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Showing 241 to 260 of 333 Records
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2025 (1) TMI 93
Assessment u/s 153A - Addition u/s 68 - as argued addition is not based on any incriminating material and rather it is based on 3rd party investigation report - CIT(A) deleted addition - HELD THAT:- We find that CIT(A) has passed a correct order wherein, it is abundantly clear that assessment u/s. 153A of the Act and in case of 153A of the Act assessment addition has to be made on the basis of incriminating material found during search.
But in this case, CIT(A) has clearly brought out that addition was not done on the basis of any incriminating material found during search. In this view of the matter, we find that CIT(A) has passed a well reasoned order, as supported by the decision of Abhisar Buildwell Pvt. Ltd [2023 (4) TMI 1056 - SUPREME COURT] wherein as expounded that no addition can be made when the assessment framed u/s. 153A dehors incriminating material found during the search. Decided in favour of assessee.
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2025 (1) TMI 92
Disallowance u/s 40A(2)(b) - excessive payments made to related or associate concerns - HELD THAT:- We hereby quote CBDT landmark Circular 6-P dated 6.7.1968 that the purpose of the impugned statutory provision is to check evasion of tax through excessive or unreasonable payments to related or associate concerns. Cas law in Sigma Research & Consulting Pvt. Ltd. [2019 (4) TMI 290 - DELHI HIGH COURT] as well as Indo Saudi Services (Travel) (P) Ltd. [2008 (8) TMI 208 - BOMBAY HIGH COURT] also settle the issue against the department that the impugned disallowance is not sustainable when both the payer and payee are assessed at the same rate in light of the foregoing circular. We accordingly delete the impugned section 40A(2)(b) disallowance in very terms. Assessee in favour of assessee.
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2025 (1) TMI 91
Revision u/s 263 - validity of Reopening of assessment u/s 147 - as per AO has not made necessary enquiries and ought to have taxed the investment made by the assessee in share and securities - HELD THAT:- When the AO having recorded the reasons for reopening the assessment and having formed a belief that income of the assessee had escaped assessment, but not made any addition in the reassessment proceedings, in respect of the issue that is the subject matter of reopening. Thus the very basis of formation of belief by the AO vanishes.
AO could not have framed any reassessment per se. Logically the Ld. AO ought to have dropped the reassessment proceedings instead of passing a separate reassessment order. Thus the reassessment order per se framed by the AO is not sustainable in the eyes of law. Therefore any consequential Revision proceedings thereon to revise the assessment is unsustainable in law and deserves to be quashed as held in the case of CIT Vs. Software Consultants [2012 (2) TMI 18 - DELHI HIGH COURT].
In the case of CIT Vs. Mohammed Juned Dadani [2013 (2) TMI 292 - GUJARAT HIGH COURT] wherein it was held that the ground on which reopening of assessment was based and no addition was made by the AO in the order of reassessment, he could not make additions on some other grounds which did not form part of the reasons recorded by him. Assessee appeal allowed.
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2025 (1) TMI 90
Levy of penalty u/s. 271AAB - allegation of defective notice - non mentioning of clear charge/default - additional income offered pursuant to the search treated as “undisclosed income”- whether non-mentioning of specific limb in the penalty show cause notice for which penalty proceeding u/s. 271AAB of the Act is initiated on the assessee would become fatal to the penalty proceeding per se? - HELD THAT:- From the notices it is very clear that the Ld. AO had not mentioned the specific limb on which the penalty proceedings u/s. 271AAB is sought to be initiated by him. The ratio laid down in decision of R. Elangovan [2021 (4) TMI 1131 - MADRAS HIGH COURT] squarely applies to the case before us wherein held AO should point out to the assessee as to under which of the three clauses, he chooses to proceed against the assessee so as to enable the assessee to give an effective reply. Since the same has not been mentioned, the assessee has been denied reasonable opportunity to put forth their submissions.notice is absolutely vague and none of the irrelevant portions had been struck off nor the relevant portions had been marked or indicated. Hence, the Tribunal is right in observing that the penalty could not have been levied based on such defective notice and more particularly, when the assessee has been strenuously canvassing the jurisdictional issue from the inception. Decided in favour of assessee.
