Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
January 23, 2024
Case Laws in this Newsletter:
GST
Income Tax
Customs
Insolvency & Bankruptcy
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
TMI Short Notes
Articles
Highlights / Catch Notes
GST
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Cancellation of GST registration of the petitioner - physical verification of premises not done in proper manner - proper opportunity of hearing not provided - Order of Cancellation of GST registration quashed - the GST registration of the petitioner, originally granted, is restored to operation. - HC
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Supply or not - nominal amount of recoveries made by the Applicant from the employees who are provided food in the factory canteen - The ruling emphasized the principle that services provided by an employer to an employee, in the course of employment, are outside the scope of GST, but this does not apply to facilities like canteens where the employer recovers a cost from employees. - AAR
Income Tax
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Condonation of delay for filing revised return u/s 119(2)(b) - scope of 'genuine hardship’ - While considering these aspects, the authorities are expected to bear in mind that no applicant stand to benefit by lodging delayed returns. Refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when the delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. - HC
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Exemption u/s 11 - approval u/s 80G - cancellation of provisional approval without giving show cause notice - the Assessee Trust had applied for registration within the time allowed under the Act. Hence, the application of the assessee is valid and maintainable. Even otherwise, the Provisional Approval is upto A.Y.2025-26, and it can be cancelled by the CIT(E) only on the specific violations by the assessee. However, in this case CIT(E) has not mentioned about any violation by the Assessee. - this appeal is restore back to the file of ld. CIT(E) to verify limited facts that if the assessee fulfil all other requite conditions and to allow them approval under section 80G(5) in accordance with law. - AT
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Rate of tax payable on Dividend Distribution Tax (DDT) - Distribution of dividends to its share holders (Germany) (Non-residents) - the additional income tax payable by a domestic company on dividend distribution to non-resident shareholders should be at the rate mentioned in Section 115-O of the Act and not at the rate specified in the relevant Double Taxation Avoidance Agreement (DTAA) with respect to such dividend income. - AT
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Accrual of income in India - FTS - Existence of a PE - Determining income on presumptive basis attributable towards Permanent Establishment ("PE" ) - Tax Authorities below have fallen in error to hold the existence of a PE on the basis of the mere assumption that as assessee company has a subsidiary in India and therefore whatever sales in the form of export is made by it to Indian entities, same is assumed to be with indulgence of Indian subsidiary without substantiating as to how Indian subsidiary was privy to the purchases by other entities. - AT
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Assessment u/s 153A - Addition u/s 68 - as per AO there was a seizure of incriminating material and failure of the assessee to prove the genuineness of the transaction - Assessee categorically stated that he has already included the above sum in his total income. In the remand report submitted by the learned Assessing Officer, it is clear that in the Panchnama, it is stated that no document or accounts were found and seized. Further, the remand report also says that addition is made in the hands of the assessee only based on facilitator agreement and receipt reconciliation. - CIT(A) rightly deleted the additions - AT
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Capital gain - Valuation - FMV determination - Conversion of agriculture land - reference to DVO - CIT(A) has correctly observed that the land sold in current year is non-agricultural land but the land was agricultural land as on 01-04-1981 and therefore cost of land as on 01-04-1981 cannot be determined based on sale rate of non-agricultural land for the current year and thereafter applying reverse formula thereon. - AT
Customs
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Refund of interest on amounts, which were paid during investigation and pendency of litigation - There are nothing wrong in the grants of refund of interest for the period sought by the appellant - - AT
Indian Laws
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Aggregate value of claims and counter-claims in arbitration - The petitioner's calculation of Specified Value, including various interest components and GST, was found to conflict with Section 12(2) of the Commercial Courts Act, 2015. The Court determined that interest should be calculated only up to the date of invocation of arbitration and not until the filing of the petition. - HC
Service Tax
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Levy of service tax - remuneration paid by the appellant to directors should be charged to service tax on the reverse charge basis or not - Held NO - when the very provisions of the Companies Act make whole-time director (as also in capacity of key managerial personnel) responsible for any default/offences, it leads to the conclusion that those directors are employees of the assessee company. - AT
Central Excise
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Debonding of 100% EOU - Validity of Show cause notice - At the time of de-bonding if there is any short fall of duty payment subsequent to the de-bonding of the unit, the custom/excise department is empowered to issue a show cause notice for which no approval of development commissioner is required for issuance of SCN - AT
VAT
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Validity of demand of VAT and penalty - suppression of the sales/stock difference - The penalty was confirmed based on a prior inspection u/s 29 of the HVAT Act and subsequent procedures under Section 38. The court upheld the tribunal's decision that the penalty was correctly levied under both the HVAT Act and the Central Sales Tax Act. - HC
Case Laws:
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GST
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2024 (1) TMI 954
Cancellation of GST registration of the petitioner - physical verification of premises not done in proper manner - proper opportunity of hearing not provided - violation of principles of natural justice - HELD THAT:- The impugned orders as such have adversely effected the business prospects of the petitioner. Counsel for the petitioner has very fairly not pressed challenge raised to the order of refund rejecting his refund (Annexure P-16) since appeal is already pending. Accordingly, liberty is given to pursue his remedy regarding his appeal against the order rejecting the refund. The impugned order set aside - petition allowed
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2024 (1) TMI 953
