Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
November 1, 2019
Case Laws in this Newsletter:
GST
Income Tax
Customs
Corporate Laws
Insolvency & Bankruptcy
FEMA
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Articles
News
Notifications
Companies Law
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F. No.5/20/2019 -B -CL-V - S.O. 3956 (E) - dated
30-10-2019
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Co. Law
Seeks to amend Notification No. S.O.831 (E), dated the 24th March, 2015
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F. No. 5/20/2019-C-CL-V - S.O. 3957 (E) - dated
30-10-2019
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Co. Law
Seeks to amend Notification No. G.S.R. 832(E), dated the 3rd November, 2015
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F. No. 5/20/2019-A -CL-V - S.O. 3955 (E) - dated
30-10-2019
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Co. Law
Jurisdiction of UT of JK and UT of Ladakh
Customs
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79/2019 - dated
31-10-2019
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Cus (NT)
Tariff Notification in respect of Fixation of Tariff Value of Edible Oils, Brass Scrap, Poppy Seeds, Areca Nut, Gold and Silver
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78/2019 - dated
31-10-2019
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Cus (NT)
Sea Cargo Manifest and Transhipment (Second Amendment) Regulations, 2019
GST - States
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47/2019-State Tax - dated
9-10-2019
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Chhattisgarh SGST
Seeks to make filing of annual return under section 44 (1) of CGGST Act for F.Y. 2017-18 and 2018-19 optional for small taxpayers whose aggregate turnover is less than ₹ 2 crores and who have not filed the said return before the due date
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46/2019-State Tax - dated
9-10-2019
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Chhattisgarh SGST
Seeks to prescribe the due date for furnishing of return in FORM GSTR-1 for registered persons having aggregate turnover more than 1.5 crore rupees for the months of October, 2019 to March, 2020
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43/2019-State Tax - dated
30-9-2019
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Chhattisgarh SGST
Seeks to amend notification No 14/2019- State Tax dated 7.3.2019
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24/2019 - State Tax (Rate) - dated
30-9-2019
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Chhattisgarh SGST
Seeks to amend Notification No. 07/2019-State Tax (Rate), No. F-10-17/2019/CT/V(40), dated the 29th March, 2019
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20/2019 - State Tax (Rate) - dated
30-9-2019
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Chhattisgarh SGST
Seeks to amend Notification No. 11/2017-State Tax (Rate), No. F-10-43/2017/CT/V(79), dated the 28th June, 2017
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17/2019-State Tax (Rate) - dated
30-9-2019
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Chhattisgarh SGST
Seeks to amend notification No 26/2018- State Tax (Rate) dated 31.12.2018
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G.O.Ms.No.91 - dated
9-8-2019
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Telangana SGST
EXTENSION OF DUE DATE FOR QUARTERLY FURNISHING OF FORM GSTR-1 FOR TAX PAYERS WITH AGGREGATE TURNOVER UP TO 1.5 CRORES UNDER THE TELANGANA GOODS AND SERVICES TAX ACT, 2017
Law of Competition
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F. No. CCI/CD/Amend/Comb. Regl./2019(2) - dated
30-10-2019
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Competition Law
Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Second Amendment Regulations, 2019
Circulars / Instructions / Orders
Highlights / Catch Notes
GST
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Classification of goods - Cervical Pillows - this product cannot be classified under HSN 9021 as “orthopaedic appliances including crutches, surgical belts and trusses; splints and other fracture appliances; artificial parts of the body; hearing aids and other appliances which are worn or carried, or implanted in the body, to compensate for a defect or disability”.
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Classification of goods - sanitary towels - disposable underpads which is used by bed ridden patients to protect skin from moisture - the product is appropriately classifiable under HSN 9619 00 90 - taxable @12% of GST
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Recovery of GST dues - Section 79 of the GST Act, 2017 - service of order of assessment - since the first respondent himself has chosen to defer the impugned proceedings through his communication, nothing survives in these writ petitions
Income Tax
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The audit report cannot replace the provisions of law and the principles laid down by the Hon’ble Court’s. - the assessee is entitled for the deduction of the expenses incurred on the study/feasibility report on the existing business being revenue in nature.
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Addition u/s 68 on account of share premium - violation under section 78 of the companies act in this case - the assessee in this regard disputes that there is any violation - matter restored before AO.
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TDS u/s 195 - In the instant case after examining the facts we are of the considered view that SPEPL is an independent agent and by no stretch can be termed as an agent wholly and exclusively associated to any particular non-resident supplier.
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Penalty u/s. 271 - Disallowance of expenses were beyond the scope of limited scrutiny for which assessee’s case was selected and hence it cannot be held that simply because assessee’s case was selected for scrutiny, therefore, assessee was persuaded for offering the disallowance of expenses. - No penalty
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Disallowance on account of bad debt/trading loss - the assessee is eligible for the deduction of the amount embezzled by the employee as a trading loss.
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Characterization of gain on sale of flat - Short term capital gain or Long term capital gain - valuation u/s 50C - conversion of stock in trade into capital asset - Cost of construction - CIT(A) rightly treated the same as LTCG and directed the AO to grant some relief.
Customs
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Sea Cargo Manifest and Transhipment (Second Amendment) Regulations, 2019
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Valuation of imported goods - mis-declaration of value of goods - Since the goods were not available for confiscation nor released provisionally after seizure to appellants against bond and bank guarantee, the order for confiscation of goods and imposition of redemption fine cannot be sustained.
Central Excise
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There were frequent changes of the law and different circulars were issued by CBEC during the relevant time. Therefore, there is scope for a different interpretation by the appellants. - extended period can’t be invoked under the instant case.
Case Laws:
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GST
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2019 (10) TMI 1235
Classification of goods - Cervical Pillows - whether falls under HSN tariff item 9021.10.00? - HELD THAT:- The product is nothing but a pillow used for comfort sleeping. The curve in the pillow provides comfort sleep and it can be used by any person having cervical problems or not. Therefore this product cannot be classified under HSN 9021 as orthopaedic appliances including crutches, surgical belts and trusses; splints and other fracture appliances; artificial parts of the body; hearing aids and other appliances which are worn or carried, or implanted in the body, to compensate for a defect or disability . Cervical pillows fall under HSN 9404 10 00 and is taxable at the rate of 18% GST as per Sl. No. 438 of Schedule III of Notification No. 01/2017 Central Tax (Rate) dated 28.06.2017.
