Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
February 6, 2023
Case Laws in this Newsletter:
GST
Income Tax
Customs
Insolvency & Bankruptcy
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
GST
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Detention of goods alongwith vehicle - mistake in entering details of the transporter in the e-way bill - human error - the Department has not placed before the Court any other material so as to bring on record that there was any intention on the part of the dealer to evade tax except the wrong mention of part of registration number of the vehicle in the eway bill. The vehicle through which the goods were transported and the bilty showed the one and the same number while only there is a minor discrepancy in Part-B of the e-way bill where the description of the vehicle is entered by the dealer. - Orders set aside - HC
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Taxability - Point of taxation - Vouchers are distributed to its employees or the customers - In substance the transaction between the assessee and his clients is procurement of printed forms and their delivery. The printed forms are like currency. The value printed on the form can be transacted only at the time of redemption of the voucher and not at the time of delivery of vouchers to assessee’s client. Therefore, the issuance of vouchers is similar to pre-deposit and not supply of goods or services. Hence, vouchers are neither goods nor services and therefore cannot be taxed. - HC
Income Tax
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Co-operative Societies - Rate of Income Tax - For normal provision same rate of tax and surcharge as applicable will continue and for computation of tax under sec 115BAD & 115BAE on satisfaction of certain condition rate of tax will be 22% or 15% as the case may be and surcharge rate will be 10% in both the scenarios.
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Rate of TDS and Computation of Advance Tax for FY 2023-24 - Rates which are specified in bill shall be applicable for various assesses except in case of salaries u/s 115BAC(1A).
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Modification of directions related to faceless schemes and e-proceedings - Where the directions issued for implementation of e-proceedings and faceless schemes within stipulated time limit to implement those reforms, Amendment can be made by CG by notification in official gazette for direction under such various reforms of e-proceedings and faceless schemes.
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Provisions relating to reassessment proceedings - Specified Authority in case of (i) grant of approval u/s 148 & 148A shall be the PCIT/CCIT (ii) In case of re-opening of case shall be shall be the PCCIT/CCIT/PDGIT/DGIT as per section 151. Also, for determining specified authorith any extended period u/s 149 shall be excluded for issuance of notice u/s 148.
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Provisions relating to reassessment proceedings - Period of limitation for issue of notice u/s 148 shall exclude period where requisition u/s 132A has been made after 15th March of any FY.
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Provisions relating to reassessment proceedings - In cases where survey under section 133A of the Act is conducted, the AO is deemed to have information for the purposes of sec 148 of the Act but proceedings u/s 148A of the Act need to be conducted prior to issuance of notice u/s 148 of the Act.
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Provisions relating to reassessment proceedings - It has been proposed that the section 148 of the Act may be amended to provide that a return in response to a notice u/s 148 of the Act shall be furnished within three months from the end of the month in which such notice is issued, or within such further time as may be allowed by the AO on a request made in this behalf by the assessee. However, any return which is furnished beyond the period allowed in the section 148 to furnish such return of income shall not be deemed to be a return u/s 139 of the Act. As a result, the consequential requirements viz. notice under section 143(2) etc. would not be mandatory for such returns.
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Clarification regarding advance tax while filing Updated Return - a retrospective amendment has been proposed in section 140B(4) that interest payable under section 234B shall be computed on an amount equal to the assessed tax as reduced by the amount of advance tax, the credit for which has been claimed in the earlier return, if any. to take effect from 1.04.2022.
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Bringing the non-resident investors within the ambit of section 56(2)(viib) - it is proposed to include the consideration received from a non- resident also under the ambit of clause (viib) by removing the phrase ‘being a resident’ from the said clause. This will make the provision applicable for receipt of consideration for issue of shares from any person irrespective of his residency status to eliminate the possibility of tax avoidance.
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Rationalization of provisions related to the valuation of residential accommodation provided to employees - For uniform method of computation of value of perquisite, section 17(2)(ii)(i) has been amended to take the power of prescription of the method for computation of the value of rent-free accommodation provided to the assessee by his employer and the value of any accommodation provided to the assessee by his employer at a concessional rate. Earlier, such computation method was explained in Rule 3 & Explanation to sec 17(2).
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Non-Banking Financial Company (NBFC) categorization - Amendment made in sec 43B and 43D to substitute the words, “a deposit taking non-banking financial company or systemically important non-deposit taking non-banking financial company”, for the words “such class of non-banking financial companies as may be notified by the Central Government in the Official Gazette in this behalf”.
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Treatment of donation to other trusts - Exemption u/s 10(23C) and u/s 11 - Donation by trust & Other institutions to another trust & Other institutions shall be treated as application only to the extent of 85% of such donation amount credited or paid instead of 100% as allowed earlier. [W.e.f. 1st April, 2024]
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Omission of redundant provisions related to roll back of exemption - Now the trusts and institutions under the second regime (i.e. u/s 12A(1)) are required to apply for provisional registration before the commencement of their activities and therefore there is no need of roll back provisions provided in second and third proviso to sub-section (2) of section 12A of the Act.
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Registration of Trust - For removing difficulty in earlier provision of registration, it has been proposed to amend the provision of registration to allow for direct final registration/approval - in case registration 'before commencement of activities' shall make application for provisional approval u/s10(23C) or 12A(1)(ac)(vi) or 80G as the case may be and in case 'activities already commenced' shall make application for regular approval u/s10(23C) or 12A(1)(ac)(vi) or 80G as the case may be to PCIT/CIT.
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Exemption to trusts and institutions - Specified violations u/s 12AB and fifteenth proviso to clause (23C) of section 10 - In case of provision approval/ registration for "new trust" and re-registration/provisional approval of "existing trust" if any specified violation such registration can be cancelled by PCIT/CIT, There is amendment in the term used specified violation which includes 'If application is not complete or it contains false or incorrect information'.