Supply or not - nominal amount of recoveries made by the Applicant from the employees who are provided food in the factory canteen - levy of GST on the amount recovered from the employees for the food provided in the factory canteen or on the amount paid by the Applicant to the Canteen Service Provider - input tax credit (ITC) is available on the GST charged by the Canteen Service Providers for providing the catering services at the factory where it is obligatory for the Applicant to provide the same to its employees as mandated under the Factories Act, 1948 - input tax credit (ITC) can be availed on GST charged by the Canteen service providers. HELD THAT:- Supply made by a taxable person in the course or furtherance of business is an Outward supply'. It has been brought out above, that establishing canteen is in the furtherance of business of the applicant and supply of food to the employees when the same is not contractually agreed, is not an allowance as a part of the employment. Thus, the provision of food in the canteen for a nominal cost is a 'Supply' for the purposes of GST. Schedule II to the CGST Act, 2017 describes the activities to be treated as supply of goods or supply of services - the supply of food is a 'Supply of Service'. Whether the amount received from the employees is in the nature of recovery and not consideration? - HELD THAT:- The applicant has chosen to run the canteen through a third party vendor in the course of furtherance of business. It is also clear that in running of such canteen, the employer is mandated to bear certain costs. The contention that the applicant only collects the employee cost and pays the third party vendor that such employee cost is only a recovery is not tenable. Provision of canteen facility and bearing certain costs in running of canteen are mandated on the part of the employer as per the Factories Act. Accordingly, such canteens are provided - It has been established that the supply of food in the canteens are 'Supply of Service' by the applicant. The applicant has established canteen facilities as mandated under Factories Act, 1948 and supplies food at a cost through third-party-vendor and that the supply of food by applicant is 'Supply of Service' to their employees, as the same is not a part of the employment contract and the canteen facility is provided as mandated under Factories Act. The cost although nominal is recovered from the salary as deferred payment is 'consideration' for the supply and GST is liable to be paid. The Kerala Authority of Advance Ruling, Kerala in the case of Caltech Polymers Pvt. Ltd. [ 2018 (4) TMI 582 - AUTHORITY FOR ADVANCE RULING - KERALA ], held that if the company's canteen services are covered under outward supply under Section 2(83) of the Central Goods and Services Act, 2017, GST will be payable on food expenses collected from employees. Whether input tax credit (ITC) is available to the applicant on GST charged by the service provider on the canteen facility provided to employees working in the factory or otherwise? - HELD THAT:- Since the contract workers are not employees of the applicant, therefore, the benefit of the above proviso will not be applicable in respect of contract workers but will be limited only with respect to the employees. It is observed that the above Section 17(5) (b) was amended on 01.02.2019. The Press Note issued on the recommendations of the 28th meeting of the GST Council meeting stated that the scope of input tax credit is being widened and it would now be available in respect of goods or services which are obligatory for an employer to provide to its employees under any law for the time being in force. As per the provisions of the Factories Act, 1948 as extracted in Para 11.4, the applicant has the legal responsibilities to provide maintain the canteen. The applicant has accordingly, instead of maintaining the canteen himself, has engaged another person (hereinafter called as Canteen Contractor), who is providing canteen services to the workers of the applicant on behalf of the said applicant. The service so provided is righty classifiable as Restaurant Service as already clarified under Circular No. 164/20/2021/GST dated 06.10.2021 where-under, vide Point No. 3 4, it has been clarified that cooking supply of food will only be covered under Restaurant Service and in case there is no cooking but only supply of food then GST rate as applicable on supply of Goods would be attracted. In other words, if the cooking of food supply of the same food is made as a single transaction, then the said transaction is the Restaurant Service and is liable to 5% of GST in terms of entry no. 7 (ii) of the Notification No. 11/2017- Central Tax (Rate) dated 28.06.2017 which was amended by the Notification No. 20/2019-C.T. (Rate) dated 30.09.2019, effective from 01.10.2019. The flow of the transaction is that the Canteen Contractor is providing service to the applicant, which is classifiable as Restaurant Service and the applicant himself is also providing same service to its worker, as mandated in the Factories Act, 1948 i.e. he is also providing a Restaurant Service to its worker. As already brought out above, the Restaurant Service, compulsorily attracts GST rate of 5% without ITC, in a non-specified premises and the applicant's premises is not a specified premises in terms of Notification No. 11/2017- Central Tax (Rate) dated 28.06.2017. Therefore, though the Section 17(5) of the CGST Act, 2017, does not debar availment of ITC in entirety, but in the present case availment of ITC is debarred in terms of provisions of Notification No. 11/2017- Central lax (Rate) dated 28.06.2017 as amended vide Notification No. 20/2019-C.T. (Rate) dated 30.09.2019. Input Tax Credit will not be available to the applicant on GST charged by the canteen service provider, in terms of provisions of the Notification No. 11/2017- Central Tax (Rate) dated 28.06.2017, as amended vide Notification No. 20/2019-C.T. (Rate) dated 30.09.2019.
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2024 (1) TMI 952
Seeking multifarious reliefs - Seeking to avail statutory remedy of appeal - non-constitution of the Tribunal - prevented from availing the benefit of stay of recovery of balance amount of tax - HELD THAT:- The respondent State authorities have acknowledged the fact of non-constitution of the Tribunal and come out with a notification bearing Order No. 09/2019-State Tax, S. O. 399, dated 11.12.2019 for removal of difficulties, in exercise of powers under Section 172 of the B.G.S.T Act, which provides that period of limitation for the purpose of preferring an appeal before the Tribunal under Section 112 shall start only after the date on which the President, or the State President, as the case may be, of the Tribunal after its constitution under Section 109 of the B.G.S.T Act, enters office. Subject to deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, if not already deposited, in addition to the amount deposited earlier under Sub-Section (6) of Section 107 of the B.G.S.T. Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the B.G.S.T. Act. The petitioner cannot be deprived of the benefit, due to non- constitution of the Tribunal by the respondents themselves - the Court is of the opinion that since order is being passed due to non-constitution of the Tribunal by the respondent- Authorities, the petitioner would be required to present/file his appeal under Section 112 of the B.G.S.T. Act, once the Tribunal is constituted and made functional and the President or the State President may enter office. Petition disposed off.
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Income Tax
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2024 (1) TMI 951
Maintainability of appeal on low monetary limit - National Litigation Policy introduced by the Central Government - High Court [ 2015 (5) TMI 320 - ALLAHABAD HIGH COURT] has noted that the tax effect is of an amount which is less than Rs.10,00,000/- (Rupees ten lakhs). HELD THAT:- Considering this factual aspect, we decline to entertain this petition. Accordingly, the Special Leave Petition is dismissed. Question of law is kept open.
