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Showing 141 to 160 of 1634 Records
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2023 (8) TMI 1494
Revision u/s 263 - eligibility of deduction u/s 80P on interest and dividend received from Mumbai District Central Co-operative Bank - HELD THAT:- Though the Cooperative Bank pursuant to the insertion of sub-section (4) of Sec. 80P is no more be entitled for claim of deduction u/s 80P of the Act, but a cooperative bank continue to be a cooperative society registered under the Co-operative Society Act. Even the interest income derived by a cooperative society from its investment held with a cooperative bank would be entitled for claim of deduction u/s 80P(2)(d) of the Act as held in the various decisions of the coordinate benches of the ITAT Mumbai.
During the course of assessment proceedings the AO vide notice dated 143(2) has specified that case of the assessee has been selected under limited scrutiny for examination of claim of deduction under chapter VI-A of the Act.
AO vide notice u/s 142(1) of the Act dated 17.02.2017 asked the assessee to explain with supporting documentary evidences the claim of deduction under chapter VI-A of the Act. In response the AO vide submission dated 06.03.2017 has provided the details as referred in the Annexure 4 to the submission as placed at page 15 to 24of the paper book filed by the assessee. The assessee explained that it provides loans to its members therefore, it fall under section 80P(2)(a)(i) of the Act - It is also explained that assessee society is not in the business of banking therefore it cannot be treated as bank and provision of Section 80P(4) are not attracted to the assessee at all.
As decided in Vavveru Cooperative Rural Bank Ltd. [2017 (4) TMI 663 - ANDHRA PRADESH HIGH COURT] wherein held that the co-operative society may claim the benefit of clause (d) or (e) either by investing the income in another co-operative society or investing the income in the construction of godown or warehouse and letting out the same.
Also decision of ITAT Mumbai in the case of Jaoli Taluka Sahkari Patpedhi Maryadit [2015 (9) TMI 170 - ITAT MUMBAI] claim of deduction u/s 80P(2)(a)(i) for interest income earned on depositing of surplus funds with the co-operative Banks was allowed. As evident from the submission of the assessee that the AO has made detailed enquiries and mere fact that the same has not been referred in the assessment order could not make the order passed u/s 143(3) as erroneous and prejudicial to the interest of revenue.
We consider that the ld. Pr. CIT is not justified in treating the order passed u/s 143(3) as erroneous and prejudicial to the interest of the Revenue. Appeal of the assessee is allowed.
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2023 (8) TMI 1493
Taxability of income in India - foreign assignment allowance received by the assessee for the services rendered outside India - HELD THAT:- While reaching the conclusion that such an amount of foreign assignment allowance received for the services rendered outside India by way of TCC abroad is not taxable in India, reliance was placed on the decisions of Avtar Singh Wadhwan[2000 (11) TMI 116 - BOMBAY HIGH COURT], Prahlad Vijendra Rao [2010 (11) TMI 803 - KARNATAKA HIGH COURT]and Utanka Roy [2016 (12) TMI 876 - CALCUTTA HIGH COURT]
In the case of Bodhisattva Chattopadhyay [2019 (11) TMI 1031 - ITAT KOLKATA] the facts are identical. In that case also the assessee was found to be a nonresident and the assessee received the foreign assignment allowance which the employer transferred from the employer’s bank account held in Bangalore to Axis Bank nostro account for top up to the TCC and also that the employer affected TDS on the entire remuneration that was paid to the assessee both in India and abroad. The contention of the Revenue was that the impugned foreign assignment allowance did not suffer any tax in the host country and, therefore, it was a case of double non-taxation which is impermissible under law.
Tribunal reached a conclusion that the foreign assignment allowance that was topped up to the TCC of the assessee, though it was transferred by the employer from their bank account in India to the Axis bank’s nostro accounts, is not taxable in India.
Tribunal repelled contentions of the Revenue as to the double non-taxation of this amount, because it was not subjected to any tax in the host country, stating that such a fact is immaterial to decide the issue, because the question effectively is whether such foreign assignment allowance is taxable in India or not? For such question, the subjection of the said amount to tax in the host country is totally irrelevant. Assessee appeal allowed.
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2023 (8) TMI 1492
Short payment of service tax - management, maintenance and repair of the road - taxability in terms of section 97 of the Finance Act, 2012 - repair and maintenance of roads - exemption vide Notification No.24/2009-ST dated 27.07.2009 from 16.06.2005 to 26.07.2009 or not.
