Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
February 17, 2020
Case Laws in this Newsletter:
GST
Income Tax
Customs
Corporate Laws
Insolvency & Bankruptcy
Service Tax
Central Excise
Indian Laws
Articles
News
Notifications
Central Excise
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02/2020 - dated
14-2-2020
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CE
Notification regarding exemption of duties of Central Excise against scrips issued under the 2% Additional ad hoc incentive for mobile phones.It may also be noted that the central excuse notification No. 02/2020 - central excuse has been mentioned as 02/2019-central Excise
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01/2020 - dated
14-2-2020
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CE
Notification regarding exemption of duties of Central Excise against scrips issued under the RoSCTL scheme and additional ad-hoc incentive for apparel and made-ups sector.
Companies Law
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G.S.R. 114 (E) - dated
14-2-2020
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Co. Law
Nidhi (Second Amendment) Rules, 2020
Customs
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14/2020 - dated
14-2-2020
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Cus
Notification regarding exemption of duties of Customs against scrips issued under the 2% Additional ad hoc incentive for mobile phones.
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13/2020 - dated
14-2-2020
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Cus
Notification regarding exemption of duties of Customs against scrips issued under the RoSCTL scheme and additional ad-hoc incentive for apparel and made-ups sector.
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14/2020 - dated
14-2-2020
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Cus (NT)
Sea Cargo Manifest and Transhipment (Amendment) Regulations, 2020
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13/2020 - dated
14-2-2020
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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
GST - States
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G.O.MS.No. 34 - dated
6-2-2020
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Andhra Pradesh SGST
Corrigendum to the notification issued in G.O.Ms.No.287, Revenue (CT.II) Department, Dated. 29.04.2019
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G.O.MS.No. 26 - dated
6-2-2020
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Andhra Pradesh SGST
Insertion of Explanation regarding Bus Body Building in the notification issued in G.O.Ms.No.259, Revenue (CT-II) Department, Dated 29.6.2017
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S.R.O. No. 1711 - dated
16-1-2020
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Orissa SGST
Notification to further amend Finance Department Notification No.2258-FIN-CT1-TAX-0043/2017 dated 25.01.2018 bearing SRO No.48/2018
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S.R.O. No. 04/2020 - dated
7-1-2020
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Orissa SGST
Odisha Goods and Services Tax (Amendment) Rules, 2020
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S.R.O. No. 223 - dated
3-1-2020
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Orissa SGST
To amend notification No. 19877 dated 29.06.2017 so as to notify certain services under reverse charge mechanism (RCM)
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S.R.O. No. 219 - dated
3-1-2020
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Orissa SGST
To amend notification No. 19873 dated 29.06.2017 so as to exempt certain services as recommended by GST Council
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S.R.O. No. 27 - dated
1-1-2020
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Orissa SGST
Notification on commencement of certain provisions of OGST(Amendment) Act, 2019
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S.R.O. No. 43439 - dated
31-12-2019
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Orissa SGST
Odisha Goods and Services Tax (Tenth Removal of Difficulties) Order, 2019
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S.R.O. No. 43431 - dated
31-12-2019
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Orissa SGST
Odisha Goods and Services Tax (Ninth Amendment) Rules, 2019
Circulars / Instructions / Orders
Highlights / Catch Notes
GST
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Validity of notice issued n Form GST-MOV-10 - As per the interim order, detained goods with vehicle have already been released after depositing the GST with penalty - there is no question of looking into Section 129(6) of the Act, more particularly, when this Court has passed a specific order - Notice quashed.
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Release of goods alongwith the vehicle - the claim of the petitioner as owner qua the goods which are loaded on the detained vehicle has to be determined by the competent authority in accordance with law and the said aspect cannot be preempted by directing release of the goods to the petitioner.
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Interest on delayed payment of tax - though the liability of interest under section 50 is automatic, quantification of such liability shall have to be made by doing the arithmetic exercise, after considering the objections of the assessee.
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Profiteering - supply of Xiaomi-Ml Power Bank 2i Red (10000 mAh) - The scope of this investigation/proceedings is limited to the issue of profiteering only and not to the issue of classification. - The allegation of the Applicant is not tenable
Income Tax
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Bogus purchases - estimation of income - When the Tribunal had concluded that the assessee did make the purchase, as a natural corollary not the entire amount covered by such purchase but the profit element embedded therein would be subject to tax. No substantial question of law
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Delay in filing return of income (ITR) - condonation of delay u/s 119 - Refund - the petitioner did submit his return keeping in view Section 139(4) electronically for AY 2015-16 on 2.12.2015 - the CPC, Banglore received duly signed acknowledgment, which was generated online at the time of filing of the return on 01.03.2017 - Delay condoned in view of genuine hardship.
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Settlement of cases - Period of limitation for rectification of mistake - if any right has been conferred by the Legislature, it equally has the right to take it away or prescribe reasonable conditions for the exercise of the right. The Legislature would be perfectly within its right to regulate any right conferred by it while imposing conditions or restrictions on its exercise.
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Addition u/s 68 on account of unsecured loans from directors - Assessee has failed to show creditworthiness of both the lenders. - additions confirmed.
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Additions as notional interest pertaining to one of the partners - Debit balance in the account of partner while the assessee is paying interest on bank loan - bringing to tax an amount which is of notional in nature and which was never earned by the assessee cannot stand the test of jurisprudence in the tax regime. No justification in the action of the AO making addition.
Customs
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Notification regarding exemption of duties of Customs against scrips issued under the 2% Additional ad hoc incentive for mobile phones.
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Sea Cargo Manifest and Transhipment (Amendment) Regulations, 2020 - New system deferred till 1-8-2020
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Undervaluation of goods - The adjudicating authority has proceeded to redetermine the value of imported aluminium scrap on the basis of the DGOV circular without considering and overlooking the contemporaneous data available before it on record. - further, the statements of witnesses cannot be relied upon as they failed to appear for cross-examination.
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Valuation of imported goods - the activity of advertisement and sales promotion is a post import activity incurred by the appellant on its own account and not for discharge for any obligation of the seller under the terms of sale. - Further, the impugned order is also vitiated due to mistake of fact. - Demand set aside.
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Initiation of anti-dumping investigation - the Designated Authority placed reliance upon certain material and facts for concluding the issue against the appellant - Failure to make available to material on which the decision is based is clearly violation of principles of natural justice. It rather amounts to placing reliance on such data not made known to the party concerned.
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Valuation of imported goods - Brass Valve & Zinc Valves - Without rejecting the transaction value, the application of any other rule, for re-determination of the value for the purpose of levy of Custom Duty is neither permissible nor admissible position in law
DGFT
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Amendments to remove the pre-export conditions for the items mentioned against SIONs E-121, E-122, E-123, E-124, E-127 and E-128
Corporate Law
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Compliance with rule 3A by certain Nidhis - Rule 23A of the Nidhi Rules, 2014 - As amended
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Nidhi (Second Amendment) Rules, 2020
Indian Laws
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Dishonor of Cheque - The story put forward by the accused that the cheques were given by way of security is not believable in absence of further evidence to rebut the presumption and more particularly the cheque in question was issued for the second time, after the earlier cheques were dishonoured.
IBC
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Initiation of CIRP - existence of debt and dispute or not - In view of such serious dispute, which is the matter of trial, cannot become the subject matter of I&B Code when the main object of the I&B Code is resolution and not the recovery. In other way, it can be said "resolution is rule and liquidation is exception". The same is evident from the long title of the IB Code.
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Initiation of CIRP - Corporate Debtor failed to make repayment of its debt - There is no substance in the argument of the Appellant that the subsequent Promissory Note cannot be looked into for considering the relationship.
Service Tax
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Refund of service tax - commercial and industrial construction service - time limitation - since the claim for refund is based on the decision of the Delhi High Court in Suresh Kumar Bansal’s case, and since the application for refund was filed barely two months after the decision of the Delhi High Court, it cannot be said that there is any inordinate delay in the petitioners seeking refund of the tax paid by them - Refund allowed with 9% interest.
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Supply of tangible goods - right of possession of the vehicle - The appellant was under bonafide belief that they are not liable to pay service tax on the activity undertaken by them. Therefore, the extended period of limitation is not invokable
Central Excise
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Notification regarding exemption of duties of Central Excise against scrips issued under the RoSCTL scheme and additional ad-hoc incentive for apparel and made-ups sector.
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Refund of CENVAT Credit - export of goods on payment of duty - even after payment of all duties, it had accumulated Cenvat credit because of high rate of duty in the input and low rate duty in the output - The appellant is entitled to get refund under Rule 5 of Cenvat Credit Rules, 2004
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Rebate claim - Export of goods - To allow rebate claim to the petitioner without the petitioner discharging the obligation undertaken under the relevant customs notification read with Foreign Trade Policy under which the inputs were imported may result in unintended incentives being granted to the petitioner without proper examination
Case Laws:
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GST
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2020 (2) TMI 673
Increase in tax rate from 2% before GST regime to 12% post GST - works contract - Scope of contract between the parties - Restraint on respondent to deduct any amount more than 2% in the name of tax from the bill of the writ petitioner - HELD THAT:- There cannot be any manner of doubt whatsoever that the writ petitioner would be subject to tax as per the GST Act, which was enacted on 12th April, 2017. The petitioner has also received payment for work done. The prayer in the writ petition, therefore, cannot be considered by this Court. Petition dismissed.
