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Showing 81 to 100 of 1367 Records
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2023 (11) TMI 1287
Refund claim - unjust enrichment - time limitation - HELD THAT:- The judgment rendered inter partes on 06 August 2018 has attained finality. Even the Supreme Court in its order of 15 September 2023 [2023 (12) TMI 131 - SC ORDER] has not interfered with the judgment handed down by this Court. Thus, issues which stand conclusively settled in terms thereof cannot be reopened.
The observation of the Hon’ble Supreme Court with respect to the contentions being left open to be agitated by parties on merits, can only be confined to an issue which did not stand concluded in terms of the judgment which was rendered on 06 August 2018.
There are no ground to interfere with the order impugned - appeal dismissed.
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2023 (11) TMI 1286
Jursdiction - power to grant anticipatory bail Under Section 438 of the Code of Criminal Procedure - power of the High Court or the Court of Session to grant anticipatory bail Under Section 438 of the Code of Criminal Procedure could be exercised with respect to an FIR registered outside the territorial jurisdiction of the said Court or not - practice of granting transit anticipatory bail or interim protection to enable an Applicant seeking anticipatory bail to make an application Under Section 438 of the Code of Criminal Procedure before a Court of competent jurisdiction is consistent with the administration of criminal justice or not.
HELD THAT:- This Court's jurisprudence on Section 438 of Code of Criminal Procedure, particularly in Gurbaksh Singh Sibbia [1980 (4) TMI 295 - SUPREME COURT] and Sushila Aggarwal [2020 (1) TMI 1193 - SUPREME COURT], has towed the line of wise exercise of judicial discretion while interpreting the silence of the Parliament to imply an intention to facilitate the grant of essential procedural relief to secure the right to life and personal liberty Under Article 21.
Whilst the Constitution Bench in Gurbaksh Singh Sibbia ruled against the procedural and substantive restrictions on the grant of relief of anticipatory bail, the Constitution Bench in Sushila Aggarwal held that the period of anticipatory bail cannot be limited, and may extend till the end of trial. The judgment of the Constitution Bench in Gurbaksh Singh Sibbia, in para 13, emphasises that, 'the High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant.'
A remedy such as anticipatory bail secures citizens afflicted in difficult life circumstances - and such difficulties would keep evolving as our collective lives and legal systems become more complex - The omission of any qualification of the expression 'the High Court or the Court of Session,' ought to be constructed in a fashion that furthers the constitutional ideal of safeguarding personal liberty. It would be in furtherance of fostering personal liberty enshrined in Article 21 of the Constitution of India in entrusting a wider jurisdiction to the Court of Session and the High Court in the grant of anticipatory bail, than in foreclosing the same by restructuring the exercise of jurisdiction in the matter of grant of anticipatory bail.
The exercise of the jurisdiction for grant of extra-territorial anticipatory bail must be cognizant of the possibility of forum shopping - it is deemed necessary to take note of the evolution of the law on inter-state arrests, as this lies at the heart of 'apprehension of arrest,' for which the extraordinary jurisdiction of the High Court and Court of Session are attracted in case the Accused resides in or is located in a territorial jurisdiction different from the jurisdiction in which cognizance of crime is taken by the Court of competent jurisdiction.
Considering the constitutional imperative of protecting a citizen's right to life, personal liberty and dignity, the High Court or the Court of Session could grant limited anticipatory bail in the form of an interim protection Under Section 438 of Code of Criminal Procedure in the interest of justice with respect to an FIR registered outside the territorial jurisdiction of the said Court, and subject to the fulfilment of conditions imposed.
The impugned orders are set aside - appeal allowed.
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2023 (11) TMI 1285
Insider trading - unlawful gain as in dealing in securities on the basis of unpublished price sensitive information - Pledge of shares
- Noticees were found to have dealt in / sold / transferred SCSL shares held by them ‘while in possession of’ UPSI, thereby violating the provisions of Section 12A(d) and (e) of SEBI Act and Regulation 3(i) of PIT Regulations.
HELD THAT:- Promoter group loan liabilities extinguished through sale of Satyam shares by the lenders, involved unlawful gains made by SRSR along with Ramalinga Raju and Rama Raju, akin to them having directly conducted such sales of SCSL shares in the market.