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Revision u/s 263 - Jurisdiction of CIT when the matter is pending before the CIT(A) - It is not a separate issue, which has to be taken care in revisionary jurisdiction. It can easily be examined by the ld. 1st Appellate Authority while deciding the appeals against the above two assessment orders. Therefore, we allow this appeal of the assessee and quash 263 order - AT
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Nature of income offered u/s 44BB - PE in India or not - Receipts from leasing/hiring of RIGs - sections 9(1)(vi), 44BB and 44DA apply in different situations. - The fundament error committed by learned DRP is in holding that section 44BB will be applicable only in a case where non-resident has a PE in India. The aforesaid conclusion of learned DRP is based on complete misinterpretation of the provision and goes against the very essence of the provision, which does not put the condition of existence of PE for applicability of the provision. - AT
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Bad debts u/s. 36(1)(vii) - business advances given to subsidiary company which has become irrecoverable - the loss on account of non-payment of advance of subsidiary was a business loss in the assessee’s line of business and the same is allowable as a business reduction to the assessee. - AT
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Unexplained investment u/s 69 - In the present case before us admittedly, whatever sale consideration the assessee has received they were received in cheques. But in addition to such receipt the assessee has also deposited cash - assessee never explained the source of such cash deposit in his bank accounts. - Additions confirmed - AT
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TP adjustment - Determining the Arm's Length Price of international transactions in respect of "advisory services" - we adopt judicial consistency in the absence of any clinching distinction in both these assessment years involving the very issue of correctness of arm's length price adjustment in respect of advisory services. - TP adjustments deleted - AT
Customs
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Served From India Scheme - grant of excess duty credit - as per Joint Director (DGFT) they inadvertently computed the credit at 10% instead of 5% - Needless to say financial year qua a revenue enactment/policy is always understood to mean the 1st of April of the relevant year till the 31st of March of the year to follow. In the present case, no doubt the Foreign Trade Policy for the period 2009 to 2014 has come into effect only on 27.08.2009, and there is also a categoric stipulation in Clause 1.2 which deals with duration of the policy, that all exports and imports upto 26.08.2009 shall be governed only by the terms of the previous policy which prescribes the rate of 5% only - HC
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Clandestine Removal - 997.09 carats of diamonds and 98.34 carats of diamonds - processing loss - whether allegation of substitution of diamonds was established through the evidence? - HELD No - Insofar as shortage of 89.15 carats of diamonds is concerned, the same is argued to be treated as processing loss. The prosecution has failed to establish any clandestine removal of the same and could identify the person to whom the same were allegedly sold or transferred. - AT
Indian Laws
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SEZ unit - Levy property tax at “industrial rates” instead of “Commercial Rates” - The charging provision is under Section 87 of the 1994 Act which rather permits levy of property tax based on various factors including actual usage of the premises. - The levy of property tax has to be necessarily as per the charging provision contained under the 1994 Act as also the notifications issued therein. The petitioner as such cannot be permitted to gain any mileage from the notifications/SEZ policies that may have been issued in relation to other states across the country. - HC
Service Tax
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Refund of excess service tax paid - time limitation - Admittedly Central Goods & Service Tax Act was introduced w.e.f. 1.7.2017 replacing the erstwhile existing Act and Rules. Section 142(5) of the new Act makes the assessee eligible to file refund claim and to get the refund of the amount of service tax paid by them in cash notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of Section 11B of the Central Excise Act, 1944. The said provision expressly prescribed that the limitation provided in sub-section (1) of Section 11B is not applicable. - AT
VAT
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Evasion of Tax - The driver is not required to give any information with respect to details of the invoices. He is to only produce documents to show that there was a supply order and GRs had been issued and he was taking the goods to their destination outside the State - The driver was not expected to know details of the supply order - in the present case, the driver had produced the documents at I.C.C. and subsequently at the time of checking, he showed all the invoices. There was no attempt to evade tax - HC
Case Laws:
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GST
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2023 (2) TMI 133
Detention of goods alongwith vehicle - stock transfer - mistake in entering details of the transporter in the e-way bill - human error - whether the wrong mention of number of Vehicle No. HR- 73/6755 through which the goods were in transit and detained by the taxing authorities would be considered as a human error and will be covered under the circular No. 41/15/2018-GST dated 13.04.2018 and 49/23/2018-GST dated 21.06.2018, as the number mentioned in the e-way bill was UP-13T/6755 and the mistake is of only of HR-73 in place of U.P.-13T? HELD THAT:- It is not in dispute that goods were being transported by the dealer through stock transfer from its unit at Gautam Buddha Nagar to its sale depot at Agra. The bilty which is the document of the transporter mentions the vehicle number as HR-73/6755. From perusal of the e-way bill which has been brought on record, it is clear that the vehicle number has been mentioned as UP-13T/6755. It is apparently clear that mistake is as far as the registration of the vehicle in a particular State and in place of HR-73, UP-13T has been mentioned in the e-way bill, while number of the vehicle 6755 is same. As there is no dispute to the fact that it is a case of stock transfer and there is no intention on the part of dealer to evade any tax, the minor discrepancy as to the registration of vehicle in State in the e-way bill would not attract proceedings for penalty under Section 129 and the order passed by the detaining authority as well as first appellate authority cannot be sustained - Moreover, the Department has not placed before the Court any other material so as to bring on record that there was any intention on the part of the dealer to evade tax except the wrong mention of part of registration number of the vehicle in the eway bill. The vehicle through which the goods were transported and the bilty showed the one and the same number while only there is a minor discrepancy in Part-B of the e-way bill where the description of the vehicle is entered by the dealer. The orders are unsustainable in the eyes of law and both the orders are hereby set aside - petition allowed.
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2023 (2) TMI 132
Validity of summary order - regularity of the adjudication proceedings - recovery proceedings - HELD THAT:- The assessment proceedings suffer from serious procedural errors in absence of a proper show-cause notice. The summary of order issued in Form GST DRC-07 dated 21st January 2019 does not precede with a proper adjudication order either. Considering the ratio rendered by this Court in the case of M/S. NKAS SERVICES PRIVATE LIMITED. VERSUS THE STATE OF JHARKHAND, THE COMMISSIONER OF STATE TAXES, RANCHI, DEPUTY COMMISSIONER OF STATE TAXES, GODDA [ 2021 (10) TMI 880 - JHARKHAND HIGH COURT ] and the fact that there are serious discrepancies in the proceedings, the impugned summary of order contained in Form GST DRC-07 is set aside. The matter is remitted to the adjudicating authority respondent no.3 to proceed in accordance with law afresh after issuing a proper show cause notice. Petition allowed.
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2023 (2) TMI 131
Cancellation of registration of petitioner - petitioner having approached the Appellate Forum, which had not entertained it on the ground of delay in preferring the appeal is the line of arguments the respondent has adopted - HELD THAT:- Petitioner says that he is ready to pay the taxes, which he shall do and will also move the concerned officer seeking the revocation. The Apex Court s direction for enlargement of the time during the COVID-19 also will come to rescue. It is also noticed that the powers given to the officer concerned under Rule 23 of CGST Rules where the proper officer if, is satisfied for the reasons to be recorded in writing that there are sufficient grounds for revocation of cancellation is obligated to revoke the cancellation by an order in Form GST REG No.22 within a period of 30 days from the date of receipt of application and communicate the same to the applicant. The period which the petitioner has spent before this court in pursuing this remedy shall also be construed and therefore, the statutory time period shall needs to be reckoned accordingly. The matter is adjourned to 08.02.2023.
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2023 (2) TMI 130
Taxability - point of taxation - whether the vouchers themselves are chargeable to tax at the time of supply or chargeable when goods and services are redeemed? - HELD THAT:- It is not in dispute that the vouchers involved in the instant petition are semi-closed PPIs in which the goods or services to be redeemed are not identified at the time of issuance. Vouchers are distributed to its employees or the customers which can be redeemed by them. These PPIs do not permit cash withdrawal, irrespective of whether they are issued by banks or non-banking Companies and they can be issued only with the prior approval of RBI - In substance the transaction between the assessee and his clients is procurement of printed forms and their delivery. The printed forms are like currency. The value printed on the form can be transacted only at the time of redemption of the voucher and not at the time of delivery of vouchers to assessee s client. Therefore, the issuance of vouchers is similar to pre-deposit and not supply of goods or services. Hence, vouchers are neither goods nor services and therefore cannot be taxed. Petition allowed.
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2023 (2) TMI 129
Cancellation of registration of the petitioner Firm - denial of reasonable opportunity of hearing - non-speaking order - violation of principles of natural justice - HELD THAT:- This Court had not only quashed and set aside and frowned upon such action on the part of the authority concerned, but had also, at some stage, contemplated to initiate the proceedings for contempt against the officer for not abiding by the decision of this Court. Now all actions have already been initiated and also directions have come from the higher authorities. There shall not be any cause for grievance on the part of the assessee for order being non-speaking or cryptic in nature. The show cause notice dated 29.03.2022 and order of cancellation off registration dated 28.07.2022 are quashed and set aside. The registration of certificate is restored forthwith - petition disposed off.
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2023 (2) TMI 128
Maintainability of appeal - time limitation - appeal rejected on the ground that it was filed beyond the period of limitation - Seeking direction to revoke the cancellation of petitioners GSTN Registration - HELD THAT:- In identical circumstances, this Court, in the case of TVL. SUGUNA CUTPIECE CENTER VERSUS THE APPELLATE DEPUTY COMMISSIONER (ST) (GST) , THE ASSISTANT COMMISSIONER (CIRCLE) , SALEM BAZAAR. [ 2022 (2) TMI 933 - MADRAS HIGH COURT] held that Since, no useful will be served by not allowing persons like the petitioners to revive their registration and integrate them back into the main stream, the impugned orders are liable to be quashed and with few safeguards. In view of the fact that this Court has been consistently following the directions issued in the case of Tvl.Suguna Cutpiece Vs Appellate Deputy Commissioner (ST) (GST) and others and the Revenue/Department has also accepted the said view as evident from the fact that no appeal has been filed in any of the matters, this Court intends to follow the above order of this Court. Petition disposed off.