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2024 (1) TMI 950
Condonation of delay for filing revised return u/s 119(2)(b) - scope of 'genuine hardship - as alleged no tax or stamp duty was payable on any award or agreement that was made under the provisions of the Right to Fair Compensation Act - only reason for rejecting the application as we see is, the assessee has not submitted any genuine hardship is caused due to delay in the application. Therefore, the application of the assessee for condonation of delay would not be entertained. - HELD THAT:- There cannot be a straight jacket formula to determine what is genuine hardship. In our view, certainly the fact that an assessee feels he has paid more tax than what he was liable to pay will certainly cause hardship and that will be certainly a genuine hardship . As relying on Optra Health Pvt. Ltd. case [ 2023 (12) TMI 1094 - BOMBAY HIGH COURT] the phrase genuine hardship used in Section 119(2)(b) of the Act should be considered liberally. Respondent should keep in mind, while considering an application of this nature, that the power to condone the delay has been conferred to enable the authorities to do substantial justice to the parties by disposing the matters on merits. While considering these aspects, the authorities are expected to bear in mind that no applicant stand to benefit by lodging delayed returns. Refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when the delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. Thus Delay in filing revised returns is condoned.Respondent shall open the portal within two weeks from today to enable Petitioner to file revised returns.The concerned Authority may pass such order as it deems fit in accordance with law. All rights and contentions of parties are kept open. Authority shall decide the issue whether the petitioner s case that the award/compensation that it received under the Right to Fair Compensation Act is taxable or otherwise.
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2024 (1) TMI 949
Deduction u/s 80P - Assessee-Society had derived interest income derived from Nationalized Banks - HELD THAT:- We note that as per the provisions of section 80-P(2)(d) of the Act, the interest income earned out of investments/deposits with Co-Op. societies are only eligible for deduction. The interest income earned from other than Co-Op. Societies are not eligible for deduction under section 80-P(2)(d) of the Act. We note that assessee-society has not claimed the deduction under section 80-P(2)(d) of the Act, in respect of the above sum of Rs. 1,25,31,686/-, rather the assessee has shown the above Rs. 1,25,31,686/-, under the head income from other sources and paid the taxes thereon, hence the question of disallowance does not arise. Based on these facts and circumstances, we delete the addition - Decided in favour of assessee.
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2024 (1) TMI 948
Deduction u/s 80P(2)(d) - net interest income from Co. Op. banks - HELD THAT:- As assessee is earning interest income from Mehsana District Co-op. Bank Ltd., which is a registered co-operative bank under Gujarat Co-operative Societies Act and is a member of the Co-operative Society; and the interest earned thereon comes under the purview of Section 80P(2)(d) of the Act as held in the case of Sabarkantha Dist. Co-op. Milk Producers Union Ltd. ( 2014 (6) TMI 977 - GUJARAT HIGH COURT ). Therefore, the assessee is eligible for deduction u/s 80P(2)(d) of the Act. As relates to the decisions of Citizen Co-operative Society Ltd ( 2017 (8) TMI 536 - SUPREME COURT ), Bangalore Club ( 2013 (1) TMI 343 - SUPREME COURT ) and the decision of Totagars Co-operative Sale Society, [ 2017 (7) TMI 1049 - KARNATAKA HIGH COURT] will not be applicable in the light of decision of Hon ble Apex Court in the case of The Mavilayi Service Co-op. Bank Ltd. ( 2021 (1) TMI 488 - SUPREME COURT ) which clearly held that the deduction u/s 80P will exclude only co-operative banks, which are co-operative societies who must possess a licence from the RBI to do banking business. In fact, the interpretation taken by the Revenue appears to be on the wrong footing, and the co-operative banks which are the members of co-operative societies and the deposits made by the co-operative societies in such cooperative banks are eligible for deduction u/s 80P(2)(d) of the Act. Decided in favour of assessee.
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2024 (1) TMI 947
Rectification of mistake - period of limitation - application within the statutory time limit or not? - A mistake arising as a result of a subsequent interpretation of law by the Supreme Court - nature of receipt - Interest Subsidy received under Technology Upgradation Fund Scheme (TUFS) and Electricity duty subsidy under Rajasthan Investment Promotion Scheme (RIPS) has been treated as revenue receipt by the AO as well as the ld. CIT(A) - HELD THAT:- The Act provides for a period of 4 years from the date of order sought to be rectified and not 4 years from original order. Hence, if an order is revised, set aside, etc., then the period of 4 years will be counted from the date of such fresh order and not from the date of original order. See M/S. KASHMIR STEEL ROLLING MILLS VICE VERSA [ 2015 (1) TMI 1265 - ITAT AMRITSAR] , M/S NITIN SPINNERS LTD. [ 2021 (9) TMI 430 - SC ORDER] , M/S BR AGROTECH LTD. [ 2021 (9) TMI 233 - ITAT DELHI] , NULUX ENGINEERS [ 2018 (10) TMI 1908 - ITAT MUMBAI] In this case, the assessee filed return of income on 29.09.2012 and the same has been assessed u/s 143(3) vide order dated 02.06.2014. The assessee filed letter for rectification on 23.05.2017. Thus, we find that the rectification application filed by the assessee is within the time allowed, hence the observation of the revenue authorities that the issue has been raised after a period of 5 years is wrong on facts - Assessee appeal allowed.