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2025 (1) TMI 89
Rectification of mistake - treatment of fertilizer subsidy as capital receipts - The assessee filed rectification application after relying on the decision of Hon’ble Supreme Court regarding allowability of subsidy as capital receipt - AO has rejected the application filed by the assessee u/s 154 - CIT(A) held that the fertilizer subsidy received by the assessee in terms of the NBS policy during the year under consideration is not an income and same was treated as capital receipt not chargeable to tax.
HELD THAT:- Identical issue on similar fact in the case of the assessee for A.Y. 2015-16 has been adjudicated by the [2021 (8) TMI 982 - ITAT MUMBAI] in favour of the assessee as held that the scheme was mainly to attract the investment in the industry and the purpose test is that the attraction of new players in the industry and also attracts the existing players to bring new investment. How the benefit of scheme is passed on to the industry matters. Sometime, Govt. introduces direct concession in the investments or introduces mechanism in relation to the ultimate achievement of the objects of the scheme. In this scheme, the ultimate object is to make available the required fertilizers and at appropriate price to the farmers, this can be achieved only by bringing new investments in the industry.
This is a recurring issue in the case of the assessee which has already been adjudicated by the ITAT in favour of the assessee as discussed supra in this order therefore following the decision of the ITAT and other judicial findings as elaborated in the findings of ld. CIT(A) we do not find any merit in this appeal of the revenue therefore the same stand dismissed.
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2025 (1) TMI 88
Revocation of customs broker license - forefeiture of security deposit - levy of penalty - submission of forged graduation degree, at the time of applying for grant of the license, had submitted a forged graduation degree. Raj Kumar was, accordingly, asked to submit attested copy of the graduation degree and Raj Kumar did submit a self-attested copy of the graduation degree.
Forged degree or not - HELD THAT:- On a complaint received by the department, a query was made by the department from the Chaudhary Charan Singh University, Meerut regarding the genuineness of the graduate degree which the appellant had submitted to the department at the time of seeking appointment as a Customs Broker. The University, in no uncertain terms, informed the department that the details given in the graduate degree were not as per the University enrollment records or the confidential records. At the instance of the appellant the University again sought confirmation of the earlier report sent by the University and the University again informed the department that the earlier information given by the University was correct. The appellant has not produced any document from the University to substantiate that the graduate degrees submitted by the appellant is a genuine degree and only a bald assertion has been made by the appellant that the graduate degree submitted by the appellant is not forged. The finding recorded by the Commissioner that the graduate degree submitted by the appellant is a forged degree, therefore, does not suffer from any infirmity.
Effect of such a forged graduate degree on the Customs Broker License issued to the appellant - HELD THAT:- Once it is found that the graduation degree obtained by the appellant is a forged degree, the appellant clearly did not satisfy the essential requirement contained in clause 5(f) of the 2013 Regulations for appointment as a Customs Broker.
The 2018 Regulations came into effect from 14.05.2018. When the complaint was received by the department against the appellant regarding the graduation degree, the 2018 Regulations had come into force. These Regulations supersede the 2013 Regulations, except as respect things done or omitted to be done before such supersession. Under regulation 1(3) of the 2018 Regulations, the 2018 Regulations shall apply to a Customs Broker who had been licensed either under the 2018 Regulations or under the earlier 2013 Regulations. Regulation 14 of the 2018 Regulations deals with revocation of license. It is in accordance with regulation 17 of the 2018 Regulations that a show cause notice was issued to the appellant and action was taken after the appellant was provided adequate opportunity by the enquiry officer and after the appellant was provided an opportunity to submit comments to the report submitted by the enquiry officer.
Whether an applicant who had submitted a forged graduation degree, which degree is an essential requirement for appointment as a Customs Broker, can be permitted to continue as a Customs Broker? - HELD THAT:- In M/S INDIAN OIL CORPORATION LTD. VERSUS SHRI RAJENDRA D. HARMALKAR [2022 (4) TMI 1423 - SUPREME COURT] the Supreme Court observed that an employee who has produced a fake and forged mark sheet at the initial stage of appointment cannot be trusted by the employer.
A person who has a submitted a forged graduation degree to seek appointment as a Customs Broker, therefore, should not be permitted to work as a Customs Broker - Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression “fraud” involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage. Dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances Courts should not perpetuate the fraud.
In UNITED INDIA INSURANCE CO. LTD VERSUS RAJENDRA SINGH & ORS, [2000 (3) TMI 1077 - SUPREME COURT], the Supreme Court again observed that “fraud and justice never dwell together” (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries.”