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Income Tax
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2023 (2) TMI 127
Assessment u/s 153A - Addition u/s 68 - Failure to prove the identity and creditworthiness of the aforementioned company - incriminating material as found during the course of search or not? - HELD THAT:- Assessment under Section 153A of the Act had been made on the basis of the books of account of the Assessee without referring to any material found during the course of search. Relying on the decision of the High Court of Delhi in CIT (Central)-III v. Kabul Chawla [ 2015 (9) TMI 80 - DELHI HIGH COURT ] additions could not be sustained. Decided in favour of the Assessee and against the Department.
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2023 (2) TMI 126
Reopening of assessment u/s 147 - challenge the non-following of the mandatory requirement of disposing of the objections raised by it - HELD THAT:- Fact remains that the base order, which is in challenge before the Appellate Authority, is passed without following the required procedure of law and in complete breach of directions issued by the Hon ble Apex Court in GKN Drive Shafts (India) Ltd. [ 2002 (11) TMI 7 - SUPREME COURT] . Noticing the fact that much water has flown after the objections were raised against the notice of reopening was issued and as the petitioner is already before the Appellate Authority, this Court does not deem it appropriate and detain this petition, as the petitioner cannot ride on two horses. Without entering into the merits of the matter, the Appellate Authority is surely to consider all aspects, including the one which has been raised before this Court. In view of above, this petition is rejected. It is clarified that disposal of this petition, in no manner, shall prejudice the rights of the petitioner.
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2023 (2) TMI 125
Revision u/s 263 - PCIT setting aside the assessment order dated 31.12.2019 framed u/s 143(3) - assessee computed capital gains being long term capital gains on sale of land to DMRC Ltd and in computation of income, the assessee also claimed exemption u/s 54 - HELD THAT:- A perusal of the notice of the PCIT clearly shows that the PCIT wants to examine the same details and same documents which were examined by the AO during the course of scrutiny assessment proceedings. It is a settled position of law that powers u/s 263 of the Act can be exercised by the Commissioner on satisfaction of twin conditions, i.e., the assessment order should be erroneous and prejudicial to the interest of the Revenue. By 'erroneous' is meant contrary to law. Thus, this power cannot be exercised unless the Commissioner is able to establish that the order of the AO is erroneous and prejudicial to the interest of the Revenue. Thus, where there are two possible views and the AO has taken one of the possible views, no action to exercise powers of revision can arise, nor can revisional power be exercised for directing a fuller enquiry to find out if the view taken is erroneous. This power of revision can be exercised only where no enquiry, as required under the law, is done. It is not open to enquire in case of inadequate inquiry. We set aside the order of the PCIT and restore that of the Assessing Officer framed under section 143(3) - Appeal of assessee allowed.
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2023 (2) TMI 124
Deduction u/s 80P(2)(d) - interest received by the Appellant from Co-operative Bank - entitled for deduction under section 57 of the Act for the expenses incurred by it against interest received from Cooperative Bank - HELD THAT:- Assessee would not be entitled to deduction under section 80P(2)(d) of the Act in respect of interest received from another Co-operative Bank. Assessee would also not be entitled to deduction under section 80P(2)(a)(i) - See M/s. Krishnarajapet Taluk Agri Pro Co-op Marketing Society Ltd. [ 2022 (2) TMI 489 - ITAT BANGALORE] Deduction u/s 57 for the expenses incurred by it against interest received from Cooperative Bank - However the claim of the assessee that the interest was received by it by reason of the investment of its funds with a view to comply with the mandatory requirements of section 57 of the Co-operative Societies Act, 1959 and with a view to maintain the cash reserve ratio needs to be examined by the AO and if the contention is found to be correct then the question whether it can be regarded as profits of business has to be examined by the AO. In so far as deduction u/s 57 of the Act is concerned, if the claim of the assessee for deduction u/s 80P(2)(a)(i) of the Act is rejected then in terms of paragraph 16 of the Tribunal s order referred to above, the assessee will be entitled to deduction on account of expenses - issues are accordingly restored to the file of the AO to decide the same afresh in accordance with law - Appeal of the assessee is treated as partly allowed for statistical purposes.
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2023 (2) TMI 123
Difference in the liabilities as were shown in the Balance Sheet filed by assessee with return of income and the trial balance seized during search operations - HELD THAT:- The seized document is recovered from the assessee during search operations carried out by Revenue u/s 132(1) - The presumption u/s 132(4A) and 292C shall apply and contents of the documents viz. seized trial balance shall be presumed to be true and correct ,and it is now for the assessee to rebut the same by cogent evidences/explanations. The presumption u/s 132(4A) and 292C is that the documents belong to the assessee, and the contents of the documents are true and correct. This presumption is rebuttable , but onus is squarely on the assessee. There is a difference in amounts as is reflected in the seized trial balance as on 31.03.2005 and the audited balance sheet as at 31.03.2005. The search was conducted on 27.08.2009, and the documents pertain to year ended 31.03.2005 i.e. 4 years prior to the date of search and there are difference between the balance as shown in the seized document i.e. seized trial balance , and the audited accounts for the year ended 31.03.2005, and it is for assessee to discharge onus to rebut the presumption u/s 132(4A) and 292C by cogent evidences/explanations. The onus is squarely on the assessee to rebut the presumption. In the interest of justice, one more opportunity needs to be granted to the assessee to prove its contentions, so that correct income is brought to tax. We are restoring the matter back to AO for re-adjudication on merits. Bogus expenses - difference between the seized trial balance during search operations and the Expenses as claimed in the audited accounts filed with Return of income - HELD THAT:- There is a difference in amounts in the seized trial balance as on 31.03.2005 and the audited Profit and Loss as at 31.03.2005, of the expenses as per chart reproduced above, wherein audited accounts reflected higher expenses by Rs. 15,33,654/- vis- -vis expenses reflected in the seized trial balance. The search was conducted on 27.08.2009, and the documents pertain to year ended 31.03.2005 i.e. 4 years prior to the date of search and there are difference in the expense as shown in the seized document i.e.trial balance and the audited accounts for the year ended 31.03.2005, and it is for assessee to discharge onus to rebut the presumption u/s 132(4A) and 292C by cogent evidences/explanations. The onus is squarely on the assessee to rebut the presumption. We are restoring the matter back to the file of AO for re-adjudication on merits in accordance with law, after giving proper and adequate opportunity of being heard to the assessee. We clarify that we have not commented on the merits of the issue. Payments were made in cash by assessee without having cash balance in the cash book - HELD THAT:- The search was conducted on 27.08.2009, and the seized documents being cash book pertain to year ended 31.03.2005 i.e. 4 years prior to the date of search and there are no cash balances or negative cash balances found in the cash book on a particular day, and still the assessee made cash payments, and it is for assessee to discharge onus to rebut the presumption u/s 132(4A) and 292C by cogent evidences/explanations which assessee fails to substantiate and the explanation of making entries of receipts from customer on the wrong dates is merely to come out of tax liability. The onus was squarely on the assessee to rebut the presumption, which assessee fails to do so. Thus, we hold that payments were made towards unexplained expenditure of which sources for making such payment could not be explained by the assessee, and the same is held to be made out of undisclosed income of the assessee. Thus, this ground of appeal is decided against the assessee. Addition @5% of the expenses claimed to have been incurred by the assessee under the head sale promotion expenses, telephone expenses, travelling expenses , freight, expenses conveyance expenses and vehicle running and maintenance expenses - HELD THAT:- As it is equally true that no specific identification of the expenses which need to be disallowed keeping in view failure of the assessee to satisfy the mandate of the provisions of the 1961 Act , was pointed out by both ld. CIT(A) as well the AO, and disallowance was done on estimation on the grounds that cash expenses based on self made vouchers were incurred and claimed as deduction, which could not be verified. On the part of the assessee, was also the failure to furnish the complete details and to discharge onus cast on the assessee. In our considered view, in the interest of justice, one more opportunity is to be given to the assessee , as well to the AO for examination and verification of these expenses as these evidences were so far not produced before the AO, for its examination on merits by the AO. We are restoring the matter back to the file of AO for re-adjudication on merits. TDS u/s 194C - Assessee has claimed to have debited Marketing expenses AND payments were made to distributors for pushing up the sales - AO observed that payments were made under contract and no income tax was deducted at source on such payments - HELD THAT:- Regarding contentions of the assessee for applicability of ratio of judgment and order of Hon ble Supreme Court in the case of Hindustan Coca Cola Beverages Private Limited. [ 2007 (8) TMI 12 - SUPREME COURT] we are remitting the matter back to the file of AO for limited purposes to apply ratio of Hon ble Supreme Court in toto, for which the onus is entirely on the assessee to prove with cogent evidence that the payee s have duly included the said respective amounts paid by the assessee in their return of income and paid due taxes to Revenue. With these directions , for limited purposes as indicated above, we are remitting the matter back to the file of AO. This issue is allowed for statistical purposes, in the manner as indicated above. We order accordingly.
