the petitioner. It is further held that merely because the assessee has to file a separate declaration for each period, in the absence of a specific bar or prohibition for consolidating or clubbing two cases and making mutual adjustment, it cannot be said that mutual adjustment in respect of the very same assessee in relation to same subject matter or commodity for the two different periods is impermissible.
The petitioner has not claimed refund. Merely for the reason that SVLDR does not provide for adjustment, in view of circular issued by the department, adjustment is permitted. It is to be noted that declarant is always one person and the declarations are for different periods. So any money deposited by a declarant in respect of demand for one period can be adjusted in respect of demand for another period.
There are no infirmity in the impugned order. Hence writ appeal is dismissed.
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2023 (12) TMI 1106
Clandestine removal - Acoustic Enclosures - manufacture and clearance without payment of duty or the said goods were manufactured on job-work basis by other manufacturers and cleared to the customers directly - relevant period i.e. 01/04/2000 to 04/06/2002 - HELD THAT:- The Revenue could be able to establish that even though the appellant claimed to have manufactured the acoustic enclosures on job work basis from M/s. SBN Engineering Works and M/s. Steel Engineering works, in fact the same were manufactured in their premises during the relevant period and cleared without payment of duty. The claim of the evidence from the stage of procurement of raw-materials, receipt in the factory, manufacture using their labour force adduced by the Department in the demand notice and confirmed in the impugned order by learned Commissioner (Appeals), the owner shifts to the appellant to establish that the goods acoustic enclosures manufactured on job-work basis.
It is found that the submissions advanced by the appellant are of general in nature and devoid of rebuttal of evidences brought on record indicating procurement of raw materials, processing of the same in the factory premises, stock of the glass wool etc. used in the manufacture of acoustic enclosures found in their factory, low conversion charges reflected in the invoice of job-worker etc. overwhelmingly indicate that the acoustic enclosures were manufactured and cleared without payment of duty from their factory.
The appeal of the appellant is rejected and order of the Commissioner(Appeals) is upheld.
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2023 (12) TMI 1105
Wrongful availment of SSI Exemption - use of brand name ‘BASANT’ owned by another person - ‘BASANT’ is the name inherited by both BMW and the appellant - whether the use of the brand name ‘BASANT-KS’ by suffixing the letters ‘KS’ (abbreviation for Kanwarjit Singh, Partner of the appellant firm) to the inherited name ‘BASANT’ is entirely fortuitous and is not a case of use of brand name belonging to the other person?
HELD THAT:- On an identical issue regarding the brand name ‘BASANT’ this Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE & ST, LUDHIANA VERSUS M/S. BASANT PRESSES (INDIA) [2017 (6) TMI 805 - CESTAT CHANDIGARH] had held that the trademark BASANT was being used by BMW and the same even if used by M/s Basant Presses (India), they were still eligible for SSI exemption.
The impugned order denying the benefit of SSI exemption is not sustainable in law - Appeal allowed.
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2023 (12) TMI 1104
Valuation - includability of the sales tax concession retained by the Appellant in the assessable value for the purpose of levy of Central Excise duty - extended period of limitation - penalty - HELD THAT:- The issue is no more res integra as the Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II VERSUS M/S. SUPER SYNOTEX (INDIA) LTD. AND OTHERS [2014 (3) TMI 42 - SUPREME COURT], has held that the sales tax concession retained by the assesses is required to be added in the assessable value for the purpose of levy of Central Excise duty. By relying on the above decision of the Hon’ble Supreme Court, it is held that the sales tax concession retained by the Appellant is required to be added in the assessable value for the purpose of levy of Central Excise duty - the demand for the normal period is to be computed by taking the amount collected as cum-duty.
Extended period of limitation - penalty - HELD THAT:- It is observed that there were decisions of the Tribunals that the sales tax concession retained by the assesses is not required to be added in the assessable value for the purpose of levy of Central Excise duty. Thus, the appellant cannot be faulted for not including the same in the assessable value. In the impugned order, the adjudicating authority while agreeing that extended period not invocable in this case, imposed penalty equal to the duty confirmed under Section 11AC of the CEA, 1944 - the adjudicating authority has not given any proper finding for imposing penalty under Section 11AC. Accordingly, the penalty imposed under Section 11AC not tenable - Further, Board has issued Circular No. 1063/2/2018- CX dated 16.02.2018, clarifying acceptance of some of the orders passed by the Hon’ble Supreme Court, High Courts etc, wherein no review petition has been filed - In the said clarification, the order passes by the Hon’ble Supreme Court in the case of Super Synotex has also been included and it has been categorically stated that extended period not invocable in such cases. In the present case, we observe that the Adjudicating Authority has failed to show any positive act of suppression on the part of the Appellant. The details of VAT collected and retained by the Appellant are reflected in the audited Profit & Loss account and balance sheet of the impugned periods. Accordingly, by following the above Circular issued by the Board, the extended period not invocable in this case and for the same reason penalty under Section 11AC of the CEA, 1944 also not imposable.