Repair and maintenance of roads - exemption vide Notification No.24/2009-ST dated 27.07.2009 from 16.06.2005 to 26.07.2009 or not - HELD THAT:- The merit classification of the construction services rendered by the appellant were along with supply and service both under a composite contract. In that circumstances, merit classification is works contract service and no demand has been raised under ‘works contract service’, therefore, the demand of service tax is not sustainable against the appellant.
Management, maintenance and repair of the road - taxability in terms of section 97 of the Finance Act, 2012 - HELD THAT:- The said service has already been exempted by the Finance Act, 2012, therefore, on the said service, the appellant is not liable to pay service tax.
There are no merit in the impugned order. Therefore, the same is set aside and the appeal filed by the appellant is allowed.
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2023 (8) TMI 1491
Addition u/s 68 - cash deposits made during demonetization period as unexplained/unaccounted income - claim of assessee about the sale of its stock in cash from September, 2016 to November, 2016 is improbable and is not acceptable - HELD THAT:- As applying the test of human probability, we could not convince ourselves, with the submissions assessee that the cash deposits was from the special cash sales organized by the assessee, which was just before the demonetization period.
Still we find some merit in the submissions of ld AR of the assessee that the purchases of the assessee was not doubted and the books of account of assessee was not rejected, therefore, in our view, the entire sales, though it is doubted, cannot be rejected.
Therefore, keeping in view the facts that neither the assessee could prove the cash sales just before 8th November 2016, nor the assessing officer rejected the books of assessee nor disputed the purchase, hence, to avoid the possibility of revenue leakage a reasonable disallowance would meet the end of justice. Considering all the facts and circumstances of the case, in our considered view 10% cash generated on alleged cash sales is reasonable to avoid the possibility of revenue leakage. Decided in favour of assessee partly.
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2023 (8) TMI 1490
Rectification of mistake - Deposits of Employees’ Contribution to Provident Fund and Employees’ State Insurance Corporation after lapse of time - ITAT allowed assessee appeal - HELD THAT:- As in the case of Checkmate Services Private Ltd [2022 (10) TMI 617 - SUPREME COURT] the Hon’ble Supreme Court has held that where an assessee failed to deposit Employees' Contribution towards Provident Fund and Employees’ State Insurance within due date prescribed in respective statutes, deduction under Section 36(1)(va) of the Act was not allowable. The non-obstante clause contained in Section 43B of the Act would not apply in the case of employees’ contribution deducted from the salary of employees and held in trust by assessee-employer. Therefore, such assessee/employer would not be absolve from the liability to deposit employees’ contribution on or before the due date specified in the respective statutes as a pre-condition for claiming deduction under Section 36(1)(va).
Also in the case of Saurashtra Kutch Stock Exchange Ltd [2008 (9) TMI 11 - SUPREME COURT] the law laid down in the case of Checkmate Services Private Ltd. (supra) shall apply retrospectively. The consequence of such retrospective application would be that the disclosure made by the tax auditor in audit report in Form 3CD about the ‘Details of contributions received from employees for various funds as referred to in section 36(1)(va)’ would now become indicative of a disallowance as the mere fact that Employees’ Contribution to ESI/PF has been deposited after the expiry of due date as specified in the applicable statute would trigger disallowance under Section 36(1)(va) read with Section 2(24)(x) .
The view taken by the Tribunal [2022 (7) TMI 1528 - ITAT MUMBAI] being contrary to view taken by the Hon’ble Supreme Court in the case of Checkmate Services Private Ltd. (supra) constitutes a mistake apparent on record. Accordingly, we allow the rectification application preferred by the Revenue. Accordingly, order is recalled for adjudication of Ground No. 1(a) to 1(c) raised in the appeal.
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2023 (8) TMI 1489
Money Laundering - proceeds of crime - reasons to believe - Jurisdiction of PMLA over properties under IBC liquidation - liquidation measures have been approved in accordance with the provisions of IBC Act, 2016 - Whether the respondent authority under the PMLA Act, 2002 would retain jurisdiction or authority to proceed against the properties of a corporate debtor once liquidation measures have been approved in accordance with the provisions of IBC Act, 2016?