Conclusion - The inevitable conclusion, therefore, that follows from the aforesaid discussion and the decisions is that the appellant who had been granted a Customs Broker License on the basis of a forged graduation degree cannot be permitted to continue to work as a Customs Broker - The submission of the learned counsel for the appellant that action could have been taken only under the 2013 Regulations and not under the 2018 Regulations cannot also be accepted.
There is, therefore, no infirmity in the order dated 01.07.2020 passed by the Commissioner revoking the Customs Broker License of the appellant and forfeiture of the security deposit and also imposing penalty of Rs. 50,000/- on the appellant - appeal dismissed.
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2025 (1) TMI 87
Interest on delayed refund of the Anti-Dumping Duty (ADD) deposited during the investigation - determination of interest on delayed refund as per Section 27 and 27A of the Customs Act, 1962 - time limitation - principles of unjust enrichment - HELD THAT:- It is settled position in law that interest on any amount deposited arises on two accounts – either as contractual liability or as statutory liability (prescribed by the statute). Appellant has not shown anything by which it can be shown that the interest being claimed by them is in terms of any contract entered between them and the DRI or the Customs Department. The interest being claimed has arisen as a result of the provisions of statute. As per the appellants own submissions in the appeal filed by the appellant, the amount claimed as refund has been deposited by them during the 2011.
Even if the claim of the appellant is accepted that the amount deposited by them should be treated as “deposit” or as “revenue deposit”, then alos the interest provisions as provided by Section 129EE of the Customs Act, 1962 as it existed on the dated of deposit shall be applicable.
It is settled principle in law that when the statute prescribes a manner of performance of an act then that is only method of performance all other methods are necessary barred. When the statute prescribed manner of computation of interest on the said deposits, then that would be only available method and all other methods are necessary barred - Admittedly all the amounts claimed as refunds were deposited in the year 2011 much prior to 06.08.2014 and hence the interest could not have been granted in terms of this section from the date of deposit.
It is also settled principle in law that tribunal being creature of statute cannot go beyond the provisions of the statute. Any order which has taken contrary view is beyond the jurisdiction vested in tribunal and hence should be treated as nullity. The case of Parle Agro [2021 (5) TMI 870 - CESTAT ALLAHABAD] relied upon by the appellant was in respect of deposit made on 01.12.2005. Section 129EE was inserted in the Customs Act, 1962 by Section 73 of the Finance Act, 208 (Act 18 of 2008). Prior to insertion of this section there was no specific provision in respect of interest o n the deposits made, and sought to be refunded as per the decisions of the appellate authority. Nearly all the decisions referred to by the appellant are in respect of the deposits made prior to this insertion, hence are distinguishable.
Reliance placed in the case of JINDAL PIPES LTD VERSUS COMMISSIONER, CGST, NOIDA [2024 (12) TMI 1448 - CESTAT ALLAHABAD] where it was held that 'Interest would be paid from the date of deposit made.'
Conclusion - The interest on the refund is payable from the date of filing the refund application, not from the date of deposit.
There are no merits in the appeal - appeal dismissed.
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2025 (1) TMI 86
Denial of request for amendment of the Bill of Entry under Section 149 of the Customs Act, 1962 - benefit of exemption in terms of Doctrine of Substantial Compliance - HELD THAT:- The respondent have undisputedly made an application for getting the duty exemption certificate to the concern ministry well in advance from the date of importation, it was only for the reason of non-receipt of the duty exemption certificate and to avoid any further demurrage charges, they cleared the goods on the basis of self assessment for payment of duty.
The respondent had taken all the necessary steps to obtain the said certificate well in advance which was being delayed in the concern ministry even the submission of that application and receipt thereof can be considered as a valid document for the purpose of allowing the benefit of exemption in terms of Doctrine of Substantial Compliance. Amendment as requested for in terms Section 149 of the Customs Act, 1962 should have been allowed. That is what Commissioner (Appeals) have also observed. Section 149 of the Act is wide enough for taking care of such exigencies, hence, denial of such amendment for the reason as stated in the appeal cannot be upheld and consequently the appeal filed by the revenue lacks merit.
Appeal dismissed.