Appeal allowed in part.
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2023 (12) TMI 1103
Exemption under N/N. 67/95-CE - Clearances of acetylene gas for captive consumption - benefit denied merely on the ground that the acetylene gas is not used in the repair and maintenance of machinery directly, rather the same is being used via intermediate products - HELD THAT:- Notification 67/95 exempts from payment of duty all goods specified therein manufactured in a factory and used within the factory of production in or in relation to manufacture of final products. The scope of this notification is wide enough to cover the acetylene gas manufactured by the Appellant and used in the traffic department for repair and maintenance of railway track, wagons etc., and the acetylene gas used in 30 shops/departments for repair and maintenance of machineries.
The issue of whether railway tracks used in the plant form a part of manufacture is no longer res-integra since the Hon’ble Supreme Court in the case of Jayaswal Neco Limited v. Commissioner of Central Excise, Raipur [2015 (4) TMI 569 - SUPREME COURT] held It is clear from the above that the use of railway tracks inside the plant not only form the process of manufacturing, but it is inseparable and integral part of the said process inasmuch as without the aforesaid activity for which railway tracks are used, there cannot be manufacturing of pig iron.
Thus, the use of railway tracks are meant for production of goods. The acetylene gas used in 30 shops/departments for repair and maintenance of machineries was also used in connection with the manufacture of the finished goods for the Appellant - the Appellant is eligible for the benefit of exemption notification no. 67/95-CE. Hence, the demand confirmed in the impugned order by denying the benefit of exemption notifications 65/95 or 67/95 is not sustainable - appeal allowed.
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2023 (12) TMI 1102
Denial of refund of unutilised input tax credit (ITC) accumulated in respect of the Goods and Services Tax paid on inputs - zero-rated supplies - period from July 2017 to March 2018 - petitioner’s application for refund rejected on the ground that it was filed beyond the period of two years as specified under Section 54(1) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- A plain reading of Sub-section (1) of Section 54 of the CGST Act indicates that any person who is claiming a refund of tax or interest, if any, paid on the amount is entitled to make an application before the expiry of two years from the relevant date and in such form and manner as may be prescribed. The term “relevant date” has been defined in Explanation (2) to Section 54 of the CGST Act - There is no cavil that the petitioner was required to make an application for refund under Sub-section (1) of Section 54 of the CGST Act within two years of the goods leaving India or crossing its territorial frontiers.
The controversy essentially revolves around whether the petitioner did make an application within the period and/or was prevented from doing so. It is not disputed that at the material time, there was confusion regarding the implementation of the Goods and Services Tax regime which had been rolled out - In the present case, there is no dispute that the petitioner had attempted to upload its application for refund but could not do so on account of technical glitches - it is difficult to accept that the petitioner’s legitimate right to seek refund could be foreclosed on account of such technical glitches.
There is no dispute that the petitioner had attempted to file an application for refund on the GST portal twice but its application could not be uploaded on account of technical glitches. It is not disputed that the petitioner had also made a complaint and a ticket for the same was also raised.
It cannot be accepted that the petitioner’s claim for refund is required to be denied on the ground of delay - the proper officer is directed to examine the petitioner’s claim for refund and process the same, if it is found that the petitioner is entitled to the same.
Petition allowed.
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2023 (12) TMI 1101
Seeking refund claim - petitioner submitted the requisite for complying with the directions of furnishing the solvent security and requested the respondent No. 1 to refund the amount with up-to-date interest - HELD THAT:- The order passed by the appellate authority while rejecting the prayer of the respondent on an application filed under Section 54 (11) of the Act, 2017 was very clear and specifically required the proper officer to process the application of refund as per the provisions of Act/Rules provided the petitioner furnishes the solvent security as per his satisfaction.