HELD THAT:- Without assigning any reasons, without any independent finding on “reason to believe” the order of provisional attachment under Section 5 of the PMLA has been confirmed. In the opinion of this Court, the order of provisional attachment dated 21.9.2022 came to be quashed by order passed in the Special Civil Application No. 19387 of 2022 dated 17.2.2023.
In view thereof, the respondent authority has erred in not arriving at an independent finding considering the fact that the case of the writ-applicant stands at identical footing to that of the writ-applicant in the Special Civil Application No. 19387 of 2022. Though the order under Section 5 is quashed and set aside, the respondent authority has proceeded to confirm the order of provisional attachment passed under Section 5(1) which can be said to be an order passed without any application of mind.
While passing the impugned order pursuant to the show cause notice wherein a detailed reply came to be filed by the petitioner and written submissions came to be filed after personal hearing for release of the subject land for attachment. The impugned order is passed by the adjudicating authority without considering the submissions advanced by the petitioner herein and has proceeded to conclude that the properties attached are proceeds of crime and, therefore, involved in money laundering.
No reasons are recorded by the adjudicating authority while issuing show cause notice in terms of Section 8(1). Having failed to record “reasons to believe” in terms of Section 8(1), in the opinion of this Court, the adjudicating authority has passed the impugned confirmation order dated 14.3.2023 which is liable to be quashed and set aside by exercising extraordinary jurisdiction under Article 226 of the Constitution of India - While passing the impugned order under Section 8 of the PMLA as referred above, the same is without assigning any independent reasoning and in view thereof the orders impugned dated 21.9.2022 and 14.3.2023 are required to be quashed and set aside and the same is quashed and set aside.
By exercising extraordinary jurisdiction under Article 226 of the Constitution of India the order impugned dated 21.9.2022 passed by the respondent No. 1 to the extent the same is qua the subject land and the writ-applicant and the consequential action to the impugned order including the complaint, show cause notice and final order dated 14.3.2023 passed by the adjudicating authority qua the subject land and the writ-applicant are quashed and set aside.
Application allowed.
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2023 (8) TMI 1488
Assessment u/s 153A - completed/ unabated assessments - incriminating material found during the course of search u/s 132 or requisition u/s 132 or not? - HELD THAT:- Going by the law laid down therein in respect of completed/ unabated assessments, no addition could be made by the assessing officer in the absence of any incriminating material found during the course of search u/s 132 or requisition u/s 132 of the Income Tax Act, 1961. At the same time, it was made clear thereunder that the completed/ unabated assessments could be reopened by the assessing officer in exercise of powers u/s 147/148 of the Income Tax Act, subject to fulfillment of conditions as envisaged/ mentioned under the said Sections.
Subject to the same, this Special Leave Petition stands dismissed.
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2023 (8) TMI 1487
Seeking stay on the entire arbitral award - fraud and corruption - Section 34 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- Coming to the instant case at hand, this Court considers it prudent to discuss fraud and corruption first since these are the only two grounds outlined in the Act on which the Court may grant an unconditional stay on the arbitral award.
Fraud - HELD THAT:- The Hon'ble Supreme Court in SP CHENGALVARAYA NAIDU VERSUS JAGANNATH [1993 (10) TMI 315 - SUPREME COURT] gave the definition of fraud as "an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage."
Corruption - HELD THAT:- The amendment to the Arbitration and Conciliation Act, 1996 by way of Act 3 of 2021 (w.r.e.f. 23.10.2015) permits this Court, provided Section 34 challenge to the arbitral award is pending, to grant unconditional stay on an application under Section 36 (2) of the Act if the court is prima facie satisfied that the making of the arbitral award has been induced or effected by fraud or corruption.
In the present case, with respect to the conduct of the parties, this Court observes a disconcerting trend where the hallowed principles of honesty, integrity and probity seem to have gone up in smoke. It shocks the conscience of this Court to observe that the Railways, in defending a claim valued above Rs. 4000 crores, declined to present any witness and refrained from leading any evidence. Subsequently in the arbitral proceedings, the lackadaisical and indifferent attitude of the Railways during the cross examination of the claimant witnesses, as also noted in the arbitral award, leaves much to be said about the sordid state of affairs and absolute apathetic approach of the Railways which happens to be a Government of India public sector undertaking dealing with funds of the public exchequer.