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2019 (10) TMI 1234
Classification of goods - disposable underpads which is used by bed ridden patients to protect skin from moisture - whether falls under HSN tariff item 9619.00.90 or not? - HELD THAT:- The disposable underpad is functionally similar to sanitary towels as both are responsible for absorbing body fluids and keeping the respective body parts dry Therefore, the product is appropriately classifiable under HSN 9619 00 90 - Others - The product attracts 12% GST [Sl.No.235 of Schedule II of Notification no.01/2017 -Central Tax (Rate) dtd.28-06-2017 and SRO.No,360/2017].
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2019 (10) TMI 1233
Recovery of GST dues - Section 79 of the GST Act, 2017 - service of order of assessment - validity of impugned demand notice issued within 10 days from the date of the assessment order - HELD THAT:- There is no dispute to the fact that the assessment orders were passed for the relevant assessment years on 01.10.2019 and communicated to the petitioner which according to them, were received on 03.10.2019. It is also not in dispute that the time prescribed for filing of appeal against those assessment orders has not expired. In the meantime, the impugned demand notice was issued to the petitioner asking them to submit the proof of payment of the tax, interest, penalty demanded through the assessment orders on or before 21.10.2019. The impugned proceedings has already been deferred by the Revenue, in view of the fact that the petitioner has time to file the statutory appeal and that the said time has not expired so far. When such being the admitted factual position, nothing survives in these writ petitions to be adjudicated upon further, since the first respondent himself has chosen to defer the impugned proceedings through his communication dated 21.10.2019. Petition closed.
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2019 (10) TMI 1232
Denial of existing Benches; for redressal of grievance through appeal through appellate Forum to the State of Rajasthan - HELD THAT:- The GST Council is directed to take a final decision for notifying the Bench for the State of Rajasthan on or before the next dated. List on 18.11.2019.
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Income Tax
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2019 (10) TMI 1231
Settlement Commission rejecting an application for settlement - no proceedings were pending on the day - HELD THAT:- In the present case, the matter has to be viewed from the perspective of the Assessee i.e. to say when the Assessee is bound to act. It cannot be said that before the notice was even sought to be served upon the Assessee the proceedings qua him could not be said to have concluded. Revenue at the very outset states that he has no knowledge whether the Bombay High Court cases have been allowed to become final but he has relied upon M/s Shlibhadra Developers Vs. Secretary and 2 ors [2016 (10) TMI 778 - GUJARAT HIGH COURT] where it was held to the contrary. Petitioner has refuted this argument by asserting that one of the factors which weighed with the Gujrat High Court in the case of Shlibhadra (supra) was that the order was sought to be personally served upon the Assessee but the Assessee refused to accept the order, and apart therefrom, in an appeal filed by that Assessee to the Supreme Court leave has been granted. In our considered opinion, the petition must succeed. Apart from the fact that the judgment passed in Shlibhadra (supra) could be distinguished (since in that case the Assessee had refused service), what we find in the present case is that the petitioner had communicated to the Assessing Officer on 26.12.2018 itself that it was intending to move an application before the Settlement Commission. We are inclined to follow the view in Yashovardhan Birla [ 2016 (9) TMI 296 - BOMBAY HIGH COURT] wherein held for purposes of making an application for settlement, a case i.e. An assessment would be pending till such time as the assessment order is served upon the assessee. The declaration of law by this Court is binding on all authorities within the State including the Commission. The petitioner was entitled to proceed on the basis that till the service of the assessment order, the case continues to be pending with the Assessing Officer. Therefore, it was open to him to invoke the provisions of Chapter XIXA of the Act on 30th March, 2016 as till that date the assessment order was not served upon him. The assessment order for purposes of Chapter XIX A of the Act can be said to have been made when it is served upon assessee concerned. The application for settlement is restored to the file of the Commission at the stage of 245D(1) of the Act. The period of 14 days as provided in Section 245D(1) of the Act, will run from the date this order is first communicated by either of the parties to the Commission.
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2019 (10) TMI 1230
Premature demand of Interest u/s 220 - original assessment order was set aside and still pending for adjudication - Sale of property by auction and adjust the sale proceeds towards the Income tax dues - petitioner submitted that the tenure of the communication challenged in this writ petition would show that the second respondent has already taken a decision to levy interest from 01.03.1999 onwards and therefore, the petitioner has rightly filed the present writ petition - HELD THAT:- Stand taken by the Revenue in their counter in respect of the impugned communication dated 05.06.2018, it clearly indicates that it is only a tentative calculation made and that the final working of interest chargeable would be computed only after payment of outstanding tax and the same would be communicated to the petitioner by way of an order/proceedings. Hence, find that the present writ petition challenging the impugned communication is highly premature. Accordingly, this Writ Petition is disposed of, without expressing any view on the merits of the contentions raised by both parties, however, by granting liberty to the petitioner to work out his remedy as and when the demand of interest is made by issuing an order/proceedings.