It appears that the respondent No. 1, who had passed the original order, which came to be set aside by the appellate authority and ordered for refund so made, has been trying to somehow block the refund to be made to the petitioner. Initially, he moved an application under Section 54 (11) of the Act, 2017 which came to be rejected by the authority and direction was given to the petitioner to provide solvent security. Once solvent security was produced by the petitioner, the respondent No. 1 again, apparently not willing to refund the amount, has demanded bank guarantee from the petitioner.
The solvent security is that of a person who is entitled to/recipient of the amount. Whereas, the ‘bank guarantee’ is a guarantee given by the bank on behalf of the applicant to cover the payment obligation to a third party. As such, it cannot be said that the demand of bank guarantee by respondent No. 1 could be equated with providing solvent security in terms of the order passed under Section 54 (11) of the Act, 2017.
The action of respondent No. 1 in seeking bank guarantee from the petitioner is ex facie contrary to the directions of respondent no. 2 and, therefore, the same cannot be sustained - Petition allowed.
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2023 (12) TMI 1100
Grant of Conditional bail - Direction to surrender passport before the Trial Court and direction to not to leave India, without prior permission of this Court - HELD THAT:- In this case, Nitesh Wadhwani is also one of the accused persons, who has been granted bail by this Court with the same condition and against which, he approached the Apex Court in NITESH WADHWANI VERSUS UNION OF INDIA [2023 (4) TMI 1275 - SC ORDER], the Apex Court has permitted him to leave the country, without requirement of reporting to the Court - Against Nitesh Wadhwani also Adjudication Proceedings are initiated. He is also facing ECIR along with this applicant.
Condition No.11 (v) imposed on the applicant by this Court vide order dated 13.08.2020 (Annexure A/1) passed in Miscellaneous Criminal Case No.26653 of 2020 is hereby relaxed - Application disposed off.
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2023 (12) TMI 1099
Issues involved:
The issues involved in the judgment are related to the consideration of plea regarding payment made to the supplier through banking channel, the necessity of establishing facts about missing dealer or supplier's business closure, and the availability of alternative remedy through appeal against the impugned order.
Consideration of plea regarding payment made through banking channel:
The petitioner contended that the authority did not consider the plea regarding payment made to the supplier through a banking channel while passing the order dated 16th August, 2023. The petitioner raised this plea in response to the order, emphasizing the mode of payment made to the supplier.
Establishing facts about missing dealer or supplier's business closure:
Reference was made to a judgment by the Calcutta High Court in a similar case where it was concluded that certain norms needed to be followed before passing an order. These norms included verifying facts such as missing dealer, closure of business by the supplier, or inadequate assets of the supplier. Failure to adhere to these norms rendered the impugned order invalid.
Availability of alternative remedy through appeal:
The respondents argued that the petitioner had an alternative remedy available through an appeal against the impugned order. They requested the court not to entertain the petition on this basis. However, considering the submissions made by the petitioner's counsel and upon reviewing the impugned order, the court deemed it necessary to consider the matter further.
Court's directives and interim order:
The court issued notice and stay application to the respondents, directing them to file a reply to the petition before the next hearing date. The petition was scheduled to be listed on 7th February, 2024. Meanwhile, any further recovery from the petitioner pursuant to the order dated 16th August, 2023, was stayed until further notice. An interim order was passed in favor of the petitioner, allowing the respondents to seek vacation of the interim order after filing a reply to the petition.
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2023 (12) TMI 1098
Cancellation of GST registration of petitioner - SCN did not specify the reasons for proposing to cancel the petitioner’s GST registration - whether the petitioner was carrying on its business from the declared principal place of business?
There is a controversy whether the petitioner had informed the visiting team as to his then current address. Whereas, the petitioner claims that he has informed the visiting team regarding his new address, the same is disputed by the respondents as there is nothing on record to substantiate the same.
HELD THAT:- It is apparent that no physical verification had been carried of the petitioner’s earlier premises during the period 14.10.2022 to 31.05.2023. Any such verification was required to be carried in accordance with the Rules, which also mandates the petitioner to be issued a notice for the same.
It cannot be accepted that the Appellate Authority could have taken a definite view of the petitioner being non- functional from its declared place of business prior to 31.05.2023. It is also apparent that there is no contest that the petitioner had furnished evidence of his leasing another premises with effect from 31.05.2023. Undisputedly, the petitioner has not been unable to upload his application for change of its earlier place of business as the petitioner’s GST registration stood suspended with effect from 25.01.2023.