Given that fraud has a very wide connotation in legal parlance, it is egregiously absurd to suggest that any award which may be fraudulently obtained is limited and restricted to the above instances cited by him in the preceding paragraph. The Court cannot overlook fraud being perpetuated in the making of the award by way of collusion between the parties. In any event, as at this juncture this Court is not coming into any conclusion on setting aside of the arbitral award, the case laws cited by the learned Advocate General can be comprehensively considered by the Court at the stage of adjudicating the section 34 application.
Using the power conferred under section 36 (3) of the Arbitration and Conciliation Act, 1996, as amended by Act 3 of 2021, this Court grants an unconditional stay on the operation of the Arbitral Award dated May 10, 2021 read with the corrections order dated August 18, 2021, pending disposal of the challenge under Section 34 of the Arbitration and Conciliation Act, 1996.
Application allowed.
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2023 (8) TMI 1486
Rectification u/s 254 - seeking rectification in the Tribunal order [2013 (6) TMI 184 - ITAT DELHI] wherein TP Adjustment , Depreciation on computer peripherals, Levying of interest u/s 234B and 234C allowed in favour of assessee
HELD THAT:- We note that the provision of section 254(2) of the Act provides that the mistakes of apparent nature in the Tribunal order may be rectified by the Tribunal itself. In the present case the counsel of assessee has failed to point out any apparent mistake in the Tribunal order and he could not point out any point out or show any order wherein the authorities below have misinterpreted the directions of the Tribunal. Therefore we are unable to see any valid and sustainable reason to issue any further directions in addition to the directions and conclusion already recorded in the Tribunal order. Accordingly, miscellaneous application of assessee being devoid of merits is dismissed.
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2023 (8) TMI 1485
Denial of TDS credit post amalgamation - Entitlement to TDS deducted in the hands of the transferor company on the event of amagamation - HELD THAT:- Claim of the assessee is genuine as per the provisions of the Act and is squarely covered by the decision of Marshall Sons & Co. (India) Ltd. [1996 (11) TMI 6 - SUPREME COURT] wherein the Hon'ble Apex Court has held that every scheme of amalgamation has to necessarily provide a date with effect from which the amalgamation/transfer shall take place and it is true that while sanctioning the scheme, it is open to the Court to modify the said date and prescribe such date of amalgamation/transfer as it thinks appropriate in the facts and circumstances of the case. However, if the Court so specifies a date, there is little doubt that such date would be the date of amalgamation/date of transfer. But, where the Court does not prescribe any specific date but merely sanctions the scheme presented to it, it should follow that the date of amalgamation/date of transfer is the date specified in the scheme as the transfer date and it cannot be otherewise.
Also examined the Form 26AS of the amalgamating companies and find that TDS is deducted in the name of transferee companies but that is immaterial when the scheme is approved by the Hon'ble High Court as post the appointed date, the TDS deducted in the hands of the transferor company shall belong to the transferee company.
We, therefore, are not in concurrence with the conclusion drawn by Ld. CIT(A) that only assets of the amalgamated companies of the transferor companies were transferred and not the TDS. Consequently, we set aside the order of Ld. CIT(A) and direct Ld. AO to allow the credit to the assessee.
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2023 (8) TMI 1484
Unexplained cash credit u/s 68 r.w.s. 115BBE - cash deposits made during demonetization period by assessee/ jeweller - assessee replied that the cash deposits were sourced out of cash sale collection, advance received from customers and available cash in hand and pursuant to the demonetization announced by the Government of India, it seized the business opportunity to make huge cash sales in the night of 8th November 2016 but did not provide details of customers or their PAN by stating that the personal details of retail customers are to be collected only when the cash sale invoice exceeded the specified threshold and that all the cash sales were made on 8th Nov 2016 below the threshold limit.
HELD THAT:- No discrepancies whatsoever were found by the AO in the cash book, stock registers, sales book etc except entertaining suspicion in his mind with a pre-conceived notion in order to reach a pre-determined destination - assessee had made a categorical submission that it had not entertained receipt of cash in specified bank notes from 9th November 2016 onwards from any customers due to the ban announced by the Government.
This fact has not been controverted by the revenue. Effectively, the assessee had only recorded huge cash sales and cash advance received from customers on 8th November 2016 in demonetized currency (as the said currency was valid upto 12 AM of 8th November 2016) and had merely deposited the same thereafter.