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2024 (1) TMI 946
Exemption u/s 11 - application for final approval u/s 80G rejected as is not filed within time limit prescribed under clause (iii) of third proviso of section 80G(5) - cancellation of provisional approval without giving show cause notice - assessee submits that the assessee is old. institute and never applied for approval u/s 80G, prior to amendment for amendment in procedure of registration under section 12AB as well as 80G - HELD THAT:- As decided in Bhamashah Sundarlal Daga Charitable Trust [ 2023 (11) TMI 1210 - ITAT JODHPUR] sub-clause says that the Institution which have provisional registration have to apply at-least six months prior to expiry of the provisional registration or within Six months of commencement of activities, whichever is earlier. In continuation of this when we read the sub clause iii of Proviso of section 80G(5), which we have already reproduced above, it is clear that the intention of parliament in putting the word or within six months of commencement of its activities, whichever is earlier is in the context of the newly formed Trust/institutions. For the existing Trust/Institution, the time limit for applying for Regular Registration is within six months of expiry of Provisional registration if they are applying under sub clause (iii) of the Proviso to Section 80G(5) of the Act. This will be the harmonious interpretation. If we agree with the interpretation of the CIT(E), then say a trust which was formed in the year 2000, performed charitable activities since 2000, but did not applied for registration u/s. 80G, the said trust will never be able to apply for registration now. This in our opinion is not the intention of the legislation. This interpretation leads to absurd situation. Statutory provision shall be interpreted in such a way to avoid absurdity. In this case to avoid the absurdity as discussed by us in earlier paragraph, we are of the opinion that the words, within six months of commencement of its activities has to be interpreted that it applies for those trusts/institutions which have not started charitable activities at the time of obtaining Provisional registration, and not for those trust/institutions which have already started charitable activities before obtaining Provisional Registration. We derive the strength from the Speech of Hon ble Finance Minister and the Memorandum of Finance Bill 2020. Therefore we hold, that the Assessee Trust had applied for registration within the time allowed under the Act. Hence, the application of the assessee is valid and maintainable. Even otherwise, the Provisional Approval is upto A.Y.2025-26, and it can be cancelled by the CIT(E) only on the specific violations by the assessee. However, in this case CIT(E) has not mentioned about any violation by the Assessee. Therefore, even on this ground the rejection is not sustainable. CIT(E) has not discussed whether the Assessee fulfils all other conditions mentioned in the section as he rejected it on technical ground. Therefore, in these facts and circumstances we hold. that the Assessee had made the application in form 10AB within the prescribed time limit and hence it is valid application. Therefore, we direct the CIT(E) to treat the application as filed within statutory time and verify assessee s eligibility as per the Act. Thus we restore the matter back to the file of ld. CIT(E) to reconsider the application afresh by following the decision of Bhamashah Sundarlal Daga Charitable Trust Vs CIT(E) (supra) and to pass order afresh in accordance with law. Grounds of appeal raised by the assessee are allowed for statistical purposes. Delay in filing application u/s 80G(5) - If the application is within time as per provisions of clause (iii) of proviso to section 80G(5) or if delay can it be condoned or not? - As relying on Vananchal Kelawani Trust [ 2024 (1) TMI 877 - ITAT SURAT] the delay in filing application for regular approval under section 80G(5) of 123 days are condoned. Considering the facts that we have condoned the delay in filing application for regular approval, therefore, the appeal is restored back to the file of ld. CIT(E) to reconsider it afresh and pass order in accordance with law. Needless to direct that before passing the order ld. CIT(E) shall grant opportunity to the assessee to filed additional submissions, if so desired. Application rejected as filled belated - taking view that commencement of activities of the assessee is 28.07.2022 and the assessee was required for regular approval under section 80G(5) on or before 28.01.2023, which the assessee failed - Whether receipt of donation can be considered as commencement of its activities? - HELD THAT:- We find that the assessee was allotted land from SMC vide allotment latter dated 23.12.2022 only. The assessee applied for regular approval on 23.04.2023. We find merit in the submissions of the assessee that the activities of assessee-trust in real sense starts from the day when the beneficiary is actually got benefits of the activities carried out by institution in furtherance of its objects and that mere receipt of donation is not a commencement of charitable activities. We also accept the contention of ld. AR for the assessee that in his case for the purpose of counting six months at the worst the date of allotment from SMC, which is 23.122.2022. Considering the peculiar facts of the present case, this appeal is restore back to the file of ld. CIT(E) to verify limited facts that if the assessee fulfil all other requite conditions and to allow them approval under section 80G(5) in accordance with law. In the result, the grounds of appeal in the present appeal is allowed.
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2024 (1) TMI 945
Condonation of delay - appeal is time barred by 266 days - HELD THAT:- As delay has not been adopted by the assessee as a strategy to litigate with the Revenue because by making the appeal time-barred, he will not gain anything. The assessment order and ld. CIT(Appeals) s order are required to be challenged otherwise he cannot be absolved from the tax liability. It appears there is some bonafide mistake for not appearing before the lower authorities and filing the appeal well in time. Apart from the above, we are going to comment on the merits and how ld. Assessing Officer has framed the assessment order. Thus in our opinion, the delay in filing the appeal deserves to be condoned. We accordingly condone the delay and proceed to decide the appeal on merit. Best Judgment assessment - debit balance from a Bank account added to the income of the assessee - AO has verified this expenses in comparison to the turnover shown by the assessee under section 44AD. This exercise has been made by the AO while passing a best judgment assessment order. We failed to appreciate under which law a debit balance from a Bank account could be added to the income of the assessee. The available balance was not treated as an unexplained balance in the Bank account. It might be flowing from the earlier years, out of that the assessee had made the payments. AO was unable to lay his hands on any of the details that such payments were not in connection with the business of the assessee. He simply considered the total withdrawal from the Bank, vis- -vis the turnover of the assessee and then held that debit balance from the Bank is to be treated as unexplained income of the assessee under section 69C. In our view, it is just an absurd conclusion without any cross verification and without collecting any information. It is further found that the ld. 1st Appellate Authority has also again not appreciated any of these circumstances but dismissed the appeal for want of prosecution. No doubt in a best judgment, element of assumption will always be invoked, but that estimation could not be yield one and it cannot be used as a tool to punish the assessee. AO is supposed to collect information from the surroundings of the assessee and thereafter formed a reasonable belief that the available income required to be assessed from the assessee. Due to this simple reason, we have reproduced the complete assessment order. Therefore, in our opinion, the addition is not sustainable. In the second item, AO observed that cash in hand shown at Rs. 24,00,490/- but on perusal of the ITR, the abovementioned cash in hand was not shown. According to the ld. Counsel for the assessee, this is again an incorrect assumption at the end of the assessee. The cash in hand in the books is only Rs. 4,000/-, rest is available in the accounts and it cannot be construed as cash in hand. Appeal of the assessee is allowed.
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2024 (1) TMI 944
Refund of excess Dividend Distribution Tax (DDT) paid - Rate of tax payable on DDT, will be as per section 115-O or as per rates mentioned in DTAA - Distribution of dividends to its share holders (Germany) (Non-residents) and paid DDT on distribution of dividends u/s 115-O - assessee is engaged in the business of sales and distribution of headphones, microphones, monitoring systems, tour guide systems and aviation headsets. It imports goods from Sennheiser group companies for reselling through its distributors in India - HELD THAT:- We find that this issue is no longer res integra in view of the recent Special Bench decision of Mumbai Tribunal in the case of DCIT Vs. Total Oil India Private Limited [ 2023 (4) TMI 988 - ITAT MUMBAI (SB)] where dividend is declared, distributed or paid by a domestic company to a non-resident shareholder(s), which attracts Additional Income-tax (Tax on Distributed Profits) referred to in sec.115-O of the Act, such additional income tax payable by the domestic company shall be at the rate mentioned in section 115-O of the Act and not at the rate of tax applicable to the non-resident shareholders(s) as specified in the relevant DTAA with reference to such dividend income. Nevertheless, we are conscious of the sovereign's prerogative to extend the treaty protection to domestic companies paying dividend distribution tax through the mechanism of DTAAS. Thus, wherever the Contracting States to a tax treaty intend to extend the treaty protection to the domestic company paying dividend distribution tax, only then, the domestic company can claim benefit of the DTAA, if any - Decided against assessee.
