TMI Tax Updates - e-Newsletter
December 30, 2020

Case Laws in this Newsletter:

GST Income Tax Customs Corporate Laws Insolvency & Bankruptcy Law of Competition PMLA Service Tax Central Excise Indian Laws

TMI SMS

• Refund of IGST - Zero Rated Supplies - petitioner has claimed drawback of the customs component only for their exports - Refund to be granted - HC

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• The claim of indefeasible right to avail the ITC of GST vis-a-vis Rule 86A of CGST Rules fails - No vested right accrues before taking credit - HC

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Articles

1. Request to honourable FM: EXTEND LAST DATE FOR FILING OF TAR and ITR BY SMALL AND MEDIUM ASSESSEES- say other than listed companies.

   By: DEVKUMAR KOTHARI

2. CONNIVANCE IN EVASION OF GST

   By: DR.MARIAPPAN GOVINDARAJAN

News

1. Electoral Bearer Bond Scheme 2018 – Issuance by Authorised Branches of State Bank of India (SBI) during January 01-10, 2021

2. Prohibition removed from Onion Export

3. Auction for Sale (Re-issue) of ‘4.48% GS 2023’, ‘GoI Floating Rate Bond 2033’, ‘6.22% GS 2035’, and ‘6.67% GS 2050’

Notifications

DGFT

1. 51/2015-2020 - dated 29-12-2020 - FTP

Amendment in Policy condition of Sl.No. 55 & 57, Chapter 10 Schedule-2, ITC(HS) Export Policy, 2018

2. 50/2015-2020 - dated 28-12-2020 - FTP

Amendment in Export Policy of Onions

GST

3. G.S.R. 801(E) - dated 28-12-2020 - CGST

Corrigendum : Notification No. 94/2020-Central Tax, dated 22nd December, 2020

Money Laundering

4. G.S.R. 800 (E) - dated 28-12-2020 - PMLA

Prevention of Money-laundering (Maintenance of Records) Fourth Amendment Rules, 2020

5. G.S.R. 799(E) - dated 28-12-2020 - PMLA

Central Government notifies dealers in precious metals, precious stones as persons carrying on designated businesses or professions

6. G.S.R. 798 (E) - dated 28-12-2020 - PMLA

Real Estate Agents notified as “persons carrying on designated businesses or professions”. - Notification No. 8/2017, dated 15 November, 2017 rescinded

Circulars / Instructions / Orders

DGFT

1. 36/2015-2020 - dated 29-12-2020

Amendment of Para 2.54 of the Handbook of Procedures, 2015-2020.

2. 35/2015-2020 - dated 28-12-2020

Enlistment of 18 PSIAs in terms of Para 2.55 (d) of HBP (2015-20) in Appendix-2G

Highlights / Catch Notes

GST

• High Court Dismisses Petition on ITC Block u/r 86A; Inquiry on Fake Invoices Deemed Justified.

  Case-Laws - HC : Scope of powers under Rule 86A - power and procedure for blocking the input tax credit (ITC) in the electronic credit ledger of a registered person during any inquiry or investigation - it cannot be said that the inquiry or investigation initiated as regards the fake/bogus invoices for the purpose of ITC is malafide or based on absolutely no materials. From what has been stated in the reply affidavit filed on behalf of the respondents, it could be said that prima facie, there is something which the Revenue has noticed and, therefore, are looking into the same before taking any final call as regards the claim of the writ applicants to avail the ITC. - Writ petition dismissed - HC
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• Court Rules No Vested Right to ITC Before Formal Claiming; Rejects Indefeasible Right Argument u/r 86A.

  Case-Laws - HC : Indefeasible right vis-a-vis the benefit of the ITC - No vested right accrues before taking credit. - the vociferous submission of the learned counsel appearing for the writ applicants as regards the indefeasible right to avail the ITC vis-a-vis Rule 86A of the Rules should fail and hereby fails. - HC
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• Court Rules Bail Possible for Economic Offences; No Automatic Denial for Bogus Input Tax Credit Charges Per Section 437(1) CrPC.

  Case-Laws - HC : Grant of Bail - allegation of bogus input tax credit - For the purpose of granting or refusing bail there is no classification of the offences except the ban under Section 437(1) of the Criminal Procedure Code against grant of bail in the case of offences punishable with death or life imprisonment. Hence there is no statutory support or justification for classifying offences into different categories such as economic offences and for refusing bail on the ground that the offence involved belongs to a particular category. - The petitioner is directed to be released on bail subject to conditions - HC
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• Court Orders Refund of Excess ITC for CGST and SGST by Adjusting IGST Credit Entries.

  Case-Laws - HC : Refund of ITC of CGST and SGST - The ITC of CGST and SGST started accumulating correspondingly. In such circumstances, as on date on account of such amendment in operation, the writ-applicants have Nil balance of IGST in its electronic credit ledger and the IGST balance is converted into CGST and SGST. In other words, the balance of CGST and SGST got artificially inflated as a result of the appropriation of IGST credit. - The respondents are directed to sanction and pay the refund after first reversing the entries of utilization of the subject credit and debiting the said amount from the credit ledger consequently available to the writ-applicant - HC
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• Court Rules IGST Refund Valid for Zero-Rated Supplies; No Double Benefit with Customs Duty Drawback.

  Case-Laws - HC : Refund of IGST - Zero Rated Supplies - it appears that the writ-applicant had claimed higher duty drawback - it is evident that the petitioner has claimed drawback of the customs component only for their exports and there arises no question of denying the refund of IGST. - In the case of the writ-applicant, the drawback rates being the same, it represents only the Customs elements, which did not get subsumed in the GST and thus, the writ-applicant cannot be said to have availed double benefit i.e. of the IGST refund and higher duty drawback. - HC
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Income Tax

• Assessee Entitled to Forex Loss Deduction of Rs. 41,96,702; ICDS-6 Irrelevant for Year in Question.

  Case-Laws - AT : Allowability of claim - additional claim by way of letter, which are not claimed in the return of income by the assessee - Deduction towards forex loss - Income Computation Disposal Standard-6 has relevance to the year under consideration and the placing of reliance by A.R. on this standard is misplaced. Coming to the allowability of deduction, in our opinion, assessee is entitled for forex loss relevant to the assessment year under consideration only to the tune of ₹ 41,96,702/- and not entire amount of ₹ 62,60,285/-. - AT
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• Authorities Must Apply Investment Value Reduction for Disallowance u/s 14A & Rule 8D in Tax Calculations.

  Case-Laws - AT : Disallowance u/s 14A - authorities below directed to extend the benefit of the assessee on account of diminution in the value of investments while working out the disallowance to be made under the provisions of Section 14A read with Rule 8D of Income Tax Rules. - AT
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• Freight Expenses Disallowed Due to Non-Deduction of TDS; Separate Truck Contracts u/s 194C Examined by Revenue.

  Case-Laws - AT : TDS u/s 194C - Disallowance of freight expenses - No TDS was deducted - the AO has noted that a separate truck was engaged in almost all cases of transportation, numbering 599, subcontracted. There is no finding by the Revenue of any oral or written contract with the sub-contractors for transportation. Every GR is therefore to be treated as a separate contract. And with each such contract not exceeding the prescribed limit for tax deduction at source - TDS not required to be deducted - AT
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• Court Rules Against Addition u/s 68 for Unexplained Land Advances; Repayment Valid Due to Legal Issues.

  Case-Laws - AT : Addition u/s 68 - unexplained land advances received back by the appellant - assessee has advanced the amount and also a fact that transaction is not materialized because the legality of the agricultural land is the issue. It is also a fact that mediator is arranged repayment of the amount - The addition made by the AO and confirmed by the ld. CIT(A) is not correct - Additions deleted - AT
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• Assessing Officer's Conversion of Limited to Full Scrutiny Without Proper Jurisdiction Deemed Illegal by CBDT Instructions.

  Case-Laws - AT : Scope of limited scrutiny - In the present case, the day on which case was converted into full scrutiny i.e. on 21.12.2016 the ld. AO on the very next day passed the order of assessment by making the addition which were beyond the scope of limited scrutiny. - Further looking at the earlier notices, u/s 142(1), it is apparent that AO started making roving enquiries on the issue which was not the subject matter of limited scrutiny. He even framed draft assessment order and then sought approval of Pr CIT for conversion in to Full scrutiny from Limited scrutiny. Non-adherence to CBDT instruction which are binding on the AO makes the order of the ld. AO illegal and without jurisdiction . - AT
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Customs

• Commissioner (Appeals) Overlooks Importers' Acceptance of Enhanced Valuation, Incorrectly Overturns Assessing Officer's Decision on Bills of Entry.