While the trigger to sell the shares may have been pulled by the lenders, they were not stopped from doing so by SRSR and the Raju brothers, who should have instead arranged for alternate funds to extinguish the loan obligations or increase loan collateral. When an insider allows the sale of pledged shares by a lender to extinguish a loan liability, while in possession of UPSI, this does involve an unlawful gain, akin to the insider having directly sold the shares in the market. As discussed earlier in this Order, the Hon’ble Supreme Court had affirmed the finding of the Second SAT Order which described SRSR as a ‘front entity’ used by the promoters/Raju brothers. SRSR was used for promoter entities to avail loans by pledging shares transferred to SRSR by the Raju family. By allowing the pledged shares to be sold by the lenders to extinguish the loan liability, effectively SRSR ensured unlawful gains for it and the promoters, akin to it selling the shares in the market directly.
Acquisition of 2,78,64,000 SCSL shares by SRSR from the Raju Family were funded by Raju family themselves. Bank balance of the ICICI account in question reveals that SRSR had NIL funds as on the date of the acquisition of shares by SRSR. Sans the fund transferred to SRSR on the very same day by the Raju family, SRSR would not have been in a position to purchase the 2,78,64,000 SCSL shares from the very same Raju family.
Therefore, effectively, SRSR had acquired the said shares without paying any consideration. The pledging of SCSL shares by SRSR and selling of the said pledged shares in the market on account of invocation of pledge by financial institutions (due to margin shortfall) amounted to an indirect sale of SCSL shares by SRSR on behalf of the Raju brothers.
Further, due to invocation of pledge, the liability to repay the loans was also extinguished. The contention that shares were acquired by SRSR from the Raju family (which as observed in the Second SAT order were the promoters of Satyam) for ‘valuable consideration’ appears to be an attempt to lend artificial legitimacy to the transactions.
The so-called acquisition of shares can only be viewed as movement of shares from the left pocket to right pocket of the main perpetrators of the scam- Ramalinga Raju and Rama Raju. Allowing the deduction of this bogus cost i.e. the cost of acquisition, on the strength of the aforementioned round tripping of funds would end up in grossly injuring the confidence of investors in the integrity of the securities market.
In view of the same, we do not find any reason to deduct the claimed cost of acquisition of Satyam shares amounting to INR 2,266 crore from the unlawful gain made by SRSR. Also do not agree with the contention that since the cost of acquisition is more than the loans obtained, there is no basis for issuing a disgorgement order against SRSR.
Thus, in exercise of the powers conferred under section 11, 11(4) and 11B of the SEBI Act read with section 19 of the SEBI Act, 1992, and regulation 11 of SEBI (Prohibition of Fraudulent and Unfair Trade Practices Relating to the Securities Market) Regulations, 2003, and regulation 11 of the Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations, 1992, for the reasons elaborated in paras 93 and 94 of this Order, hereby restrain the following noticees from accessing the securities market and further prohibit them from buying, selling or otherwise dealing in securities, directly or indirectly, or being associated with the securities market in any manner.
Also in exercise of the powers conferred upon me under section 11, 11(4) and 11B of the SEBI Act read with section 19 of the SEBI Act, 1992, and regulation 11 of SEBI (Prohibition of Fraudulent and Unfair Trade Practices Relating to the Securities Market) Regulations, 2003, and regulation 11 of the Securities and Exchange Board of India (Prohibition of Insider Trading) Regulations, 1992, hereby direct that the Noticees shall disgorge the unlawful gain made by them calculated in Table No. 19 of this Order, along with simple interest at the rate of 12% per annum from January 07, 2009 till the date of payment.
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2023 (11) TMI 1284
Disallowance of 50% of the interest claim - AO found that the assessee is enjoying the cash credit limit and it is noticed that there is no change in the cash credit limit. So, there is no addition funds are raised - HELD THAT:- Activities of the assessee are more requirement of lands for maintaining the livestock, chilling of milk, distribution. All are related to business. Further the opening and closing balance of cash credit limit does not reveal that there is no use of funds of the assessee.