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2024 (1) TMI 943
Accrual of income in India - FTS - DR submitted that Testing of any equipment is an expert and technical services - expense was merely by way of reimbursement of the lab test report expenses and assessee on its own had not added any value to the test reports given by another entity.- HELD THAT:- Copy of invoices from the concerned test laboratory was filed and report given by the concerned laboratory was provided and the reimbursement invoice of 1900EUR made available - DRP have fallen in error in considering the same to be in consultancy and professional services to the Indian associates. In spite of accepting that it was a reimbursement expense the DRP considered it to be substantially FTS in nature. We are of considered view that the assessee had not added any value to the laboratory report. Assessee had not played any role except for being a medium to procure a report from a laboratory having higher credibility. The same cannot at all be in the nature of FTS, as erroneously held by Tax authorites. Thus, we are inclined to decide the ground no. 1 in favour of the assessee. Existence of a PE - Determining income on presumptive basis attributable towards Permanent Establishment ( PE ) - Tax authorities have found existence of fixed place PE on allegation that the assessee is procuring its Indian business of supplying goods and services to various customers in India through the use of Indian subsidiary and also provides it with necessary services and supervision. However to establish this, the AO has not brought on record any evidence but has drawn inference for the failure of assessee to provide necessary evidences to AO. The case of assessee is that assessee was not given sufficient time to file the relevant evidences. Tax Authorities below have fallen in error to hold the existence of a PE on the basis of the mere assumption that as assessee company has a subsidiary in India and therefore whatever sales in the form of export is made by it to Indian entities, same is assumed to be with indulgence of Indian subsidiary without substantiating as to how Indian subsidiary was privy to the purchases by other entities. There is substantial force in the arguments of Ld. AR that without examining the buyers how any inference could be drawn about the role of Indian subsidiary. Tax Authorities below have fallen in error in not appreciating the evidences in the form of bill of lading showing delivery outside India and also that the payments were made outside India. They have fallen in error to take note of the fact that the export to Indian counterparts was on principals to principal basis. Assessee company is not alleged to have any fixed place of business in the form of branch office/project office/ liaison office/ godown or warehouse or any other business site in India. No employee of the assessee company was found working in India. Thus, to hold a PE on basis of existence of a subsidiary of assessee in India cannot be sustained. We are accordingly inclined to hold that there was no PE of assessee in India and consequential attribution of the profit had no basis. The ground no. 3 to 5 and 7 to 10, are accordingly decided in favour of the assessee.
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2024 (1) TMI 942
Assessment u/s 153A - Addition u/s 68 - as per AO there was a seizure of incriminating material and failure of the assessee to prove the genuineness of the transaction - CIT(A) deleted addition - HELD THAT:- We find that the assessee has offered the income arising from the above agreement reconciled with the reconciliation statement for the respective years. The facilitator agreement is signed by the assessee, which Omkar Developers is part of the regular books of accounts and records of the assessee supporting his Shri Sachin Jagdish Prasad Joshi; A.Y. 2017-18, 19-20 20-21 original return filed. On looking at question which clearly shows that when the assessee was asked about his transactions with Omkar Realtors Pvt. Ltd, assessee explained the nature of transaction and himself, produced the above agreement along with the statement. Assessee categorically stated that he has already included the above sum in his total income. In the remand report submitted by the learned Assessing Officer, it is clear that in the Panchnama, it is stated that no document or accounts were found and seized. Further, the remand report also says that addition is made in the hands of the assessee only based on facilitator agreement and receipt reconciliation. No evidences were found as stated in the order of the learned Assessing Officer, which even remotely suggested that the income offered by the assessee is not correct. Even in the assessment proceedings, no material is brought on record by the learned Assessing Officer. In view of the appellate facts, we do not find any infirmity in the order of the learned CIT (A) in holding that in an unabated assessment order i.e. A.Y. 2017-18, in absence of any incriminating material found during the course of search, no addition could have been made. As following the decision of Honourable Supreme court in case of Abhisar Buildwell Pvt Ltd [ 2023 (4) TMI 1056 - SUPREME COURT] all the grounds of the appeal of the learned Assessing Officer are dismissed. Addition u/s 68 - The paper books filed by the assessee clearly shows that the assessee has discharged his onus by producing confirmation from the parties, agreement of the services rendered, tax invoices, copies of board meetings minutes for the proof of services. Thus, according to him, the assessee has discharged his onus of showing the nature and source of the receipts, if the AO is not satisfied with the same, he should have at least carried out minimum enquiries to throw onus back to the assessee. There is not a single enquiry carried on by the AO to disbelieving the nature and source of the credits shown by the assessee. The LD AO did not even care to examine the parties who have paid these sums to the assessee and whether the above sum is allowed as deduction in the hands of such parties / companies. Naturally, if the claim of revenue is that no services are rendered by assessee to those parties; naturally, such expenses incurred by those parties are also not incurred by them wholly and exclusively for the business purposes of those companies, and it is not allowable to them. In view of this, we find that assessee has discharged its initial onus cast upon him - No merit in the appeal of AO. Decided in favour of assessee.