  Case-Laws - AT : Valuation of imported goods - The Commissioner (Appeals) completely failed to advert to the crucial aspect that the importers had themselves accepted the enhanced value. The Commissioner (Appeals) in fact, proceeded to examine the matter as if the assessing officer had enhanced the declared value on the basis of other factors and not on the acceptance by the importers. This casual observation is not based on the factual position that emerges from the records of the case - the Commissioner (Appeals) was not justified in setting aside the orders passed by the assessing officer on the Bills of Entry. - AT
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DGFT

• India Amends Onion Export Policy: All Varieties Now Classified as "Free" for Export Starting January 1, 2021.

  Notifications : Amendment in Export Policy of Onions - The Export of all varieties of Onions, as described above, has been made “Free” with effect from 01.01.2021 - Notification
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IBC

• Retirement Benefits and Provident Fund Claims Settled in CIRP Proceedings; Interest on Gratuity Admitted Until Insolvency Date.

  Case-Laws - Tri : Claim of Retirement benefits before RP - CIRP proceedings - Since, the Resolution Professional stated that he has admitted the interest on gratuity of the applicants till the Insolvency commencement date i.e. on 28.11.2019 from the date of retirement of the applicants and already included the admitted claims in the Information Memorandum, and since the EPF authorities have already filed their claim pertaining to the PF dues of the applicants and admitted by the Resolution Professional, nothing survives for further consideration in this application. - Tri
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PMLA

• CBIC Named Regulator for Precious Metals, Stones Dealers, and Real Estate Agents Under PMLA Rule 2 Compliance.

  Act-Rules : CBIC designated as regulator under PMLA for the purpose of dealers in precious metals and precious stones and real estate agents - Rule 2 of the PREVENTION OF MONEY-LAUNDERING (MAINTENANCE OF RECORDS) RULES, 2005
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Service Tax

• Appellant Cleared of Willful Tax Evasion; No Intentional Misconduct in Delayed Service Tax Payments Found.

  Case-Laws - AT : CENVAT Credit - short/delayed payment of service tax - It cannot be said that the appellant had any intention, much less willful intention not to pay service tax in regard to the four audit objections referred to the Audit Report - It is, therefore, more than apparent that even otherwise, the appellant did not suppress facts with an intention to wilfully evade payment of service tax. - AT
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• Court Upholds Rejection of Earlier Declaration Under Sabka Vishwas Scheme; No Priority Obligation for Initial Application.

  Case-Laws - HC : Principles of Natural Justice - rejection of declaration under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - SVLDRS - We perceive logic in the action of the respondent in not taking decision on the application dated 28.12.2019, which the Department was not under statutory obligation to have considered first - there are no illegality or a jurisdictional error in considering the application dated 14.01.2020, rendering earlier application as redundant, no interference is caused. - HC
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Central Excise

• CBIC and Ahmedabad Collector's Textile Classification Dispute: Nature of Raw Materials vs. Weaving Method Under Scrutiny.

  Case-Laws - HC : Classification - Scope of the term Textile - Demand based on CBIC circular - It appears that the understanding of the word ‘textiles’ in common parlance has not been considered by the Board as well as by the Ahmedabad Collector while issuing the impugned Order and the Trade Notice respectively. Instead of considering the method of weaving as a relevant factor, the nature of the raw material seems to have been taken into consideration while issuing such Order and Trade Notice. The Board’s Circular and the Collector’s Trade Notice prima facie appear to be contrary to the law laid down by the Apex Court about what is ‘textiles’, and cannot be relied upon for classifying woven fabric - HC
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Case Laws:

• GST

• 2020 (12) TMI 1120
  Indefeasible right vis-a-vis the benefit of the ITC - Rule 86A of the CGST Rules inserted vide the Notification No.75/2019-CT dated 26th December, 2019 in the CGST Rules - power and procedure for blocking the input tax credit (ITC) in the electronic credit ledger of a registered person during any inquiry or investigation - scope of exercise of power under Rule 86A of the Rules - whether the authority concerned is empowered to retain any amount deposited by a registered person during any inquiry or investigation in the absence of any confirmed liability against the assessee and, more particularly, without issuance of a show-cause notice and assessment/adjudication order imposing any tax liability on the assessee? HELD THAT:- the Supreme Court categorically considered the aspect of availing the credit and utilization of credit as two different stages and declared that the utilization of the accrued credit is a vested right. No vested right accrues before taking credit. - the vociferous submission of Mr. Dave, the learned counsel appearing for the writ applicants as regards the indefeasible right to avail the ITC vis-a-vis Rule 86A of the Rules should fail and hereby fails. Scope of powers under Rule 86A - Rule 86A talks about reason to believe which is necessary to be formed for the purpose of blocking the input tax credit in cases of inquiry or investigation into fraudulent transactions. Any opinion of the authority to be formed is not subject to objective test. The language leaves no room for the relevance of an official examination as to the sufficiency of the ground on which the authority may act in forming its opinion - there must be material, based on which alone the authority could form its opinion that it has become necessary to block the input tax credit pending an inquiry or investigation into the fraudulent transactions of fake/bogus invoices. The existence of relevant material is a pre-condition to the formation of the opinion. In the absence of any cogent or credible material, if the subjective satisfaction is arrived at by the authority concerned for the purpose of blocking the ITC in exercise of power under Rule 86A of the Rules, then such action would definitely amount to malice in law. Malice, in its legal sense, means such malice as may be assumed from the doing of a wrongful act intentionally but also without just cause or excuse or for want of reasonable or probable cause. Any use of discretionary power exercised for an unauthorized purpose amounts to malice in law. It is immaterial whether the authority acted in good faith or bad faith. Thus, it cannot be said that the inquiry or investigation initiated as regards the fake/bogus invoices for the purpose of ITC is malafide or based on absolutely no materials. From what has been stated in the reply affidavit filed on behalf of the respondents, it could be said that prima facie, there is something which the Revenue has noticed and, therefore, are looking into the same before taking any final call as regards the claim of the writ applicants to avail the ITC. Even, otherwise, Rule 86A provides that on expiry of the period of one year, the restriction shall cease to have effect from the date of imposition of such restriction. Whether Rule 86A of the Rules contemplate any passing of a specific order with an obligation to communicate the same to the affected person so that such person can take recourse to any legal remedy available to him? - HELD THAT:- Section 83 provides for order in writing. In other words, if the Commissioner is of the opinion that for the purpose of protecting the interest of the Government Revenue, it is necessary to attach provisionally any property including bank account, he may, by order in writing, do so. Even Section 83 of the Act talks about order to be passed in writing on the basis of the reasonable belief of the concerned authority - it is clear that the provisional attachment in terms of Section 11DDA and Section 73C could be made only after issuance of a show-cause notice. Rule 86A casts an obligation upon the authority concerned to form an opinion but is silent with regard to passing of any specific order assigning prima facie reasons for invoking Rule 86A. To this extent, the Government needs to look into the matter and issue appropriate guidelines and also lay down some procedure to be followed for the exercise of power under Rule 86A of the Rule - In the case on hand, the inquiry, so far, has revealed a prima facie case for the respondents to exercise the power under Rule 86A of the Rules. Although, no specific order has been passed and communicated to the writ applicants in this regard, yet in the facts of the present case, it cannot be said that exercise of power under Rule 86A for the purpose of blocking the ITC is mala fide or without any application of mind. There are highly disputed questions of fact as regards the debit of the ITC from the electronic credit ledger. Indisputably, the investigation is in progress. A prima facie case could be said to have been made out against the writ applicants. However we may only say that the investigation cannot continue for an indefinite period of time. Almost more than a year has elapsed and, in such circumstances, the authorities concerned should arrive at some conclusion or the other. Even Rule 86A of the Rules prescribes one year time limit - the respondents are directed to complete the investigation within a period of four weeks from the date of the receipt of this order and take an appropriate decision whether any case has been made out for issue of show-cause notice under Section 74 of the Act or not. Application dismissed.