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2019 (10) TMI 1229
Addition as the liability for the has not been crystallized in the year under consideration - liability towards the lease rent - AO was of the view that such liability represents the contingent liability as the same has been litigated by the assessee before the Hon ble Bombay High Court - Whether the assessee is eligible for deduction under section 37(1) for the liability on account of rent to Mumbai Port Trust in pursuance to the order of the estate officer of the Mumbai port trust? - HELD THAT:- Assessee in pursuance to the order of the estate officer of the Mumbai port trust has provided/accounted its liability in its books of accounts and accordingly claimed the deduction against its profit on the ground that the liability has been crystallized in the year under consideration though the same has been challenged before the competent court of law and pending as on date. Liability raised by the MPT has been disputed by the assessee in the court of law which is pending as on date. We also note that the assessee has not made any payment towards such liability. Therefore in over considered view entire liability is contingent in nature and its outcome depends upon the event in future. However, we further note that in the case of Navjivan Roller Flour Pulse Mills Ltd. Vs. DCIT [2009 (3) TMI 132 - GUJARAT HIGH COURT] has allowed deduction for such kind of liability. We hold that the assessee is entitled for the deduction of the liability raised by the MPT despite the fact that the same is pending in the court of law. Hence, the ground of appeal of the assessee is allowed. Additional royalty payment which was treated as prior period expenses - whether the assessee is eligible for deduction under section 37(1) of the Act for the liability pertaining to the year 2003-04 on account of the royalty but paid/ crystallized in the year under consideration to the Department of Geology and Mining? - HELD THAT:- Admittedly, the demand was raised by the Department of Geology and Mining of Gujarat upon the assessee vide letter dated 13-11-2006 which was pertaining to the earlier year 2003-04. Thus, it is inferred that the liability was crystallized in the year under consideration. As such, the liability for the royalty was provided by the assessee in the books of accounts in the previous year 2003-04 but some part of it crystallized in the year under consideration. Therefore we are of the view that, the assessee was not in a position to ascertain such liability in that relevant year. Accordingly, it was not possible for the assessee claimed the deduction of such liability in the year 2003-04. There is no ambiguity to the fact that it was not possible for the assessee to claim the deduction for the differential amount of the royalty paid/ crystallized in the year under consideration pertaining to the year 2003- 04. Thus, there was no fault of the assessee to claim the deduction and moreover it was not possible to do so. Therefore, we hold that the deduction pertaining to the earlier year but claimed in the year under consideration cannot be denied in the given facts and circumstance as it was impossible for the assessee to perform its duty. Due to uncontrollable circumstances, the performance of the obligation to record the liability in the year 2003-04 for the royalty expenses was not booked in the that year. The impossibility of performance releases the assessee from its obligation to account for such liability in the year 2003-04. A default occurs only when an obligation is not performed. We also find support from the legal maxim lex non cogit ad impossibilia meaning thereby that the law does not compel a man to do what he cannot possibly perform.See case of Krishna Swamy S. PD. ANR Vs. Union of India ors [2006 (2) TMI 75 - SUPREME COURT] Thus in view of above we hold that the assessee would be discharged from such an obligation and hence cannot be regarded a defaulter. We also note that, the law is fairly settled the assessee can claim the deduction for the liabilities in the year in which these were crystallised. Genuineness of the expenses and proximity of such expenses with the business of the assessee has not been doubted by the authorities below. Thus it can be inferred that the impugned expenses were incurred wholly and exclusively by the assessee for the purpose of its business. But the only drawback is that the same was not claimed in the year to which it pertains. However, we also note that there was no change in the rate of tax under the Act. Thus, there cannot be any loss to the revenue even if the assessee claimed such expenses in the year under consideration. Thus assessee is entitled to claim the deduction of the impugned expenses Nature of expenses - expenditure incurred on exploratory/evaluation studies - revenue or capital expenditure - HELD THAT:- Study conducted on the existing business in the given facts and circumstances cannot be treated as capital expenditure. The auditor in his report has held that such expenditure is capital in nature. However, in this regard we note that the audit report cannot replace the provisions of law and the principles laid down by the Hon ble Court s. we hold that the assessee is entitled for the deduction of the expenses incurred on the study/feasibility report on the existing business being revenue in nature. Hence the ground of appeal of the assessee is allowed.
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2019 (10) TMI 1228
Unexplained investment in factory building - addition u/s 69B - commercial production start - HELD THAT:- Tribunal was pleased to specifically observed the undisputed fact that the assessee has started commercial production from 22.11.2001 and the slip which was found on 22.01.2002 i.e. within the 3 months from the date of commencement of commercial production does not contain any date when the payment was made by the assessee. Neither any description against the amount in question is mentioned in the particular slip. It is only in the answer to question no.20 Shri Rohitbhai Amin stated that he paid in cash ₹ 84 lacs to M/s. Built Quick Construction Co. from time to time since 01.04.2000 to December, 2000 (Approx). How much payment were made prior to the commercial production was also not brought on record. Though the said Shri Rohibhai Amin deposed not only by the Board of Directors but also in the individual capacity. It was neither on record that whether he was having authorization on behalf of Directors. There is no such specific details as regards the assessee company has whether started its commercial production when the payment was made to M/s. Built Quick Construction Co. Disclosure made by Shri Rohibhai Amin whether belong to the assessee or to Shri Rohibhai Amin in individual capacity is to be decided especially when the assessee company did not have any source of income except the capital receipt by way of share contribution or borrowings. These aspects of the matter have not been considered either by the Learned CIT(A) or by the Learned AO which was directed to be considered by the Learned AO by the order dated 13.10.2006 passed by the Hon ble ITAT. Authorities below has not acted in the manner has been specified by the Hon ble Tribunal in order to deal the issue afresh; the directives of the Hon ble Tribunal has not been followed in its letter and spirit and hence, we are of the observation to restore the issue to the file of the Learned AO with a specific direction upon him to deal with the issue afresh in the light of the observations made by the Hon ble Tribunal - Assessee s appeal is allowed.
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2019 (10) TMI 1227
Addition u/s 69A - cash deposit in the bank account - agricultural income claimed by the assessee - HELD THAT:- In absence of any basis of estimating agricultural income of ₹ 2.00 lacs, the claim of agricultural income of ₹ 3,05,200/- cannot be rejected. Accordingly, the agricultural income claimed by the assessee at ₹ 3,05,200/- is allowed. Since the assessee is having agricultural operation for 8 to 10 years and the agricultural income for the year under consideration is ₹ 3,05,200/- then if the savings of the assessee out of his agricultural income per year is taken at ₹ 50,000/- for last 8 to 10 years then a savings of ₹ 5.00 lacs for the 10 years of agricultural income from a land of 34 to 35 bighas is not an abnormal claim of the assessee. A.O. has not disputed the fact that the assessee is not having any other source of income but the agricultural income only, therefore, in the facts and circumstances of the case, the savings for last 8 to 10 years of the assessee cannot be disputed and that too in toto. Hence, the claim of the assessee is allowed.