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2020 (2) TMI 672
Validity of notice issued n Form GST-MOV-10 - As per the interim order, detained goods with vehicle have already been released after depositing the GST with penalty - Section 129(3) of GST Act - HELD THAT:- By way of an ad-interim-order, we directed the applicant herein to deposit an amount of ₹ 50,40,972/- towards tax, with the respondent No.2 and an amount of ₹ 50,40,972/- towards the penalty, in the form of the Bank Guarantee of any Nationalized Bank - It is not in dispute that our order, dated 10.01.2020, has been fully complied with by the applicant herein. However, surprisingly, a notice dated 5th February, 2020, in Form GST-MOV-10, came to be issued. In all, four separate notices, in Form GST-MOV-10, came to be issued for four different vehicles. The understanding of the authority is that since the notice under Section 129(3) of the Act is dated 31st December, 2019, the applicant ought to have deposited the amount, towards tax and penalty, within 14 days thereof, and the failure, to deposit such amount, would entail the consequences of notice in Form GST-MOV-10 - there is no question of looking into Section 129(6) of the Act, more particularly, when this Court has passed a specific order dated 10th January, 2020. Except Section 129(6) of the Act, there is no other ground for the purpose of issuing notice in Form GST-MOV-10. If that be the case, then we have no hesitation in quashing the Form GST-MOV-10 notice straight way - Application allowed.
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2020 (2) TMI 671
Stay on recovery of balance amount - Order of National Anti Profiteering Authority - petitioner has already deposited the ₹ 16,58,32,723/- out of the ₹ 89,73,16,384/- - HELD THAT:- Interim relief granted. This interim order shall not come in the way of the National Anti Profiteering Authority in cases where it has suo moto taken action. We also observe that prima facie, it appears to us that the limitation of period of six months provided in Rule 133 of the CGST Rules, 2017 within which the authority should make its order from the date of receipt of the report of the Directorate General of Anti Profiteering, appears to be directory in as much as no consequence of non adherence of the said period of six months is prescribed either in the CGST Act or the rules framed thereunder. List on 20.05.2020.
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2020 (2) TMI 670
Release of goods alongwith the vehicle - inquiry sought by an independent agency against the role of respondent no. 4 on account of his having exercised the powers in an illegal and arbitrary manner - Punjab GST Act, 2017 - HELD THAT:- Though the petitioner has tried to make out a case of having made an innocuous prayer of seeking release of goods under the provisions of Section 129(1) of the Act, the copious material produced by the respondents shows the modus operandi being employed for the purpose of evasion of the tax liability under the provisions of the Act and on that count the status of the petitioner in seeking release of the goods claiming himself to be the owner, if at this stage is recognized by the respondents, is likely to prejudice the plea/stand which has been taken by the respondent department. The status of the petitioner as owner of the goods is in question inasmuch as while the petitioner relies on E-way bill dated 7/12/2019 for claiming himself the consignee, the claim of the respondents is that the goods already stand delivered insofar as the E-way bill dated 7/12/2019 is concerned - Therefore, the claim of the petitioner as owner qua the goods which are loaded on the detained vehicle has to be determined by the competent authority in accordance with law and the said aspect cannot be preempted by directing release of the goods to the petitioner. Petition dismissed.
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2020 (2) TMI 669
Grant of Regular Bail - offences u/s 132(1)(b) and 132(1)(c) of the Central Goods and Services Tax Act, 2017 - The applicant is arrested and almost 55 days are over and complaint is yet not filed - Maximum sentence is of 5 years - HELD THAT:- Considering the offence as alleged in the FIR and also considering the nature of allegations made in the FIR, I am of the opinion that this is a fit case to exercise the discretion to enlarge the applicant on bail - Hence, the application is allowed and the applicant is ordered to be released on bail.
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2020 (2) TMI 668
Interest on delayed payment of tax - attachment of bank accounts - whether interest on delayed payment of tax as contemplated under Section 50 of the Central Goods and Services Tax Act, 2017, is automatic or the same is to be determined, after considering the explanation offered by the assessee? - HELD THAT:- Though the liability fastened on the assessee to pay interest is an automatic liability, quantification of such liability certainly needs an arithmetic exercise after considering the objections if any, raised by the assessee. It is to be noted that the term automatic does not mean or to be construed as excluding the arithmetic exercise . In other words, though liability to pay interest arises under section 50 of the said Act, it does not mean that fixing the quantum of such liability can be unilateral, especially, when the assessee disputes the quantum as well as the period of liability. Therefore, though the liability of interest under section 50 is automatic, quantification of such liability shall have to be made by doing the arithmetic exercise, after considering the objections of the assessee. Maintainability of writ appeal - Whether the dismissal of the writ appeals by Dr.Vineet Kothari,J. is correct or whether those writ appeals ought to have been entertained for further hearing? - HELD THAT:- A careful perusal of the direction issued by the Writ Court does not indicate anywhere as to how the Revenue is prejudiced by the said order, especially when the Revenue is given liberty to pass an order in a manner known to law and communicate the same to the petitioners, after considering their objections. Thus, the Writ Appeals preferred against the said orders of the Writ Court, as observed by Dr.Vineet Kothari,J., are wholly unnecessary - Therefore, I am in agreement with the view expressed by Dr.Vineet Kothari,J., as I find that entertaining the writ appeals is not warranted, since the Writ Court has not determined the interest liability of each petitioners against the interest of the Revenue in any manner and on the other hand, it only remitted the matter back to the concerned Officer to determine the quantum of such liability. Thus, the second question with regard to the maintainability of the writ appeals is answered accordingly. Appeal dismissed.
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2020 (2) TMI 667
Profiteering - supply of Xiaomi-Ml Power Bank 2i Red (10000 mAh) - allegation that Respondent had not passed on the benefit of this reduction in the GST rate to his recipients by way of commensurate reduction in the price - contravention of Section 171 of the CGST Act 2017 - penalty - HELD THAT:- The allegation of the Applicant No. 1 is that the Respondent had maintained the same selling price in respect of supplies of the said Power Bank before and after coming into force of Notification No. 24/2018-Central Tax (Rate) dated 31.12.2018 and he had not passed on the benefit of reduction in the GST rate to the Applicant No. 1 and other recipients. In this context, we have perused the screenshots of price of the product on the official web portal of the Respondent as on 19.12.2018 and 03.01.2019 and we observe that the said Power Bank was being classified under the HSN 8507 60 00 and supplies of the said Power Bank, described as Lithium-ion Batteries , were being effected in line with entry at S. No. 376AA, of Notification No. 18/2018-Central Tax Rate dated 26.07.2018, whereby the GST being levied @ 18% w.e.f. 26.07.2018. The entry after coming into force of Notification No. 24/2018-Central Tax (Rate) had no effect on the tax rate leviable on the said Power Bank, HSN 8507 60 00, being supplied by the Respondent. Hence, the present case is not a case of profiteering as had been alleged by the Applicant No. 1. The scope of this investigation/proceedings is limited to the issue of profiteering only and not to the issue of classification. The allegation of the Applicant No. 1 is not tenable and therefore the application alleging violation of provisions of Section 171 of the CGST Act, 2017 is hereby dismissed.
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2020 (2) TMI 622
Grant of interim relief - the impugned order of the National Anti-Profiteering Authority (NAPA), Respondent No. 2 herein, was passed not pursuant to any written complaint, as is mandated by law, but by the NAPA suo moto assuming jurisdiction - HELD THAT:- The Court is of the view that the Petitioners have made out a prima facie case for the grant of an interim relief as prayed for and that the balance of convenience in granting interim relief is also in the favour of the Petitioners. Till the next date of hearing, there shall be a stay on the impugned order dated 10th December, 2019 of the NAPA - List before Roster Bench on 20th May, 2020.
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Income Tax
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2020 (2) TMI 666
Reopening of assessment u/s 147 - disallowance u/s 40A(3) - payment was related to the transaction of sale of imported car by one Shri.Balan Pillai to one Sri. Arun Choksi and assessee is said to have acted as a middle man - addition u/s 68 - Unaccounted business receipts - Sale of a jeep - Unexplained cash found and seize - Review petition - HELD THAT:- No good ground to interfere with the impugned judgment passed by the High Court. The special leave petition is, accordingly, dismissed.
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2020 (2) TMI 665
Penalty u/s 158 BFA(2) - addition of undisclosed income - HELD THAT:- In view of the fact that the tax effect in the matter is less than two crores, we see no reason to interfere. The special leave petition is dismissed. Pending applications, if any, shall also stand disposed of.
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2020 (2) TMI 664
Disallowance made u/s. 37(1) on account of penal excise duty debited in P L Account - whether ITAT was justified in holding that alleged excise demand notice are not penal in nature without appreciating the fact that the same are for penalty demand levied by the Excise Department raised on account of fake export permit? - HELD THAT:- Delay condoned. Leave granted.