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• 2020 (12) TMI 1119
  Grant of Bail - allegation of bogus input tax credit, secured on the strength of fake and fabricated invoices without supply of any physical goods to such other existing and non-existing firms - Section 132(1)(i) of the OGST Act, 2017 - HELD THAT:- The evidence is largely based on documentary evidence. Once the charge-sheet has been filed unless antecedents to the contrary can be demonstrated, the presence of the accused may not be required to take the prosecution to its logical conclusion. The object of the law in question is to act as a deterrent in blocking loopholes in an otherwise nascent law which concerns itself with the collection of revenue for the State. Section 132(1)(i) of the Act provides that in cases where the amount of tax evaded or the amount of input tax credit wrongly availed or utilized or the amount of refund wrongly taken, exceeds five hundred lakh rupees, with imprisonment for a term which may extend to five years and with fine. Similarly, Section 132(ii) of the Act provides a punishment with imprisonment for a term which may extend to three years and with fine when the amount in question is greater than Rs. 2 crores but does not exceed Rs. 5 crores. There is no hard and fast rule and no inflexible principle governing the exercise of such discretion by the Courts. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or refusing bail. The answer to the question whether to grant bail or not depends upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail. For the purpose of granting or refusing bail there is no classification of the offences except the ban under Section 437(1) of the Criminal Procedure Code against grant of bail in the case of offences punishable with death or life imprisonment. Hence there is no statutory support or justification for classifying offences into different categories such as economic offences and for refusing bail on the ground that the offence involved belongs to a particular category. When the Court has been granted discretion in the matter of granting bail and when there is no statute prescribing a special treatment in the case of a particular offence the Court cannot classify the cases and say that in particular classes bail may be granted but not in others - Several High Courts have also opined that while granting bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public and the State and other similar considerations and have granted bail to the persons accused under section 132 of the CGST Act. The petitioner is directed to be released on bail on furnishing a bail bond of Rs. 5,00,000/- with one surety for the like amount to the satisfaction of the learned trial court with the conditions imposed - petitioner shall co-operate with the trial and shall not seek unnecessary adjournments on frivolous grounds to protract the trial - bail application allowed.

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• 2020 (12) TMI 1118
  Jurisdiction - proper officer to issue SCN - argument canvassed is that the proper officer under the provisions of the CGST Act, 2017 is the Joint Commissioner, Central GST, Delhi South Commissionerate, who not only issued summons to the writ applicant under Section 70 of the CGST Act, 2017, but also granted the permission to search the business premises of the writ applicant on the basis of his reasonable belief - HELD THAT:- Let Notice be issued to the respondents, returnable on 11th January 2021. Till the next date of hearing, the respondents Nos.2 and 6 respectively shall not take any coercive action against the writ applicant. Mr. Chetan Pandya, the learned counsel on record appearing for the writ applicant shall serve one copy of the entire paper book to Mr. Devang Vyas, the learned Additional Solicitor General of India so that appropriate instructions can be obtained and the Court can proceed with the hearing of the matter on the next date i.e. 11th January 2021.

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• 2020 (12) TMI 1117
  Refund of ITC of CGST and SGST - N/N. 26/2017 Custom, dated 29.06.2017 - HELD THAT:- After the present writ-application was filed on 20th December 2020, Section 49 of the CGST came to be amended w.e.f. 01/02/2019 and new Section49A and Section49B were inserted in the said Act. By virtue of power under Section49B, Rule88A was inserted w.e.f.29/03/2019 in the CGST Rules vide Notification No.16/2019CT, dated 29/03/2019. In such circumstances, w.e.f. 01/02/2019, the ITC available on account of IGST has to be first utilized for the payment of IGST or CGST or SGST. This provision was amended w.e.f.01/02/2019, but the GST portal started functioning as per the amended provisions w.e.f.01/06/2019. Therefore, w.e.f. 01/06/2019, the accumulated ITC of IGST of Rs. 4,47,43,682/- (Additional Customs duty paid by the writ-applicants, EPCG holder) started getting utilized automatically during the pendency of the petition. The ITC of CGST and SGST started accumulating correspondingly. In such circumstances, as on date on account of such amendment in operation, the writ-applicants have Nil balance of IGST in its electronic credit ledger and the IGST balance is converted into CGST and SGST. In other words, the balance of CGST and SGST got artificially inflated as a result of the appropriation of IGST credit. The respondents are directed to sanction and pay the refund of Rs. 4,47,43,681/after first reversing the entries of utilization of the subject credit and debiting the said amount from the credit ledger consequently available to the writ-applicant - Application allowed.

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• 2020 (12) TMI 1116
  Refund of IGST - Zero Rated Supplies - it appears that the writ-applicant had claimed higher duty drawback - Interest on the amount of refund from the date of shipping bill till the date on which the amount of refund is paid to the petitioner - Circular No.37/2018 Customs dated 09/10/2018 - stance of the respondents is that the condition no.7 of the notification dated 31/10/2016 mentions that if any exporter claims drawback under Column (4) and (5), it means that the drawback includes the Customs, Central Excise and Service Tax component and it s called the Higher drawback - HELD THAT:- The Circular No.37/2018 Customs, dated 09/10/2018 referred by the Competent Authority would apply only to the cases, where the exporters have availed the option to take drawback at the higher rate in place of the IGST refund out of their own volition. In the instant case, the assessee had never availed the option to take drawback at higher rate in place of the IGST refund. In such circumstances, the Circular is not applicable to the facts of the present case - Even as per the Condition No.7 of the Notification 131/2016 Cus. (N.T.) dated 31/10/2016, if the rate indicated in the columns (4) i.e. higher duty drawback and (6) i.e. lower duty drawback are the same, then it shall necessarily imply that the same pertains only to the Customs component and is available irrespective of whether the exporter has availed of the CENVET facility or not. The petitioner had exported Rope Making Machine HSN Code 84794000 which attracts the same rate under both the columns (4) (6) respectively i.e. 2 per cent. Thus it is evident that the petitioner has claimed drawback of the customs component only for their exports and there arises no question of denying the refund of IGST. In the case of the writ-applicant, the drawback rates being the same, it represents only the Customs elements, which did not get subsumed in the GST and thus, the writ-applicant cannot be said to have availed double benefit i.e. of the IGST refund and higher duty drawback. The respondents are directed to immediately sanction the refund towards the IGST paid in respect to the goods exported i.e. Zero Rated Supplies made vide the shipping bills - Petition allowed - decided in favor of petitioner.

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• Income Tax

• 2020 (12) TMI 1115
  Reopening of assessment u/s 147 - notice was issued on the deceased person - applicability of section 292BB - Whether notice upon a dead person and non-service of notice does not come under the ambit of mistake, defect or omission? - HELD THAT:- In the present case Notice as well as assessment orders both for all these three years were passed in the name of the Deceased assessee. In view of above facts and the decision in SAVITA KAPILA, LEGAL HEIR OF LATE SHRI MOHINDER PAUL KAPILA [ 2020 (7) TMI 441 - DELHI HIGH COURT ] respectfully following the same, we quash the assessment orders passed in all these three appeals and allow Ground No. 1 and 2 of all the three appeals.

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• 2020 (12) TMI 1114
  Allowability of claim - additional claim by way of letter, which are not claimed in the return of income by the assessee - Deduction towards forex loss - HELD THAT:- There is a distinction between revised return and correction of return. If the assessee files some application for correcting the return filed or making amends therein, it would not mean that he has filed a revised return. It will retain the character of the original return. But once a revised return is filed, the original return must be taken to have been withdrawn and could have been substituted by a fresh return for the purpose of assessment. In the present case, the assessee filed a letter seeking the deduction towards forex loss. A.O. outrightly rejected it without discussing anything about it. On the contrary the CIT(A) observed that the claim is not relates to the assessment year under consideration and it relates to the earlier assessment year. As gone through the computation statement of forex loss furnished by the assessee, which is placed in paper book page 32 as per which, loss up to 31.3.2013 is at Rs. 20,63,782/- and for the year ended 31.3.2014 cumulatively it is Rs. 62,60,284/-. Thus, it mean that the loss relate to the assessment year under consideration is only Rs. 41,96,702/-. Income Computation Disposal Standard-6 has relevance to the year under consideration and the placing of reliance by A.R. on this standard is misplaced. Coming to the allowability of deduction, in our opinion, assessee is entitled for forex loss relevant to the assessment year under consideration only to the tune of Rs. 41,96,702/- and not entire amount of Rs. 62,60,285/-. Accordingly, we direct the A.O. to grant deduction towards forex loss to the tune of Rs. 41,96,702/- only. This ground of assessee is partly allowed.