The concerned official of the respondents shall visit the petitioner’s current premises (336/26, Onkar Nagar-B, Tri Nagar, Delhi-110035), within a period of one week from date, to verify whether the petitioner is occupying the same - In the event the petitioner is found occupying and operating from the aforesaid premises, the petitioner’s GST registration shall be restored immediately thereafter - The petitioner shall file the requisite application regarding shifting to his new place of business. The concerned official shall verify whether the petitioner has filed the requisite returns as well as application for updating its current place of business on the record.
Petition disposed off.
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2023 (12) TMI 1097
Principles of natural justice - valid SCN or not - non-application of mind - availment of irregular input tax credit - HELD THAT:- At the first blush, on perusal of the show cause dated 16th August, 2023, it appears that the submissions made by the appellants in their reply to the pre-show cause notice appears to have been considered. However, on a closer scrutiny of the show cause notice dated 16th August, 2023, it is seen that except extracting the reply given by the appellants, the authority has not dealt with the contentions, which were placed by the appellants in the reply to the pre-show cause notice. Thus, this would be sufficient to hold that the show cause notice dated 16th August, 2023 has been issued without due application of mind.
Be that as it may, this Court is satisfied that since the show cause notice dated 16th August, 2023 has been issued without due application of mind, without considering the reply to the pre-show cause notice and without conducting any inquiry or investigation at the supplier’s end, the show cause notice would call for interference. Thus, the Court is satisfied that the case on hand falls within one of the exceptional circumstances, where the Court will exercise its jurisdiction to interdict a show cause notice.
The appeal is allowed and consequently, the writ petition is allowed and the show cause notice dated 16th August, 2023 is set aside and the matter is remanded back to the adjudicating authority to the stage of pre-show cause notice dated 31st March, 2023 - appeal allowed by way of remand.
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2023 (12) TMI 1096
Recovery of short paid service tax - post GST era - Refusal to entertain a challenge to the show cause notice issued by the 1st respondent - direction to respondent authorities to issue a fresh notice for personal hearing to the appellant/assessee in response to the impugned show cause-cum-demand notice - time limitation - HELD THAT:- The averments in the notice give a different picture. Being alerted by the TDS deposited with the income-tax department, authority concerned initiated an independent investigation into the matter. In the course of the investigation it examined the records and documents of the firm including its audited balance-sheet etc. On the basis of these materials the authorities concerned was of the view that there was a short deposit of service tax for the financial years to the tune of 7,43,625/- for the financial years 2014-15, 2016-17 and 2017-18.
Time Limitation - HELD THAT:- There are substance in the submission of the learned counsel for the respondent authorities that the proceedings for recovery of service tax under the prior legislation (since repealed) is saved by operation by section 174 sub-clause (2) of the Act of 2017. Sub-section 2 of section 174 of the Act of 2017, inter alia, provides that the promulgation of the Act of 2017 shall not affect any right, privilege, obligation, liability accrued under the repealed law and/or any investigation, enquiry adjudication or recovery proceedings of duty, tax, penalty, interest under the repealed law may be instituted or continued as if the earlier law had not been repealed.
The demand cum show cause notice for recovery of short deposit of service tax for the financial years 2014-2015, 2015-2016 and 2017-2018 shall be deemed to have been instituted and continued under the repealed law and cannot be pre-empted with reference to the time frame under section 74 (10) of the Act of 2017. Hence, the impugned show cause notice cannot be said to be ex facie without jurisdiction or time barred.
Thus, no case of patent lack of jurisdiction or legal bar to the issuance of show cause notice cum demand notice has been made out. However the appellant/assessee is entitled to a personal hearing in the matter - appeal disposed off.
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2023 (12) TMI 1095
Cancellation of petitioner’s GST registration - conditions as set out in Section 29(1) or 29(2) of the CGST Act satisfied or not - vague SCN - Principles of natural justice - HELD THAT:- Section 29 of the Central Goods and Services Tax Act, 2017 (‘CGST Act’) enables a Proper Officer to cancel a dealer’s GST registration in certain circumstances. Sub-section (1) of Section 29 of the CGST Act set out the circumstances in which a taxpayer’s GST registration can be cancelled. Sub-section (2) of Section 29 of the CGST Act specify the circumstances in which the registration can be cancelled from such date, including with retrospective effect, as the proper officer considers fit.
In the present case, it is noticed that the impugned SCN was issued solely on the basis of a letter received from another authority. The said letter is neither attached to the impugned SCN nor does the impugned SCN refers to the contents thereon The impugned order, does not indicate that the Proper Officer was satisfied as to any of the conditions as set out in Section 29(1) or 29(2) of the CGST Act - The impugned order does not indicate that the Proper Officer was satisfied as to any of the conditions as set out in Section 29(1) or 29(2) of the CGST Act.