For the cash sales made by the assessee on 8th November 2016, the assessee had sufficient stocks of gold and diamond with it and had duly reduced the stocks in the stock register to the extent of sales made.
There is nothing wrong on the business behaviour of the assessee trying to seize the business opportunity of making huge cash sales on 8th November 2016.
What is required and relevant is that assessee should have sufficient stocks in its kitty to effectuate the sales - As long as existence of stocks with the assessee is not doubted by the ld. AO and cash sales made by the assessee is accepted by the ld. AO, in our considered opinion, the entire cash deposits made during the period 09.11.2016 to 31.12.2016 in the sum of Rs 3,43,50,000/- stands duly explained and there is no case for making any addition u/s 68 read with section 115BBE of the Act.
Similar issue decided in CIT vs Kailash Jewellery House[2010 (4) TMI 1070 - DELHI HIGH COURT] wherein it was held that the cash deposited out of sales cannot be treated as income u/s 68 of the Act once the sales are not disputed by the revenue. Similarly in the context of cash deposits made during demonetization period, the co-ordinate bench of Vizag Tribunal in the case of Hirapanna Jewellers [2021 (5) TMI 447 - ITAT VISAKHAPATNAM] decided the issue in favour of the assessee. Appeal of revenue dismissed.
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2023 (8) TMI 1483
Bogus loss incurred in penny stock - transaction was part of an organised tax evasion scam, pre-arranged as well as sham and was carried out through penny scripts companies/papers companies - Principal CIT found that the assessee had shown full details of the transaction which was done in the normal course of business and payment or receipt of such transactions was done through banking channel and service tax and STT had been duly paid and found the share transactions genuine and the same cannot be considered as bogus - HELD THAT:- ITAT held period for purchase and sale was mentioned by the Assessing Officer dealt with 10000 shares for which the trading data was taken into account by the CIT(A). The details filed by the assessee such as contract note of transactions in respect of Monarch Research And Brokerage Pvt. Ltd. which is a registered stock broker as well as copy of trading bills were also presented before the Assessing Officer as well as before the CIT(A). The assessee has paid Securities Transaction Tax i.e. “STT” and all the transaction was through banking channel. Besides the investigation report the Assessing Officer has not pointed out any discrepancy in the evidences produced by the assessee, therefore, the CIT(A) has rightly allowed the bill of the assessee and deleting the addition.
Having gone through the two orders of the CIT(A) and the Tribunal, we are of the opinion that there are concurrent findings of fact before this court recording such findings based on factual details available on record - Decided in favour of assessee.
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2023 (8) TMI 1482
Benefits of Leave Travel Concession/Home Travel Concession to any employee of the Bank visiting foreign destinations enroute - Scope of implementation of the recommendations of the 6th Central Pay Commission - Additional Solicitor General submits that pursuant to the issuance of Circular dated 07th April, 2014 by Indian Bank’s Association and Circular dated 15th April, 2014 issued by the petitioner-bank, except where orders have been passed by the Court, the management of the petitioner-bank has not extended the benefits of Leave Travel Concession/Home Travel Concession to any employee of the Bank visiting foreign destinations enroute.
HELD THAT:- Issue notice.Advocate on Record, who is on caveat, accepts notice on behalf of the respondents.
Counter affidavit shall be filed within four weeks.Rejoinder affidavit shall be filed within two weeks thereafter.
Learned counsel for the petitioner-bank shall file an affidavit explaining reasons for non-implementation of the recommendations of the 6th Central Pay Commission from the year 2008 to 2014.
Till further orders, operation of the impugned judgment shall remain stayed. However, the petitioner-bank shall not make any recoveries from its employees during the pendency of the present petition. List after pleadings are complete.
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2023 (8) TMI 1481
Rectification of mistake - validity of order u/s 263 passed by the ld. Pr.CIT, Valsad challrnged - unexplained physical cash as available with the assessee on the date of deposit - HELD THAT:- We find that while adjudicating the appeal of assessee, we have already took a view that the order passed by the Assessing Officer was not at all prejudicial to the interest of revenue as the impugned amount were already taxed in the hands of individual Director.
This fact was initially accepted by the assessing officer while passing the assessment order, though, the assessment order was revised by ld PCIT. The revenue in the present application is seeking revive of the order, which is not permissible under section 254(2).