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2019 (10) TMI 1226
Addition u/s 68 on account of share premium - violation under section 78 of the companies act in this case - HELD THAT:- Not only the assessee s financial, do not justify the share premium the assessee has issued the share at premium of ₹ 2,490/- to one party and same shares have been issued without any premium to other party in same period. This certainly add, cogency in the observation of CIT(A) that in substance it is not share premium. We find that by referring to the non-compliance of section 78 of the Companies Act the learned commission of income tax has in substance referred to this aspect. The assessee has been evasive in its reply to the question of compliance of provisions of section 78 of the companies act. The assessee has submitted that this is an aspect which arises post receipt of the money. In other words assessee contends that it is not relevant. - assessee submits that the registrar of company has not passed any order against the assessee in this regard. We find that it is not the case of the assessee that he has submitted a confirmation from the registrar of company that in the facts of the present case there is no violation of provisions of section 78 of the companies act. We further find that in the order of the authorities below it has been mentioned that the provisions of section 78 has not been complied in as much as the share premium received has been used for investment in Future Generali India Insurance Company Ltd., a party which is a 40A(2)(b) company. However the assessee in this regard disputes that there is any violation. In our considered opinion on the facts and circumstances of this case this aspect needs to be remitted to the file of assessing officer. The assessing officer is directed to examine in detail this aspect as to whether there is violation of the companies act with regard to the utilisation of share premium account. Thereafter he shall decide as per law Needless to add the assessee should be granted adequate opportunity of being heard. - Appeals filed by the revenue are allowed for statistical purposes.
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2019 (10) TMI 1225
Penalty u/s. 271(1)(c) - claim of deduction 80HHC - HELD THAT:- Assessee has disclosed all the particular pertaining to his claim of deduction 80HHC which was not claimed in the original return of income, however, assessee had filed Form No. 10CCA. Considering this fact we observe that claiming deduction u/s 80HHC cannot be treated as concealment of income as the assessee has filed all the particular pertaining to his claim. Therefore, on this account levying of penalty is not correct. Addition pertaining to estimation of income from other sources out of agriculture income - There is a no case of furnishing inaccurate particulars of income. The AO has also not established with any relevant supporting evidences that there was case of furnishing any inaccurate particular income in respect of estimation of income from other sources out of agriculture income. Therefore, we consider that it is not justified to levy penalty. Addition in respect of interest income - AO has not established that there was case of furnishing inaccurate particular of income so we consider that no penalty is required to be levied on the addition made on account of interest expenses. However, we observe that assessee has concealed the particular of income for not disclosing the salary income which was not shown in the original return of income, therefore, we consider that assessee has concealed the particular of income in respect of salary income. Accordingly, AO is directed to restrict the penalty u/s. 271(1)(c) to the amount of addition made on account of salary income. Therefore, appeal of the assessee is partly allowed.
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2019 (10) TMI 1224
TDS u/s 195 - TDS on payments towards import of coal - income deemed to have accrued or arises in India - Taxation Avoidance Agreement (DTAA) between India and Indonesia, India and Singapore and India and Switzerland - HELD THAT:- Contract for sale of coal were entered between the assessee and non-resident on principal to principal basis. The contracts were executed outside India. Non-resident suppliers directly delivered coal from outside India to the appellant without routing through the agent SPEPL. That apart from procurement of order there is no role of SPEPL directly or indirectly in respect of sales, coal shipment services, collection of money and import documentation. It is also an undisputed fact that the Ld. A.O has not doubted the amount of arm's length and nature of commission income earned by SPEPL in India from these non-residents. In the instant case after examining the facts we are of the considered view that SPEPL is an independent agent and by no stretch can be termed as an agent wholly and exclusively associated to any particular non-resident supplier. The case of the assessee squarely falls in the Proviso to Section 9(1) of the Act which provides that such business connection shall not include any business activity carried out through a broker/agent commission agent or any other agent having an independent status if such broker, agent, commission agent having an independent status is coming in the ordinary course of his business . Since in our view there is no business connection between the non-resident and SPEPL therefore there will be no income deemed to have accrued or arises in India of the alleged non-resident suppliers in relation to the role of coal purchased by the assessee. Since no business connection is established of the non-resident suppliers in India for the purpose of computing income as per Section 9(1) there is no permanent establishment (PE) of the alleged four non resident suppliers in India. Also we are of the considered view that the agent SPEPL is an independent agent and is not wholly and exclusively associated with the alleged non resident suppliers. Thus the action of the A.O of estimating the profit on the amount remitted and subsequently calculating the TDS default @41.21% (gross) on the deemed profit is uncalled for. - Decided in favour of assessee Applicability of TDS on payments towards inspection charges - CIT(A) confirming the action of the Ld. A.O treating the inspection report charges paid to PT Arth Buana as fees of technical services - HELD THAT:- The content of the quotation only refers to the inspection certificates i.e. before the shipment starts from the place of origin inspection report is to be filed. This service is specifically related to procurement of coal. We do not see any technical services to have been provided to the assessee irrespective of the fact that the services are provided in India or outside India. It is not the case of the revenue that PT Arth Buana has a business connection or permanent establishment in India. In our view the service provided are not in the nature of Fee for Technical Service but are the charges for inspecting the vessel, therefore we find no merit in the finding of Ld. A.O treating assessee in default for non deduction of tax at source u/s 195 of the Act on the alleged payment towards inspection charges to non-resident. We therefore set aside the finding of Ld. CIT(A) and delete the addition of TDS - Appeal of the assessee stands allowed.
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2019 (10) TMI 1223
Penalty u/s.274 r.w.s. 271 - disallowance was suo motu at the commencement of assessment proceedings and when accounts were examined by the counsel, then assessee itself offered for the disallowance and has revised a computation - HELD THAT:- Assessee suo motu vide letter dated 19.04.2016 had withdrawn certain losses and offered for disallowance in the revised computation on the reasons as incorporated above. It has been stated by the assessee before the authorities below that such a disallowance was suo motu at the commencement of assessment proceedings and when accounts were examined by the counsel, then assessee itself offered for the disallowance and has revised a computation. Thus, it cannot be held that the assesse had offered for disallowance only when assesse was cornered on specific issues relating to expenses. If the assessee offers any disallowance on its own volition without being confronted by with material or any query by the Assessing Officer then on such a disallowance no penalty u/s.271(1)(c) can be levied. Disallowance of expenses were beyond the scope of limited scrutiny for which assessee s case was selected and hence it cannot be held that simply because assessee s case was selected for scrutiny, therefore, assessee was persuaded for offering the disallowance of expenses. Under these facts and circumstances of the case, the penalty levied by the Assessing Officer is directed to be deleted. - Decided in favour of assessee.