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2025 (1) TMI 85
Mis-declaration of imported goods - enhancement of value - Chartered Engineer without making any inquiry, adopted the domestic market value of the imported goods - HELD THAT:- The present case arises out of examination and seizure of the imported goods pertaining to 18 import consignments. We find that M/s Skyblue International Trading Company have imported total 5 import consignment which were examined by the officers of DRI and during examination of the goods mis-declaration were observed in respect of value, quantity and other material particulars. The Ld. Commissioner in impugned order held that the declared value in respect to the containers is liable to be rejected under Rule 12 of the CVR, 2007 and to be re-determined under Section 14 of the Customs Act, 1962 readwith Rule 9 of the CVR, 2007. The report of the Chartered Engineer merits to be considered as the basis for arriving at assessable value of impugned goods. The Ld. Commissioner relied upon the Chartered Engineer reports and enhanced the value in terms of Rule 9 of the Customs Valuation Rules.
The Chartered Engineer completely failed to provide the justification as to what was the difference in the quality imported by the Appellant vis-a-vis the quality of goods which had been examined for arriving at the assessable value. The Chartered Engineer also failed to provide the details with respect to who were the suppliers / manufacturers for the goods which were examined against the imported goods to arrive the conclusion that the disputed goods are undervalued. Also, what were the differences with respect to the specification and characteristics of the goods making it differentiable with respect to the imported goods. It is also not provided what quality parameters were examined so as to differentiate the two products.
In the present case, the IEC holder lent the IEC to Mr. Asif Sathi who carried the imported goods to his godown/warehouse located at Mumbai. In such circumstances, merely no business activities were noticed at the time of investigation would not lead to alleged smuggling of goods. In this context we also find that there is no provision under the Customs Act, 1962 which prohibits the use of IEC of third party who is holding valid IEC Number. In view of the above, the Appellant cannot be made liable for the alleged imports made in the name of IEC holders.
Penalties u/s 112, 114A and 114AA of the Customs Act, 1962 - HELD THAT:- There is no reason whatsoever to impose penalties on the three Appellants, accordingly penalties imposed on the said appellants are liable to be set aside.
Conclusion - i) The Chartered Engineer’s certificate and value of the subject imported goods worked out on the basis of said certificate are hereby rejected. ii) The value of subject imported goods shall be assessed on the basis of contemporaneous import/NIDB data after providing the details/ documents to the appellants. Only in cases where contemporaneous value based on NIDB is not available, the value shall be determined as per Valuation Rules sequentially and by deductive method on the price and the details/ documents of such price shall be first provided to the appellant. iii) The issue of penalty and the redemption fine in the matter being remanded is kept open.
Appeal disposed off.
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2025 (1) TMI 84
100% EOU - request for conversion of shipping bills from EOU to DEPB and drawback scheme - rejection of request for conversion on the ground that when the export has taken place under shipping bill mentioning EOU, the final de-bonding was not completed, the final de-bonding was completed only on 21.01.2010 - Applicability of Section 149 of the Customs Act, 1962 - Learned Commissioner while rejecting request for conversion neither issued any show cause notice nor granted any personal hearing - violation of principles of natural justice.
Violation of principles of natural justice - HELD THAT:- The decision taken for rejecting the conversion from EOU shipping bill to DBK/DEPB shipping bill is absolutely in gross violation of natural justice. Therefore the said decision is liable to be set aside on this ground alone. However, this Tribunal being a final fact finding authority considered the fact of the present case and it is found that there is no dispute that the appellant have been paying duty on all their clearances after debonding and also paid the duty on the closing stock, therefore all the goods cleared for export suffered the duty on the inputs raw material in process material therefore the appellant were clearly eligible for conversion of shipping bill from EOU to DBK/DEPB scheme. There is no fault on the part of the appellant in filling the EOU shipping bill for the reason that though the appellant had discharged all the duties and started paying duty for the subsequent clearances but since they were not given the final NOC, they could not have filed DBK/DEPB shipping bill. Therefore in these circumstances there are no reason for denying the conversion of EOU shipping bill to DBK/DEPB shipping bill.
Applicability of Section 149 of the Customs Act, 1962 - HELD THAT:- From the section 149, it is clear that the only condition to be fulfilled for conversion is that at the time of export the documentary evidence should be existed on the basis of which the conversion can be made. In the present case there is no dispute that the export of the goods have been made out of duty paid inputs and the EOU shipping bill was filed for want of final NOC. Therefore in this case the appellant’s case is clearly covered by Section 149 of the Customs Act, 1962.