We respectfully relied on the order of Vardhman Polytex Ltd. [2012 (9) TMI 519 - SC ORDER] The disallowance of 50% interest has no basis. The use of land purely business purpose. DR was not able to submit any contrary judgment against the assessee. So, the appeal order related this issue is setting aside. We quash the addition - ground no. 4 is allowed.
Carry forward of loss - The carry forwarded loss is eligible for deduction subject rectification of preceding years. In point of verification and for calculation we remand back the issue to the file of the AO for allowing the carry forwarded loss of the assessee as per the law. Therefore, the ground 5 is duly remanded back to the file of the ld. AO for verification of the loss claimed by the assessee and the eligible carry forwarded loss should be allowed as per the law. Reasonable opportunity should be allowed to assessee in set aside proceeding.
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2023 (11) TMI 1283
Levy of penalty u/s 271D - time limit for initiating penalty proceedings - Violation of sec 269SS in respect of cash receipt of loans - HELD THAT:- The assessee’s case herein falls u/s 275(1)(c) of the Act wherein penalty order should be passed on or before 30/09/2017 i.e. 6 months from the end of the month in which penalty proceedings were initiated by the Ld. AO by recommending to Ld. JCIT.
We find that the lower authorities had proceeded on the basis that the time limit had to be reckoned from the date of issuance of first notice by JCIT which was done on 11/08/2017.
We find that the law is very clear that penalty proceedings u/s 271D and 271E of the Act are to be initiated by the AO by recommending the same to JCIT and, thereafter, the Ld. JCIT shall issue show cause notice to the assessee and pass penalty orders thereon u/s 271D and 271E of the Act.
Hence, the due date had to be reckoned only from the date of triggering of the proceedings from the side of the AO to Ld. JCIT. Admittedly, the Ld. AO had made reference to Ld. JCIT on 25/03/2017 for initiating penalty proceedings in the instant appeals. Six months from the end of the month in which the action for imposition of penalty is initiated expired on 30/09/2017. Accordingly, the penalty order framed on 29/11/2017 would become barred by limitation as per provisions of section 275(1)(c)
We have no hesitation to conclude that the penalty orders framed for both the assessment years are barred by limitation and, hence, liable to be quashed.
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2023 (11) TMI 1282
Validity of reopening of assessment - two consecutive notices issued - as submitted first notice did not comply with the requirement of stating the reasons and prior approval as mandated under circular dated 14.08.2019 (Circular No.19/2019) and second notice which was issued on the next day though mentioned the DIN number, it did not bear the signature - HELD THAT:- We find that the notices impugned were issued way back on 25.03.2023 and 26.03.2023. The petitioner did not chose to challenge those orders but participated in the proceedings. Notice under Section 143(2) of the Act was issued way back on 22.06.2023 followed by notice under Section 142(1) of the Act on 21.07.2023, wherein, materials relied upon and the petitioners are also been disclosed to the petitioner.
In view of the above circumstances, on account of delay in approaching this Court, this Court is not inclined to interfere with the proceedings.
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2023 (11) TMI 1281
Challenge to impugned SCN - petitioner submits that the impugned SCN is ex facie erroneous on several grounds - HELD THAT:- It is not considered apposite to examine any of the issues raised by the petitioner as the matter is at the show cause notice stage. The petitioner would be at liberty to address all issues, including those as set out above, before the concerned officer.
Needless to state that the concerned officer is required to examine all the issues, as raised. If the said contentions are not accepted, the concerned officer is required to pass a speaking order. It is also trite law that the concerned officer cannot travel beyond the show cause notice.
Petition disposed off.
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2023 (11) TMI 1280
Quantum of penalty - use of IEC code for import to be made by Sh. Rajan Arora - HELD THAT:- It is the undisputed position that the appellant had lent the Importer Exporter Code [“IEC”] for the purposes of facilitating import. Bearing in mind the fact that there was no connivance, the CESTAT had found it fit to reduce the penalty imposed on the appellant from Rs. 12 lakhs to Rs.50,000/-.
The appeal raises no question of law which would warrant consideration - Appeal dismissed.