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2019 (10) TMI 1222
Disallowance on account of bad debt/trading loss - deduction of loss incurred by the assessee due to embezzlement by the employee - HELD THAT:- Admittedly, the genuineness of the embezzlement of the fund by the employee has not been doubted by the authorities below. Thus such loss was incurred by the assessee in the course of the business. It is a settled law that the losses incurred in the course of business are allowed as deduction u/s 28 of the Act. As decided in Dinesh Mills Limited v/s. CIT [ 2001 (12) TMI 65 - GUJARAT HIGH COURT ] assessee would be entitled to deduction of loss during the year under consideration as that was the year in which the loss on account of embezzlement was, in fact, discovered. Which year the assessee can claim the deduction on account of such losses, i.e., embezzlement of the fund. Admittedly, the fund was embezzled by the employee of the assessee in the earlier years, but the assessee did not claim the deduction for the same till date as it was hopeful of recovering the same amount from the employee. In the year under consideration, the assessee has lost its hope for the recovery of the amount from the employee. Assessee has written off such amount as bad debt in the year under consideration. In our considered view, it is the decision of the assessee to hold the amount as irrecoverable from the employee. The Revenue cannot enter into the shoes of the assessee and direct him to claim the deduction of such amount in the year in which the embezzlement was discovered/crystalized. Case-law referred by the authorities below are distinguishable from the present fact of the case. Therefore we are reluctant to place our reliance on such judgment. We note that the assessee is eligible for the deduction of the amount embezzled by the employee as a trading loss. Hence, the ground of appeal of the assessee is allowed. Disallowance on account of bonus/commission u/s. 36(1)(ii) - addition based on the remarks put by the auditors in the tax audit report - HELD THAT:- Remarks put by the auditors as bonus plus incentives paid to staff is purely customary in nature doesn t suggest that assessee has paid any dividend/profit to the staff. Therefore we are of the view that the AO has made the addition on the wrong assumption of facts. Therefore, we are not inclined to uphold the order of the authorities below - direct the AO to delete the addition made by him. Hence, the ground of appeal of the assessee is allowed.
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2019 (10) TMI 1209
Addition as unexplained credit - HELD THAT:- Substantial amount has been explained by the assessee in the given situation and the Revenue has made addition with respect to small amount for which also, details were furnished by the assessee. DR could not controvert these facts. There is no doubt that the bona-fide intent of the assessee and genuineness of the transactions have been established by the assessee because all the transactions made by the assessee were through banking channels and evidences has also been submitted before the Revenue Authorities. In view of the matter, we set aside the order of the Ld. CIT(Appeals) and direct the Assessing Officer to delete the addition from the hands of the assessee. Income from undisclosed sources taking recourse to the provisions of Section 68/69 - Disallowance was made since there was some discrepancy regarding PAN - HELD THAT:- As per the remand report, correct PAN of the assessee is available with the file. This fact is not controverted by the Ld. DR nor any evidences were brought on record to show that the transactions done by the assessee were not genuine. In view of the contents of the remand report and the undisputed fact that correct PAN of the assessee is mentioned therein, the addition made in this count does not have legs to stand. Accordingly, we set aside the order of the Ld. CIT(Appeals) and direct the Assessing Officer to delete the addition
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2019 (10) TMI 1208
Characterization of gain on sale of flat - Short term capital gain or Long term capital gain - valuation u/s 50C - conversion of stock in trade into capital asset - Cost of construction - HELD THAT:- The findings of the CIT(A) that the flat has been sold on 19.11.2013 whereas the date of agreement for development is 4.2.2010 and thus, the period of holding is more than 36 months. Hence, he directed the AO to calculate long term capital gain on such transaction after giving cost inflation index to the assessee. The addition made by the AO is to be recalculated as long term capital gain. This findings of the CIT(A) is not controverted by ld A.R. of the assessee. Since, the CIT(A) has directed the AO to calculate the capital gains after giving cost inflation index to the assessee, we do not find any infirmity in the order of the CIT(A), which is hereby confirmed. Accordingly, grounds of appeal of the assessee are rejected.
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Customs
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2019 (10) TMI 1221
Valuation of imported goods - rejection of declared value - import of poppy seeds from Turkey - main argument of the Revenue is that in the export declarations filed before the Turkish Customs, the exporter has shown USD 2500 as the value of goods exported whereas the appellants have declared the value for the imported goods as USD 750 only. HELD THAT:- Shri. Haji Sumar, who is one of the partners of M/s. Diamond Traders, has stated that he is not aware of the exporter s declaration filed before the Turkish Customs and does not know that the unit price declared at Turkey is higher. It is stated by him that he has made remittances to the foreign supplier through bank at unit price of USD 750 as declared in the Bills-of-Entry only. The export documents are not in English and contain only some English words. The discrepancy alleged in the export declaration made by exporter is sought to be corroborated by the statement of the appellant, but he has denied any knowledge. Further, the consideration is received through Bank - Therefore, the discrepancies in the export declaration are not sufficient evidence to reject the transaction value. The Tribunal, while disposing of a batch of cases in regard to similar imports of the very same goods and where similar evidence was adduced by the Department, had held that the transaction value cannot be rejected on the basis of such evidence. Demand do not sustain - appeal allowed - decided in favor of appellant.
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2019 (10) TMI 1220
Valuation of imported goods - mis-declaration of value of goods - the enhancement of value done on the basis of the documents received from the U S Customs through Consulate General - imposition of redemption fine and penalties - HELD THAT:- There is no merit in the submission of the Appellants that enhancement of value done on the basis of the documents received from the U S Customs through Consulate General, is not warranted. The decision of COLLECTOR OF CUSTOMS, BOMBAY VERSUS EAST PUNJAB TRADERS [ 1996 (11) TMI 75 - SUPREME COURT] referred to by the Appellants to is distinguishable, as in the para 5 of the judgment, it is specifically recorded that the documents were not recovered through the officially prescribed channel and were not collected from the Customs of the concerned countries. By mis-declaring and filing the Bill of Entry on the basis of manipulated invoices, appellants have definitely suppressed the value of the goods imported. Or their act of suppression with intent to evade payment of duty extended period of limitation as per the proviso to sub-section (1) of Section 28 of Customs Act, 1962 has been correctly invoked in the present case - For this reason the penalties imposed under Section 114A of the Customs Act, 1962 are justified - it is also evident that appellants have filed/ caused to file the Bill of Entry on the basis of false or manipulated invoice for mis-declaring the value hence in our view the provision of Section 114AA to get attracted in the present case. It is true that for the act of misdeclaration the goods became liable for confiscation under section 111 (m) of the Customs Act, 1962. Further for their act of misdeclaration making the goods liable for confiscation, Appellants are liable to penalty under Section 112(a). In view of the fact that proviso in Section 114A specifically provides that if the penalty has been imposed under that section, penalty cannot be imposed under Section 112, Commissioner has not imposed any penalty on Appellant 1 on whom penalty under Section 114A has been imposed - no penalties have been imposed on the managing director and executive director of the appellant company. Imposition of redemption fine - HELD THAT:- Since the goods were not available for confiscation nor released provisionally after seizure to appellants against bond and bank guarantee, the order for confiscation of goods and imposition of redemption fine cannot be sustained. Demand of Interest - HELD THAT:- Since appellants have short paid the duty at the time of clearance the demand for interest under Section 28AB to is justified - the demand of interest under Section 75 of the Finance Act, 1994 is upheld. The impugned order is upheld except for setting aside the order in respect of confiscation of goods and imposition of redemption fine - appeal allowed in part.