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2020 (2) TMI 663
Unexplained share application money - core issue raised by Appellant is that Appellate Authority without recording reasons to entertain additional evidence and without granting proper opportunity to Assessing Authority while relying upon additional information allowed appeal of the Assessee - HELD THAT:- Plea of Appellant is fallacious, in view of the fact that no such plea was raised before Tribunal apart from fact that remand report was sought from Assessing Authority and who in its report did not object to additional information rather asked to consider at the time of final disposal which vindicates stand of the Respondent-Assessee. Revenue could be aggrieved had Appellate Authority not supplied additional evidence to Assessing Authority or some objection had been raised at that stage. Failing to object rather extending implied consent demolishes entire case of the Revenue. There is nothing in the order of Tribunal to show that Revenue raised objection of additional evidence before Tribunal. Thus, we do not find any merit in the argument of the Appellant. Questions of i) genuineness of investors who introduced share capital and premium; ii) accrued income on account of delayed completion of project by M/s Satya Developers Limited; iii) capacity of persons from whom loan was borrowed and genuineness of transactions, have been considered at length by First Appellate Authority as well Tribunal. Both the Authorities below have returned categorical findings on each issue and counsel for Revenue has failed to point out any infirmity in fact or law warranting interference of this Court.
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2020 (2) TMI 662
Bogus purchases - none of the supplier parties are in existence and the assessee has just taken accommodation entries without getting actual supplies from the said parties - Tribunal restricting the disallowance to 5% of the gross purchases - HELD THAT:- We do not find any error or infirmity in the view taken by the Tribunal. The lower appellate authorities had enhanced the quantum of purchases much beyond that of the Assessing Officer i.e., from ₹ 24,18,06,385.00 to ₹ 65,65,30,470.00 but having found that the purchases corresponded to sales which were reflected in the returns of the assessee in sales tax proceedings and in addition, were also recorded in the books of accounts with payments made through account payee cheques, the purchases were accepted by the two appellate authorities and following judicial dictum decided to add the profit percentage on such purchases to the income of the assessee. While the CIT (A) had assessed profit at 2% which was added to the income of the assessee, Tribunal made further addition of 3% profit, thereby protecting the interest of the Revenue. In Bholanath Polyfab Limited [2013 (10) TMI 933 - GUJARAT HIGH COURT] was also confronted with a similar issue. In that case Tribunal was of the opinion that the purchases might have been made from bogus parties but the purchases themselves were not bogus. Considering the fact situation, Tribunal was of the opinion that not the entire amount of purchases but the profit margin embedded in such amount would be subjected to tax. Gujarat High Court upheld the finding of the Tribunal. It was held that whether the purchases were bogus or whether the parties from whom such purchases were allegedly made were bogus was essentially a question of fact. When the Tribunal had concluded that the assessee did make the purchase, as a natural corollary not the entire amount covered by such purchase but the profit element embedded therein would be subject to tax. No substantial question of law
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2020 (2) TMI 661
Release of assets (jewellery) seized from them during the search and seizure - Application made in representative capacity on behalf of all the family members, including the petitioners herein - application was made by Sh. Lalit Kumar Challani whereas the jewellery was seized either from the residence, wherein the petitioners and others also resided or from the bank lockers of the two petitioners - HELD THAT:- We do not find this to be a reasonable justification for not even responding to the application dated 26.04.2019 made by one of the family members, Sh.Lalit Kumar Challani. Even if, according to the respondents, the application could not be made by Sh.Lalit Kumar Challani and the same ought have been made by two petitioners, the least that the respondents could do was to send the response to the said application. The respondents have however, allowed time to pass by their own omission. Thus, it is not correct for the respondents to turn around and say that the application for release of the jewellery was not made within time. In view of the stand taken by the respondents, we permit the petitioners to move the application for release of jewellery seized during the course of search and seizure as well as from their bank lockers. If and when the application is made, the same should be actioned without any delay in accordance with law. In case the respondents reject the same for any reason whatsoever, the same should be communicated by a reasoned order within a period of four weeks from the date the application is made.
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2020 (2) TMI 660
Stay of demand - order rejecting the stay of the demand directing the petitioner to deposit 20% of entire demand drawn within 7 days - HELD THAT:- Petitioner had explained the position to the AO that the amounts had been received on the maturity of the deposits with the Post Office under the Monthly Income Scheme (MIS). The petitioner has even procured a letter dated 18.12.2019 which was issued by the postal department, which clearly states that the said deposits were internal transfers and not deposits made in cash. This communication was also marked to the Income Tax Officer, Ward No. 68 (1), New Delhi. However, it appears that the AO had already passed the assessment order on 07.12.2019 i.e. before the receipt of communication dated 18.12.2019. In these circumstances, we are unable to appreciate as to how, firstly, the AO could have rejected the stay application. Petitioner should not be subjected to harassment for pursuing her appeal. We therefore, set aside the assessment order dated 07.12.2019 and remand the matter to the AO for passing fresh assessment order after considering the relevant documents including the communication dated 18.12.2019 issued by the Office Of Sr. Superintendent of Post Offices, Delhi East Division, Delhi.
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2020 (2) TMI 659
Deduction u/s 10A / 10B - Aggregation of income - income computed under various heads of income in accordance with the provisions of Chapter IV of the IT Act shall be aggregated in accordance with the provisions of Chapter VI of the IT Act, 1961 - Deduction u/s 10(A) and 10(B) computation - vires of Circular dated 16.07.2013 as per the referring Circular No.7/DV/2013 (File No.279/Misc./M-116/2012-ITJ) challenged - HELD THAT:- Circulars are neither binding on the assessee or on the Court. See M/S RATAN MELTING WIRE INDUSTRIES [ 2008 (10) TMI 5 - SUPREME COURT] The clarification given in the impugned circular now stands diluted in the light of the decision of the Hon'ble Supreme Court in Commissioner of Income Tax Vs Yokogawa India Limited [ 2016 (12) TMI 881 - SUPREME COURT] . wherein held hough Section 10-A, as amended, is a provision for deduction, the stage of deduction would be while computing the gross total income of the eligible undertaking under Chapter IV of the Act and not at the stage of computation of the total income under Chapter VI. The Hon'ble Supreme Court has clarified that its decision rendered in the context of Section 10(A) of the Income Tax Act, 1961 will equally apply to Section 10(B) of the Income Tax Act, 1961. Therefore above circular is no longer binding on the Assessing Officer also in the light of the decision of the Hon'ble Supreme Court in Commissioner of Income Tax Vs Yokogawa India Limited , 2017 2 SCC 1, as the Hon'ble Supreme Court has made it clear that the decision rendered by it in the above case in the context of section 10(A) would equally govern Section 10(B) of the Income Tax Act, 1961. Therefore, there is no necessity for the impugned circular to remain any longer. Accordingly, the impugned circular has to be declared as irrelevant.
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2020 (2) TMI 658
Recovery proceedings - assessment finalised against the deceased 1st writ petitioner - as contented no notice of demand as contemplated under Section 156 - HELD THAT:- Once appeared before the Assessing Officer, on 19.12.2006. But the assessee has not adduced any fresh evidence nor made any request for cross examination of the loan creditors. In addition, he only sought time. Since there existed a direction for time bound disposal of the matter, the Assessing Officer finalized the assessment under Ext.P5(a). Ext.R1(a) produced by the department would reveal that Ext.P5(a) order of assessment was served upon the assessee along with a demand notice, in January, 2007. Thereafter, the matter was kept ignored by the 1st petitioner/assessee till 2011. Even though a fresh copy of Ext.P5(a) was served at the request of the assessee in the year 2011 itself, the above writ petition was filed only in the year 2013, when the sale proclamation notice was received pursuant to the recovery steps initiated. Therefore the learned Singe Judge was perfectly justified in declining interference. Neither the assessee(deceased 1st writ petitioner) nor the appellants herein, who were the legal heirs impleaded in the writ petition, had taken any attempt to challenge the consequential assessment by availing the statutory remedy of appeal. Therefore there is every justification on the part of this court in refusing interference with the recovery proceedings initiated. This is more so, because the petitioners have failed in their contention that there was lack of service of proper demand notice. Hence we are of the opinion that the Writ Appeal deserves no merit and the same is liable to be dismissed. Appellants had pointed out that, the observations contained in the impugned judgment may stand in their way in availing the statutory remedy of appeal, even by seeking condonation of delay, before the appellate authority. We are of the opinion that, dismissal of the writ petition could not be in a manner foreclosing the remedy if any available to the appellants in challenging the revised assessment by availing statutory remedy. While dismissing the above writ appeal, we make it clear that none of the observations contained in the impugned judgment shall not stand in the way of the appellants seeking remedy of appeal before the appellate authority by seeking condonation of delay occurred in filing such appeal. If any such appeal is admitted, the appellate authority shall deal with the matter independently, to the extent it is admitted under law.
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2020 (2) TMI 657
Reopening of assessment u/s 147 - HELD THAT:- It appears that the audit itself has dropped objection. In such circumstances, the proceedings under Section 147 have also been dropped. In such a situation, we need not adjudicate this writ application any further on merits. However, at this stage, Mr. Soparkar, the learned counsel appearing for the assessee pointed out that his client, as on date, has not received any intimation in this regard in writing. Since a statement is made by the learned counsel appearing for the Revenue and the communication in writing is also taken on record, the Revenue may do well to inform the writ applicant in writing about its decision to drop the reopening.