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2023 (11) TMI 1279
Maintinability of appeal - monetary limit involved in the appeal - HELD THAT:- It is found that in each of the appeals, the amount involved is less than Rs. 50 Lakhs which is below the monetary limit as per the instructions issued by the CBIC under F. No. 390/Misc/116/2017-JC dated 22.08.2019.
All the appeals are disposed of under the Litigation Policy without going into the merits of the case with the liberty to the Department to seek restoration by moving appropriate applications if the matter is not covered by the said policy.
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2023 (11) TMI 1278
Dishonour of Cheque - non-payment against one dishonoured cheque - sufficient opportunity to be provided to a person who issues the cheque - HELD THAT:- Once a cheque is issued by a person, it must be honoured and if it is not honoured, the person is given an opportunity to pay the cheque amount by issuance of a notice and if he still does not pay, he is bound to face the criminal trial and consequences. It is seen in many cases that the petitioners with malafide intention and to prolong the litigation raise false and frivolous pleas and in some cases, the petitioners do have genuine defence, but instead of following due procedure of law, as provided under the N.I. Act and the Cr.PC, and further, by misreading of the provisions, such parties consider that the only option available to them is to approach the High Court and on this, the High Court is made to step into the shoes of the Metropolitan Magistrate and examine their defence first and exonerate them. The High Court cannot usurp the powers of the Metropolitan Magistrate and entertain a plea of accused, as to why he should not be tried under Section 138 of the N.I. Act. This plea, as to why he should not be tried under Section 138 of the N.I. Act is to be raised by the accused before the Court of the Metropolitan Magistrate under Section 251 of the Cr.PC & under Section 263(g) of the Cr.PC.
The parameters of the jurisdiction of the High Court, in exercising jurisdiction under Section 482 Cr.PC, are now almost well-settled. Although it has wide amplitude, but a great deal of caution is also required in its exercise. The requirement is, the application of well known legal principles involved in each and every matter. Adverting back to the facts of the present case, this Court does not find any material on record which can be stated to be of sterling and impeccable quality warranting invocation of the jurisdiction of this Court under Section 482 Cr.PC at this stage. More so, the defence as raised by the petitioner in these petitions requires evidence, which cannot be appreciated, evaluated or adjudged in the proceedings under Section 482 of Cr.PC and the same can only be proved in the Court of law.
There are no ground for quashing the CC NI Act 2459 of 2023 is made out and also there are no flaw or infirmity in the proceedings pending before the Trial Court. However, the Trial Court shall certainly consider and deal with the contentions and the defence of the petitioner in accordance with law.
Petition dismissed.
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2023 (11) TMI 1277
Disallowance of claim u/s 80P(2)(d) - assessee earned interest on Fixed Deposits from the S. K. District Co-operative Bank Ltd. as well as Dena Bank - HELD THAT:- As per the decision of Hon’ble Gujarat High Court in case of Sabarkanta District Co-op. Milk Producers’ Union Ltd. [2014 (6) TMI 977 - GUJARAT HIGH COURT] the credit society is allowed deduction u/s 80P(2)(d) of the Act, if the interest on FD is earned from District Cooperative Bank.
Therefore, in the present assessee’s case the same should have been considered by the CIT(A). Thus, it is directed to the AO to allow the assessee benefit of deduction u/s 80P(2)(d) in respect of interest earned on FD from S.K. District Co-op. Bank Ltd. and disallowance to the interest earned from Dena Bank is upheld. Appeal of the assessee is partly allowed.
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2023 (11) TMI 1276
Adjustment u/s 92BA (i) as omitted by Finance Act 2017, w.e.f. 01.04.2017 - determination of the arm’s length price of the Specified Domestic Transaction under clause (i) of section 92BA - meaning of the words ‘repeal’ ‘omission’ - HELD THAT:- Hon’ble Karnataka High Court in the case of Texport Overseas Pvt. Ltd. [2019 (12) TMI 1312 - KARNATAKA HIGH COURT] categorically held that once the section 92BA(i) was omitted by Finance Act, 2017, the resultant effect is that it had never existed. The Ld.DR has not brought to our notice any contrary decision of the Hon’ble Jurisdictional High Court.