Thus, the appellant is legally entitled for conversion of EOU shipping bill to DBK/DEPB shipping bill.
Conclusion - i) The decision taken for rejecting the conversion from EOU shipping bill to DBK/DEPB shipping bill is absolutely in gross violation of natural justice. ii) In the present case there is no dispute that the export of the goods have been made out of duty paid inputs and the EOU shipping bill was filed for want of final NOC. Therefore in this case the appellant’s case is clearly covered by Section 149 of the Customs Act, 1962.
The decision of the Commissioner rejecting the conversion of EOU shipping bill to DBK/DEPB shipping bill is set aside - Appeal allowed.
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2025 (1) TMI 83
Condonation of delay in filing of appeal - time limitation - HELD THAT:- Undisputedly, the normal period of limitation for filing appeal before Commissioner (Appeals) was till 24.02.2020 and appellant have filed the appeal alongwith the application for condoning of delay beyond the normal period as prescribed in law. Commissioner (Appeals) after examining the grounds stated in the condonation of delay application he could have condoned the delay of only 30 days.
As per the decision by Hon’ble Supreme Court in IN RE : COGNIZANCE FOR EXTENSION OF LIMITATION [2020 (5) TMI 418 - SC ORDER], after taking note of pandemic condition prevailing in the country during the period starting from 15.03.2020 has provided that the appeals should have been allowed to be filed even if the period of limitation would have expired. After that date the period of limitation available to the appellant alongwith the application of condonation of delay would have expired on 27.03.2020. It is observed by Hon’ble Supreme Court, do not makes any distinction between the appeal to be filed within the normal period of limitation or to be filed alongwith the condonation of delay. During the period of pandemic, it was expected that liberal views should have been taken and appeal to be considered on merits as in the light of decision by Hon’ble Supreme Court.
Conclusion - The period of limitation expired on 24.02.2020, and the delay in filing the appeal was much beyond the period of 30 days. The appeal is time barred.
Appeals are allowed by way of remand to Commissioner (Appeals).
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2025 (1) TMI 82
Maintainability of petition - availability of alternative remedy - Money Laundering - territorial jurisdiction of Rajasthan High Court to entertain the writ petition challenging the order of the NCLT, Mumbai - jurisdiction of NCLT, Mumbai to vacate the attachment orders issued by the Enforcement Directorate (ED) under the PMLA, 2002 - vacation of attachment order in exercise of powers under Section 238 of the IB Code read with Rule 11 of the NCLT Rules - petitioner was not made party in the proceedings before the NCLT, Mumbai - violation of principles of natural justice.
Violation of principles of natural justice - HELD THAT:- The order dated 27.09.2023 was passed by the High Court of Bombay after hearing and in presence of the counsel for ED but no such argument, which was raised herein as referred in the stay order dated 06.07.2023 was made by the counsel for ED, rather even after dismissal of the writ petition with aforesaid observations, the order dated 27.09.2023 was not put to challenge by the ED in any manner. It is not worthy that the SLPs preferred against the judgment and order dated 27.09.2023 have also been dismissed by the Hon'ble Supreme Court in NARESH SUNDARLAL JAIN VERSUS UDAIPUR ENTERTAINMENT WORLD PRIVATE LIMITED & ANR. [2023 (10) TMI 1478 - SC ORDER].
Further, a perusal of stay order dated 06.07.2023 also reveals that counsel for petitioner strongly raised another point that the petitioner was not impleaded as party in the CIRP before the NCLT, Mumbai and the order dated 24.02.2022 has been passed by the NCLT, Mumbai behind back of the petitioner, which suffers from blatant violation of the principles of natural justice.
In respect of such plea of petitioner, for violation of principles of natural justice, this Court, having considered the rival contentions of counsel for both sides and gone through the undisputed documents on record, prima facie, finds that the petitioner was well aware about the pending proceedings before the NCLT, Mumbai under the IB Code - It is noteworthy that the ED also replied one letter and e-mail dated 22.06.2021, through its reply letter dated 25.06.2021 to the resolution professional. Thus, such material on record explicitly reflects that the petitioner cannot make out a case to the effect that petitioner was not aware about proceedings pending before the NCLT, Mumbai, at the instance of respondents under the IB Code and further, this factual aspect has also not been disputed by the counsel appearing for and on behalf of petitioner. Thus, prima facie, it appears that the petitioner cannot take resort of the violation of principles of natural justice and cannot plead unawareness to the proceedings before the NCLT, Mumbai and the order dated 24.02.2022 passed therein. Therefore, this Court is prima facie of the opinion that in such view of the undisputed factual matrix, the petitioner cannot be allowed to take a pretext of non-imleading him as party before the NCLT, Mumbai, rather it is a case where petitioner, knowingly and deliberately, himself did not opt to intervene in the matter and CIRP pending before the NCLT, Mumbai.