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2020 (2) TMI 656
Delay in filing return of income (ITR) - condonation of delay u/s 119 - Refund - the petitioner did submit his return keeping in view Section 139(4) electronically for AY 2015-16 on 2.12.2015 - the CPC, Banglore received duly signed acknowledgment, which was generated online at the time of filing of the return on 01.03.2017 - HELD THAT:- The petitioner did mention about the illness of his wife, about hospitalization of his wife and in all fairness, the delay should have been condoned. It is not a case of evasion of income, it is not a case where no income tax return was filed, it is only a case, in which, Form No.V was not forwarded to the CPC, Banglore in the prescribed time. The return for assessment year 2015-16 was filed on 02.12.2015 and Form No.V was received by the CPC, Banglore on 01.03.2017. Reasonable cause was explained in the application submitted by the petitioner and the Principal Commissioner has brushed aside the factum of illness of the wife of the petitioner by stating that after discharge from the hospital, the assessee's wife has taken routine treatment and the assessee was not prevented from the filing the return up to March, 2017 under Section 139 (4) of the Income Tax Act, 1961. The present case is certainly a case of genuine hardship to the assessee and the discretion should have been exercised in favour of the assessee. The TDS, which the assessee was claiming, was in respect of tax deducted at source by the State of Madhya Pradesh, as the assessee was a Government Advocate, and therefore, the order dated 15.03.2019 is hereby quashed. The assessee's application dated 07.11.2017 for condonation of delay under Section 119 (2)(b) of the Income Tax Act, 1961 claiming refund of ₹ 43,590/- in respect of Assessment Year 2015 16 is allowed. The respondent is directed to process the case of the petitioner for refund, as claimed by the assessee, ignoring the delay. The exercise of processing the case and passing the final order ignoring the delay be concluded within a period of three months from the date of receipt of certified copy of this order.
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2020 (2) TMI 655
Settlement of cases - Period of limitation for rectification of mistake apparent from the record in the order passed by the Settlement Commission - Application u/s 245D(6B) - Procedure on receipt of an application under section 245C - HELD THAT:- A perusal of sub-section (6B) of Section 245D of the Act makes it amply clear that any mistake apparent from the record in the order passed by the Settlement Commission under sub-section (4) of Section 245D of the Act may be rectified at any time within a period of six months from the end of the month in which the order was passed or at any time within a period of six months from the end of the month in which an application for rectification has been made by the Principal Commissioner or the Commissioner or the applicant, as the case may be. Six months from the end of the month in which the order was passed, expired on 31st May, 2017. Admittedly, the application under Section 245D(6B) of the Act was filed by the petitioner on 30.06.2017 which was barred by limitation as provided under sub-section (6B) thereof. Still further, even if the argument advanced by the petitioner that the limitation of six months for entertaining application under Section 245D(6B) of the Act would start running from the date the order was served on the petitioner, is considered, there is nothing to show as to on which date in the month of December, 2016 the order was served upon the petitioner. The petitioner has only stated that the order dated 28.11.2016 was served upon him in the month of December, 2016 and has not demonstrated that the order dated 28.11.2016 was served upon him on or after 30th December, 2016 so as to claim that the application filed by the petitioner on 30th June, 2017 was within limitation. Thus, considering the controversy from this angle also, no case is made out in favour of the petitioner. We do not find any error in the findings recorded by the learned Settlement Commission warranting interference in exercise of power of judicial review. That apart, if any right has been conferred by the Legislature, it equally has the right to take it away or prescribe reasonable conditions for the exercise of the right. The Legislature would be perfectly within its right to regulate any right conferred by it while imposing conditions or restrictions on its exercise.
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2020 (2) TMI 654
Revision u/s 263 - allowability of deduction claimed u/s 35(2AB) of the Act when Form No.3CL is absent on record and issued show cause notice proposing to revise the said order of AO - as per CIT no evidence on record to decipher that the AO examined the contents i.e. expenditure incurred on R D as claimed u/s 35(2AB) - HELD THAT:- We find the failure to file Form No.3CL to the authority does not make orders erroneous. The claim is very much allowable provided the expenditure portion is examined and found allowable under the said provisions. In any case, such expenditure can also be allowable u/s 37 of the Act, provided the conditions are met. Further, we also examined the judgment in the case of CIT Vs. Sun Pharmaceutical Industries Ltd. [ 2017 (8) TMI 933 - GUJARAT HIGH COURT] Claim of deduction u/s 35(2AB) of the Act cannot be denied merely for want of Form No.3CL subject to fulfilment of other conditions under Rule 7 of IT Rules. It is merely a procedural lapse. Further, it is also a decided issue that the expenditure which is claimed under the said section is allowable after due process of verification by the concerned authorities. Therefore, the Hon ble High Court directed the AO to verify the actual expenditure incurred by the assessee in that case. Neither the AO nor Pr.CIT gave finding of fact on the R D nature of expenditure under consideration. There, we cannot examine them and give a finding of fact. Ld. AR also requested for remand for verification. Considering the above settled nature of the issue, we are of the opinion that the deduction u/s 35(2AB) of the Act cannot be denied merely for the procedural lapses. Therefore, the order of the PCIT needs modification. Modification include (1) the judgment of Hon ble High Court of Gujarat in the case of CIT Vs. Sun Pharmaceutical Industries Ltd. (supra) and other judgments, if any, on the subject, are required to be following by the PCIT; and (2) Due verification of the expenditure and the allowability of expenditure u/s 35(2AB) of the Act has to be examined by the PCIT too. We modify the orders of Pr.CIT accordingly, for both assessment years. PCIT is directed to pass consequential order after hearing the assessee. The assessee is directed to demonstrate the allowability of the said expenditure. Appeals of the assessee is partly allowed.
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2020 (2) TMI 653
Commission income - cash recovered during survey / search - estimation of daily turnover / monthly turnover for 207 days - The working of 207 days has been taken by the learned CIT(A) from the day when the assessee-firm came into existence by execution of the partnership deed. It came into existence on 7th May 2008 and ended on 4th December 2008. - HELD THAT:- To our mind, the commission income of the assessee was to be estimated for the period during which the firm remained in existence for the relevant accounting year, i.e. for the number of days relating to Assessment Year 2009-10 it remained into existence. Its existence has been worked out for 207 days. Once, after taking into consideration the turnover, the commission income has been worked out at a sum of ₹ 25 lakhs, then how the commission income already accounted for by the firm at ₹ 27.50 lakhs could not be set off. We could appreciate the case of the Revenue, if after taking into the average commission income for three days, the learned CIT(A) worked out the commission income of 207 days at ₹ 27.50 lakhs plus ₹ 25 lakhs. In that situation, the stand of the Revenue not to give set off of ₹ 27.50 lakhs could be justified. But in the present situation, the only method which could be adopted is to work out total commission income for 207 days by whatever method, then debit that commission income from the amount already disclosed by the assessee plus expenditure and the remaining will be taxable. The disclosure made by the assessee at ₹ 27.50 lakhs is more the ultimate estimated income worked out by the learned CIT(A); therefore, no further addition is required. Accordingly, the addition of ₹ 18,20,407/- is deleted and the appeal of the assessee is partly allowed. Penalty u/s 271AAA(2)(ii) - HELD THAT:- The conditions enumerated in sub-section (2) are that penalty under Section 271AAA would not be leviable upon assessee if the assessee, during the course of search, has admitted the undisclosed income; specified the manner in which such income has been derived; substantiated the manner in which the undisclosed income was derived and paid the taxes together with interest, if any, in respect of the undisclosed income. As submitted by the assessee, it has not firstly admitted the cash recovered during the course of search at ₹ 27.50 lakhs. Therefore, it does not fulfill the conditions enumerated in sub-section (2) of Section 271AAA of the Act. Even copy of the statement recorded under Section 132(4) has not been placed before us. After going through the record, we are of the view that the assessee failed to fulfill the conditions of Section 271AAA. It, therefore, deserves to be visited with penalty. However, the penalty is to be restricted qua 10% of the additions we have confirmed. We have already deleted ₹ 18,20,407/-; therefore, 10% of this is to be excluded. The penalty is, therefore, restricted to ₹ 2,75,000/-, instead of ₹ 4,57,041/- imposed by the Assessing Officer. In the result, the appeal of the assessee is partly allowed.
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2020 (2) TMI 652
Assessment u/s 153A - exemption u/s 54F - HELD THAT:- There is no dispute with regard to fact that along with computation of income for the claim of exemption u/s 54F, the assessee has not appended any note exhibiting the fact that she owned other flats. Copy of the return has been placed on page no.15 to 21 of the paper book submitted on 16.1.209. Non-disclosure of the above facts in the computation of income if looked into in the light of the reply given to question no.9 would indicate that prima facie claim of the assessee was not admissible, because, she failed to disclose details of that property. Hence, during the course of search, it was unearthed that the assessee s claim under section 54Fwas doubtful claim. In the above situation, the AO is justified to initiate action under section 153A of the Act. We do not find any merit in this ground of appeal. It is dismissed. Disallowance of exemption u/s 54F - investment in new residential house out of long term capital gain - HELD THAT:- There is no dispute with regard to fulfillment of other conditions by the assessee as contemplated in section 54F. She has sold long term asset and which gave rise to long term capital gain. She has purchased a new residential house in India. Only objection raised by the AO is that she was having more than one residential house other than the new asset on the date of transfer of original asset. In other words, in the opinion of the AO, her case falls within the ambit of sub-clause (a)(i) of proviso of section 54F. In the sale deed flat at Bafna Tower, Indore has been termed as residential house, but ceased to be a residential property because commercial activities are going on in this property. All flat owners have let out their properties; that being so, no one can use it for residential purpose. This fact ought to have been examined by the AO before disbelieving. If this property is excluded from residential house, then the assessee would be having only 90% in a flat no.281, Kalpataru Heights, Mumbai. Apart from this, the assessee was not having any residential house in this accounting year, and therefore her case would fall within the ambit of clause (a)(i) of the proviso appended to section 54F. It is also pertinent to observe that object of Section 54F is go give incentive to the assessee for making investment in purchase of residential house. Such object ought not to be defeated on sum flimsy reasons. Therefore, in view of above discussion, we are of the view that the assessee is entitled for exemption under section 54F of the income Tax Act. We direct the AO to grant exemption of ₹ 50 lakhs on account of investment in new residential house out of long term capital gain. - Decided in favour of assessee.