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2024 (1) TMI 941
Capital gain - Valuation - FMV determination - Conversion of agriculture land - reference to DVO - whether language of section 55A of the Act reference cannot be made to the DVO? - HELD THAT:- No infirmity in the order of ld. CIT(A) so as to call interference. In the instant case, we are of the considered view that ld. CIT(A) has correctly observed that the report of the registered valuer on which reliance has been placed by the assessee is not reliable for various reasons as elaborated in the order passed by ld. CIT(A). Accordingly, looking into the facts of the case, the ld. CIT(A) has correctly held that in the instant case, the Assessing Officer was correct in referring the matter to the valuation officer to determine the value of such asset. Accordingly, we find no merit in the additional ground raised by the assessee. The additional ground raised by the Assessee is hereby rejected. Considering the cost of acquisition of the aforesaid property as non-agricultural land as on 01-04-1981 - Assessee has taken the value of cost of acquisition, by considering the same to be non-agricultural property at the time of purchase. However, we are of the considered view that there is apparently no justification for considering the cost of acquisition of the aforesaid property as non-agricultural land as on 01-04-1981, when such property was agricultural property as on the date of acquisition and such property had been converted into non-agricultural property only during the impugned year under consideration, prior to sale. Valuation adopted by the assessee has not given any comparative sale instances and has simply arrived at value of cost of acquisition of land by adopting reverse formula i.e. by taking sale rate of non-agricultural property in the current year and applying inflation index. CIT(A) has correctly observed that the land sold in current year is non-agricultural land but the land was agricultural land as on 01-04-1981 and therefore cost of land as on 01-04-1981 cannot be determined based on sale rate of non-agricultural land for the current year and thereafter applying reverse formula thereon. CIT(A) has correctly concluded that fair value of land adopted by the valuer appointed by the assessee is incorrect and that too without any supporting evidences. In the case of Meccano Industries [ 1985 (7) TMI 179 - ITAT MADRAS-A] ITAT held that in case of sale of agricultural land, which was not capital asset at time of its acquisition by assessee but was subsequently converted into capital asset by its division into plots prior to sale, cost of acquisition of such capital asset for working out capital gains would be taken as its original cost of acquisition to assessee and not its market value on date of its conversion into non-agricultural land. - Decided against assessee.
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Customs
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2024 (1) TMI 940
Seeking grant of pre-arrest bail - smuggling - Gold - Reason to believe - HELD THAT:- Prima facie, there is material to show that about 36 kgs. smuggled melted gold was delivered to the applicant. There are statements to show that though the consignee was Ganesh Jewellers, the gold was delivered to the applicant and the persons have specifically named the applicant as the person to whom the gold was delivered. In the face of the aforesaid material coupled with rather indisputabe delivery of the gold, it is rather difficult to accede to the submission that there is no credible material to form a reasonable belief about the alleged complicity of the applicant. In the case of Satender Kumar Antil [ 2022 (8) TMI 152 - SUPREME COURT ] the Supreme Court has enunciated that in category A containing the offences which entail punishment of seven years or less a better exercise of discretion on the part of the Court in favour of the accused is expected. However, in the face of the material on record where prima facie involvement of the applicant in the alleged smuggling of the gold is made out, the custodial interrogation of the applicant appears indispensable for an effective and complete investigation. The conspectus of aforesaid consideration is that the material on record prima facie indicates that custodial interrogation of the applicant is necessary to facilitate further investigation and unmask the characters, which are involved in the alleged syndicate, and unearth the facets of the alleged offence. The application stands rejected.
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2024 (1) TMI 939
Refund of interest on amounts, which were paid during investigation and pendency of litigation - whether the jurisdictional Customs Officers, or Specified Officer, will decide the matter of refund pertaining to SEZ units - HELD THAT:- M/S. NEW KAMAL VERSUS UNION OF INDIA [ 2020 (4) TMI 281 - GUJARAT HIGH COURT] of the Hon ble Gujarat High Court, as well as the Board Circular No. 275/37/2K-CX.8A dated 2 January, 2002, makes it clear that unless some objections of substance as per the board circular of order not having been produced or copy of TR6 challan not having been produced is raised, other objections in view of copy of order of higher judicial authorities become in consequential. There are nothing wrong in the grants of refund of interest for the period sought by the appellant - the order of Commissioner (Appeals) is upheld - appeal dismissed.
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Insolvency & Bankruptcy
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2024 (1) TMI 938
Violation of principles of natural justice - Failure to clear the fees and expenses of period IRP - Impugned Order passed issuing contempt notice and the explanation which was submitted in the Affidavit filed has not been adverted to - Wilful disobedience or the order - entitlement of fees of the IRP - HELD THAT:- There is no denial that in pursuance of order dated 01.12.2022, Rs. 5 Lakh has not been deposited. The stand taken by the Appellant is that said amount is towards fee and expenses for the IRP and expenses are being regularly paid. He submits that appellant is always ready to pay the reasonable fees to the IRP and the Affidavit which was filed on 28th November, 2023, explanation has not been adverted to. Had the Adjudicating Authority adverted to the Affidavit filed by the Financial Creditor on 28th November, 2023, there would not have been any observation that there has been wilful disobedience of the Order. The ends of justice be served in setting aside the order dated 29th November, 2023 and remitting the matter to the Adjudicating Authority for hearing afresh considering the affidavit dated 28th November, 2023 filed by the Appellant and pass the order - appeal disposed off.
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Service Tax
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2024 (1) TMI 937
Levy of Service Tax - liquidated damages for delay in supply contract and service charges as per the written agreement with their suppliers - HELD THAT:- The same very issue has been considered by the tribunal in the decisions referred to be the counsel for appellant in the case of appellant s different unit THE PRINCIPAL COMMISSIONER, CGST, CENTRAL EXCISE SERVICE TAX, BHOPAL (M.P.) VERSUS M/S BHARAT HEAVY ELECTRICALS LIMITED (BHEL) [ 2022 (9) TMI 1457 - CESTAT NEW DELHI ], and the matter has been decided in the favour of the appellant, setting aside the demand of service tax. There are no merits in the impugned order demanding service tax on the liquidated damages. As the demand for service tax is set aside so is the demand of interest and penalty imposed. Appeal is allowed.