The impugned order, cancelling the petitioner’s GST registration, is set aside and the respondents are directed to forthwith restore the same - petition allowed.
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2023 (12) TMI 1094
Application for condonation of delay u/s 119(2)(b) - mismatch between the PAN number reflected in the income-tax return and the name of the company - primary grounds raised was Petitioner’s application came to be rejected without even giving a personal hearing - name of Petitioner had been changed with the approval and sanction of the Ministry of Corporate Affairs - HELD THAT:- As the notices issued u/s 139(9) of the Act were sent on Mr. Prasad Sathe’s official ID, none of the other members of the company had any access to the same. Admittedly, no physical copy of notice was sent to company’s registered address. All this came to light when the new team including one Mr. Kapil Bhakre (Director) and Mr. Dinesh Pande (Director-Finance), found out the error during the finalization of accounts for AY 2018-2019 and immediately took remedial action by submitting an application dated 5th November 2019 to the office of the DCIT, Circle-3, Pune. Petitioner immediately provided details about the invalid return and requested him to activate the action on the Income Tax Portal so as to enable Petitioner to rectify the return of income for AY 2017-2018.
We are satisfied that the delay in not responding to the notice is received under Section 139(9) of the Act, was neither deliberate nor on account of culpable negligence or any mala-fides. The issue is only of correcting the name of Petitioner in the returns so that there is no mismatch between the PAN number and name of the company.
We, therefore, direct Respondents to permit Petitioner to correct its name in the returns for AY 2017-2018 from ‘Optra Technologies Private Limited’ to ‘Optra Health Private Limited’. Therefore, we hereby quash and set aside the impugned order dated 23rd December 2022. Within two weeks of this order being uploaded, the required portal will be opened for Petitioner to do the needful, under advice to Petitioner.
We hasten to add that we have not examined the contents of the returns filed by Petitioner or claims which have been made in the returns. That will be subject of appropriate assessments/proceedings under the Act.
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2023 (12) TMI 1093
Validity of assessment order passed w/o affording fair opportunities to the petitioner to put forth their contentions - denial of principles of natural justice - main grievance expressed by the petitioner is that no fair opportunity of hearing was granted to the petitioner before passing the impugned order and the opportunity that was granted to the petitioner cannot be deemed to be fair opportunity, since within a short span of time - HELD THAT:- As respondent-Department has concluded the assessment proceedings hurriedly inasmuch as, the show cause notice itself was issued only on 27.03.2022 and within two days the petitioner was called upon to file their reply on 29.03.2022 and immediately on the very next day, i.e. on 30.03.2022 at 3.30. p.m the petitioner was asked to appear for hearing through video conference within one hour, i.e. at 4.30 p.m. and on the very same day,, the impugned assessment order has been passed. Therefore, impugned order suffers from violation of principles of natural justice.
As decided in M/s. Gemini Film Circuit Vs. Additional/Joint/Deputy/Assistant Commissioner of Income Tax.[2023 (10) TMI 1040 - MADRAS HIGH COURT] provision of fair opportunity of hearing, held that minimum of 21 days has to be granted to an assessee to enable him to file reply in an effective manner, and the opportunity granted to the assessee should be nominal in nature and should not be an empty formality.
This Court is inclined to set aside the impugned order passed by the respondent, since, in the present case, opportunity that was granted to the petitioner was not realistic in nature rather appears to be a nominal one and further, the petitioner has been deprived away of their rights to appear in person to put forth their contention as the petitioner was heard only through video conferencing, which lasted only for five to six minutes and thereafter, the Portal was closed and within a short span of time, no assessee can be expected to put forth their contention in an effective manner. Therefore, this Court holds that the impugned order is in gross violation of principles of natural justice and liable to be aside.
Writ Petition is allowed, the impugned order is set aside and the matter is remanded back to the first respondent for re-consideration, in which case, the respondent is directed to provide an opportunity of personal hearing to the petitioner, which can be fixed by the respondent at any date granting 15 days' time after the receipt of a copy of this order
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2023 (12) TMI 1092
Refund claim with Interest u/s 244A - Withholding of refund without recording an opinion on whether grant of refund would likely affect the revenue adversely u/s 241A - HELD THAT:- As consideration falls short of the requirements under the provisions of Section 241A of the IT Act, which stipulate that the Assessing Officer, having regard to the fact that notice has been issued under sub-section (2) of Section 143, must record in writing an opinion with reasons on how the revenue’s interest would be adversely affected if refund is allowed. The withholding of the refund in the manner as now considered by the Assistant Commissioner of Income Tax, ReAC (AU)-1(2)(1), Surat cannot be accepted, and there must be interference by this Court.