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• 2020 (12) TMI 1113
  Estimation of income - Bogus purchases - CIT (A) has restricted the addition to 12.5% of the alleged bogus purchases - HELD THAT:- The assessee could not establish the genuineness of the transaction to the satisfaction of the AO during assessment proceedings. From the facts of the case it can be concluded that assessee had made purchases from grey market. Under these circumstances, the AO had no option but to make addition on estimate basis. So far as the percentage of addition is concerned in the case of CIT vs. Simit P. Sheth [ 2013 (10) TMI 1028 - GUJARAT HIGH COURT] has upheld the addition of 12.5% of the total amount of bogus purchases sustained by the ITAT holding that only profit element embedded in such purchases could be added to the income of the assessee. Since, the Ld. CIT (A) has restricted the addition to 12.5% no reason to interfere with the findings of the Ld. CIT (A). Moreover, the facts of the case relied upon by the Ld. DR are different from the facts of the present case. Hence, in our considered view, the addition of 12.5% sustained by the Ld. CIT(A) is reasonable to meet the ends of justice. - Decided against revenue.

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• 2020 (12) TMI 1112
  Disallowance under the provisions of Section 14A read with Rule 8D - AO was of the view that he is not under the obligation to prove the nexus between expenditure incurred viz a viz exempted income but to make the disallowance as per the provisions of Rule 8D - HELD THAT:- Primary onus lies upon the assessee to justify the stand taken based on the material facts or the provisions of law. Assessee has nowhere made any rational submission for adopting the disallowance on estimation basis. Thus, in absence of any material by the assessee, we reject the basis adopted by it (the assessee) in making the disallowance under the provisions of section read with Rule 8D of Income Tax Rules. Whether the AO is under the obligation establish the nexus between the expenditure incurred by the assessee viz a viz the exempted income earned by it? - In the case on hand, the assessee failed to make any submission about the same. As such the onus shifts from the assessee upon the AO when he makes the submission to the AO with the documentary evidence that it has not incurred any expenditure in connection with the exempted income. But, we find that the assessee has not made any submission except disallowing the expenses on estimation basis. As such we find that the AO has derived the satisfaction by recording in the assessment order. ITAT in the own case of the assessee involving identical facts and circumstances has confirmed the disallowance made by the authorities below. Investments were made on the advice of the PMS and for this purpose PMS was compensated by the assessee by way of fees paid to them which has already been disallowed by the assessee. Therefore, further consideration of such investments for the purpose of disallowance of expenses under Section 14A r.w.r. 8D would lead to double disallowance which is unwanted under the provisions of law. Diminution in the value of investments should also be considered while working out the disallowance to be made under the provisions of Section 14A read with Rule 8D of Income Tax Rules. It is because such benefit was extended by the AO in the assessment framed under Section 143(3) of the Act for the Assessment Year 2007-08 vide order dated 10- 12-2009 which was not disputed by the Ld. DR for the assessee. There being no change in the facts and circumstances or the provisions of law, in our considered view the principles of consistency should be followed by the Revenue. Accordingly, we direct the authorities below to extend the benefit of the assessee on account of diminution in the value of investments while working out the disallowance to be made under the provisions of Section 14A read with Rule 8D of Income Tax Rules. Addition under the provisions of Section 94(7) - AO during the assessment proceedings found that the assessee has earned short-term capital gain only which was not disclosed in the Income Tax Return - HELD THAT:- There is no dispute to the fact that the loss claimed by the assessee with respect to the sale purchase of the units were in violation of the provisions of Section 94(7) - Short-term capital loss incurred with respect to the units which were purchased within a period of three months prior to the record date and sold within a period of nine months after such record date, shall be ignored to the extent of such loss, not exceeding the amount of dividend income for computing the income chargeable to tax. In view of the above we find no infirmity in the order of the authorities below. Hence, the ground of appeal of the assessee is dismissed.

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• 2020 (12) TMI 1111
  TP Adjustment - international transactions resulting from advertisement, marketing and sales promotion expenses ( AMP expenses ) - Benchmarking AMP expenses applying RPM - Haier expenditure on free gifts is in the nature of providing small three gifts like Pens, T-shirts, Caps, Jackets etc. along with the product. Such gifts are purchased from local market and the name of the assessee company is imposed on it through third party printing agencies. Diwali and festival gifts given by the assessee to its employee s dealer etc. HELD THAT:- In the present case assessee is not conducting any band promotion, but in fact is engaged in the business of distribution of consumer durable products - In present case the Revenue has not pointed out as to how the Resale Price Method will not be applicable. This is not disputed by the Revenue as the TPO in order dated 21.10.2011 considered Vivek Limited as appropriate comparable for benchmarking AMP expenses, applying Bright Line Test. The TPO considered Vivek Limited as comparable as it is trader/re-seller of home appliances and does not own any brand. But since, the bright line test is not appropriate as held by the Hon ble Delhi High Court [ 2015 (3) TMI 580 - DELHI HIGH COURT] we further examine that the element of adding value to the goods by incurring AMP expenditure creating market intangibles and enhancing brand value of the product is missing in present assessee s case. From the perusal of the records it is found that after excluding selling and distribution expense of Rs. 10,18,50,415, the adjustment works out to Rs. 2,85,10,127/- - From the perusal of the records it is found that after excluding selling and distribution expense of Rs. 10,18,50,415, the adjustment works out to Rs. 2,85,10,127. - Appeal of the assessee is partly allowed.

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• 2020 (12) TMI 1110
  TP Adjustment - comparable selection - HELD THAT:- Assessee is characterised to be rendering contract software development services to its AE. Thus companies functionally dissimilar with that of assessee need to be deselected from final list.

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• 2020 (12) TMI 1109
  Special audit u/s 142(2A) - HELD THAT:- Considering the volume of transactions involved ,the details of which, in the documents pertaining to them, were not reconcilable on account of different particulars mentioned therein ,some being signed by truck owners ,others by third parties , and payments being made in parts in cash that too to different parties ,the documents and accounts drawn therefrom were definitely not capable of presenting a clear picture of each transaction. We agree with the Ld.CIT(A) that the different details mentioned in the documents pertaining to each transaction made it very complex requiring deeper verification of each transaction. We therefore do not find any infirmity in the order of the Ld.CIT(A) upholding the reference made for special audit. The reliance placed by the Ld. Counsel for the assessee on various case laws is of no assistance having been rendered on the facts of each case since whether accounts are complex or not involves a question of fact. Having upheld the reference to special audit as above, the challenge by the assessee to the validity of the assessment order as being barred by limitation on account of the extended time taken by the A.O. for passing the assessment order in view of the reference made to special audit, being contested on the ground of invalid reference made,is also dismissed. TDS u/s 194C - Disallowance of freight expenses for not deduction of tax at source as per the provisions of section 40(a)(ia) - HELD THAT:- The discrepancies noted by the special auditor, we find, were to the effect of dismissing assesses claim of having made payment to small truck owners for the purposes of claiming to be exempt from the liability of deduction tax at source as per second proviso to section 194C(3) of the Act. The Revenue at no point has doubted the veracity of the expenses incurred on freight. Having not doubted the factum of incurring freight expenses and the discrepancies only unsettling assesses claim of having made payment to small truck operators, we fail to understand how these very same discrepancies are sufficient for dislodging assesses claim of not entering into any contract of freight. There were separate GR s for every transportation sub contracted by the assessee. In fact the AO has noted that a separate truck was engaged in almost all cases of transportation, numbering 599, subcontracted. There is no finding by the Revenue of any oral or written contract with the sub-contractors for transportation. Every GR is therefore to be treated as a separate contract. And with each such contract not exceeding the prescribed limit for tax deduction at source, as finds mention in the order of the AO also, we find the assesses claim of no requirement of deduction of tax at source on the same in accordance with law as interpreted by the jurisdictional High Court in the case of United Rice Land [ 2008 (5) TMI 142 - PUNJAB AND HARYANA HIGH COURT ] In view of the same we hold that the Revenue has failed to establish the case of tax deduction at source on the freight payment made in the present case and therefore the disallowance of expenses of freight made for non deduction of tax at source is directed to be deleted.