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Corporate Laws
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2019 (10) TMI 1219
Voluntary revision of Financial Statements of the Petitioner Company - sanction of the Scheme of Arrangement - HELD THAT:- On perusal of the petition and the documents annexed along with the petition, this Tribunal is of the view that Petitioner Company could not carry out the effects of the Scheme of Arrangement and Restructuring in the nature of demerger and transfer of Gandhidham Unit of Sumilon Industries Limited with the Petitioner Company with effect from the Appointed Date of demerger i.e. 01.04.2017, for circumstances beyond their control. Under such circumstances, the petition is allowed. The Petitioner Company is allowed to file the revised Financial Statements for the Financial Year ended 31st March 2018 to the extent of incorporating the effect of the Scheme of Arrangement as approved by this Tribunal.
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Insolvency & Bankruptcy
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2019 (10) TMI 1218
Maintainability of application - initiation of CIRP - Corporate Debtor failed to pay outstanding amount - dishonor of cheque - HELD THAT:- The Respondent-Corporate Debtor Company has committed default in making payment of its operational debt - Despite issuance of Demand Notice under Section 8 of the I B Code, the Corporate Debtor did not choose to pay the operational debts due nor gave reply to the above stated statutory notice. The present IB Petition is found complete and fit for triggering the Insolvency Resolution Process in respect of Corporate Debtor - the present IB Petition, filed under Section 9 of the Code, deserves admission. Petition admitted - moratorium declared.
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FEMA
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2019 (10) TMI 1210
Offence under FERA - fraud on the banking system - mens rea is an essential ingredient as the FERA proceedings - As alleged officers responsible for conduct of the company were negligent' - non specified SCN - HELD THAT:- Show Cause Notice must necessarily establish that the concerned officer was incharge of, and responsible for conduct of the company and further, spell out the offence committed by such officer. Only certain junior officers have been namedin the SCNs who can under no circumstances be said to be incharge and responsible for the bank or for conduct of its business. Further, onus to prove that a person was responsible for conduct of business of company is on the Department, which it has failed to discharge. In the impugned Orders Mr. Rajgopalan Ramkumar, Mr. Sunil G. Sawant, Mr. R.B. Dhage, Mr. Allwyn Roche, Mr. P.S. Khatu, Mr. T.R. Subramaniam and Mr. Paul Pereira have been held liable under Section 68(2) of FERA for allegedly contravening the provisions of Section 8(1), 9(1)(a), 9(1)(e) and 6(4) read with Section 49, on the ground that the alleged contraventions took place due to their alleged negligence even when section 68(2) was not invoked in the SCNs. The impugned Order has been passed under Section 68(2) of FERA returning a finding that the above-mentioned officers were negligent and have found them guilty under Section 68(2) of FERA. Such a finding, in the absence of any allegation under Section 68(2) in the SCNs is unsustainable in law. It depends upon case to case if the contravention was made by the defaulter with the guilty intention or not. The same is the main test. The guilty intention is missing in the present case on behalf of all the appellants if the statements are read. SCN must be specific and must indicate the precise scope of notice and points on which the officer concerned is expected to give a reply. It is submitted that when the foundation of the charge is not made out in the SCN, then the impugned Order passed under Section 68(2) cannot be sustained. It is not sufficient merely to allege that a person is incharge and responsible and there has to be specific allegation of how one was in charge and responsible to the business of the company, relevant to the allegations in question. As mentioned above, apart from bald statements, there are no specific allegation against the Officers It is a well settled principle of law that merely because penalty may be imposed, unless there is a deliberate defiance of law or the party is guilty of contumacious conduct or dishonest conduct or has acted in connections. Adjudicating Officer has wrongly given its finding that the above-mentioned officers were negligent and have found them guilty under Section 68(2) of FERA. Such a finding, in the absence of any allegation under Section 68(2) in the SCNs is unsustainable in law. It is well settled law that an SCN must be specific and must indicate the precise scope of notice and points on which the officer concerned is expected to give a reply. When the foundation of the charge is not made out in the SCN, then the impugned Order passed under Section 68(2) cannot be sustained It is submitted that the finding of the Adjudicating Officer holding the above-mentioned officers liable under Section 68(2) is beyond the SCNs and ought to be set aside on this ground alone. The finding therefore is not correct the said officers were grossly negligent . Power of RBI to punish an Authorised dealer was included in FERA only in the year 1993 whereas these contraventions were taken place in the year 1991. In the entire show cause notice, there is no material to suggest even remotely that the Noticee allowed the debit to the BFEA Bank Account with an intention to contravene the provisions of the act or the Manual as alleged. The Bank Official who processed the transaction for debit to the account of BFEA merely carried out the instructions of the constituent viz. BFEA as reflected in the cheque issued by and drawn on its account with the Noticee Bank. These instruments were received in the ordinary course of clearance of cheque and in the normal routine course of its banking business, the Officials debited the account of BFEA. There was nothing on the face of the instruments to even remotely suggest that the cheque was being credited into an account of a non-resident. The BFEA being a reputed State Bank of Russia, the Bank Officials had no reason to doubt that the State Bank of the Soviet Union like BFEA would issue its own Banker s cheques in an attempt to contravene the provisions of the Act or the Manual. The Bank Officials acted in good faith and the element of mens rea required for a charge of abetment is completely lacking. It is submitted that no penalty could be imposed in respect of the said charge. No material is found to establish that the banks and its official are involved in any conspiracy directly or indirectly, intentionally or deliberately for the said lapse. No doubt it is serious matter and it should not have happened. It did happen 1991 when communication and technology was not so equipped. Even staff or banks officials may not be experts at that point of time. From the conduct of the bank and pleading of all the appellants, it appears that they are feeling their mistakes. Case of the appellants are that being a bank it was only for RBI to impose the penalty if any thought alternative submissions are also made. The money in question has also brought back by the bank before issuance of show cause noticed. Country has not lost any revenue. After 1991 the bank has conducted thousand of transactions without any default. RBI has not cancelled its licence of the appelalnt for foreign exchange. Entire penalty amount has been deposited by the Bank. It appears that after realising lapse on their part, in order to show their bona-fide, the statement was made during hearings of appeals that without prejudice, the said penalty amount shall not be pressed by the appellants for refund. The same may be deposited with the Prime Minister Relief Fund, if so advised by the respondent.