Maintainability of petition - availability of alternative remedy - HELD THAT:- The petitioner was well aware of the proceedings and the order dated 24.02.2022 passed by the NCLT, Mumbai, yet he did not avail the statutory remedy of filing of appeal against the order dated 24.02.2022 before the NCLAT, Delhi within prescribed period of 45 days (30+15 days), which was available to the petitioner under Section 32 read with Section 61 of the IB Code, 2016. Hence, after losing the available statutory remedy, petitioner has invoked the writ jurisdiction of the High Court by filing the writ petition on 10.03.2023, which has been filed after a delay of about one year from passing of the impugned order dated 24.02.2022 by NCLT. From this angle also, petitioner has no prima facie case to sustain the stay order dated 06.07.2023 and same deserves to be vacated.
Power and jurisdiction of the NCLT, to vacate the attachment orders issued by the ED - HELD THAT:- This Court refraining itself to give any findings on such legal issue, at this stage, which may affect merits of the writ petition. However, such legal issue shall be considered and decided whenever the occasion comes to hear the writ petition on merits. Similar is in respect of all other contentions, made by the respective counsels for parties, which also touch to the maintainability and merits of the writ petition, hence, same shall be considered at the time of final hearing of the writ petition.
Conclusion - i) The petitioner cannot take resort of the violation of principles of natural justice and cannot plead unawareness to the proceedings before the NCLT, Mumbai and the order dated 24.02.2022 passed therein - ii) The stay order was vacated, and the court directed the petitioner to address the jurisdictional issue and consider converting the writ petition under Article 226 of the Constitution.
In the opinion of this Court, stay order dated 06.07.2023 is liable to be vacated and hence, as a final conclusion, the stay order is hereby vacated. The application filed by the respondents under Article 226(3) of the Constitution of India stands allowed and consequentially the stay application of petitioner is hereby dismissed.
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2025 (1) TMI 81
Non-admission of the claim by the Resolution Professional - direction to IRP to get the Resolution Plan modified so as to comply with Regulation 42 and 44 of the Liquidation Process Regulations, 2016 - deduction of amount from the final payment to be made to Applicant as per the scheme of distribution of amount under Resolution Plan - direction to Respondent Resolution Professional to further include amounts towards LC payments and towards Bank Guarantee (BG) payments in the total admitted claim of Applicant - HELD THAT:- The Resolution Plan came to be approved by the CoC with vote share of 70.07%. The appellant has voting share of 6.64% and Appellant voted against the Resolution Plan and thus, was a dissenting financial creditor. The Resolution Plan which is approved in commercial wisdom of the CoC binds all stakeholders including the dissenting financial creditor.
The commercial wisdom of the CoC approving the Resolution Plan is binding on all, which is law laid down by the Hon’ble Supreme Court in K. Sashidhar vs. Indian Overseas Bank & Ors. [2019 (2) TMI 1043 - SUPREME COURT] and the Hon’ble Supreme Court decision in Committee of Creditors of Essar Steel India Limited vs. Satish Kumar Gupta and Ors. [2019 (11) TMI 731 - SUPREME COURT] where it was held that 'The NCLAT judgment which substitutes its wisdom for the commercial wisdom of the Committee of Creditors and which also directs the admission of a number of claims which was done by the resolution applicant, without prejudice to its right to appeal against the aforesaid judgment, must therefore be set aside.'
One of the subject on which CoC is to approve a Resolution Plan is “the manner of distribution proposed”. As noted above, the manner of distribution which was approved by the CoC in 31st CoC meeting contained an approval of deduction of Rs.33.34 Crores from payout of the Appellant. Appellant-Financial Creditor by IA No.222 of 2020 had challenged in effect the decision of the CoC taken in 31st CoC meeting held on 07.02.2020 approving the distribution and opting for second option i.e. deduction of Rs.34 Crores from payout of the Appellant. Appellant- Dissenting Financial Creditor is fully bound by the decision of the CoC and cannot be allowed to challenge the same - It is relevant to notice that by order of the same date 09.07.2020 when IA No.222 of 2020 was decided Resolution Plan was also approved.