So far as specific plea raised in the present application that there is no clear finding about the availability of cash in the hand of assess- company is concerned, we find that once we impliedly accepted the plea of the assessee that same amount cannot be taxed twice. And that assessee company reduced the cash balance by passing the accounting entry by crediting sum and debiting the same amount to the cash seized in the search. Thus, we do not find any merit in this present Misc. application and we dismiss the same.
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2023 (8) TMI 1480
Addition of share premium u/s 56(2)(viib) - assessee submitted that it had borrowed money from certain persons in the past and a part of those loans was converted into the equity shares - whether the conversion of loan taken in the past into equity shares with share premium would be hit by the provisions of sec.56(2)(viib)? - HELD THAT:- As shares premium collected by the assessee was more than the valuation arrived at by the auditor in the valuation report.
We notice that this question has been examined and adjudicated by the Kolkata Bench of the ITAT in Milk Mantra Dairy Private Limited [2022 (7) TMI 1490 - ITAT KOLKATA] wherein it has been held that the conversion of loan amount into the equity shares will not exonerate the assessee from application of provisions of section 56(2)(viib) of the Act.
Before us no contrary decision was placed or any distinguishing fact, which would compel us to interfere with the decision rendered by the tax authorities, was furnished. CIT(A) was justified in confirming the assessment of excess share premium amount as income of the assessee u/s 56(2)(viib) - Appeal filed by the assessee is dismissed.
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2023 (8) TMI 1479
TP Adjustment - selection of appropriate comparables - HELD THAT:- Deselection of comparables as functionally dissimilar with that of assessee, a contract service provider rendering limited services to its AE alone and companies whose turnover in the current year is more than Rs. 200 crores.
Aptus Software Labs Pvt. Ltd company is deriving revenue from both domestic as well as foreign company. The notes to the account being note 24 reveals the revenue is recognised by this comparable from service transactions. The NIC code being 6201 reveals the description to be information technology services as against computer programming, consultancy and related activities as submitted by the assessee in the synopsis. We therefore do not find any reason to exclude this company from the final list.
Working capital adjustment - Appropriate working capital adjustment allowed.
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2023 (8) TMI 1478
Rectification of mistake - Disallowance of claim of ESOP expenses being the difference between the fair market value of equity shares on the date of vesting of option and on the date of exercise of option - Tribunal as rightly followed the decision rendered by the Special Bench of Bangalore ITAT in the case of Biocon Ltd [2013 (8) TMI 629 - ITAT BANGALORE] has restored the matter to the file of the AO with certain directions, even though the points narrated by the Tribunal for so restoring the issue to the AO has already been decided by the Special bench constituting mistakes apparent from record.
HELD THAT:- Tribunal, we notice that the Tribunal did not appreciate the fact that the discount on ESOP arises on two different occasions. It also did not appreciate that the deduction claimed by the assessee represented second type of discount. We also notice that the Special bench of Bangalore ITAT in the case of Biocon Ltd [2013 (8) TMI 629 - ITAT BANGALORE] has appreciated the fact that there may arise second type of discount and has held that it is allowable as deduction. The Special bench has also held that the SEBI guidelines did not prescribe any mandatory accounting treatment for the second type of discount and accordingly held that the taxation principles will apply for allowing deduction of second type of discount.
The illustration 2 given in paragraph 11.1.6 specifically deals with the situation, when there is an increase in the market price of shares at the time of actual exercise of option and it has been held that the assessee would be entitled for further deduction at the time of exercise of option.It is pertinent to note that the above said decision rendered by the Special bench has since been upheld by the Hon’ble Karnataka High Court [2020 (11) TMI 779 - KARNATAKA HIGH COURT].
Thus we agree with the submission of the assessee that there are mistakes apparent from record in the decision rendered by the Tribunal. Miscellaneous application filed by the assessee is allowed.
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2023 (8) TMI 1477
Revision of other orders u/s 264 - rejection of applications being time barred - income derived from investment of shares though was claimed in the income tax return as capital gain, but the Department treated it as a business sale
HELD THAT:- As an abundant precaution, applications Exts. P6 and P7 were submitted to the Commissioner for rectification/revision of the orders for assessment years 2007-08 and 2009-10 to treat the same as has been done for the assessment year 2006-07. Though the aforesaid applications were submitted on 12.6.2014, it was beyond the period of one year as provided under the statute. Such delay could not have been condoned, as per the plain and simple reading of Section 264 extracted above.