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2023 (2) TMI 122
Addition being cash deposit during demonetization period - HELD THAT:- We note that assessee has a turnover in the year under consideration and in the immediately preceding year. At such volume of turnover, the quantum of cash sales and realization in cash are normal in the conduct of its business. We also note that all the details in respect of collection from the debtors were identified and submitted before the AO as well as before the Investigation wing of the Department, prior to the assessment proceedings. Considering the factual matrix, corroborated with documentary evidence, we are inclined to accept the contentions of the assessee and direct to delete the addition made by AO and confirmed by ld. CIT(A), by setting aside their orders. Accordingly, ground taken by the assessee in this respect is allowed.
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2023 (2) TMI 121
Revision u/s 263 - Jurisdiction of CIT when the matter is pending before the CIT(A) - unexplained share capital including share premium from Group of Companies - subject matter of reassessment order is also relates to addition on account of share premium and share capital received from different unlisted Companies - HELD THAT:- The assessee did not submit anything in both these orders. Appeals against both these orders are stated to be pending before the CIT(Appeals). CIT(Appeals) has the coterminus power with that of AO and if any error lies in the quantification of the alleged undisclosed income required to be added with the aid of section 68 that aspect can easily be gone through by the CIT(Appeals) under section 251(1)(a) of the Act. Since these items are subject matter of appeal before the 1st Appellate Authority, no action under section 263 ought to have been taken by the CIT by exercising revisionary power. We have highlighted the powers of ld. CIT(A) for deciding the appeals and the subject matter of the appeals pending before the ld. CIT(Appeals) relates to quantification of the share capital including share premium received by the assessee. It is not a separate issue, which has to be taken care in revisionary jurisdiction. It can easily be examined by the ld. 1st Appellate Authority while deciding the appeals against the above two assessment orders. Therefore, we allow this appeal of the assessee and quash 263 order. The observations made by us will not impair or injure the case of ld. Assessing Officer and will not cause any prejudice to the defence/explanation of the assessee in the quantum appeals pending before the ld. CIT(Appeals). The provision of the Income Tax Act discussed by us is only with the angle to bring the point at home that no 263 action can be taken up in such type of issues. Appeal of the assessee is allowed.
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2023 (2) TMI 120
Income deemed to accrue or arise in India - Receipts from leasing/hiring of RIGs - Permanent Establishment (PE) in India - Whether taxable as business profits u/s 44BB of the Act on gross basis or they are in the nature of royalty, hence, taxable under section 9(1)(vi) read with section 115A - assessee is a non-resident corporate entity incorporated under the laws of Malaysia and is a tax resident of Malaysia - HELD THAT:- The amounts received in connection with activities enumerated under sub-section (1) to section 44BB, even if in the nature of royalty, has to be treated as business profits in case of a non-resident entity not having any Permanent Establishment (PE) in India. This is so because, section 44BB does not require existence of PE. Interestingly, similar receipts falling within the definition of royalty as defined in explanation 2 to section 9(1)(vi), which also includes equipment royalty, would be taxable under section 44DA of the Act, in a case, where the non-resident entity has a PE in India. Thus, sections 9(1)(vi), 44BB and 44DA apply in different situations. While existence of PE is a pre-condition for applicability of section 44DA, it is not so in case of 44BB of the Act. DRP has made a fundamental error in ignoring the exceptions provided under clause (iva) to explanation 2 to section 9(1)(vi) of the Act while concluding that the amount received is in the nature of royalty under section 9(1)(vi) read with section 115A of the Act. One more fundament error committed by learned DRP is in holding that section 44BB will be applicable only in a case where non-resident has a PE in India. The aforesaid conclusion of learned DRP is based on complete misinterpretation of the provision and goes against the very essence of the provision, which does not put the condition of existence of PE for applicability of the provision. Thus, in our view, the conclusion drawn by learned DRP that the amounts received are in the nature of royalty under section 9(1)(vi) read with section 115A of the Act is unacceptable. On the contrary, we accept the position taken by the assessee in offering the income to tax under section 44BB of the Act, as, it is in accordance with the statutory provision. Accordingly, we direct the AO to compute the income in both the assessment years under dispute under the provisions of section 44BB - Decided in favour of assessee.
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2023 (2) TMI 119
Assessment u/s 153A - Addition u/s 68 - incriminating Material found during the search or not? - HELD THAT:- A careful reading of the statement shows that there is nothing incriminating found or said by Shri Maninder Singh Sahni nor any adverse inference has been drawn by him in his statement. As mentioned elsewhere, the assessee had filed its return of income on 30.09.2013 accompanied by statement of account, which means that transaction of share application money of Rs. 2 crores and loan of Rs. 10 lakhs from TMR Projects Pvt Ltd must have been reflected in the return of income so filed. Therefore, it cannot be said that only after search and seizure operation filed, the Revenue came to know about share application money received by the assessee as there is no such mention in the body of the assessment order or in the body of the order of the first appellate authority. We have the benefit of the assessment order of TMR Projects Pvt Ltd for Assessment Year 2013-14. The said assessment order is framed u/s 143(3) of the Act after thorough scrutiny and in the said assessment order, the same statement of Shri Maninder Singh Sahni has been extracted which has been made the basis for making additions. In the entire assessment order framed after thorough scrutiny, there is no whisper about the transaction between TMR Projects Pvt Ltd and the assessee relating to the share application money and the loan. Assessment of TMR Projects Pvt Ltd was completed by making addition of Rs. 15.07 lakhs being 1% of the commission earned on providing accommodation entries relating to sales. That addition was also deleted by this Tribunal [ 2021 (9) TMI 1471 - ITAT DELHI] wherein the Tribunal observed that addition is dehors of any incriminating material and the ratio laid down by the Hon'ble Delhi High Court in the case of Kabul Chawla [ 2015 (9) TMI 80 - DELHI HIGH COURT] squarely apply. Since Rs. 2.10 crores has come from TMR Projects Pvt Ltd and since no addition has been made in the hands of the giver for want of incriminating material, the same transaction cannot be accepted as based upon any incriminating material in the hands of the taker , i.e the assessee. Facts on record show that TMR Projects Pvt Ltd has received money from Tyagi Portfolio (P) Ltd and Mokul Overseas (P) Ltd and the loan received from Tyagi Portfolio (P) Ltd has been refunded by TMR Projects Pvt Ltd subsequently during the F.Y. itself. Therefore, on merits also, additions do not survive - no hesitation in quashing the assessment order and directing the Assessing Officer to delete the impugned additions. Decided in favour of assessee.