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2020 (2) TMI 651
Addition u/s 68 on account of unsecured loans from directors - HELD THAT:- The assessee did not furnish the source of fund available with her as she is not maintaining regular books of account. The ld CIT(A) also noted that her return of income was only ₹ 251500/- and therefore, after meeting the household expenses, she could not have saved above sum available with her. Thus, the creditworthiness of the above loan was not proved. Similarly, the facts shows that loan from Mr. Neeraj Handa was also having the identical facts, in view of this the ld CIT(A) confirmed the above additions. On carefully perusal of the orders of the lower authorities, it is apparent that assessee has failed to prove the creditworthiness of the above loans. Assessee has failed to show creditworthiness of both the lenders. Hence, we do not find any infirmity in the orders of the lower authorities in sustaining the above addition u/s 68 - Decided in favour of revenue
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2020 (2) TMI 650
LTCG on sale of share in agricultural land - Whether the said land was agricultural land covered by the exception contained in section 2(14)(iii) ? - HELD THAT:- The Inspector s report categorically suggested that agricultural produce were grown on the said land, there was a canal from which irrigation was done on the said land. Even the certificate obtained from local Talati specifies the land being agricultural land. CIT(Appeals) has not distinguished or brought any other materials on record to negate such findings in the Inspector s report and therefore, we are of the considered view that the land sold was agricultural land and the same is not a capital asset and the same is covered by the exception contained in Section 2(14)(iii) of the Act. In view of the examination of facts on record, we set aside the order of the CIT(Appeals) and allow the grounds raised in appeal by the assessee.
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2020 (2) TMI 649
Revision u/s 263 - underassessment of long term capital gain - shares sold to a fellow director were highly undervalued, and the Long term capital gains on the sale of 3025 shares to Amit Indubhushan Bakshi was under stated - HELD THAT:- Since sale of shares at face value was by mutual understanding and by consent of all directors because Amit Indubhushan Bakshi was instrumental in getting the investor who contributed allot for benefit of company. We do not find any illegality in transfer of shares at face value i.e. ₹ 10 per share. As relying on GILLANDERS ARBUTHNOT AND CO. [ 1972 (9) TMI 13 - SUPREME COURT] , S GAURANGINIBEN S. SHODHAN INDL. [ 2014 (2) TMI 78 - GUJARAT HIGH COURT] and M/S. MORARJEE TEXTILES LTD. [ 2017 (2) TMI 122 - BOMBAY HIGH COURT] we allow appeal of the assessee and cancel order passed by the ld. Pr. CIT u/s. 263.
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2020 (2) TMI 648
Additions as notional interest pertaining to one of the partners - Debit balance in the account of partner while the assessee is paying interest on bank loan - Assessee is a partnership firm and has three partners - HELD THAT:- The contention of the assessee's AR seems to hold much water in as much as the provision of section 5 of the Act does not provide any room for bringing to tax any income by way of notional income. On the matter of debit balance of one of the partners, find that the impugned debit balance is not a new finding by the AO, rather it has been carried forward from the past several years and there were no additions made on this count by the AO in those years. No doubt the principle of Res Judicata does not apply to lncome Tax proceedings but however, the principle of Consistency has to be adopted when there is no change in the material facts and circumstances of the assessee's case. On analyzing the entire gamut of the issue with respect to the material facts on record along with the legal aspects involved and my findings as in the foregoing, ultimately, find that bringing to tax an amount which is of notional in nature and which was never earned by the assessee cannot stand the test of jurisprudence in the tax regime. No justification in the action of the AO making addition - Decided in favour of assessee. Disallowance of management charges and supervision charges - there was no basis for charging such basis for charging such charges and were merely book entries - CIT-A deleted the addition - HELD THAT:- here is no infirmity in the order of ld CIT(A). We note that for eligibility of an allowance u/s 37(1) of the Act, there should be a nexus between the expenditure and the purpose of the business and the expenditure should have been wholly and exclusively laid out for that purpose. Once these facts are established, the revenue cannot justifiably claim to put itself in the arm chair of business man or in a position of the Board of Directors and assumed the role of ascertaining how much is reasonable expenditure having regard to the circumstances of the case. We note that the assessee has incurred management supervision charges for the purpose of business and if the expenditure is incurred bona fide in relation to business activity then it would be an allowable expenditure. That being so, we decline to interfere in the order passed by ld CIT(A), his order on this issue is hereby accepted and grounds of appeal raised by the Revenue is dismissed.
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Customs
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2020 (2) TMI 647
Refund of IGST - Zero Rated Supplies - amount of the IGST was not mentioned in the shipping bills - the shipping bills were amended for the purpose of getting the details of the IGST, incorporated in the shipping bills - HELD THAT:- This Writ-Application is disposed off with a direction, to both, the Principal Commissioner of Customs, Mundra Port as well as the Deputy Commissioner of Customs, Mundra Port, to look into the matter and take appropriate decision within a period of four weeks from the date of receipt of the writ of this order. The decision shall be communicated to the writ-applicant in writing. Application disposed off.
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2020 (2) TMI 646
Grant of Regular Bail - Sections 132 and 135 of the Customs Act, 1962 - HELD THAT:- The guilt of the petitioner/accused shall be determined during the trial. The completion of trial in the complaint case is likely to take considerable time. The detention of petitioner/accused during that period shall not serve any useful purpose more particularly when several of his co-accused have been granted concession of bail. Similarly in the connected FIR case, he has been granted pre-arrest bail. There is nothing on record to show that the petitioner has got past criminal antecedents or that he is a hardened criminal. Therefore, without touching merits of the case, it would be in fitness of things and in the interest of justice, if the present petition is accepted. The interim bail granted to the petitioner is made absolute, subject to the conditions imposed - petition allowed.
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2020 (2) TMI 645
Revocation of CHA license - imposition of penalty u/s 112(a) of CA - time limitation - HELD THAT:- Though the decision of the Division Bench of the Bombay High Court in THE PRINCIPAL COMMISSIONER OF CUSTOMS (GENERAL) MUMBAI VERSUS UNISON CLEARING PVT. LTD., AND OTHERS. [ 2018 (4) TMI 1053 - BOMBAY HIGH COURT] , has given a different interpretation to the effect that the limitation prescribed in Regulation 20 of the Customs License Brokers Act, 2014 is directory and not mandatory, I am bound to follow the views taken by this Court in SANTON SHIPPING SERVICES VERSUS THE COMMISSIONER OF CUSTOMS, THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL [ 2017 (10) TMI 621 - MADRAS HIGH COURT] and M/S MASTERSTROKE FREIGHT FORWARDERS PVT. LTD. VERSUS THE COMMISSIONER OF CUSTOMS (IMPORTS) , THE INQUIRY OFFICER/ASSISTANT COMMISSIONER OF CUSTOMS [ 2015 (12) TMI 1148 - MADRAS HIGH COURT] where it was held that Once the limitation prescribed is mandatory, as has been declared by the courts of law, it cannot be stated that, because of the other issues, that is the merit of the case, this mandatory requirement of the limitation can be ignored. Since the Show Cause Notice dated 07.07.2014 was issued beyond 90 days, the consequential order passed by the 1st respondent is liable to be quashed and is hereby quashed - petition allowed - decided in favor of petitioner.