As per the Law of Precedence, we are duty bound to follow the decision of the Hon’ble Karnataka High Court in the absence of any contrary decision of the Hon’ble Jurisdictional High Court on the issue. Therefore, we uphold the decision of Ld.CIT(A). Decided against revenue.
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2023 (11) TMI 1275
Order of provisional attachment binding on the Corporate Debtor or not - it was held by NCLAT that 'The Adjudicating Authority did not commit any error in rejecting the application filed by the Resolution Professional challenging the order passed by the PMLA Court' - HELD THAT:- List for directions to report on latter aspect on 09.01.2024.
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2023 (11) TMI 1274
Direction to deposit Rs. 6 crores in a separate interest-bearing account in the name of the Limited Liability Partnership (LLP) namely Concrete Developers LLP - HELD THAT:- The arbitrator was of the view that there is a likelihood that the legal heirs of the claimant (the respondent no.1 herein) would remain embroiled in litigation and that the claimant is entitled to accounts and to share in the profits in the LLP in accordance with the LLP Agreement. The arbitrator also expressed concern of the claimant being left without a remedy in the event the right of the deceased partner in a running business is not protected considering the substantial profits made by the LLP after the demise of the deceased partner.
Essar House Private Limited vs. Arcellor Mittal Nippon Steel India Limited [2022 (9) TMI 672 - SUPREME COURT] actually helps the respondent no.1 since the Supreme Court reiterated the wide power conferred on the Court to pass orders securing the amount in dispute in arbitration and proceeded to hold that the Court exercising such power should not withhold relief if a strong prima facie case is made out and the balance of convenience is in favour of an interim order.
The facts and circumstances which were presented before the learned arbitrator or were disclosed in fits and spurts by the appellant/surviving partners fully justify the impugned interim order dated 17.4.2023. There can be no jurisdictional objection to the impugned order as the Act of 1996 grants the arbitral tribunal plenary powers to pass such orders for preserving the dispute in the arbitration. The order also does not suffer from any factual or legal infirmity and is certainly not arbitrary or perverse.
The Court is accordingly of the view that the impugned order does not call for any interference - Application dismissed.
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2023 (11) TMI 1273
Revision u/s 263 - as per CIT AO never examined the claim of deduction u/s 54B/54F and AO has also not examined whether the land purchased was used for agricultural purposes or not - AO himself has recommended to the PCIT to initiate proceedings u/s 263 - root cause for initiation of the impugned proceedings is the audit objection by the audit party
HELD THAT:- A plain reading of section 263 of the Act would show that the PCIT may call for and examine the record of any proceedings under this Act whereas in the case in hand, we find that it was the Assessing Officer who recommended the PCIT to initiate proceedings u/s 263 of the Act for which it can be safely concluded that the PCIT did not apply his mind.
Even the recommendation of the AO is based upon the audit objection when the Assessing Officer was well aware of the questions raised during the assessment proceedings which have been duly verified and examined by him before framing the impugned assessment order.
Thus, we do not find any error or infirmity in the assessment order which could make it erroneous and prejudicial to the interest of the Revenue. Therefore, we set aside the order of the PCIT and restore that of the AO - Decided in favour of assessee.
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2023 (11) TMI 1272
Bar of admissibility created by Section 35 of the Indian Stamp Act 1899 applies to the agreement(s) to sell dated 04.02.1988 executed by the parties - copy of a document be adduced as secondary evidence when the original instrument is not in possession of the party or not - applicability of decision of this Court in Jupadi Kesava Rao v. Pulavarthi Venkata Subha Rao [1971 (1) TMI 111 - SUPREME COURT].
Whether the bar of admissibility created by Section 35 of the Indian Stamp Act 1899 (Stamp Act) applies to the agreement(s) to sell dated 04.02.1988 executed by the parties? - HELD THAT:- The Explanation inserted in Article 23 of Schedule I-A contained in the Act creates a new obligation for the party and, therefore, cannot be given retrospective application. Thus, it will not affect the agreement(s) executed prior to such amendments - If the documents sought to be admitted are not chargeable with duty, Section 35 has no application. Thus, in the present case, since the document was dated 04.02.1988, the instrument was not chargeable with duty. It follows therefrom that when such document(s) are not required to be stamped, then no bar could be imposed due to it being not duly stamped.