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Service Tax
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2019 (10) TMI 1207
Extended period of limitation - demand of differential duty - demand of service tax on the gross amount including salary of the security guards, PF, ESI etc. - penalty - HELD THAT:- As per Section 67, the gross amount charged towards providing service shall be liable to service tax. As regards the salary of security guards, PF and ESI, the same is not an expenditure incurred by the appellant on behalf of the service recipient. The service recipient is concerned about the overall provision of security service irrespective of bifurcation of payment of service paid by the service recipient to the appellant. Therefore, it cannot be said that salary of guards, PF, ESI etc. are reimbursable expenditures to be deducted from the gross value of security service. Therefore, we do not agree with the appellant (assessee) that only the commission portion is liable to tax and not the gross value. Time Limitation - HELD THAT:- From the beginning the appellant were paying service tax only on the commission portion without adding the value towards salary of guards, PF, ESI etc. They have declared to the department on the said value on which the service tax is paid which is representing only commission. Therefore, the department is of the belief that the appellant is paying service tax on the gross value of security service provided by them to their recipient of service - it cannot be said that the appellant was under bonafide belief that only commission is chargeable to service and not the total gross value of service provided by them - the show cause notice has rightly invoked extended period and therefore, the demand for the extended period is sustained. Penalty u/s 78 - HELD THAT:- Since the appellant despite clear provisions for value of security service, paid service tax on commission only, the bonafide is not proved. Hence, the penalty imposed under Section 78 is maintained. Benefit of reduced penalty - HELD THAT:- On perusal of the adjudication order, it is clear that the Adjudicating Authority has not given the benefit of 25% penalty in writing in the adjudication order. Therefore, the Commissioner (Appeals) is legally correct in extending the benefit of 25% penalty. Appeal dismissed - decided against Revenue.
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Central Excise
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2019 (10) TMI 1217
Prayer to withdraw the appeal - monetary amount involved in the appeal - Maintainability of appeal - time limitation - HELD THAT:- Vide instructions dated 22.8.2019, the Central Board of Indirect Taxes and Customs has prescribed the monetary limits for filing the prosecuting appeals in the Hon'ble High Court at ₹ 1 crore and above - It is further stated therein that vide email dated 25.9.2019, counsel has instructions to withdraw the present appeal, since the duty amount involved in the present appeal is ₹ 90, 99, 392/- - The application is supported by an affidavit of the counsel for the appellant. Application dismissed as withdrawn.
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2019 (10) TMI 1216
Clandestine Removal - it was alleged that appellants have diverted/misused/non-accounted for a quantity of 4,36,097 OTS cans during the period August 2001 to September 2005 - HELD THAT:- The investigation has clearly established that there was a non-accounted shortage/diversion of OTS cans and we find that the same has been accepted by Shri V.S. Purushotam Reddy, Accounts Officer of M/s PBPL and others. Therefore, there is no doubt regarding the duty liability on the OTS cans to be payable by M/s PBPL - the appellants other than making the averments in the submissions before the Commissioner and in the grounds of appeal have not produced any records evidencing the same. In the absence of the same, their submissions do not hold water and therefore, we are not inclined to accept the same. Invocation of section 11 of CEA - HELD THAT:- Section 11 pertains to recovery of sums due to the Government. That is to say, there should be a confirmed demand against the notice, on the date of invocation of the section, as on the day of notice. As on the date of transfer of unit from M/s PBPL to the appellants M/s JISL even the show cause notice was not issued. The show cause notice was issued on 31.10.2008 and was confirmed by Order-in-Appeal dt.27.07.2010 against M/s PBPL. Therefore, the issue of SCN to M/s JISL as on 31.10.2008 was premature as there was no confirmed demands as on that date. Even the SCN was not in existence. Therefore, the invocation of section 11 in show cause notice even before the demands are confirmed is not as per law. The invocation of section 11 at the stage of SCN is immature. A notice issued immaturely does not merit confirmation. Therefore, there is force in the contention of the appellants and the Order-in-Appeal is not sustainable, to the extent. Appeal allowed in part.
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2019 (10) TMI 1215
Imposition of penalty u/r 26 of CER - demand on the ground that company had cleared the goods at concessional rate in DTA before obtaining permission from Development Commissioner and also required NFE was not achieved - HELD THAT:- The consequential penalty to the demand of duty in respect of consignment cleared during the period 01.01.2008 to 07.05.2008 during which period, the appellant was not employee in the company, therefore, whatever clearances were made, the appellant had no role. Since the appellant has no dealt with the good for which the demand was confirmed and even he was not involved in making any documents related to such consignments, he cannot be implicated in the case of short payment of duty committed by the company - there are no reason for imposition of any penalty upon the appellant under Rule 26 - penalty set aside - appeal allowed - decided in favor of appellant.
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2019 (10) TMI 1214
Classification of goods - miscellaneous edible preparations such as ready to Eat Food Items - whether classified under sub heading 20049000 or under sub heading 21069099? - extended period of limitation - HELD THAT:- The product manufactured by the appellant and its classification were informed to the Revenue vide their letter dt.18.5.2004 as well as their ER-2 returns. Therefore, the fact of manufacturing of goods in question and its classification thereof was in the knowledge of the department. In that circumstance, the extended period of limitation is not invokable. The whole of the demand raised against the appellant by invoking the extended period of limitation, therefore, the show cause notice is barred by limitation - no demand can be raised against appellant. Appeal allowed - decided in favor of appellant.