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2024 (1) TMI 936
CENVAT Credit - inputs, capital goods and input services received at places other than their registered premises - demand of interest and penalty - HELD THAT:- There is no dispute in this case regarding procurement of such goods and services on payment of appropriate excise duty/services. Also there is no dispute regarding utilisation of such goods/services either directly or indirect by the Appellant to provide output service (telecommunication service). The credit has been held as irregular only on the ground that such inputs, capital goods and input services on which Cenvat credit has been availed were received at places other than their registered premises. The issue has been settled in favour of the Appellant in the case of M/S. ORIENTAL INSURANCE COMPANY LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE SERVICE TAX, LTU, NEW DELHI [ 2023 (6) TMI 646 - CESTAT NEW DELHI] wherein it has been held that registration of premises with service tax department is not a condition precedent for claiming CENVAT credit. Demand of Interest - HELD THAT:- The CENVAT credit availed and utilized by the Appellant on the inputs, capital goods and input services received in the premises other than the registered premises cannot be denied as long as the said inputs, capital goods and input services are utilized in providing the output services. As there is no dispute regarding the utilization of the said inputs, capital goods and input services in providing output services in this case, we hold that the impugned order denying the credit is not sustainable. Since the demand of irregular credit is not sustainable, no question of demanding interest. Penalty - HELD THAT:- There is no evidence brought on record by the department to substantiate the allegation of wilful misstatement or suppression of any facts. Accordingly, the extended period not invocable in this case. For the same reason penalty imposed under Rule 15 of the CENVAT Credit Rules, 2004 read with Section 78 of the Finance Act, 1994, is also not sustainable. The impugned order set aside - appeal allowed.
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2024 (1) TMI 935
Levy of service tax - remuneration paid by the appellant to directors should be charged to service tax on the reverse charge basis or not - HELD THAT:- The matter is no longer res-integra as the same has already been decided by this Tribunal. The Kolkata Bench of this Tribunal, in the case of M/S BENGAL BEVERAGES PVT. LTD. VERSUS CGST EXCISE, HOWRAH [ 2020 (11) TMI 622 - CESTAT KOLKATA] has held when the very provisions of the Companies Act make whole-time director (as also in capacity of key managerial personnel) responsible for any default/offences, it leads to the conclusion that those directors are employees of the assessee company. The impugned order-in-original is without any merit - appeal allowed.
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Central Excise
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2024 (1) TMI 934
SSI exemption - creation of dummy units in order to keep the total value of clearances below the SSI exemption and not paying duty on their clearances - HELD THAT:- The charges against M/s Varun of creating dummy units for keeping the value of clearances below the SSI exemption are not sustainable. Hence, the demand and penalty imposed against M/s Varun is set aside - the penalty imposed upon co-appellants also set aside. Thus, impugned order is set aside and appeals are allowed.
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2024 (1) TMI 933
Method of valuation - Clearance of clinker and cement in bulk to their sister unit - valued under Section 4 of the Central Excise Act, 1944 read with the Central Excise Valuation Rules, 2000 or under Rule 8 of the Central Excise Valuation Rules, 2000? - HELD THAT:- This Tribunal in similar circumstances, involving the same items namely clinkers and bulk cements in M/S. ULTRATECH CEMENT LTD., (UNIT: RAJASHREE CEMENT WORKS) , VERSUS COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, [ 2024 (1) TMI 663 - CESTAT BANGALORE] even though upheld the method of assessment to be under Rule 4 read with Rule 11 of the Central Excise Valuation Rules, 2000 but following the principle laid down in the below mentioned case restricted the demand to normal period of limitation. The demand has been rightly restricted to normal period of limitation as held by the ld. Commissioner in the impugned order. Consequently, the impugned order is upheld and the Revenue s appeal being devoid of merit is dismissed.
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2024 (1) TMI 932
Debonding of 100% EOU - Validity of Show cause notice - Utilization of CENVAT Credit - payment of duty by 100% EOU can be paid from cenvat credit account while debonding the 100% EOU unit - HELD THAT:- At the time of de-bonding if there is any short fall of duty payment subsequent to the de-bonding of the unit, the custom/excise department is empowered to issue a show cause notice for which no approval of development commissioner is required for issuance of show cause notice, therefore, this submission of the appellant is not sustainable. Refund claim - amount paid from cenvat credit is otherwise refundable under Section 142 of CGST Act, 2017 or not - HELD THAT:- There is proper mechanism for filing refund claim and considering the merit of each case the sanctioning authority of GST department shall dispose of the refund, therefore, at this preliminary stage it cannot be decided that since the appellant can claim the refund of cenvat credit, the entire case is revenue neutral. However, the appellant have liberty to approach the GST authority to claim the refund, if any, in accordance with law. The cenvat credit can be utilized for payment of excise duty either on the finished goods or on the indigenous inputs. However, in case of imported inputs the additional duty of custom has to be paid in cash and not by debiting cenvat credit account in terms of Rule 3 of CCR, 2004 - the matter needs to be re-considered by the Adjudicating Authority - Appeal allowed by way of remand.
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2024 (1) TMI 931
CENVAT Credit - cement and TMT bars used in foundation work as well as building construction - period prior to July 2009 - invocation of extended period of limitation - HELD THAT:- There is no dispute that the cement and TMT bars were used for construction of building as well as foundation for erection and installation of machinery. Cement and TMT bars used for construction of building - HELD THAT:- The appellant have relied upon various judgments, however, those judgments are related to the cenvat credit to the service provider and not to the manufacturer, therefore, these judgments are not directly applicable in support of credit on cement and TMT bars used in construction of factory building. Cenvat credit to the manufacturer in respect of cement and TMT bars for making foundation for erection, installation of the machinery - HELD THAT:- There are judgments in favour of the assessee. However neither the show cause notice nor adjudication order has given bifurcation of the material used separately for making foundation and construction of building. The matter must go back to the Adjudicating Authority for ascertaining the amount of cenvat for the goods used in foundation and construction of building respectively and only thereafter, the final decision can be taken - Appeal allowed by way of remand.