Conclusion - No grounds have been made out to interfere with the order passed by the Adjudicating Authority - The CoC's decision to deduct Rs.34 Crores from the Appellant's payout was deemed valid, based on its commercial wisdom and the binding nature of the Resolution Plan. The Appellant, as a dissenting financial creditor, was bound by the CoC's decision, and no grounds were found to interfere with the adjudicating authority's order.
Appeal dismissed.
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2025 (1) TMI 80
Seeking issuance of ex-parte ad-interim order directing the Respondents not to access and copy the contents of Mobile phone of the Applicant No. 2 - issuance of ex-parte ad-interim order staying the effect and operation of summons under Section 50 of the PMLA issued to the Applicant No.2 and the summons - HELD THAT:- Issue notice on the application seeking interim relief, returnable on 17th February, 2025.
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2025 (1) TMI 79
Rejection of the application under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (SVLDRS) - grievance of the respondent before the learned Single Judge was that, it was ready and willing to pay the amount as notified by the appellants in Form No. 2 for availing the benefit of the SVLDR scheme.
HELD THAT:- The learned Single Judge has in the impugned order given a finding that the impugned communication dated 30.01.2020 is contrary to the circular dated 12.12.2019 which is issued regarding the applicability and maintainability of the scheme.
In fact, the learned counsel for the appellants would concede to the fact that, the circular dated 12.12.2019 do not contemplate a situation wherein the audit having been carried out before 30.06.2019, an action can be taken after that date, more so when the appellants have issued Form No. 2 and the respondent submitted Form 2A - the appellants concede that, the Form No. 2 which was issued to the respondent has not been withdrawn.
Conclusion - The timelines granted by the learned Single Judge are extended by 15 days, 4 weeks and 2 weeks respectively from the date of receipt of a certified copy of this order.
Appeal dismissed.
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2025 (1) TMI 78
Quantification of education cess and secondary & higher education cess - to be calculated on the gross service tax amount or the net service tax amount after deducting the R&D cess exemption? - computation on best judgment basis - invocation of extended period of limitation - HELD THAT:- It is found that in the Appellant’s own case for the subsequent period pertaining to financial year 2014-15 and 2015-16 involving the identical issue as involved in the present case, the Commissioner vide Order-in-Original No. 08/ST/COMMR/VMJ/RTK/2017-18 dated 29.12.2017 has allowed the benefit in favour of the Appellant and the department has accepted the said order and has not filed any appeal against the same.
Since the department has accepted the order of the Commissioner dated 29.12.2017, which has now attained finality and the present proceedings have also arisen on the basis of same audit, therefore, it is held that the issue is squarely covered in favour of the Appellant. Further, the Appellant had rightly paid the education cess and secondary & higher education cess on the amount of net service tax i.e. service tax after deducting the amount of R&D cess i.e. exempted amount.
Conclusion - The appellant had rightly paid the education cess and secondary & higher education cess on the amount of net service tax i.e. service tax after deducting the amount of R&D cess i.e. exempted amount.
The impugned order is not sustainable in law - Appeal allowed.
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2025 (1) TMI 77
Liability of appellant to pay service tax - appellant is a car dealer collecting handling charges in their sale bill of selling of car to individual customer - HELD THAT:- In the facts of the present case there is no dispute that the handling charges is shown in the sale bill of the car and on the total elements that is sale price of the car, handling charges and other charges, the appellant have calculated the VAT at the rate of 12.5%+2.5% and the total bill value was collected from the customer of the car, Therefore the total bill value is a sale value of the car and the handling charges is part of the sale price on which the VAT has been paid. Therefore the handling charges being the part of the sale price the same again cannot be subject to levy of service tax.
From the decision in JIVAN JYOT MOTORS PVT LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE & ST, SURAT [2023 (7) TMI 1178 - CESTAT AHMEDABAD] it can be seen that the issue in hand is squarely covered by the decision. Therefore the handling charges is not liable to service tax.