This Court must record that it is undisputed that the petitioner has claimed refund for the Assessment Years prior to the Assessment Year 2021-22. The Principal Commissioner of Income-tax (AU)-1 has granted approval recording the details of the carry forward losses for the corresponding years, and consequentially, the petitioner is admitted to refund for the Assessment Years 2018-19, 2019-20 and 2000-21 respectively. The petitioner has reported a carry forward loss to the tune of Rs. 3,325.85/- Crores for the present Assessment year. The Revenue as against the principal sum of Rs. 29,35,11,360/- will have to pay interest in excess of Rs. 2,00,00,000/-, imposing a burden on the exchequer, if there is a delay.
Further, if indeed a reference to the transfer pricing officer is under investigation, it would suffice for this Court to observe that if the adjudication, after due process, results in a demand, the petitioner will have to answer the demand, but in anticipation of a conclusion for a demand without even recording the reasons, the petitioner cannot be denied the refund. There are overwhelming circumstances as established by the undisputed facts. In the light of the above, the petition must be allowed directing the respondents to refund a sum along with interest as is permissible in law within a timeframe without prejudice to recover demand on the conclusion of the pending proceedings.
The petition is allowed. The first and the fifth respondents [National Faceless Assessment Centre through the Commissioner of Income Tax-1 and Central Processing Cell through the Commissioner of Income Tax], are directed to take appropriate action for refund of a sum of Rs. 29,30,46,736/- along with permissible interest under Section 244A.
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2023 (12) TMI 1091
Addition u/s 56(2)(viib) read with Rule 11UA - assessee issued shares at the face value of Rs. 10 with the premium at 990.00 per share - FMV determination - CIT(A) deleted the above additions - HELD THAT:- As per section 56(2) (viib) of the Act, the amount exceeding the Fair Market Value of shares has to be treated as income. As per the Explanation, the Fair Market Value shall be as per the value determined in accordance with the method prescribed or as substantiated by the company based on the value of the shares, goodwill etc. whichever is higher.
The working provided as per Rule 110A(2) has 2 limbs either FMV of unquoted equity share as per formula (A-L)* (PV) / (PE) or as p the FMV worked out for the unquoted shares determined by merchant banker as per discount free cash flow method. It is at the option assessee to choose between two. In the present case, the assessee opted for the second option for working out the fair market value shares duty supported by report of a Chartered Accountant.
As also observed by the CIT(A) that AO has not provided any sound reasoning or not brought on record any material to counter the argument or to negate the submissions of the appellant. He has only taken the book value for the fair market value, though it is at the option of the appellant. Since appellant has adopted the higher value, therefore, it cannot be denied the working without any reasoning.
Considering the factual position in this case and valuation report etc. It has been rightly held by the Ld. CIT(A) that that there is no case by the AO to take the FMV @ Rs. 25/- per share, on the basis of book value, disregarding the projected value, especially when it is provided in the Act that fair market value can be taken by the assessee to its option and at a higher amount. CIT(A) committed no error in deleting the addition. Accordingly, the Ground No.1 of the Revenue is dismissed.
Addition u/s 68 after making addition u/s 56(2) - CIT(A) deleted addition - HELD THAT:- AO conducted the probe regarding share application money and the assessee provided due confirmation from each of the parties along with ITR which has been neither doubted nor proved as bogus. The assessee also provided the share application Form and its allotment with ROC.
As found by the Ld. CIT(A) that the out of total share application money received by the assessee during the year under consideration, the AO made addition u/s 56 (2)(viib) for a sizable portion and for the balance amount the provisions of Section 68 has been invoked. When the AO considers the very same applicants u/s 56(2)(viib), then the AO cannot question their identity, creditworthiness and the genuineness of the transaction, that too when the assessee has satisfied the initial burden cast upon him u/s 68 of the Act. In our considered opinion, CIT(A) has rightly deleted the addition made by the AO u/s 68 of the Act with requires no interference at the hands of the Tribunal. Accordingly, ground No.2 of the Revenue is dismissed.
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