Can a copy of a document be adduced as secondary evidence when the original instrument is not in possession of the party? - Whether, in the facts of the present case, would the decision of this Court in Jupadi Kesava Rao v. Pulavarthi Venkata Subha Rao be binding as held by both the Courts below? - HELD THAT:- Section 35 of the Stamp Act which forbids the letting of secondary evidence in proof of its contents. The Section excludes both the original instrument and secondary evidence of its contents if it needs to be stamped or sufficiently stamped. This bar as to the admissibility of documents is absolute. Where a document cannot be received in evidence on the ground that it is not duly stamped, the secondary evidence thereof is equally inadmissible in evidence.
In relation to secondary evidence of unstamped/insufficiently stamped documents, the position has been succinctly explained by this Court in Jupudi Kesava Rao wherein it dealt with an issue, i.e., whether reception of secondary evidence of a written agreement to grant a lease is barred by the provisions of Sections 35 and 36 of the Stamp Act and answered it in affirmative.
Thus, if a document that is required to be stamped is not sufficiently stamped, then the position of law is well settled that a copy of such document as secondary evidence cannot be adduced. The present facts, however, differ - The Trial Court and the High Court have relied on Jupadi Kesava Rao to hold that the Plaintiffs cannot lead secondary evidence as the document sought to be produced needed to be duly stamped.
It is a settled position of law that where the question is whether the document is liable to stamp duty and penalty, it has to be decided at the threshold even before marking a document. In the present case, the document in question was not liable to stamp duty - in the instant case, the Plaintiff's prayer for leading the secondary evidence ought to be allowed in so far as the documents sought to be introduced as secondary evidence be taken by the concerned Court and exhibited, with its admissibility being decided independently, in accordance with law under the Evidence Act.
Appeal allowed.
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2023 (11) TMI 1271
Application for registration u/s 12A(1)(ac)(iii) - application filed by the assessee is premature as the earlier order in Form 10AC is still valid till A. Y. 2026- 2027 - HELD THAT:- CIT(Exemption) did not adjudicate the applications on merit. He simply treated the applications as infructuous on the ground that the assessees are already enjoying registration. It is pertinent to mention that clause (c) of section 12AB, sub-section (1) provides for grant of provisional registration for a period of three years from the assessment year from which the registration is sought. The assessees are having provisional registration but they have applied grant of registration u/s 12AB(1), clause (b) and nothing else.
Commissioner was required to call for the documents and information satisfies himself and then grants the registration, which is valid for five years. The application was meant for grant of registration and not for provisional. Therefore, CIT has misconstrued the application itself and erroneously dismissed them by treating premature in nature. The impugned orders are set aside and the issues are relegated to the ld. CIT (Exemption) for fresh adjudication. Appeals of the assessees are allowed for statistical purposes.
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2023 (11) TMI 1270
Cancellation of petitioner's registration - issuance of SCN - audit was not completed within statutory period - HELD THAT:- At present, it is found, prima facie, is that though the notice Ex.P9 is dated 04.09.2023 and the period mentioned there under for the petitioner to file the reply was 15 days on receipt of notice, but the petitioner‟s case is that the notice was received on 14.09.2023, which, prima facie is also so evident from Ex.P12, said to be a document of the respondent authorities, and consequently, let the instructions be obtained by the learned Government Pleader with respect to the date of issue and receipt of the notice dated 04.09.2023 by the petitioner.
The matter is listed on 20.11.2023 in the “Motion List”, for instructions as aforesaid.
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2023 (11) TMI 1269
Full benefit of abatement to the extent of 85%, in terms of Circular No. 341/43/96- TRU dated 31.10.1996 - service tax on services provided by appellant as sub-contractor prior to Sep 2004, on which service tax liability has been discharged by the contractor - Non-consideration of payment of service tax through CENVAT while calculating amount of service tax paid - Application of rate of tax on the date of provision of services - Grossing up of taxable amount due to inadvertent mentioning of service tax with taxable value of services in some returns - interest - penalties - Extended period of limitation.