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2024 (1) TMI 927
Seeking cash refund of CENVAT Credit u/s 142(3) of CGST Act, 2017 - Non-fulfilment of export obligation for the capital goods procured under EPCG License - HELD THAT:- On going through the copy of challan produced by the Appellant, it is seen that it has been submitted that Duty of Customs amounting to Rs.11,32,417/- has been paid, in which CVD+SAD of Rs.2,97,797/- are integral part. From the Order portion of OIO, it is seen that there is no dispute that the amount of Rs.2,97,797/- is on account of payment of CVD SAD only. In the case of M/S MITHILA DRUGS PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS AND SERVICE TAX, UDAIPUR (RAJASTHAN) [ 2022 (3) TMI 58 - CESTAT NEW DELHI] , the Delhi Bench has held refund of CVD and SAD in question is allowable, as credit is no longer available under the GST regime, which was however available under the erstwhile regime of Central Excise prior to 30.06.2017. Accordingly, I hold that the appellant is entitled to refund under the provisions of Section 142(3) and (6) of the CGST Act. In above case law, the issue was identical i.e., as to whether CVD+SAD as part of Custom Duties paid subsequent to 01.07.2017 on account of non-fulfilment of Export Obligation, are eligible for cash refund when the Appellant cannot take these amounts as Cenvat Credit. The co-ordinate Benches of Tribunal have been consistently holding that the Appellant would be eligible for Cenvat Credit. The issue in the present appeal is squarely is covered by the above decision. The Adjudicating Authority is directed to grant the refund along with interest, which is to be calculated from the initial date of filing the refund claim - appeal allowed.
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CST, VAT & Sales Tax
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2024 (1) TMI 930
Validity of demand of VAT and penalty - suppression of the sales/stock difference - use of tracing paper - Validity of proceedings under Section 29 of the HVAT Act - requirement to issue notice in the Form VAT-N3 - HELD THAT:- The said form gives the format of the penalty, which is proposed to be levied under Section 38 of the Act. It is after a proper due opportunity and the assessment having been done and thereafter penalty is levied under Section 38 of the HVAT Act, which is three times as per the requirement. The order dated 12.01.2016 (Annexure A-2), therefore, is apparently passed by the Joint Excise and Taxation Commissioner (Appeals), Faridabad, and the Tribunal has rightly dismissed the appeal as noticed above after recording the affirmed findings that the penalty under Section 38 of the HVAT Act has been levied. The question as such sought to be raised that proceedings were under Section 29 of the HVAT Act is without any substance keeping in view that notice under Section 38 of the HVAT Act was issued and the assessee failed to respond to the same. There are no substantial question of law arises for consideration in the peculiar facts and circumstances of the case - appeal dismissed.
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2024 (1) TMI 929
Sale in the course of interstate trade or commerce under Section 3(a) of the Central Sales Tax Act, 1956 or not - whether goods purchased outside Andhra Pradesh and used in works contracts within the state constituted an interstate sale under Section 3(a) of the Central Sales Tax Act, 1956. - HELD THAT:- Relying upon the decision in the case of M/S. LARSEN AND TOUBRO LTD. VERSUS STATE OF ANDHRA PRADESH REP. BY ITS PRINCIPAL SECRETARY (REVENUE) , HYDERABAD AND OTHERS [ 2015 (12) TMI 470 - ANDHRA PRADESH HIGH COURT] , there was yet another decision passed by this Court in M/S. PATEL ENGINEERING LTD., HYD VERSUS ASST. COMMR CT LTU, HYD 3 OTHERS [ 2021 (11) TMI 165 - TELANGANA HIGH COURT] , whereby the writ petition filed by the assessee was allowed and the matter stood remanded back to the authorities concerned for a fresh consideration, setting aside the previous order passed by the Revisional Authority. Given the aforesaid judicial precedents from this High Court and also considering the issue raised in the present Tax Revision Case being similar if not identical, therefore the present Tax Revision Case would stand squarely decided in terms of the order passed by the Division Bench of this Court in the case of M/s. Larsen and Toubro Ltd. The present Tax Revision Case therefore being devoid of merits, deserves to be and is accordingly, rejected.
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Indian Laws
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2024 (1) TMI 928
Maintainability of petition - Aggregate value of claims and counter-claims in arbitration - Seeking return of the petition on ground of lack of pecuniary jurisdiction of this Court entertain this Petition - invocation of Order VII Rule 10 of the Code of Civil Procedure, 1908 - inclusion of pendente lite interest - HELD THAT:- Section 12(2) of the CCA stipulates that the aggregate value of the claim and any counter-claim in a commercial dispute arbitration forms the basis for determining the pecuniary jurisdiction of the Court. In cases where the Statement of Claim includes a component of interest, such as in the present case, it is necessary to consider the portion of interest accrued up to the date of invocation of arbitration as part of the aggregate value , in accordance with Section 12(2) of CCA. However, this provision cannot be interpreted as requiring the computation of interest up to the commencement of proceedings under Section 34 of the Arbitration and Conciliation Act, 1996. The intent is to consider interest only until the arbitration is invoked, thereby establishing a definitive cut-off for calculating the aggregate value for jurisdictional purposes. The calculation presented by the Petitioner conflicts with the proper interpretation of Section 12 of the CCA. It is not permissible to apply interest to the original value of both the claim and counter-claim up until the filing date of petition under Section 34 of the Act. Accepting such a method would imply that in any arbitration case, the Specified Value would continually get revised. Consequently, if the Specified Value is initially below the pecuniary jurisdiction of this Court, it would eventually fall within the jurisdiction of a High Court simply due to the accrual of interest over time. This outcome would contravene the legislative intent behind establishing a specific threshold for the pecuniary jurisdiction of the Courts. Reliance placed upon a Division Bench judgment of this Court in NATIONAL SEEDS CORPORTION LTD. ANR. VERSUS RAM AVTAR GUPTA [ 2021 (12) TMI 1479 - DELHI HIGH COURT] , wherein the Court took into consideration only the portion of interest claimed till the date of invocation of arbitration for the purposes of calculating the pecuniary jurisdiction of this Court under Section 12(2) of the CCA. Section 21 of the Act stipulates that the arbitral proceedings commence when the notice invoking arbitration is received by the Respondent, and therefore, the interest is calculated up to such date. The interest component in the calculation supplied by the Petitioner would reduce substantially, for the following reasons: (a) Interest on risk and cost amount is to be calculated from due date (19th January, 2019) to the date of notice invoking arbitration (04th October, 2019): 18% interest p.a. on INR 58,07,799.82 for a period of 258 days = INR 7,38,891.5. (b) Moreover, the inclusion of pendente lite (interest accruing during litigation) and future interest on the counter-claim, as well as litigation costs, is impermissible to be inlcuded in the calculation of the Specified Value, as they commence accrual after date of notice invoking arbitration. Application disposed off.
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