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2023 (2) TMI 118
Addition u/s 68 - unexplained cash credit - Unsecured Loans available during the year under consideration - HELD THAT:- There is no dispute to the fact that the assessee has discharge his onus by furnishing the details about the loan parties which can be verified from the paper book. It is pertinent to note that no inquiry has been conducted by the AO from the loan parties despite having requisite details of the loan parties and having power under the statue. Assessee by furnishing the details as discussed above has discharged his onus cast u/s 68 of the Act upon it. As such, the onus shifted upon the revenue to prove the contention/details filed by the assessee based on the documentary evidence. However, what we find is this that the revenue has not pointed out any flaw in the details filed by the assessee. As regard to principles laid down in the case of NRA Iron Steel Pvt. Ltd. [ 2019 (3) TMI 323 - SUPREME COURT] we note that the facts are distinguishable from the present facts of the case. We hold that no addition is warranted in the given case under the provisions of section 68 - Accordingly, we set aside the finding of the CIT-A and direct the AO to delete the addition made by him. Appeal of the assessee is allowed.
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2023 (2) TMI 117
Bad Debts / loss u/s. 36(1)(vii) - business advances given to subsidiary company which has become irrecoverable - AO held that the above amount written off is not in the revenue field and was not a trade advance - as argued amount was advanced by the assessee company to its subsidiary, which is in a similar line of business and therefore, such advance was on account of purely commercial considerations and hence allowable as business loss - HELD THAT:- Assessee company was seeking to extend into line of edible oil business like groundnut seeds, mustard etc for exporting purposes using the same cold press technology which was being currently used by the assessee company for non-edible oils. A perusal of the terms memorandum of understanding of the assessee company and its subsidiary shows that the assessee and its subsidiary were primarily engaged in the similar line of business and that the purpose of advancing such loan was further expansion/diversification into similar/associate line using the cold press technology . From the facts it is evident that the purpose of assessee to advance the loan to its subsidiary were two fold, firstly, to extend into a similar line of business and secondly to insulate business of the assessee from the vagaries of its existing business owing to dependency primarily on one client based out of Germany. Therefore, in the instant facts we are of the considered view that the loss on account of non-payment of advance of subsidiary was a business loss in the assessee s line of business and the same is allowable as a business reduction to the assessee. Thus we are of the considered view that the above amount is allowable as a business loss in the hands of the assessee. Appeal of the assessee is allowed.
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2023 (2) TMI 116
Revision u/s 263 - taxability of annual letting value of unsold stock of flats as income from house property - As per CIT assessee s case was selected for scrutiny to examine the high closing stock appearing in the books of the assessee company, however, the annual letting value of the completed stock has not been added to the total income of the assessee and no enquiry was carried out by the AO during the assessment proceedings on this issue - HELD THAT:- The issue of whether the annual letting value on unsold stock of flats is taxable is a debatable issue and in view of the decision of CIT vs Max India [ 2007 (11) TMI 12 - SUPREME COURT] the revision proceedings under section 263 of the Act on this issue cannot be upheld. Further, as noted above, during the assessment proceedings, the AO called for details regarding the opening and closing stock, which was duly provided by the assessee and therefore it cannot be said that there was no enquiry by the AO on this issue. Accordingly, we set aside the impugned order passed under section 263 of the Act on this issue. As a result, grounds No. 2-5 raised in assessee s appeal are allowed. Claim of loss on sale of car - We find that vide notice issued under section 142(1) of the Act, the AO asked for claim of expenditure under the head of other expenses and subhead of miscellaneous expenses, vide point no.24. In reply to the said notice, the assessee vide letter filed before the AO, submitted that the loss has been incurred on sale of car, which was used by the partners for the smooth functioning of the business, and the same has been incurred wholly and exclusively for the purpose of business. We further find that vide aforesaid notice the AO also sought bills, vouchers with documentary proof, and justification for incurring the expenditure wholly and exclusively for business purposes. Apart from making the aforesaid submission, no details as sought by the AO were furnished by the assessee in support of its claim that the car was used by the partners wholly and exclusively for the purpose of business. We also find that there was no further enquiry on this issue by the AO and the claim of the assessee was accepted in absence of any documentary evidence. Allowability of TDS interest and penalty - We find that the AO did not make any enquiry, whatsoever, on this issue and no notice/questionnaire was issued. Thus, we are of the considered view that the assessment order to the extent of these two issues is erroneous insofar as it is prejudicial to the interest of Revenue, in view of Explanation 2 to section 263 of the Act. Accordingly, the impugned order passed by the learned CIT to this extent is upheld. Appeal by the assessee is partly allowed.
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2023 (2) TMI 115
Unexplained investment u/s 69 - addition received as On Money on sale of agricultural land, shown as such in ITR filed and deposited into bank accounts - HELD THAT:- Sources and genuineness of the cash deposit in the bank account of the assessee remained unverified and unsubstantiated. Even before us the assessee merely reiterated the submissions placed before the subordinate authorities and could not place on record any satisfactory reasons regarding such huge cash deposits which were over and above the sale consideration amounts received in cheques. There are plethora of judicial decisions, where the assessee has not been able to explain a particular source of cash, in such circumstances, the assessee has been held liable for tax regarding those unexplained sources of income. In the case Dr. Prakash Tiwari [ 1983 (4) TMI 13 - MADHYA PRADESH HIGH COURT] held, where the assessee could not give satisfactory explanation regarding sources of amount then such amount was held assessable as unexplained investment u/s 69 of the Act. In the case of Himmatram Laxminarain [ 1985 (8) TMI 31 - PUNJAB AND HARYANA HIGH COURT] held that in a case where it was found that a secret business was conducted wherein the assessee has invested a certain amount and it was held that such amount was assessable as income of the assessee u/s 69 of the Act. Hon ble Patna High court in the case of Deo Narayan Bhadani [ 1986 (4) TMI 28 - PATNA HIGH COURT] wherein certain cash deposits were made in a bank by the karta of the assessee-HUF. The explanation that the source of such deposits was withdrawals from a bigger HUF was found to be false. There was no evidence that the karta had any source of income as an individual. It was held that the amount of such deposits were assessable as income of the assessee-HUF. The Hon ble Bombay High Court in the case of Smt. Vasantibai N. Shah [ 1994 (11) TMI 87 - BOMBAY HIGH COURT] held that the Tribunal was right in law in sustaining the addition made by the A.O as the assessee s undisclosed income invested in the purchase of jackpot winning ticket - In the case of Bhawarlal C. Bafna [ 2002 (6) TMI 40 - MADRAS HIGH COURT] where the assessee has failed to explain the cash balances in spite of several opportunities, the addition was held justifiable. Income-tax legislation is a welfare legislation and not a penal legislation as such.The tax collected goes on to build the infrastructure of our Nation and therefore, where the tax planning is acknowledged tax avoidance has to be penalised. When a benefit of doubt is given in favour of an assessee, at the same time, where the assessee tries to conceal his income such act has to be brought in the purview of taxation as per law. In the present case before us admittedly, whatever sale consideration the assessee has received they were received in cheques. But in addition to such receipt the assessee has also deposited cash - assessee never explained the source of such cash deposit in his bank accounts. We do not find any infirmity with the findings of the ld. CIT(A) and the order confirming the addition is upheld. The grounds of appeal of the assessee are dismissed.
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2023 (2) TMI 114
Addition u/s 41 - trade deposits receipts - addition as liability of the assessee ceases to a exist - AR submitted that neither Section 41(1) of the Act nor Section 68 of the Act applies to the trade depositors who have given their full name and address, PAN, and the amount of deposits is as per custom and usage and practice of business and the said deposits were received by cheque through banking channel and amount being trade liability and that no remission or cessation is done - HELD THAT:- It is pertinent to note that the assessee s books, at no point of time, was rejected by the Assessing Officer. AO at no point of time stated that the trade deposits were not that of trade depositors but has element of liabilities except to that of business of the assessee. The contention of the assessee that the assessee has not paid the amount in respect of these trade depositors as it being amount received as trade deposits from trade merchants who are known and identifiable persons and the amount received during the course of business and creditworthiness is already proved through the full name, address, PAN and the amount of deposits as well as the customers usage and practice of business with these trade merchant. Merely not filing confirmation will not shun away that the trade credits and deposits were for purchase of goods and that recovery of the said amount has not become impossible and, therefore, the same was not being written off by the assessee in the books of account as element of these amounts were not coming under the purview of Section 41(1) - Appeal of assessee allowed.