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2020 (2) TMI 644
Undervaluation of goods - various types of Aluminium scrap imported - allegation raised against M/s AMA, in the said SCN was that they had imported various consignments of Aluminium scrap from various overseas suppliers either directly or through their indenter or purchased the same from various high seas sellers at a grossly undervalued price - HELD THAT:- The demand in the present case has been confirmed under Rule 4 of the Customs Valuation Rules, 1988 by applying price band to LME prices as per Alert circular No. 14/2005 dated 16.12.2005 issued by the Director General of Valuation. Apart from the above, the demand has been confirmed by relying upon the statements of co-appellants viz, the partners of AMA, indenting agents, etc., 3 insurance policies and Brussel Report in relation to one import consignment. The adjudicating authority has proceeded to redetermine the value of imported aluminium scrap on the basis of the DGOV circular without considering and overlooking the contemporaneous data available before it on record. It is a settled law that if the declared value is to be rejected in that case the CVR, 2008 has to be applied sequentially i.e. Rule 5 and 6 is to be applied. If the value of contemporaneous goods are available, the same shall be basis for redetermination of value, as held by Apex Court in the case of COMMISSIONER OF CUSTOMS, CALCUTTA VERSUS SOUTH INDIA TELEVISION (P) LTD. [ 2007 (7) TMI 9 - SUPREME COURT ]. The adjudicating authority in the present case has confirmed the demand on the basis of the LME price as stated in the DGOV circular - the Tribunal in the case of M/s Sunland Metal [ 2019 (10) TMI 113 - CESTAT AHMEDABAD ] after considering the various case laws and communication/clarification given by the then CBEC/ISRI has held that LME price cannot be the basis for redetermination of value of scrap. Liability of additional duty of Customs in respect of scrap - HELD THAT:- The Appellant herein is entitled for all reliefs/ exemption associated with the assessment. Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 643
Valuation of imported goods - import of Li Ning brand goods from Singapore for the period February, 2012 to March, 2015 - inclusion of marketing, advertising, sponsorship and promotional expenses/ payments made by the appellant to promote the Li Ning brand was a condition of sale - Rule 10(1)(e) of the Customs (Determination of Value of Imported Goods) Rules, 2007 (hereinafter referred as CV Rules) - HELD THAT:- There is nothing in the agreement that a fixed amount or fixed percentage of the invoice value of the imported goods, is obliged to be spent by the appellant as a condition of sale/ import. As per the stipulation in the agreement, the appellant is obliged to or responsible for sales and distribution in its territory of distribution and further to make such expenditure in consultation with the seller, does not attract the provisions of Rule 10(1)(e) of CV Rules. The said Rule 10(1)(e) provides for addition of all other payments actually made or to be made as a condition of sale of the imported goods, by the buyer to the seller or by the buyer to a third party to satisfy and obligation of the seller, to the extent that such payments are not included in the price actually paid (transaction value). There is total absence of the prescribed condition precedent as the appellant is not obliged to incur any particular amount or percentage of invoice value towards sales promotion/ advertisement. Further, the activity of advertisement and sales promotion is a post import activity incurred by the appellant on its own account and not for discharge for any obligation of the seller under the terms of sale. The interpretative note to Rule 3(b) provides, that activity undertaken by the buyer on its own account, even though by agreement, are not considered as direct payment, even though they might be regarded as benefit to the seller also. Further, in the facts of the present case, appellant has not paid any amount on behalf of M/s Sunlight Sports seller. Further, the impugned order is also vitiated due to mistake of fact. Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 642
Initiation of anti-dumping investigation - imports of non woven fabric made of polypropylene of GSM 25 or less originating in or exported from Malaysia, Indonesia, Thailand, Saudi Arabia and China PR - Whether the Designated Authority can give final findings contrary to the essential facts stated in the disclosure statement without even apprising the domestic industry? HELD THAT:- The foremost requirement is to understand the scope and object of the disclosure statement issued by the Designated Authority in terms of Rule 16 of Anti-Dumping Rules. This Rule mandates that the Designated Authority shall, before giving its findings, inform all interested parties of the essential facts under consideration which form the basis of its decision. In so far as the interpretation of Rule 16 of Anti-Dumping Rules is concerned, the WTO panel and appellate body of WTO decisions relating to interpretation of article 6.9 of the agreement on implementation of article VI of the general agreement on Tariffs and Trade 1994 (ADA) needs to be examined. The said articles 6.9 stipulates that the Authority shall before a final determination is made, inform all interested parties of the essential facts under consideration which form the basis for the decision whether to apply definitive measures as prayed. Additionally article 6.9 also provides that such disclosure should provide sufficient time to the parties to defend their interest. In the Anti-Dumping investigation, since the Designated Authority has to find whether dumping, injury and causal link exist or not, the essential facts underlying the findings and conclusions relating to these elements shall form the basis of the decision under Rule 16 of the Anti-Dumping Rules. These essential facts are required to be disclosed to the domestic industry / interested parties. The word used in the Rule is essential facts under consideration , rather than essential facts that should reasonably be considered . Thus, the sole object of Rule 16 as well as of said article 6.9 is to allow parties to defend their interests. The meaning of word fact in various dictionaries is truth, reality and a thing known for certain to have called or to be true and a thing assumed or alleged as a basis for inference and events or circumstances as distinct from their legal interpretations. Thus, the purpose of disclosure of essential facts under Rule 16, in our opinion, is to provide to the interested parties, the necessary information so as to enable them to comment on the completeness and correctness of the facts being considered by the Investigating Authority / Designated Authority. It includes providing additional information or to correct error and comment on or make arguments as to the proper interpretation of those acts. Thus, the essential facts referred to in Rule 16 are facts significant in the process of reaching a decision as to whether or not to apply definitive measures as well as those that are salient for a contrary outcome. In the instant case, the conclusion arrived at by the Designated Authority in the disclosure statement clearly shows that their exists positive dumping material injury to the domestic industry and also a causal link between the dumped imports and the said material injury. Still the conclusions arrived at by the Designated Authority in the final findings are not only at variance with the disclosure statement but are also contrary to what was stated in the disclosure statement - In the present case, the challenge to the final finding is principally based on the contention that the Designated Authority placed reliance upon certain material and facts for concluding the issue against the appellant, which facts did not form part of the disclosure statement and to which the appellant had no opportunity to deal with. The contention of the Appellant, therefore, has merit. Failure to make available to material on which the decision is based is clearly violation of principles of natural justice. It rather amounts to placing reliance on such data not made known to the party concerned. The matter is remanded to the Designated Authority for Issuing a fresh disclosure with complete details / data / information / methodology which may constitute essential facts under consideration; to afford an opportunity to the interested parties to submit their comments - appeal allowed by way of remand.
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2020 (2) TMI 641
Principles of Natural Justice - opportunity for cross-examination denied - HELD THAT:- The appeal against the communication rejecting the request for cross examination should normally not be entertained by the appellate authority such as CESTAT, because it is an interim order and even the adjudicating authority has not determined the issues involved in the matter - Appellate authority can and should examine all the issues including the rejection of request of cross examination, only if the adjudication order passed by the adjudicating authority is challenged in appeal before it in terms of Section 129 A (1) of Customs Act, 1962. There is no bar in the law for the appellants to approach the adjudicating authority himself for reconsideration of the request for cross examination. To the specific query made by the bench as to whether after receiving the communication, have they approached the adjudicating authority for reconsideration of their request for cross examination, the counsel for appellant has replied in negative - It is settled principle in law that new adjudicating authority has to consider the matter afresh and cannot rely on the rejection made by the earlier adjudication authority in the matter. Hence it will be appropriate for the appellants to approach the new adjudicating authority with their request for cross examination, who should consider the same without any bias on account of rejection made by his predecessor. Appeal allowed by way of remand.
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2020 (2) TMI 640
Valuation of imported goods - Brass Valve Zinc Valves - rejection of declared value - redetermination of the value - period 2007-08 - invocation of Extended period under proviso to Section 28(1) (b) of the Customs Act, 1962 - demand of differential duty alongwith interest and penalty. HELD THAT:- The issue is squarely covered by the decision of tribunal in case of S.K. DHAWAN AND RAJEEV SETH, ESSFO IMPEX PVT. LTD. AND ESS DEE TRADING CO. VERSUS COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI [ 2016 (3) TMI 888 - CESTAT MUMBAI] where it was held that In the absence of any evidence it is not possible to accept the statement that the transaction value and the declared value were not actual transaction value. The distinction sought to be made by the learned Authorized Representative, do not address the crux of issue of rejection of transaction value. Without rejecting the transaction value, the application of any other rule, for re-determination of the value for the purpose of levy of Custom Duty is neither permissible nor admissible position in law as per the decision referred to by counsel for law. Appeal allowed - decided in favor of appellant.
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Corporate Laws
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2020 (2) TMI 639
Dismissal of suit - suit dismissed on the ground that the cause of action of the suit is barred under the provisions of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Code of 2016 deals not only with corporate entities but also with individuals. Therefore, Section 231 of the Code of 2016 takes into account a situation where the proceeding may be pending under the Code of 2016 against an individual also. Section 231 of the Code of 2016 is in Part-5 dealing with miscellaneous matters. Section 231 encompasses both a situation where there is an insolvency proceeding against a corporate entity as also against a person who is not a corporate entity. Section 231 of the Code of 2016 also prescribes a bar on the Civil Courts to assume jurisdiction in respect of any matter in which, the Adjudicating Authority or the Board is empowered by or under the Code of 2016 to pass any order - In view of the provisions of Sections 63 and 231 of the Code of 2016, the instant suit is barred by law. Suit dismissed.
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Insolvency & Bankruptcy
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2020 (2) TMI 638
Maintainability of application - initiation of CIRP - Corporate debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- Considering the material papers filed by the Petitioner Bank and the facts mentioned, this Adjudicating Authority is satisfied that, (a) The Corporate Debtor availed the loan/credit facilities from the Financial Creditor Bank;(b) Existence of debt is above Rs. One Lakh; (c) Debt is due; (d) Default has occurred on 31/03/2014; (e) Petition had been filed within the limitation period; (f) Copy of the Application filed before the Tribunal has been sent to the Corporate Debtor and the application filed by the Petitioner Bank Under Section 7 of IBC is found to be complete for the purpose of initiation of Corporate Insolvency Resolution Process against the Corporate Debtor. Hence, the present IB Petition is admitted. The date of admission of this petition is 18/12/2019 - Moratorium to have effect from the date of this order till the completion of the Corporate Insolvency Resolution Process.