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• 2020 (12) TMI 1108
  Addition u/s 68 - unexplained land advances received back by the appellant - HELD THAT:- Transaction is a genuine transaction and the amount is arranged by the mediator-Mr.Badarinarayana Panigrahi. Though the names of the land owners who wanted to sale the land not mentioned, but the fact remains that Mr.Badarinarayana Panigrahi who is the mediator arranged the refund, therefore it cannot be disbelieved that the identity of the parties are not proved. It is a fact that assessee has advanced the amount and also a fact that transaction is not materialized because the legality of the agricultural land is the issue. It is also a fact that mediator is arranged repayment of the amount. By considering the facts and circumstances of the case, in our opinion, the addition made by the Assessing Officer and confirmed by the ld. CIT(A) is not correct and we delete the addition - Decided in favour of assessee.

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• 2020 (12) TMI 1107
  Depreciation on customer list and goodwill - Depreciation at the rate of 25% treating them as an intangible asset - HELD THAT:- As decided in own case [ 2018 (7) TMI 2071 - ITAT CHENNAI ] customer list has been treated as falling within the expression business or commercial rights of similar nature contained in Sec.32(1)(ii) as relied upon the decision of M/s.Areva T D India Ltd.[ 2012 (4) TMI 79 - DELHI HIGH COURT ] Assessee is entitled to the depreciation on the intangible asset viz., goodwill/customer list as claimed by him - Decided in favour of assessee.

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• 2020 (12) TMI 1105
  Scope of limited scrutiny - case of the assessee was selected for Limited Scrutiny and later on converted to Full Scrutiny without according an opportunity to the assessee and therefore in violation of principle of natural justice - additions of unsecured loan from the Directors and their relatives - HELD THAT:- In the present case, the day on which case was converted into full scrutiny i.e. on 21.12.2016 the ld. AO on the very next day passed the order of assessment by making the addition which were beyond the scope of limited scrutiny. Further looking at the notices dated 3.05.2016 under Section 142(1) of the Act; notice dated 26.06.2016 u/s 142(1); notice dated 21.07.2016 u/s 142(1) and further notice dated 15.09.2016 u/s 142(1), it is apparent that AO started making roving enquiries on the issue which was not the subject matter of limited scrutiny. He even framed draft assessment order and then sought approval of Pr CIT for conversion in to Full scrutiny from Limited scrutiny. Non-adherence to CBDT instruction which are binding on the AO makes the order of the ld. AO illegal and without jurisdiction . Assessing Officer is duty bound to follow the instructions issued by the CBDT. Therefore, the CBDT circulars not followed by the ld. AO are not acceptable for making the addition which are in violation of that circular. In the present case only the additions of unsecured loan from the Directors and their relatives were not covered in the limited scrutiny aspect. Addition accordingly as well as loan are deserved to be deleted on this ground itself. Addition u/s 68 - Loan was taken from the Director of the company and same were supported by the confirmation, Income Tax Return and details of the source of funds available with the Director evidenced from the pass book. Assessing Officer without making any enquiry disbelieved the submission made by the assessee. In view of this, it is apparent that even on the merits assessee has clearly established the identity, creditworthiness and genuineness of the loans. Assessee in this case has discharged the basic onus cast up on it by producing the confirmation, Income Tax Returns, bank statements, details of source of funds in case of each of the depositors. The ld AO should have thrown back onus on assessee by making inquiries and proving otherwise. This has not been done. Thus the addition made as such on merits is also not sustainable. Addition made by the ld. AO and confirmed by the ld. CIT (Appeals) under Section 68 of the Act deserves to be deleted for the reason that ( 1) it was not part of reasons for limited scrutiny, ( 2) no enquiries made by the Assessing Officer on the basic onus discharged by assessee of loans. and (3) on the very next day of conversion of case from limited scrutiny to complete scrutiny assessment order is passed, (4) Framing of the draft assessment order and sent to PR CIT along with seeking approval for conversion of limited scrutiny case to complete scrutiny. Addition u/s 56 - Fair market value of the share on the basis of discounted cash flow method - Limited scrutiny for verification of large share premium received during the year survives as it was part of the reasons for which the case of the assessee was selected for limited scrutiny - On careful examination of Ru le 11UA of the Income tax Rules, 1962, the assessee can value the shares for determining its fair market value of unquoted equity share either at the book value of the assets as per the prescribed formula or as per the discounted free cash flow method. The assessee has justified the valuation of shares by adopting discounted free cash flow method and such method is one of the acceptable methods as per Rule 11UA and the ld. CIT (Appeals) did not find any fault in the same. AO was also supplied with the above evidences and did not comment against the same. Unless the valuation made by the assessee applying Discounted cash flow method is not found fault with by pointing out deficiencies and inadequacies, same cannot be rejected at threshold. In view of this, we do not find any merit in the addition. In view of this the addition made under Section 56(2)(viib) is devoid of any merit.

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• Customs

• 2020 (12) TMI 1099
  Principles of Natural Justice - permission to re-export of goods - Nutrition Supplements - grievance of appellant is that till this date, the appeal has not been taken up for hearing despite repeated request for the same - HELD THAT:- As statutory appeal has already been filed by the writ applicant against the final order of confiscation passed by the adjudicating authority, the request to reexport the goods also should be made before the appellate authority. This writ application is disposed off with a direction to the respondent No.5 to take up the appeal preferred by the writ applicant at the earliest and decide the same in accordance with law - Mr. Kapoor, the learned counsel is permitted to prefer an appropriate application before the appellate authority with a prayer to reexport the goods, as prayed for, in this writ application

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• 2020 (12) TMI 1092
  Valuation of imported goods - The Commissioner (Appeals) set aside the order of enhancement in value - polyester knitted fabric of different weights and colours - enhancement of assessable value, on the basis of contemporaneous imports data - HELD THAT:- In the present case, the proper officer doubted the truth or accuracy of the value declared by the importer for the reason that contemporaneous data had a significantly higher value. It was open to the importers to require the proper officer to intimate the grounds in writing for doubting the truth or accuracy of the value declared by them and seek a reasonable opportunity of being heard, but they did not do so. On the other hand, the importers submitted in writing that though they had declared the value of the imported goods at 1.20 USD per kg., but on being shown contemporaneous data, they have agreed that the value of the goods should be enhanced to 1.80 USD per kg for Hanuman Prasad and to 1.94 USD per kg. for Niraj Silk. The importers also specifically stated that they did not want to avail of the right conferred on them under section 124 of the Customs Act and, therefore, they did not want any show cause notice to be issued to them or personal hearing to be provided to them. The importers also specifically stated that they did not want a speaking order to be passed on the Bills of Entry. It needs to be noted that section 124 of the Customs Act provides for issuance of a show cause notice and personal hearing, and section 17(5) of the Customs Act requires a speaking order to be passed on the Bills of Entry, except in a case where the importer/exporter confirms the acceptance in writing. It is non-consideration of the factual position emerging from the statements made by Hanuman Prasad and Niraj Silk that led the Commissioner (Appeals) to believe that the declared value could be rejected only on the basis of reasonable and cogent evidence, which burden the Revenue failed to discharge as it could not prove that the invoice did not represent the true transaction value in the international market. The very fact that the importers had agreed for enhancement of the declared value in the letters submitted by them to the assessing authority, itself implies that the importers had not accepted the value declared by them in the Bills of Entry. The value declared in the Bills of Entry, therefore, automatically stood rejected. Further, once the importers had accepted the enhanced value, it was really not necessary for the assessing authority to undertake the exercise of determining the value of the declared goods under the provisions of rules 4 to 9 of the Valuation Rules - here, the importers had accepted the enhanced value and there was, therefore, no necessity for the assessing officer to determine the value in the manner provided for in rules 4 to 9 of the Valuation Rules sequentially. The general observations made the Commissioner (Appeals) in the impugned order that the value declared in the Bills of Entry were being enhanced uniformly by the Department for a considerable period of time was uncalled for. The Commissioner (Appeals) completely failed to advert to the crucial aspect that the importers had themselves accepted the enhanced value. The Commissioner (Appeals) in fact, proceeded to examine the matter as if the assessing officer had enhanced the declared value on the basis of other factors and not on the acceptance by the importers. This casual observation is not based on the factual position that emerges from the records of the case - the Commissioner (Appeals) was not justified in setting aside the orders passed by the assessing officer on the Bills of Entry. Appeal allowed - decided in favor of appellant.