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2023 (2) TMI 113
Addition in respect of cash deposits in his bank account - Onus to prove - HELD THAT:- In the instant case, CIT(A) has thus rightly taken cognizance of current year cash flow statement and considered the explanation of the assessee and has determined the peak cash balance of Rs. 31,38,050/- and the addition to that extent has been sustained and the remaining addition of Rs. 28,85,000/- has been directed to be deleted. While doing so, cash flow statement for the previous financial year 2007-08 and availability of opening cash in hand of Rs. 24,33,000/- at the beginning of current financial year 2008-09 has not been considered. We find that there is no justifiable basis in not considering the cash flow statement for the previous financial year 2007-08 where cash flow statement for the current financial year has been considered by the CIT(A). As submitted by the AR, the withdrawals and deposits are supported by the assessee's bank account statements which are available on record. Therefore, we set-aside the matter to the file of the AO for the limited purposes of examining the cash flow statement for the previous financial year 2007-08 and the related explanation of the assessee in order to determine cash-in-hand at the beginning of the current financial year. AO is also directed to consider and take into consideration the cash-in-hand so determined at the beginning of the year to re-determine the peak cash balance during the year, which has been currently determined and stood and peak cash balance so finally determined be brought to tax. Appeal of the assessee is allowed for statistical purposes.
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2023 (2) TMI 112
Estimation of income - Suppression of sales - suppression of sales to sister concern determined by the AO - HELD THAT:- As in view of lack of appropriate explanation submitted by the assessee justifying the incurrence of loss of 26.6% in the month of March on sales to its sister concern as against average profit of 1.85% in earlier period, the AO was justified in estimating the average profit at 1.48% taking into consideration the profit declared in the earlier period and determining the suppressed sales to sister concern which has been brought to tax. Even during the appellate proceedings before the CIT(A), assessee didn't furnish any explanation supported by appropriate documentation to rebut the findings of the AO. No justifiable basis to interfere with the findings of the Ld. CIT(A) and the same is herby confirmed. Appeal of the assessee is dismissed.
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2023 (2) TMI 111
Cash deposits into the bank account from unexplained sources being cash deposited into the bank account by the assesse during demonetisation period - HELD THAT:- We have gone through the contents of the agreement to sell and found that the assessee has received consideration on various dates by cheques as well as in cash which has been substantiated and testified with the said agreement to sell. Under these circumstances, we are not in a position to subscribe to the views of both the lower authorities as there is sufficient source of cash deposits into the bank accounts of the assessee.The authorities below has failed to make any further enquiries and bring on records any other materials to prove the source of cash deposits from any other source. Consequently, we set aside the order of the ld. CIT(A) and direct the AO to delete the addition - The ground no.3 is consequently allowed. Deduction under Chapter VIA by ld CIT(A) - HELD THAT:- After hearing the rival parties and perusing the materials on records we are of the view that the assessee is entitled to deduction under Chapter VIA of the Act but subject to verification by the AO. Accordingly the AO is directed to examine the issue and allow the deduction to the assessee. The ground no. 4 is also allowed in terms of our aforesaid direction. Appeal of the assessee is allowed.
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2023 (2) TMI 110
Difference in stock noticed on the date of survey - difference of stock between stock as per books of accounts as on the date of survey and stock physically found on the date of survey was found - HELD THAT:- CIT(A) has not taken into account the conciliation statement which was filed before the authority. The assessee pointed out to the authorities that in view of existence of all the units in the common compound inter mingling of stock among the units was possible and the partner s statement cannot be the sole criteria for making addition to that extent. From the perusal of the records related to the reconciliation filed by the assessee it appears that the excess stock claimed by the Revenue / Assessing Officer is not properly verified. Therefore, it will be appropriate to remand back this issue to the file of the Assessing Officer for proper adjudication of the issues - Ground No. 1 is partly allowed for statistical purpose. Sales made out of books - A.R. submitted that when the purchases were fully accepted during the survey the sale cannot be doubted. In fact, sales are higher than the loose papers and in that respect correct Gross Profit should have been taken into account - HELD THAT:- From the perusal of records and the reconciliation filed by the assessee the CIT(A) has not taken the cognizance of the same, hence this issue also needs verification. Therefore, we remand back this issue to the file of the Assessing Officer for proper adjudication after taking into account all the evidences as well as reconciliation statement filed by the assessee and decide accordingly. Needless to say, the assessee be given opportunity of hearing by following principle of natural justice. Thus, Ground No. 2 is partly allowed for statistical purpose. Addition on account of debit of cash discount pertaining to prior period - A.R. submitted that the CIT(A) as well as the AO ignore this fact that said claim crystallized during the year only - HELD THAT:- It is pertinent to note that the debit of cash discount pertaining to prior period has been crystallized during the year only and not prior or any subsequent year, therefore, the addition made by the Assessing Officer and CIT(A) is not correct. Hence, Ground No. 4 is allowed. Rejection of book of accounts u/s 145 - addition by estimating gross profit rate - HELD THAT:- It is pertinent to note that the assessee has taken cognizance of the sales and the G.P. rate followed accordingly was taken into account by the assessee. The rejection of book was no proper as the assessee has already followed the method of accounting which was continuously followed in the previous and subsequent years. In fact, inflation brokerage and transportation brokerage not claimed separately so there was no reopening made on earlier occasions. The comparable which was cited by the Assessing Officer were never confronted to the assessee. Thus, this needs verification and therefore, the entire issue is remanded back to the file of the Assessing Officer for proper adjudication - Ground Nos. 1 2 are partly allowed for statistical purpose. Unexplained credits/unaccounted sales noticed in the impounded material and not found recorded in the books of accounts - HELD THAT:- It is pertinent to note that the assessee has given the details of purchase and the subsequent sales in entirety and the evidences placed before the Assessing Officer was not taken into account by both the authorities. Therefore, this issue needs verification and we remand back this issue to the file of the Assessing Officer for proper adjudication. Needless to say, the assessee be given opportunity of hearing by following principle of natural justice. Ground No. 3 is partly allowed for statistical purpose. Discrepancy in stock found on the date of survey on the basis of statement of director - A.R. submitted that this addition was contrary on the basis of statement and no proper adjudication was made by the assessee - HELD THAT:- It is pertinent to note that the alleged discrepancy in the stock found on the date of survey on the basis of statement of director was never established by the Assessing Officer with the proper reasoning that the statement of director was verifiable from the said stocks available at a survey premises. There was no independent finding given by the Assessing Officer related to the said addition and therefore, this addition does not sustain. Ground No. 4 is allowed. Addition u/s 68 for unexplained credit in the name of Mehta Kantilal Nandlal - A.R. submitted that the assessee has already filed confirmation related to the same and also filed repayment details - HELD THAT:- As perused all the relevant material available on record. The assessee has also filed confirmation of the parties and also filed the repayment in respect of these credits of Rs. 80,000/- and the same was not taking into account by the Assessing Officer as well as CIT(A) while confirming the addition. Hence, Ground No. 1 is allowed. Understatement of Net Profit without finding any defect in the books - HELD THAT:- It is pertinent to note that in similar type of addition in another group case involved relating to survey of the same date the Tribunal has deleted the similar addition - Besides these books of accounts were never rejected by the Assessing Officer and the requisite trading account up to the date of survey was also before the Assessing Officer, therefore, the CIT(A) as well as Assessing Officer was right in making this addition. Hence, the Ground No. 2 is allowed.