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2019 (10) TMI 1206
Transfer of capital goods stock from one unit to another - whether duty equal to credit is payable on clearance of Cenvat availed Capital Goods by the from the Appellants or duty is payable at the rate and value prevalent on the date of clearance, deeming that the capital goods are manufactured by the appellants? - time limitation - revenue neutrality - benefit of depreciation - HELD THAT:- CBEC vide circular No 643/34/2002-CX dated 01.07.2002 holds that in that case, it would be reasonable to adopt the value shown in the invoice on the basis of which Cenvat Credit was taken by the assessee in the first place. In respect of Capital Goods adequate depreciation may be given as per the rates fixed in Letter F. No. 495/16/93-Cus IV dated 26-5-1993, issued on the customs side. Further CBEC Circular No. 813/10/2005-CX dated 25-4-2005 confirms that in respect of removal of Capital goods on which credit has been taken under erstwhile sub Rule 1C of 57(AB) of CER,1944 or under Rule 3(4) of Cenvat Credit Rules, 2001 or 2002, the provisions of Rule 3(5) of Cenvat Credit Rules would apply. The learned commissioner finds that the above circulars will be applicable only for the period prior to 01.07.2002 and at the time of clearance Rule 3(4) was operational. The tribunal in the case of Siddharth Tubes ltd. [ 2008 (2) TMI 247 - CESTAT NEW DELHI ] held that We find that no evidence has been brought on record to show that the unit no.1 has partly sold the inputs HR coils to the independent buyers at higher price. Therefore, the action of unit no. 1 to reverse the credit taken on the inputs cleared as such to the unit no. 2 in terms of the highlighted portion of the boards circular dated 1/07/2002 can t be faulted. Extended period of limitation - HELD THAT:- The appellants have been regularly submitting the ER-1 and regular audit of the appellants was also being undertaken. No case of deliberate suppression of facts etc. has been made out by the department. Arguably, there were frequent changes of the law and different circulars were issued by CBEC during the relevant time. Therefore, there is scope for a different interpretation by the appellants. However, for this reason extended period cannot be invoked - the issue is barred by limitation. Benefit of Depreciation - revenue neutrality - HELD THAT:- The appellants have raised the issues of not allowing the benefit of depreciation and Revenue Neutrality - there are no reason to look in to those issues in view of the conclusions on merits and limitation. The appeal allowed on merits as well as on limitation.
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CST, VAT & Sales Tax
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2019 (10) TMI 1213
Classification of goods - rate of tax - borehole drilling rigs used for the purpose of drilling - main ground raised and argued is to the effect that the Clarification issued by the Commissioner was very much in force at the time of assessment and thus the Assessing Authority ought not to have simply ignored the same without noting the position that a superior authority had considered the very same equipment that was in issue, holding the same to be taxable as a tool - petitioners sought a clarification from the Commissioner of Commercial Taxes under application dated 29.03.2007 as to what the proper classification of the commodity would be as well as the applicable rate of tax.. HELD THAT:- The legal position that emerges to me from a consolidated understanding of the decisions referred to above is that an Executive Circular that has no claim to statutory sanction or force cannot bind either an assessee or the revenue. Needless to say, no Circular, executive or otherwise, will bind the Courts. In fact, Courts have held that even a statutory Clarification issued by the head of the Commercial Taxes Department would not be the final word when it comes to matters such as classification of commodities/equipments or rate of tax thereupon, if such clarifications are contrary to law or the provisions of the Statute itself, including the Schedules thereto. Such being the case, a Clarification, in the nature of an Executive Circular has no binding force. More so, in the present case, the assessing authority has taken up and completed the assessment pursuant to an order passed by this Court dated 22.12.2008 directing completion of the assessment. The Officer was specifically directed to complete the assessment on merits and in accordance with law which means a proper interpretation of the relevant statutory provisions and schedules thereto. The classification of the equipment as accessories of motor vehicle has been done by the officer in a proper and detailed manner and nothing has been pointed out to establish that the classification is perverse or contrary to the factual position. The only argument raised and argued is to the effect that the officer ought to have followed the Clarification issued by the authority. In the light of the detailed discussion as above, this argument of the petitioner is rejected. Admittedly, the Clarification issued by the Commissioner has not been withdrawn. If at all the Assessing Authority in the present case was of the view that the Clarification had not taken note of certain factual aspects or, as he has stated in the impugned orders, has been obtained on a mis-representation, he ought to have brought this to the notice of the higher authorities and obtained proper guidance before proceeding to unilaterally reject the ratio of the Clarification and proceed on an altogether different premise. What results is a contradiction between the view taken in assessment and what the Commissioner has stated, in regard to the identical commodity. As a fact, the assessee in the present case has not collected tax in excess of 4% relying on the Clarification issued by the Commissioner that has not been followed in assessment. Thus, the petitioner is permitted to seek waiver of the disputed amounts raised in the impugned assessments and the Committee for waiver shall consider the request and grant the same - Petition dismissed.
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2019 (10) TMI 1212
Direction to respondents 2 and 3 or any person from any way interfering with the writ petitioner's peaceful demonstration inside second respondent SEZ premises and outside the factory of the fourth respondent - HELD THAT:- The writ petition was filed in the year 2011 and the relief sought for is for a direction to respondents from any way interfering with the writ petitioner's peaceful demonstration which was conducted in the year 2011 - On account of efflux of time, the cause aroused for the filing of the present writ petition became vanished. Thus, no further adjudication needs to be entertained in respect of the grounds raised in the present writ petition. The writ petition stands disposed of as infructuous.
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Indian Laws
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2019 (10) TMI 1211
Refusal to execute sale deed as promised by them in respect of a plot - investigation of the going on - HELD THAT:- It has rightly been contended by the learned counsel for the State that an accused in a criminal case can not set the term of investigation. Since investigation into a cognizable offence is going on, it would not be proper for this Court to presume anything either against the accused or against the informant of the case. The investigating agency would submit its report on the basis of outcome of investigation and not as per the wishes of the informant or the accused - No case for issuance of any mandamus to the respondents is made out. Application dismissed.
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