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• Law of Competition

• 2020 (12) TMI 1091
  Approval of Scheme of Arrangement - Sections 230 to 232 of Companies Act, 2013, R/w Companies (Compromises, Arrangements and Amalgamation) Rules, 2016 - HELD THAT:- In his report, the Regional Director, MCA has concluded that the Scheme appears to be fair, reasonable and not detrimental against the Members or Creditors or contrary to public policy and the same can be approved. The issue of CIN has been satisfactorily explained. The minor discrepancy has occurred due to the year of incorporation and year of transfer only, and would not come in the way of sanction of the Scheme of Arrangement. It appears that the Scheme will enable better control and visibility over the resources of the dormant entities, since pursuant to the merger they shall be consolidated into the Resulting Company and will help in reducing the costs and efforts involved in performing statutory compliances for multiple entities, etc. Hence, the Scheme appears to be guided by commercial expediency. On a consideration of the facts, which are not elaborated again here to avoid duplication and repetition, we are satisfied that the procedure specified in sub-sections (1) and (2) of section 232 of the Companies Act, 2013 has been complied with, and hence the Scheme of Arrangement, as approved by the Boards of both the Transferor Company and the Resulting Company, is hereby sanctioned. The scheme is sanctioned - application allowed.

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• Corporate Laws

• 2020 (12) TMI 1090
  Restoration of the name of the struck off company in the Register of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT:- From the perusal of the Financial Statements for the year ended 31.03.2020, it is established that company is having trading operations and assets and liabilities as well. It is also noted that from this year only that extent of operations has increased. It has also been pleaded before us that company hopes to increase business volume in future. Accordingly, the name of the company needs to be restored in the Register of companies maintained by ROC, subject to payment of suitable cost for non-compliance of requirements of filing of statutory returns. The Applicant Company is directed to file all pending statutory document(s) including Annual Accounts and Annual returns for the financial years in default along with prescribed fees/additional fee/fine as decided by ROC within 45 days from the date on which its name is restored on the Register of Companies by the RoC - Application allowed.

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• 2020 (12) TMI 1089
  Restoration of name of the Petitioner Company, on the Register of Companies maintained by the Registrar of Companies - section 252 (3) of the Companies Act, 2013 R/w Rule 87A of the NCLT (Amendment) Rules, 2017 - HELD THAT:- Section 248(6) states that the Registrar of Companies, before finally striking off Company, has to satisfy himself that sufficient provision has been made for the realization of all amounts due to the Company and for the payment or discharge of its liabilities and obligations by the Company within a reasonable time, and, if necessary, obtain necessary undertakings from the Managing Director, Director or other persons in charge of the management of the Company. Though the impugned striking off the Company was in accordance with law, the Tribunal has to take into consideration of bona fide contentions of Petitioner seeking to restore name of Company, by taking a lenient view of the issue in the interest of justice and ease of doing business, instead of rigidly interpreting the law on the issue. It is also not in dispute that the instant Company Petition is filed in accordance with law; there are no investigations pending against the Company; the Respondent has not opposed the Petition; and left the issue to Tribunal to consider the case subject terms and conditions. It is true, while exercising jurisdiction of the Tribunal under the provisions of Companies Act, 2013, the Tribunal has to take into consideration the gravest economic condition prevailing in the Country due to pandemic conditions, while considering the issue especially in imposing costs. The Registrar of Companies, Karnataka, the Respondent herein, is ordered to restore the name of the Company in the Register maintained by the Registrar of Companies, Karnataka as if its name had not been struck off from the rolls of the Register, with restoration of all consequential action taken by Registrar of Companies, which includes restoration of DINs of its Directors - Application allowed.

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• 2020 (12) TMI 1088
  Restoration of name of the Petitioners Company - section 252(3) of the Companies Act, 2013 R/w Rule 87A of the NCLT Rules, 2016 - HELD THAT:- Tribunal has to take into consideration the bona fide contentions of Petitioner seeking to restore the name of Company, by taking a lenient view of the issue in the interest of justice and ease of doing business, instead of rigidly interpreting the law on the issue. It is also not in dispute that the instant Company Petition is filed in accordance with law; there are no investigations pending against the Company; the Respondent has not opposed the Petition; and left the issue to the Tribunal to consider the case subject to terms and conditions. The Company is a going concern and striking of its name would adversely affect the business as well as various stakeholders and employees. Its Directors have lent unsecured loan to the Company and the Company Bank account is seized which is affecting its business operations. No prejudice would be caused to any party if the Company s name is restored, as prayed. The Shareholders of the Company have undertaken to file all the returns, statements and documents that are required under the Companies Act, 2013 within the prescribed time. Therefore, in the interest of justice would be met if the name of Company is restored as prayed for, however, subject to conditions mentioned below. The Registrar of Companies, Karnataka, the Respondent herein, is ordered to restore the name of the Company in the Register maintained by the Registrar of Companies, Karnataka as if its name had not been struck off from the rolls of the Register, with restoration of all consequential action taken by Registrar of Companies, which includes restoration of DINs of its Directors - application allowed.

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• Insolvency & Bankruptcy

• 2020 (12) TMI 1106
  Claim of Retirement benefits before RP - CIRP proceedings - Applicants who have retired from the Corporate Debtor Company, seeking a direction to the Resolution Professional to disburse the amount pertaining to pension, gratuity and provident fund along with statutory interest and disburse the amount pertaining to provident fund to the EPFO payable to the Applicant and to include the admitted amount of gratuity outstanding interest in the Information Memorandum - HELD THAT:- Since the EPF authorities have already filed their claim pertaining to the PF dues of the applicants and admitted by the Resolution Professional, the claims made by the above applicants with respect to Provident Fund have not been admitted. Since, the Resolution Professional stated that he has admitted the interest on gratuity of the applicants till the Insolvency commencement date i.e. on 28.11.2019 from the date of retirement of the applicants and already included the admitted claims in the Information Memorandum, and since the EPF authorities have already filed their claim pertaining to the PF dues of the applicants and admitted by the Resolution Professional, nothing survives for further consideration in this application. Noting the submission of the Learned Resolution Professional, this application No. MA/173/KOB/2020 in TIBA/03/KOB/2019 stands disposed of.

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• PMLA

• 2020 (12) TMI 1103
  Grant of Anticipatory Bail - Money Laundering - proceeds of crime - complainant/ officials of ED has made specific allegation that petitioner and his family members has acquired movable and immovable properties worth Rs. 80 lacs from the proceeds of crime of his father-in-law - HELD THAT:- The petitioner was married with Pooja Kumari in the month of June, 2014. Prior to the year 2014 the petitioner and his father have not produced any documentary evidence to show the acquisition of movable and immovable properties save and except ancestral property standing in the name of ancestor of the petitioner but after marriage of the petitioner with Pooja Kumari, daughter of Binay Yadav and Srimati Devi, the petitioner and his family acquired many buses, vehicles and immovable property. The petitioner also made attempt to file income tax return of the year 2015-16, 2016-17 and 2017-18 to legalize the proceeds of crime as his income but the facts show that petitioner got money from his mother-in-law either through his wife or through different persons in acquiring movable and immovable properties. The petitioner does not deserve anticipatory bail - Application dismissed.

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• 2020 (12) TMI 1102
  Grant of Bail - allegation that some loan was given by the Bank officials on the basis of forged and fictitious documents - it is evident that the applicant never misused the liberty given by the Directorate of Enforcement - HELD THAT:- Investigation was conducted by the investigating officer of Directorate of Enforcement for a period of about 8 years and it was obligatory on his part to discover all the facts and the evidence against the accused persons. In such circumstances, it is a fit case for bail. Let applicant -Rajendra Kumar Mishra be released on bail in the aforesaid Case Crime, on his furnishing personal bond of Rs. 10 lakh and two sureties each of the said amount to the court concerned subject to conditions imposed. Application allowed.