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2023 (2) TMI 109
TP adjustment - Determining the Arm's Length Price of international transactions in respect of advisory services - HELD THAT:- As decided in assessee's appeal [ 2023 (1) TMI 1113 - ITAT PUNE ] for A.Y. 2009-10 assessee has sufficiently proved to have received advisory services from its group entity(ies) and the learned lower authorities have erred in law and on facts in rejecting the same in entirety. We, accordingly, delete the impugned adjustment in these peculiar facts and circumstances. The assessee succeeds in its first and foremost grievance. We further note that for academic purposes, the only distinction herein is stated that to be correctness of assessee's Comparable Uncontrolled Price CUP method is nowhere in dispute in A.Y. 2011-12, whereas in the preceding assessment year 2009-10, the Transfer Pricing Officer TPO had adopted the Transactional Net Margin Method ( TNMM). This is indeed coupled with the fact that his findings in para 25 page 23 have nowhere completely ruled out the assessee having actually availed services to certain extent . Be that as it may, we adopt judicial consistency in the absence of any clinching distinction in both these assessment years involving the very issue of correctness of arm's length price adjustment in respect of advisory services. We accordingly delete the impugned transfer pricing adjustment. Disallowing of provision for slow moving inventory - HELD THAT:- Assessee's impugned claim pertains to its two units at Chennai and Ranjangaon out of which it had already filed its finance department's recommendations for Rs. 24,74,561/-. This is followed the assessee's detailed remarks regarding all these items involving a total sum of Rs. 56,96,434/-. And that it had already claimed Rs. 32,21,872/- in the earlier financial year. Learned counsel has further invited our attention to the assessee's detailed statements regarding its provision for slow moving inventories created from assessment years 2011-12 to 2015-16 vis- -vis opening balances, reversals and closing balance; as the case may be. Faced with the situation, we quote hon'ble apex court's landmark decision Chainrup Sampatram [ 1953 (10) TMI 2 - SUPREME COURT] that such a liability by way of provision would indeed be recognized at the first sign of probability itself and delete the impugned disallowance - The assessee succeeds in its instant third substantive ground thereof. Ad hoc disallowance of travelling and conveyance expenses - Assessing Officer had rejected 5% of the assessee's claim - CIT-A restricted to Rs. 1,00,000/- only on account of its alleged failure in filing of the relevant details - HELD THAT:- We hardly see any reason to interfere with the impugned disallowance in very terms. The assessee fails in the instant last substantive ground.
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2023 (2) TMI 108
Disallowance of donation given - M/s. Herbicure Healthcare Bio-Herbal Research Foundation, Kolkata - registration of the said Institutions were withdrawn - HELD THAT:- Factually, the assessee made donation of Rs.25 Lakhs to the Institute in the 2014 and claimed weighted deduction of Rs.43.75 Lakhs, but subsequently, the registration of the said Institutions were withdrawn on 26.09.2016 w.e.f. 01.04.2007. It appears that when the donation was made by the assessee to the Institute, at the material point of time, the donor was an approved Institution u/s 35(1)(iii) - There was no lacuna found by the authorities below against the said Institute and neither there was any embargo imposed during the relevant point of time against the said institution. On this identical issue, we have further considered the judgment relied upon by the assessee passed by the Co-ordinate Bench [ 2019 (9) TMI 1685 - ITAT AHMEDABAD] wherein relying upon the ratio laid down by the Hon ble Gujarat High Court in the matter M/s. Thakkar Govindbhai Ganpatlal HUF [ 2020 (2) TMI 31 - GUJARAT HIGH COURT] relief has been granted to the assessee - Thus we allow this ground of appeal preferred by the assessee. Sales promotion expenses - Whether same are wholly and exclusively for business purposes and allowable under Section 37? - HELD THAT:- As relying on Armee Infotech [ 2022 (1) TMI 649 - ITAT AHMEDABAD] we find that the expenses are allowable u/s 37 of the Act, and thus, respectfully relying upon the same, we allow this ground of appeal preferred by the assessee.
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Customs
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2023 (2) TMI 107
Served From India Scheme - grant of excess duty credit in respect of the scrips issued between 01.04.2009 to 26.08.2009 - impugned order states that the credits scrips that were issued to the petitioner on 21.02.2011 had inadvertently computed the credit at 10% instead of 5% to which the petitioner was entitled - HELD THAT:- The interpretation of the policy itself must be in tune with the avowed objectives of the various schemes that have been formulated under the policy. The Served from India Scheme has been outlined from Clause 3.12 of the Foreign Trade Policy and the avowed objective is ' to accelerate growth in export of services so as to create a powerful and unique 'Served From India' brand, instantly recognized and respected world over.' Needless to say financial year qua a revenue enactment/policy is always understood to mean the 1st of April of the relevant year till the 31st of March of the year to follow. In the present case, no doubt the Foreign Trade Policy for the period 2009 to 2014 has come into effect only on 27.08.2009, and there is also a categoric stipulation in Clause 1.2 which deals with duration of the policy, that all exports and imports upto 26.08.2009 shall be governed only by the terms of the previous policy which prescribes the rate of 5% only - we are concerned with specified imports under the Served From India scheme which must stand on a separate pedestal. As far as the eneitlement to the imports/exports under this scheme are concerned, the entitlement is categoric to the effect that the service provider is entitled to duty credit scrips equivalent to 10% earned during current financial year. The impugned order is set aside and as a consequence the surrendered scrips of a value of Rs.86,81,454/- shall be refunded to the petitioner within a period of eight (8) weeks from date of receipt of this order - Petition allowed.
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2023 (2) TMI 106
Power and function of Proper officers to issue Notice under the second proviso to Section 124 of Customs Act 1962 - notice issued by the Joint Director, DRI, is in consonance with the Notification No.25/2022 and Notification No.26/2022 or not - HELD THAT:- The Notification No.25/2022 dated 31.03.2022 has been issued in exercise of powers conferred by Section 3(1) of Section 4 and Section 5((1)(4)(5) of the 1962 Act, wherein the Joint Director, DRI has been invested with all powers of the Joint Commissioner of Customs. As per Notification No.25/2022 dated 31.03.2022, the Deputy Director and Assistant Director, DRI have been invested with the powers of the Deputy Commissioner and Assistant Commissioner of Customs - in terms of Notification No.26/2022, even a Joint Director, DRI, who is above the rank of Deputy Commissioner or Assistant Commissioner of Customs is a proper officer to issue a Notice under the second proviso to Section 124 of the 1962 Act. There is nothing in the Notification No.26/2022 showing that there is a bar on the Joint Director, DRI for issuing a Notice under Section 124 of the 1962 Act. In fact, Section 124 of the 1962 Act provides that no order, confiscating any goods or imposing any penalty on any person, shall be made under Chapter XIV of the 1962 Act, unless the owner of the goods or such person is given a notice in writing, with prior approval of the officer of Customs not below the rank of Assistant Commissioner of Customs, informing him of the ground which it is proposes to confiscate the goods or to impose the penalty. It clearly shows that there is no bar on the Joint Director, DRI to issue a notice under Section 124 of the 1962 Act. The petitioner is given the liberty to file her reply to the show-cause notice dated 23.09.2022 before the Joint Director, DRI, Guwahati, who shall thereafter transmit the same to the Adjudicating Authority under the 1962 Act - Petition dismissed.