Full benefit of abatement to the extent of 85%, in terms of Circular No. 341/43/96- TRU dated 31.10.1996 - HELD THAT:- The revenue authorities have acknowledge that revenue agrees that the abatement as claimed by the party i.e. Rs.14,02,0962.21 is correct. However, in the Order-in-Original abatement has been allowed to the extent of Rs.88,93,618/- resulting in confirmation of the demand of Rs.4,38,694.72. However, if the abatement claim as claimed by the party and verified by the officers is allowed. The net demand which is made on this account cannot survive and the same needs to be set aside - Demand set aside.
Service tax on services provided by appellant as sub-contractor prior to Sep 2004, on which service tax liability has been discharged by the contractor - HELD THAT:- Officers have found that this amount is recoverable and appellants have contested the demand relying upon the decision of Larger Bench of this Tribunal in the M/s Melange Developers Pvt. Ltd. [2019 (6) TMI 518 - CESTAT NEW DELHI-LB] wherein the Larger Bench of this Tribunal has held that in the absence of any exemption granted subcontractor is required to discharge the tax liability, the service recipient i.e. the main contractor can avail the benefit of Cenvat credit. Accordingly, it is the view that has been canvassed by the department in the matter - In the verification report officers have referred to Master Circular No.96/7/2007 dated 23.08.2007 wherein similar views has been taken. Hence, in absence of any contrary verification/decision at the relevant time, this argument for setting aside the demand is rejected and the order of this account needs to be confirmed.
Non-consideration of payment of service tax through CENVAT while calculating amount of service tax paid - HELD THAT:- In respect of demand of Rs.3,52,356/-, officers have agreed that this demand has been made without considering the payments made from the Cenvat Account. This resulting in confirmation of the demand which was already paid by the appellant. In view of the categorical recommendation made by the officers, there are no merits in this demand and set aside the same.
Application of rate of tax on the date of provision of services - HELD THAT:- Officers concluded that the rate as applicable at the time of rendering of the service should have been applied. Accordingly, this demand is based on application of erroneous rate of taxation is a basic foundation for his correct application on rate of tax this demand made by application, incorrect rate of taxes needs to be set aside.
Grossing up of taxable amount due to inadvertent mentioning of service tax with taxable value of services in some returns - HELD THAT:- The appellant has contested this demand stating that the amount of taxable value indicated in ST-3 returns advertently included the service tax also. Officers verifying the same agree to the contention raised by the appellant. However, they refuse to comment on admissibility of the same as this issue was not raised at the time of adjudication. There are merits in the contention raised and the benefit for computing the taxable values the service tax paid has to be detected from the gross value as per Section 67 (2) of the Finance Act, 1994. Thus the amount of Rs.14,65,840/- as determined by the officers in their report in respect of such clerical error needs to be deleted from the total demand as confirmed by Order-in-Original.
Extended period of limitation - penalties - HELD THAT:- The findings recorded by the Commissioner as observed is based upon various decisions of the Tribunal, wherein it has been held that delay in not filling of ST-3 returns amounts to suppression of facts for invoking the extended period. The said findings agreed upon as it was the statutory obligation imposed on the appellant to have filed ST-3 returns in time. In absence of the same the charge of suppression during the material period has to be upheld that being so invocation of extended period in the present case is justified and upheld - As the demand upheld only to the extent of Rs.5,04,247.52 + Rs.3,95,994/- = Rs 9,00,241.52/- the penalty imposed under Rule 15 of CENVAT Credit Rules,2004 read with Section 78 of the Finance Act,1994 is reduced to that extent.
Interest - HELD THAT:- In respect of the amounts confirmed the demand for interest under Section 75 is upheld.
Appeal allowed in part.
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2023 (11) TMI 1268
Validity of condonation application - appeal filed by the assessee is delayed by 1253 days - HELD THAT:- The condonation application is signed by the Advocate for the Appellant. A petition for condonation of delay is to be filed by the applicant. In the present case, the applicant is the assessee. The applicant is not the Advocate.
Vakalatanama also does not empower the advocate to file any application much less sign any application on behalf of the assessee. This being so, as the valid condonation petition is not available, the appeal of the assessee stands unadmitted and consequently same is dismissed.Appeal of the assessee stands dismissed.
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9911796707