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• 2020 (12) TMI 1098
  Offence under PMLA - seeking bail - accused-applicant, who is Managing Director of Amrapali Group of Companies - investigation has been going on qua other accused and matter involves huge amount of Rs. 6,000/- Crores - HELD THAT:- The object of PMLA is to prevent money-laundering and to provide for confiscation of property derived from, or involved in, money-laundering. Money laundering is a serious economic offence and serious threat to the national economy and national interest and, these offences are committed with cool calculation with the motive of personal gain regardless of the consequences on the society. Considering the order [ 2019 (7) TMI 1233 - SUPREME COURT ] in which involvement of the accused in offence has been meticulously flagged, his conduct before the Supreme Court and, the fact that the investigation is still on and money trail has to be completely unearthed, it would not be appropriate to enlarge the accused on bail. Therefore, the plea for bail is refused and the bail application is rejected.

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• 2020 (12) TMI 1097
  Seeking Interim restoration of the attached property for using the same for the purpose of marriage - Whether the property attached under Section 5 of PMLA and as confirmed under Section 8 of PMLA can be de-sealed/released on interim basis by the Appellate Tribunal during pendency of the proceedings? HELD THAT:- A perusal of Section 3 of PMLA as well as explanation thereof shows that in case any person, directly or indirectly, has enjoyed the proceeds of crime by way of concealment or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner, said person is prohibited from enjoying the proceeds of the crime. As per the provisions of Section 5 of PMLA, the Director or any other officer not below the rank of Deputy Director, so authorised by him, is competent to provisionally attach the property. Thereafter, he shall take the possession of that property so attached under Section 5 of PMLA. On perusal of the relevant record, it is apparent that the stand of respondent No.2 is contrary to the record while saying that no notice was ever issued to him, whereas respondent No.2 was issued as many as 17 notices in total w.e.f. 29.11.2011 to 14.02.2020 and he also filed as many as 10 replies to the notices. He was also issued summons, which are annexed as Annexures A-4 to A-29. It shows that respondent No.2 was well aware about the pendency of proceedings but still he did not opt to file any appeal before the Tribunal. The arguments raised by learned Senior counsel is also contrary to the record that there was no partition of the property, whereas in the affidavit dated 17.01.2005 filed by respondent No.1 before the Returning Officer during Assembly Election held in the year 2005, he himself had declared his share as 50% in the residential house constructed over the land bearing Khewat No.97/98/99 and 104 in village Teja Khera, Tehsil Dabwali, Distt. Sirsa, which has been provisionally attached vide order dated 13.04.2019 which was subsequently confirmed on 25.04.2019 by the Adjudicating Authority - there is no provision in PMLA as well as Rules 2013 which allows de-sealing/release of the attached property temporarily for the use of the accused persons. As per the order passed by this Court, both the parties were directed to appear before the Appellate Tribunal on 18.11.2020. The case was fixed only for appearance of the parties. The case should have been adjourned for any other date for arguments and for production of record but the impugned order was passed on that very day without going through the record and without giving opportunity of hearing to the parties as well. The order passed by the Appellate Tribunal has been relied upon by learned counsel for the respondents, which is not binding upon this Court as the order passed by the Appellate Tribunal is under challenge before this Court. Accordingly, the same is misconceived - it is also apparent that only the provisions of PMLA and Rules 2013 have been mentioned/reproduced but there is no appreciation of the same. Meaning thereby, the impugned order dated 18.11.2020 is contrary to the provisions of PMLA and Rules 2013 as well as the observations made by this Court in the earlier writ petition. In spite of specific directions issued by this Court still stereotype order has been passed. Meaning thereby there is no compliance of the order passed by this Court. No reason, whatsoever, with regard to non-compliance of the specific provisions of the statute by the Enforcement Directorate has been made in the impugned order. There is no finding as to how, when and where there has been non-compliance or violation of the statutory procedural and mandatory provisions of law. The impugned order is not only bad in law but contrary to the provisions of PMLA and Rules 2013. The Appellate Tribunal has not applied its judicious mind while passing the impugned order - Appeal allowed - decided in favor of appellant.

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• 2020 (12) TMI 1094
  Jurisdiction - power of the Appellate Tribunal to pass an order, allowing the application for interim relief during the pendency of the appeal, such as restoration of the property for a specific purpose for a short period of time- Interim restoration of the attached property - residential house - Prayer was made for interim restoration of the property attached between 15.11.2020 to 30.11.2020 with additional 15 days time to prepare to be used and vacate the property before and after the function. HELD THAT:- The only bar, if any, which has been projected by counsel for the respondent with reference to Section 8 of the Act, would step in only where the trial has commenced before the Special Court, which, in the present case, admittedly is not the position as till date no charges have been framed against the respondent. The said power of the Special Court, therefore, would not be applicable in any case at this stage, which again is an aspect to be looked into in an appropriate case - There is nothing which would bar the Appellate Tribunal from ordering de-sealing the attached property and that too for a limited period. It goes without saying that exercise of such power will obviously be a subject matter of adjudication depending upon the facts and circumstances where such discretion has been exercised by the Appellate Tribunal. This power, although is discretionary in nature, but the same is required to be based upon proper appreciation of the provisions of the statute and its applicability, which includes non-compliance thereof. This answers the basic issue with regard to jurisdiction of the Appellate Tribunal to pass an interim order or granting an interim relief for a short period of time and that too for a specific purpose. Admittedly, the proceedings which have been initiated by the Enforcement Directorate, are against the respondent alone and the property in question is a joint property, of which one of the co-sharers is Abhay Singh Chautala, who is not a party to the present appeal - application for seeking interim restoration of the attached property has been allowed alongwith the application for the same relief by respondent-Om Prakash Chautala. As the appeal has been filed against Om Prakash Chautala, this Court is dealing with the appeal qua him only. A perusal of the order passed by the Appellate Tribunal clearly indicates that the issue raised by the appellant in its reply to the application for grant of interim prayer has not been dealt with, especially with regard to the statutory provisions referred to and relied upon by the appellant. The Appellate Tribunal has simply said in the order that it had inherent powers to restore the property in case the possession of the property is taken without following due procedure of law. No reasons whatsoever with regard to the non-compliance of the specific provisions of the statute has been made in the impugned order.No reference has been made to the facts as to how, when and where there has been non-compliance or violation of the statutory procedural and mandatory provisions of law. This renders the order passed by the Appellate Tribunal unsustainable in law being cryptic, sketchy and non-speaking without any justification for passing such order. There appears to be non-application of mind, rendering the order liable to be set-aside. The case is remanded to the Appellate Tribunal for fresh decision in accordance with law at an early date keeping in view the prayer of the respondent - Petition allowed by way of remand.

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• 2020 (12) TMI 1093
  Grant of Anticipatory Bail - Money Laundering - proceeds of crime - allegation that the persons named Sarith, Swapna and Sundeep along with several other accused smuggled primary gold from abroad through diplomatic channel of UAE consulate - HELD THAT:- There is no specific provision in the Money Laundering Act dealing with granting of anticipatory bail. The act of money laundering has both civil and criminal repercussions which the offender may have to face. Apart from adjudication, the perpetrator of the crime will also have to face penal consequences. The provisions would indicate that authorities for the purpose of the Act who can take action for violation of the provisions in the Act are the Director, Additional Director, Deputy Director, Joint Director, Assistant Director and such other classes of officers as may be appointed for the purpose under Section 48 of the PMLA. The fact that very senior and experienced officers are empowered to act against the offenders of the PMLA itself would indicate the extent of caution and experience they have to deploy before implicating anyone as an accused or an offender. Under the PMLA, the authorites under the Act are bound to carry out investigation by collecting evidence and for that purpose, they have been sufficiently empowered to summon persons or require them to produce evidence, records, statements and also carry out searches of properties and persons, and even properties can also be seized or attached. But, the fact that very senior officers are alone empowered to proceed in arresting an offender indicates that they would do so only on having sufficient grounds to arrest the person. If that be so, the fact is that the applicant has not yet been made an accused and that he is only required for the purpose of interrogation by the officers of ED and it will have to be concluded that the prayer for anticipatory bail made by the applicant is premature. Even though the applicant is intended to be made an accused on sufficient materials being collected against him, considering the gravity of the offences under the PMLA, the applicant definitely may not be entitled to the extraordinary relief of pre-arrest bail - this Court is not inclined to restrain the applicant from being arrested and the prayer for pre-arrest bail is also premature. The application for anticipatory bail is dismissed.