In the present case there is no dispute from the VAT department that the handling charges whether is liable to VAT or otherwise. Since the appellant has charged the VAT on handling charges and the same attained finality as there is no record whether the charging of VAT is incorrect the handling charges in the fact of the present case cannot be charged to service tax.
Conclusion - The handling charges included in the sale invoice of the car, on which VAT was paid, are not liable for service tax.
The impugned order is set aside. Appeal is allowed.
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2025 (1) TMI 76
Levy of service tax - Export of Services or not - services provided by the appellant to its group companies situated outside India - whether the foreign establishment who is the service recipient is the establishment of the appellant or it is separate? - HELD THAT:- The adjudicating authority has not properly understood that the appellant and the service recipient are whether separate entity referring to item b of explanation 3 of Clause 44 of Section 65B of the Finance Act, 1994, therefore the entire matter needs a reconsideration in the light of the judgments in the identical facts.
The issue involved in the present case is squarely covered by the decision in the case of CELTIC SYSTEMS PRIVATE LIMITED VERSUS C.C.E. & S.T. -VADODARA-I [2022 (6) TMI 306 - CESTAT AHMEDABAD] where it was held that 'it is clear that in the present case the appellant and the service recipient are two distinct person, hence, the service provided by the appellant to M/s. Celtic Cross Holding Inc. USA clearly falls under export of service.'
Conclusion - The adjudicating authority has not properly understood that the appellant and the service recipient are whether separate entity referring to item b of explanation 3 of Clause 44 of Section 65B of the Finance Act, 1994 and the matter needs remand.
Matter remanded to the adjudicating authority for passing a fresh order.
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2025 (1) TMI 75
Classification of service - Erection, Commissioning and Installation service or Commercial or Industrial Construction service - abatement claim rejected on the ground that the appellant has not included the value of free supply material in the taxable value - revenue neutrality.
HELD THAT:- Iit is an admitted fact that the major portion of the demand is confirmed under the category of 'Commercial or Industrial Construction' Services. Further, lying of long-distance gas pipeline can only be considered as a 'Works Contract service'. Moreover, abatement was denied by the original authority on the ground that some of the goods are supplied by the main contractor. The issue of inclusion of the value of free supply material in the taxable value is covered in the case of COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [2018 (2) TMI 1325 - SUPREME COURT] - in this case the period involved is 01.06.2005 to 30.09.2006.
As per the judgment of the Hon’ble Supreme Court in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT], the activity of the appellant can be considered only as a works contract since it involved supply of goods and services and prior to 01.06.2007 the activity is not taxable under the category of 'Commercial or Industrial Construction Service'.
Conclusion - The activity is not taxable under the category of 'Commercial or Industrial Construction Service' prior to 01.06.2007 as the activity involved supply of goods and services.
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2025 (1) TMI 74
Classification of service - Online Information Data and Access Retrieval’ (OIDAR) Service or not - refund claims under Rule 5 of the CENVAT Credit Rules, 2004 - export of services or not - HELD THAT:- As per the agreement, foreign entity provides raw data to the Appellant in form of manuscripts, articles, photographs and other content required for carrying out the various activities by the Appellant such as copyediting, typesetting, formatting, proofreading, graphic designing, indexing, coding, etc. by using human skill and labour on such data and sends the same in electronic form through internet for access by foreign entity. In this whole process, the ownership of the data vests solely with the foreign entity and is not transferred to the Appellant. The services provided by the appellant do not qualify as OIDAR services as per the above definition.
As per the provisions of the said services, appellants are not owing or providing any data through the network of computers to anybody, their services do not fall under the category of OIDAR Services. A basic requirement for classification under the said category that services should have been in respect of the data owned by the person by way of providing access and retrieval of the same to some other person. Nothing has been brought on record to show that appellants have provided any of such services. Just for the reason that appellants have got themselves registered under this category, cannot be a reason for holding that the services provided by the appellants fall under this category.
The services provided by the appellants do not fall under the category of OIDAR Services, there are no merits for denial of the refund claims filed by the appellants under Rule 5 of Cenvat Credit Rules read with Notification No.27/2012-ST dated 18.06.2012.
Conclusion - The classification of services must be based on the nature of the services provided, not merely on registration categories. Export of services is determined by the location of the service recipient and the nature of the transaction. The services provided by the appellants are not OIDAR services. The appellants are entitled to a refund under Rule 5 of the Cenvat Credit Rules as the services qualify as exports.
Appeal allowed.
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