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2020 (2) TMI 637
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - pre-existing debt and dispute or not - HELD THAT:- After a reading of section 7 of the Code along with Rule 4(2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, we are satisfied that a default has occurred and the application under sub-section 2 of Section 7 is complete. The IRP proposed does not have any disciplinary proceedings pending against him - this petition is admitted and Mr. Amit Agarwal is appointed as an Interim Resolution Professional. Application admitted - moratorium declared.
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2020 (2) TMI 636
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- The Applicant RBI in the capacity of Appropriate Regulator has submitted this Application against the 'Financial Service Provider' Dewan Housing Finance Corporation Limited on account of the fact that the default in repayment of the ECB Loan to SBI was committed, therefore, after following the due procedure as discussed prayed for Admission of the Petition u/s 7 to be read with Section 227 of the Insolvency Code. On due examination of the evidences annexed with this Application we hereby hold that the Debt in question is to be qualified as Financial Debt as defined u/s. 5(8) to be read with Section 3(11) of The Code. Further, on the basis of the correspondence and the Letters issued it has also been established that the FSP has committed Default of repayment as defined u/s. 3(12) of The Code. Application admitted - moratorium declared.
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2020 (2) TMI 635
Maintainability of application - initiation of CIRP - corporate debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- It is well established that there is pre-existing dispute. There is no defined agreement entered into between the parties. That apart, the Corporate Debtor is a going concern and there are more than 80 employees engaged with the Corporate Debtor whose livelihood is dependent upon the Corporate Debtor - In view of such serious dispute, which is the matter of trial, cannot become the subject matter of I B Code when the main object of the I B Code is resolution and not the recovery. In other way, it can be said resolution is rule and liquidation is exception . The same is evident from the long title of the IB Code. On perusal of the various correspondence as also the Notice of Dispute and the paper publication, it is clear that there is/are pre-existing ongoing dispute(s) between the parties which require further investigation. It is admitted by the Operational Creditor that he has not used the Tata Steel as assured - while recovery bleeds the Corporate Debtor to death, resolution endeavours to keep the Corporate Debtor alive. If fact, the IB Code prohibits and discourages recovery several ways. The petition is dismissed on the ground of pre-existing dispute.
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2020 (2) TMI 634
Maintainability of application - Initiation of Liquidation Proceedings - liquidation of Corporate debtor - HELD THAT:- This Tribunal in the circumstances of the case, taking into consideration the provisions of law as well as on facts, is constrained to order for liquidation of the Corporate Debtor and amidst such background the Corporate Debtor stands liquidated with the incidence of liquidation to follow, on and from the date of this order in terms of the provisions of the IBC, 2016 and more particularly as given in Chapter - III of IBC, 2016 and also in terms of Insolvency and Bankruptcy (Liquidation Process) Regulations, 2017. Application cannot be admitted - Moratorium ceased to have effect.
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2020 (2) TMI 633
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- Although the Corporate Debtor is trying to claim that the amount received by the Corporate Debtor from the Financial Creditor was only an advance for future supply of goods, and for the satisfaction of the Financial Creditor, the Agreement dated 4th April, 2017 and Promissory Notes were executed, we are unable to travel beyond the documents executed between the parties. The Share Pledge/Financial Facility Agreement dated 4th April, 2017 clearly referred to the Corporate Debtor as borrower and to the Financial Creditor as lender . There is no substance in the argument of the Appellant that the subsequent Promissory Note cannot be looked into for considering the relationship. When the Financial Creditor gave advance to keep the Corporate Debtor running, to ensure that its raw material becomes available to the Financial Creditor, it was clearly a case of borrowing/lending for time value of money for the loan which the Financial Creditor was advancing. On the basis of the amounts advanced in 2016 - 2017 itself, considering the fact that the Corporate Debtor has not paid the amounts claimed, which are clearly more than ₹ 1 Lakh, we find there is debt and default and that no error could be said to be there in the Impugned Order admitting the Section 7 proceedings filed by the Financial Creditor - Respondent No.1 - Appeal dismissed.
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Service Tax
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2020 (2) TMI 632
Refund of service tax - commercial and industrial construction service - time limitation - failure to furnish documents to prove that the said service tax amount had actually been deposited with the Central Government - Section 11B of the Central Excise Act, 1944 - HELD THAT:- If the petitioners were not liable to pay service tax on the transaction of the purchase of the constructed area along with goods apart from undivided share of land at all, the payment which was made by the petitioners would not be a payment of service tax at all; that the department also could not have demanded payment of the same from the petitioners; and merely because the petitioners made the payment, it would not partake the character of service tax and the department cannot retain the amount paid by the petitioners which was in fact not payable by them. Allegation that Documents were not produced before it as proof of payment of service tax - HELD THAT:- The petitioners did not furnish any document to prove that the said service tax amount was actually deposited with the Central Government by 4th respondent is concerned, it is not in dispute that the 1st respondent never asked the petitioners to produce such material in the first place. It is also not the case of the 1st respondent that it had asked the 4th respondent, who according to the petitioner received the said payment on 19.06.2014, as to whether the 4th respondent had credited the same to the Central Government or not - Nothing prevented the 1st respondent from verifying whether the said payment of ₹ 33,77,539/- made by the petitioners on 19.06.2014 was passed on by the 4th respondent to the Central Government by verifying the Service Tax Returns filed by the 4th respondent. The third ground raised by the 1st respondent in the impugned order for rejecting the claim of the petitioners, the 1st respondent had relied upon the decision in GD. BUILDERS AND OTHERS VERSUS UOI AND ANOTHER [ 2013 (11) TMI 1004 - DELHI HIGH COURT] , but the said decision was overruled by the Supreme Court in COMMISSIONER, CENTRAL EXCISE CUSTOMS VERSUS M/S LARSEN TOUBRO LTD. AND OTHERS [ 2015 (8) TMI 749 - SUPREME COURT] specifically. The Supreme Court held that the judgment in GD Builders s case was wholly incorrect in its conclusion that the Act contains both the charge and machinery for levy and assessment of service tax on indivisible works contracts - the said ground of rejection of the claim of the petitioners also cannot be accepted. No mechanism for ascertaining value of service component in contracts for construction of complexes - HELD THAT:- Section 66E lays down what constitute declared services . Clause (b) thereof mentions construction of a complex, building, civil structure or a part thereof , including a complex or building intended for sale by a buyer fully or partly, except where the entire consideration is received after issuance of completion certificate by the competent authority - the Service Tax (Determination of Value) Rules, 2006 were notified vide Notification No.12/06-ST, dt.19.04.2006 and were amended vide Notification No.11/2014-ST, dt.11.07.2014 w.e.f. 01.10.2014. The said Rules were framed in exercise of power conferred on the Central Government by clause AA of sub-Section (2) of Section 94 of the Act - Rule 2A of the Service Tax (Determination of Value) Rules, 2006 deals with determination of value of service portion in the execution of a works contract mentioned only in clause(h) of Section 66E of the Act. Rule 2A of 2006 Rules deals only with determination of the value of the service portion in execution of a works contract referred to clause(h) of Section 66E of the Act; and even as of date, no rule has been enacted by the Central Government dealing with determination of value of service portion in a composite contract of sale involving not only a service component but also sale of built up area along with undivided share of land involving also sale of goods included in the total consideration paid for their purchase falling in clause (b) of Sec.66 E, as in the instant case. Since the claim for refund is based on the decision of the Delhi High Court in Suresh Kumar Bansal s case (1 supra) which was decided on 03.06.2016, and since the application for refund was filed on 19.08.2016, barely two months after the decision of the Delhi High Court in Suresh Kumar Bansal s case (1 supra), it cannot be said that there is any inordinate delay in the petitioners seeking refund of the tax paid by them to the 4th respondent. Petition allowed - the 1st respondent is directed to refund a sum of ₹ 33,77,539/- to the petitioners with interest @ 9% per annum from the date of payment of the same by the petitioners to the 4th respondent i.e., 19.06.2014 till the date of payment to the petitioners.
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2020 (2) TMI 631
Supply of tangible goods - demand of service tax for the period 01.10.2008 to 30.06.2012 and thereafter under negative list up to 31.03.2013 - extended period of limitation - penalty - HELD THAT:- As the right of possession of the vehicle has been in control of the appellant, therefore, they are liable to pay service tax under the said category but the appellant was under bonafide belief that they were engaged in the activity of transportation of goods on behalf of the service recipient and the said service is not taxable in the hands of the appellant. The said understanding of the appellant has been evidenced by various agreements between the appellant and the service recipient which clearly shows that the main activity of the appellant is transportation of goods on behalf of the service recipient. The appellant was under bonafide belief that they are not liable to pay service tax on the activity undertaken by them. Therefore, the extended period of limitation is not invokable - As it is seen that the whole of the demand has been confirmed against the appellant by invoking extended period of limitation, therefore, the whole of the demand is barred by limitation and consequently, no penalty is imposable on the appellant. Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 630
Maintainability of appeal - appropriate forum - whether the subject matter of this appeal involved determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment? - Works contract service - service tax liability of the assessee for the period prior to 1st June, 2007 pre-dominantly and minimally for the period 1st June, 2007 till 30th September, 2007 - HELD THAT:- Sub- Section (2) of Section 35L (1b) of the Central Excise Act, 1944, clarifies that the determination of the above question shall include the determination of taxability or excisability of the goods. The above section provides that if the issue in appeal relates to any of the above matters then the appeal lies to the Supreme Court. Mr. Chakraborty, learned senior advocate for the respondent, submitted that this court had no jurisdiction, as the above questions were involved. The entire issue which is before us in the appeal by the revenue is whether the service rendered by the assessee during the material period was a works contract and exempt from service tax or erection, commissioning and installation service. Furthermore, whether during the material period the assessee was exigible to service tax for the service rendered - From the above analysis it is absolutely clear that the above issue has a direct relation to the rate of duty or to the value of goods. This court has no jurisdiction under Section 35G of the Excise Act, 1944 to entertain, try and determine the appeal - Appeal is dismissed on the point of maintainability.