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• Service Tax

• 2020 (12) TMI 1096
  CENVAT Credit - short/delayed payment of service tax - willful statement or willful suppression of facts with an intent to evade payment of service tax - extended period of limitation - Notification dated September 10, 2004 - period October, 2005 to March, 2007 - HELD THAT:- It is correct that section 70 of the Finance Act requires every person liable to pay service tax to himself assess the tax on the services provided by him and furnish a return, but at the same time the Circular dated April 23, 2009 also casts a duty on the assessing officer to effectively scrutinize the returns, at least at the preliminary stage. The appellant has been regularly filing the returns and so the Department cannot take a stand that it is only during the audit that it can examine the factual position. Thus, it cannot be urged by the Department that if the officers of the audit team had not conducted the audit, non-payment of service tax would not have been unearthed - It, therefore, follows that the Commissioner (Appeals) was not justified in holding that the extended period of limitation was correctly invoked. The extended period of limitation could not have been invoked in the facts of the present case as facts were not suppressed by the appellant. In regard to the period from October, 2005 to March, 2006, the appellant had submitted working of ST-3 return in the reply to show cause notice, but it has been rejected by the Adjudicating Authority merely on the ground that the working was not supported by any document or a certificate from the Chartered Accountant. The Adjudicating Authority could have asked the appellant to supply the documents, if it was not satisfied with the explanation - The appellant has also stated that the computation of demand in the show cause notice is not correct. In this connection, reference has been made to the Notification dated September 10, 2004 that provides for abatement of 67%. Thus, service tax was effectively payable only on 33% of the gross value. Further, in regard to the period from April, 2006 to March, 2007, the contention of the appellant is that the show cause notice has not explained as to how there was an alleged short-payment of Rs. 1,58,24,365/- during the aforesaid period. According to the appellant, the impugned order has confirmed the demand of Rs. 1,58,24,365/- without considering the TR-6 challans submitted by the appellant in the reply to the show cause notice. The challans have been enclosed with the Appeal. It cannot, therefore, be said that the appellant had any intention, much less willful intention not to pay service tax in regard to the four audit objections referred to the Audit Report - It is, therefore, more than apparent that even otherwise, the appellant did not suppress facts with an intention to wilfully evade payment of service tax. Appeal allowed - decided in favor of appellant.

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• 2020 (12) TMI 1095
  Principles of Natural Justice - rejection of declaration under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - grievance of the petitioner is that the Authority without providing an opportunity of hearing as contemplated under Section 127 of the Sabka Vishwas Scheme have rejected the petitioner s application and have accepted the second application - HELD THAT:- The petitioner filed two applications, on 28.12.2019 and 14.01.2020 to avail the benefit of SVLDRS Scheme which was processed on the basis of correctness of Tax Dues declared in the application with reference to the amount of duty quantified in the reference document mentioned in the said declaration. As there were application wherein the amount of Tax Dues declared by the declarant in their SVLDRS application were not matching with the amount of duty quantified in the reference document issued on or before 30.06.2019, there was delay in proceessing. It is urged that the second application dated 14.01.2020 was processed early because the amount of Tax due declared therein matched with the amount of duty quantified in the departmental audit spot memo No.228 dated 17.05.2019. And being to be correctly filed, the amount of Rs. 74423447.50 payable by the petitioner after allowing the benefit of SVLDRS was intimated vide SVLDRS 3 form issued on 10.02.2020. It is urged that with the acceptance of declared SVLDRS application dated 17.01.2020, the earlier application which required and was under process to match out the amount of Tax Due declared with the amount of duty quantified with reference document issued on or before 30.06.2019, therefore, rendered redundant. We perceive logic in the action of the respondent in not taking decision on the application dated 28.12.2019, which the Department was not under statutory obligation to have considered first - there are no illegality or a jurisdictional error in considering the application dated 14.01.2020, rendering earlier application as redundant, no interference is caused. Petition dismissed.

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• Central Excise

• 2020 (12) TMI 1100
  Classification - Scope of the term Textile - Demand based on CBIC circular and Trade Notice issued by the Commissioner - Maintainability of petition - alternative remedy of preferring an appeal - Section 35B of the Central Excise Act - non-compliance of the mandatory provisions of Section 37C of the Central Excise Act, 1944 - HELD THAT:- When the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. It has been hitherto uncontroverted legal position that where a statute is required to do something in a certain way, the thing must be done in that way or not at all. The other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal position is based on a legal maxim expressio unius est exclusio atlerius , meaning thereby that if a statute provides for a thing to be done in a particular way, then it has to be done in that manner and in no other manner and following other course is not permissible. We should quash and set-aside the impugned Order in Original passed by the respondent no.2 dated 30.6.2020 and remit the entire matter to the respondent no.2 for fresh consideration after giving an adequate opportunity of hearing to the writ-applicants and also keeping in mind the prima facie observations made by this Court in this judgment The writ-applicants have prayed to quash and set-aside the CBEC Circular/Order No.8/92 dated 24.9.1992 and also the Ahmedabad Collectorate Trade Notice No.78/94 dated 9.5.1994, as relying on the same, the goods manufactured by the writ-applicants are being classified as the articles of plastics under the Heading 3926 of the Central Excise Tariffs. The challenge to the CBEC Circular/Order and also the Trade Notice referred to above is substantially on the ground that the excise duty is being demanded from the writ-applicant based on such order and trade notice, whereas identical goods are being accepted as textile products in case of several other manufacturers and no duty is being charged. It appears that the understanding of the word textiles in common parlance has not been considered by the Board as well as by the Ahmedabad Collector while issuing the impugned Order and the Trade Notice respectively. Instead of considering the method of weaving as a relevant factor, the nature of the raw material seems to have been taken into consideration while issuing such Order and Trade Notice. The Board s Circular and the Collector s Trade Notice prima facie appear to be contrary to the law laid down by the Apex Court about what is textiles , and cannot be relied upon for classifying woven fabric - Both the goods in question are being manufactured by the writ-applicants by weaving; it being warp knitting in case of the Agro Shade Net and weaving by warp and weft in case of the Geo Grid fabrics. Both these commodities are in the nature of fabrics, and the respondents have also accepted the fact that the Agro Shade Net are fabrics manufactured on the Raschel knitting machine, whereas the Geo Grid fabrics are woven fabrics manufactured on the weaving machines. The matter is remitted to the respondent no.2 for fresh consideration of all the issues discussed in this judgment - Appeal allowed by way of remand.

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• Indian Laws

• 2020 (12) TMI 1104
  Grant of regular bail - Hawala - smuggling - Heroin - petitioner has been nominated on the ground that the petitioner was given an amount of Rs. 10 lacs by some person from Australia and the said amount was drug money and was used in HAWALA - HELD THAT:- Allegations are limited only to HAWALA transaction and do not suggest the knowledge of alleged HAWALA money being transected from drug paddling by the petitioner. No offence under NDPS Act is attracted. Offence under Section 27-A of NDPS Act is attracted only in the case of alleged financing with the knowledge of the same being with regard to Narcotic Drugs and Psychotropic Substances - Allegations are silent in respect of alleged financing by the petitioner in terms of offence under Section 27-A of the Act. Petitioner was granted interim bail by this Court vide order dated 05.06.2020. Interim bail was extended by subsequent orders till date - Application allowed.

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• 2020 (12) TMI 1101
  Delayed payment of pension - demand of compensation for amount of Rs. 10 lakhs for harassment and mental agony caused to the petitioner - interest from the date the entitlement were due till the date of payment - delay in payment of pension including commutation of the pension - HELD THAT:- This court is of the view that the respondents was, in fact, definitely deficient in making payment of the gratuity in time. As the payment of gratuity is bound by statutory rules viz Section 7 of the Payment of Gratuity Act, 1972, such payment becomes due from the date after thirty days from the date of retirement of the employee concerned. But the said payment has been made on 18.01.2019 instead of 02.03.2013. For the said period [02.03.2013 to 17.01.2019], in the considered view of this court, the petitioner is entitled to simple interest @ 7% per annum on considering the impossibility of the gratuity attachment. The said interest shall be paid by the respondents within six weeks from the date when the petitioner shall communicate this order to the appointing authority. Petition allowed in part.

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