Commissioner, in my view, rightly rejected the applications being time barred, though on other point the reasoning given is not sustainable in view of the ratio deciendi culled out in the judgment in Vijaya Gupta [2016 (3) TMI 977 - DELHI HIGH COURT] regarding the powers of Commissioner. The explanation given by the petitioner for condoning the delay was also not found satisfactory as it was a subsequent cause of action. Since delay has not been explained in a proper and reasonable manner, dismissal of the applications for revision of orders for the assessment years 2007-08 and 2009-10, vide orders dated 20.11.2015, Exts. P10 and P11, respectively, are perfectly correct and do not call for interference. Such an attempt was an afterthought realising the fact that for assessment years 2007-08 and 2009-10, return of income/gains arising from investment in equity shares was capital loss - Writ petition is bereft of merit and is accordingly dismissed.
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2023 (8) TMI 1476
Levy of GST - Storage Charges charged from the companies for storage of frozen green peas in the cold storage - Storage Charges comes under NIL GST Tariff under "Services by way of Storage or Warehousing of cereals, pulses, fruits and vegetables" vide N/N. 04/2022-Central Tax (Rate) dated 13.07.2022 or not - HELD THAT:- As per the definition of agricultural produce, agricultural produce is the produce out of cultivation of plants on which either no further processing is done or such processing is done as is usually done by a cultivator or producer which does not alter its essential characteristics but makes it marketable for primary market.
It is opined that various processes involved to change the Raw Green Peas into Frozen Green Peas, changes the basic essence and character of the product and after processing, it does not fall under the agricultural product or vegetable - the spirit of the law is to give exemption for storage of Green Peas in the form as defined at Para 2(d) of the N/N. 12/2017-Central Tax (Rate) dated 28.06.2017 only, and not for Processed Frozen Green Peas.
Thus, N/N. 12/2017-Central Tax(Rate) dated 28.06.2017 as amended by N/N. 04/2022-Central Tax (Rate) dated 13.07.2022, does not exempt the services of storage of processed frozen green peas and applicable GST has to be paid by the applicant.
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2023 (8) TMI 1475
Activity is supply or not - Levy of GST - Liquidated Damages recovered from the vendors - collection in the form of Liquidated Damages (LD) is consideration or not - whether the amount collected by them is consideration for tolerating an act and taxable service as per the entry at serial 5(e) of Schedule II or it is a Penalty / Compensation for not tolerating the act? - HELD THAT:- Upon going through the sample copy of the agreement submitted by the applicant, it is found that at SI. (viii) of the Point 4 GENERAL TERMS & CONDITION, it has clearly been stipulated that the service provider must ensure to provide the service within stipulated time period otherwise liquidated damages and not by way of penalty the sum of 0.5% of the contract price of the undelivered store for each and every week and part of a week for which the stores have been delayed subject to maximum of 10% of the value of delayed stores. This show that the quantum of liquidated damages has been determined pre-hand and there is no element of uncertainty in the same, whereas, to actually qualify as damage, there has to be an element of uncertainty. Damages are not known beforehand and if they are known beforehand, steps can be taken to act in such a way they don't occur.
It is clear that the amount recovered as liquidated damages is neither ad-hoc, unconditional nor at the discretion of the applicant or his vendors. The mathematical terms for calculation of such value clearly indicate that the act of breach is not inconvincible.
It is also found that in the contract, it is clearly mentioned that amount recovered, is not a penalty/compensation and maximum limit is only 10%, which appears very much within tolerable limit, and amount received in the name of liquidated damages, actually is a consideration for tolerating the act of not supplying stores in the prescribed time limit and hence in the light of section 7 read with definition of consideration under section 2 (31), liquidated damages recovered by the applicant from their vendors is a consideration, for tolerating of an act or a situation under an agreement and hence such an activity constitutes supply of service as per entry at serial 5 (e) of Schedule II and are exigible to tax @18% as per serial no. 35 of Notification No. 11/2017-Central /State tax rate, under HSN 9997.
GST is applicable on Liquidated Damages recovered from the vendors.
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9911796707