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Central Excise
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2020 (2) TMI 626
Rebate claim - claim rejected on the ground that the description of the export goods in the export invoices were invariance within the description in Form ARE-1's - Maintainability of application - Section 35 EE of the Central Excise Act, 1944 - HELD THAT:- Goods imported under Advance Authorisation Schemes are exempted are from payment of customs duty, additional customs duty, education cess, anti-dumping duty and safeguard duty et cetera. An importer has to 1st discharge export obligation undertaken under the Advance Authorisation by exporting finished goods out of the country. Had the petitioner used only duty paid goods in the manufacture of export goods the petitioner would have been entailed rebate under Rule 18 of the Central Excise Rules, 2002. In the present case, however the petitioner has utilized not only goods/inputs imported under the Advance Authorisation Scheme but also goods/inputs procured on payment of excise duty/additional duty of customs equivalent to central excise duty on which it availed CENVAT Credit to manufacture goods exported - There is no discussion in the impugned orders of the 1st, 2ndrespondent and the 3rd respondent as to under which customs notification the goods were imported by the petitioner under the Advance Authorisation Scheme. The petitioner has used goods/inputs procured on payment of Central Excise duty and Additional Duty of Customs equivalent to Central Excise Duty along with goods imported under the Advance Authorisation Scheme to manufacture of export goods to claim rebate under Rule 18 of the Central Excise Rules, 2002 on the finished goods exported from the Coimbatore unit of the petitioner - Normally, only after export obligation undertaken/specified in the Advance Authorisation is discharged, a manufacturer would be entitled to either sell the manufactured goods in the domestic tariff area i.e in the domestic market on payment of excise duty or export them and claim rebate of excise duty paid on such goods under Rule 18 of the Central Excise Rules, 2002. To allow rebate claim to the petitioner without the petitioner discharging the obligation undertaken under the relevant customs notification read with Foreign Trade Policy under which the inputs were imported may result in unintended incentives being granted to the petitioner without proper examination - Appeal allowed by way of remand.
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2020 (2) TMI 625
Refund of CENVAT Credit - denial on the ground that the same could have been adjusted against payment of tax on inputs and Cenvat Credit account was not debited at the time of making the claim - period January, 2012 to March, 2012 - HELD THAT:- The assessee had cleared goods for export under LUT as well as on payment of duty and therefore, there was opportunity on the part of the assesse to utilise accumulated credit for export of goods on payment of duty. Appellant had not denied the same but its only contention was that even after payment of all duties, it had accumulated Cenvat credit because of high rate of duty in the input and low rate duty in the output, which is required to be refunded. Going by Rule 5 of Cenvat Credit rule, it is manifestly cleared that refund is admissible where for any reason such adjustment is not possible. In the instance case, adjustment of 12% duty on inputs can never be made possible against 6% on output to bring the difference to zero level. Therefore the Learned Commissioner (Appeals) should have refunded the balance amount which was available to the claimant as further adjustment was not possible. Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 624
Clandestine manufacture and removal - M.S. Ingots - shortages and excesses in finished goods - demand on the basis of evidence including the statements of persons recorded and scrutiny of the records - HELD THAT:- On the basis of detailed investigation, Revenue has issued demand notice alleging clandestine manufacture and clearance of the goods. The evidence brought on record includes statements of various persons concerned, records withdrawn from the premises of the appellants etc. The learned Commissioner has not recorded the reasons while analyzing these evidences in detail about its reliance and reliability vis- -vis in arriving at the conclusion on the allegation of clandestine removal of the goods by the respondents. It seems that he has laid more emphasis that that the order ought to be reasoned one, finding and conclusion should be arrived at on the basis of analysis of evidence on record. Hence, in the absence of detailed reasoning, conclusion in the order cannot be sustained. Matter remanded to the adjudicating authority to consider the evidences afresh and record reasons on the same in arriving at any conclusion as a result of analysis of the basis of evidences vis- -vis the allegations leveled in the show cause notice - appeal allowed by way of remand.
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2020 (2) TMI 623
CENVAT Credit - duty paying documents - endorsed invoices - eligible documents for the purpose of availment of Cenvat Credit or not - HELD THAT:- Admittedly an amount of ₹ 4,50,000/- was debited by th assessee from their Cenvat Credit account, during the pendency of the appeal. Whether such an accumulated credit could have been used by the assessee, during the relevant period or not, is not clear from the facts of the case. In other words if on account of such debit, which was on the basis of the objection raised by the revenue, the appellant was compelled to pay the duty, during the relevant period from their P/L account then the said refund of debited credit would be available to the assessee in cash - Inasmuch as, the said facts are not available on record, it is deemed fit to set aside the impugned order and remand the matter to Original Adjudicating Authority for verification of the said factual position. Appeal allowed by way of remand.
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Indian Laws
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2020 (2) TMI 629
Dishonor of Cheque - acquittal of accused - Section 138 of the Negotiable Instruments Act - rebuttal of presumption - HELD THAT:- Once the accused has admitted the issuance of cheque which bears his signature, there is presumption that there exists a legally enforceable debt or liability under Section 139 of the N.I. Act. However, such a presumption is rebuttable in nature and the accused is required to lead the evidence to rebut such presumption. The accused was required to lead evidence that the entire amount due and payable to the complainant was paid. The accused has admitted the issuance of the cheques and his signature on the cheque and that the cheque in question was issued for the second time, after the earlier cheques were dishonoured and that even according to the accused some amount was due and payable, there is a presumption under Section 139 of the N.I. Act that there exists a legally enforceable debt or liability. Of course such presumption is rebuttable in nature. However, to rebut the presumption the accused was required to lead the evidence that full amount due and payable to the complainant has been paid - In the present case, no such evidence has been led by the accused. The story put forward by the accused that the cheques were given by way of security is not believable in absence of further evidence to rebut the presumption and more particularly the cheque in question was issued for the second time, after the earlier cheques were dishonoured. Therefore, both the courts below have materially erred in not properly appreciating and considering the presumption in favour of the complainant that there exists legally enforceable debt or liability as per Section 139 of the N.I. Act. The impugned judgment and order passed by the High Court and that of the Metropolitan Magistrate acquitting the original accused respondents herein for the offence under Section 138 of the N.I. Act cannot be sustained - Appeal allowed - decided in favor of appellant.
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2020 (2) TMI 628
Arbitral Award - Validity of Final awards made by a sole arbitrator in London under the London Court of International Arbitration Rules (2014) (LCIA Rules) were held to be enforceable against the Appellants in India - HELD THAT:- We cannot help but be left with a feeling that the Appellants are indulging in a speculative litigation with the fond hope that by flinging mud on a foreign arbitral award, some of the mud so flung would stick. We have no doubt whatsoever that all the pleas taken by the Appellants are, in reality, pleas going to the unfairness of the conclusions reached by the award, which is plainly a foray into the merits of the matter, and which is plainly proscribed by Section 48 of the Arbitration Act read with the New York Convention. Given the fact that our jurisdiction under Article 136 of the Constitution is itself limited, and given the fact that this Court s time has unnecessarily been taken by a case which has already been dealt with by four exhaustive awards on merits and also by the impugned judgment of the Bombay High Court, we dismiss these appeals with costs of INR 50 lakhs, to be paid by the Appellant to Respondent No.1 within 4 weeks from today - Appeal dismissed.
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2020 (2) TMI 627
Validity of detention order - COFEPOSA Act - Smuggling of Gold - it is submitted that there is no nexus or live link between the alleged illegal activity and purported claim of the Detaining Authority as the alleged illegal activity had been committed between January, 2014 and July, 2015 while the impugned order had been passed on 2nd August, 2019 - HELD THAT:- This Court finds that the impugned detention order is based upon an alleged admission by the petitioner that he had financed smuggling of 185 Kgs. of gold valued at ₹ 52.35 crores between January, 2014 and July, 2015. Reliance can be placed in the case of UNION OF INDIA, JOINT SECRETARY (COFEPOSA) , GOVT. OF INDIA, MINISTRY OF FINANCE VERSUS DIMPLE HAPPY DHAKAD [ 2019 (8) TMI 139 - SUPREME COURT] where it was held that the satisfaction of the detaining authority is subjective in nature and the Court cannot interfere with the order of detention by substituting its opinion for the subjective satisfaction of the Detaining Authority - this Court is of the view that the order of the Apex Court applies to the present case on all fours The present writ petition is allowed and the petitioner-detenue is directed to be released forthwith, if not wanted in any other case. Application disposed off.
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