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2023 (2) TMI 105
Quantum of redemption fine and penalty in lieu of confiscation - Valuation of imported goods - old and used worn clothing - declared value of the imported goods enhanced - HELD THAT:- The enhancement of value has been ordered by the First Appellate Authority on the basis of concurrence given by the importer for such enhancement. There is no challenge to the order of confiscation, but Revenue is challenging the quantum of redemption fine and penalty, which stands reduced by the Ld. Commissioner(Appeals). The Ld.Commissioner(Appeals) has ordered reduction of redemption fine and personal penalty on the basis of ratio laid down by the Tribunal in the case of M/S. OMEX INTERNATIONAL VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI [ 2015 (4) TMI 112 - CESTAT NEW DELHI (LB) ]. The Tribunal has taken the view that redemption fine of 10% and penalty of 5% of the value of the imported goods, would be appropriate in case of imports violating Exim Policy Provisions - there are no reason to interfere with the findings of the Ld. Commissioner (Appeals) on the basis of such decision. Appeal of revenue dismissed.
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2023 (2) TMI 104
Clandestine Removal - 997.09 carats of diamonds and 98.34 carats of diamonds - processing loss - whether allegation of substitution of diamonds was established through the evidence? - HELD THAT:- On perusal of the Order-in-Original particularly para 11.2.1, wherein the original authority has held that the diamonds did not have marking and serial number unlike products namely, Televisions, Motor Vehicles etc. and therefore, it is not possible to identify whether diamonds available in the stock were same as imported. The same argument also applies to the goods which were seized under reasonable belief that they were substituted. Applying the observation by the original authority that it is not possible to identify diamonds whether the same are imported or substituted, we come to a conclusion that the seizure of diamonds under the allegation that they were substituted, was on a erroneous belief that they were substituted as such a belief cannot be established for the same reason which is given by the original authority. There are no merit in the seizure of 1095.43 carats of diamonds and subsequent proceedings in respect of the same including confiscation, imposition of redemption fine, demand of differential customs duty and imposition of penalty on the appellants - Insofar as shortage of 89.15 carats of diamonds is concerned, the same is argued to be treated as processing loss. The prosecution has failed to establish any clandestine removal of the same and could identify the person to whom the same were allegedly sold or transferred. In view of the failure of the prosecution to establish any clandestine removal of 89.15 carats of diamonds, it is held to be processing loss and since the same are not taken out of SEEPZ, i.e. out of Bond customs duty cannot be demanded on the same. Appeal allowed.
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Insolvency & Bankruptcy
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2023 (2) TMI 103
Approval of acquisition plan submitted by the Respondent Nos. 5 to 8 - rejection of appointment of Independent Forensic Auditor - HELD THAT:- Liquidator did not commit any error in making an application to the Adjudicating Authority for approval of the sale and after approval of the sale, inviting the Successful Bidder to deposit the balance bid amount. The sale was approved by the Adjudicating Authority on 11th May, 2022 and within 10 days, Successful Bidder had deposited the entire balance amount. Thus, there is no breach of any provision of Liquidation Regulations, 2016 especially cause 12 of Schedule I. The Successful Bidder has been sold the Corporate Debtor for Rs. 49.95 Crores that is much above the reserve price. Liquidator is entitled to fix the auction price as per the liquidation valuation and the provisions of Liquidation Regulations, 2016. It is not the case of any of the parties that fixing the reserve price on Rs. 51 Crores in the First Auction, there was any challenge to the reserve price. The submission of Learned Counsel for the Appellant that reserve price is less, cannot be accepted. Learned Counsel for the Appellant has also contended that there being higher offer before the Liquidator that is offer made by Gurpreet Singh Vohra of minimum Rs. 62 Crore, same ought to have been accepted and considered by the Liquidator. It is to be noted that offer made by Mr. Vohra was subsequent to auction held for sale of the corporate debtor as a going concern - Submission of Learned Counsel for the Liquidator is that letter written on behalf of Gurpreet Singh Vohra is nothing but letter at the instance of the Appellant which is another attempt to create hurdles in sale of corporate debtor as a going concern. Mr. Gaurav Mitra, Learned Counsel appearing sought to intervene and contend that Mr. Vohra is still ready to offer higher amount. Such request of Mr. Vohra cannot be entertained at this stage. Adjudicating Authority did not commit any error in passing the Order dated 11th May, 2022 approving the Auction of Corporate Debtor as a going concern in favour of Respondent Nos. 5 to 8. The Adjudicating Authority also did not commit any error in rejecting the Application filed by the Appellant praying for appointment of Independent Forensic Auditor for conducting a forensic audit. The said application has rightly been rejected by the Adjudicating Authority. Appeal dismissed.
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2023 (2) TMI 102
Seeking Exclusion of the Period lapsed, in regard to the operation of the Status quo Order dated 25.04.2022, from the Corporate Insolvency Resolution Process - HELD THAT:- There is no indication in the Impugned Order, as to the fact, that the Additional Affidavit filed by the Respondent / Petitioner, therein, was considered in the manner projected from the point of view of the Respondent / Resolution Professional, this Tribunal, at this stage, simpliciter, without expressing any opinion, on the Merits of the matter, and also, not delving in deep, sets aside the Impugned Order dated 09.01.2023 passed in IA/IBC/1128/CHE/2022 in CP/IB/85/CHE/2021, by the Adjudicating Authority, (National Company Law Tribunal, Division Bench I, Chennai), in the interest of Justice, and remits back the matter in IA/IBC/1128/CHE/2022 in CP/IB/85/CHE/2021 to the Adjudicating Authority, (National Company Law Tribunal, Division Bench I, Chennai), for passing necessary Orders De Novo in the matter, of course, after Hearing, the Respondent / Resolution Professional, by providing an opportunity of Hearing, by adhering to the Principles of Natural Justice, and to pass Just, Fair and the reasoned Speaking Order, in Qualitative and Quantitative terms, adverting to the Relief Sought for in the Subject Matter in issue and this Exercise, shall be carried out by the Adjudicating Authority, (National Company Law Tribunal, Division Bench I, Chennai), within Two Weeks, from the date of passing of this Order, of course, uninfluenced, untrammelled with any of the Observations, made by this Tribunal. Appeal disposed off.
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Service Tax
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2023 (2) TMI 101
Levy of differential service tax - commercial training and coaching services - non-profitable organization - forgery of bills in order to evade payment of duty - HELD THAT:- Once the documents as that of bills/profit Loss accounts of the assessee respondent were before the authorities showing that VEIL had been collecting money from the students of commercial coaching in the name of tuition fee and that VES was not capable of imparting such commercial coaching, the evidence with respect to infrastructural facilities being provided by VEIL to VES to impart such coaching becomes absolutely redundant to falsify that VEIL was collecting money in the name of tuition fee for Commercial Coaching. There is no denial that Commercial Coaching was being provided and that VES couldn t provide the same. There is also no denial to the fact that respondent VEIL was separately incorporated company though having similar management as that of VES. There is no dispute that imparting of coaching for competitive examinations such as IIT/JEE, AIEEE etc is a taxable service in terms of Section 65(26)of Finance Act 1994, the findings of Commissioners in Order under challenge are in total ignorance of the evidence on record rather are held to be purely presumptive and is based on the probabilities to just accept the submission in defence. On the contrary, the taxable services were being admittedly imparted and VES was not competent to impart these things. VEIL though is admitted to be interdependent/same organizations as that of VES, but we hold that it is VEIL which was providing taxable service as that of Commercial Coaching against collecting an amount in the name of tuition fee. Appeal allowed - decided in favor of Revenue.
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2023 (2) TMI 100
Refund of excess service tax paid - time limitation - denial on the ground of limitation when the limitation period has expired after the introduction of CGST Act - HELD THAT:- A perusal of the orders of both the authorities below give the impression that very less attention have been paid to the documents submitted by the appellants in support of their claim of excess payment and the authorities mainly concentrated on the issue of time bar as laid down under Section 11B ibid. The excess payment has been made by the appellants in the month of August, 2017 for the period April, 2017 to June, 2017 and the refund claim has been filed in the month of October, 2018. Admittedly Central Goods Service Tax Act was introduced w.e.f. 1.7.2017 replacing the erstwhile existing Act and Rules. Section 142(5) of the new Act makes the assessee eligible to file refund claim and to get the refund of the amount of service tax paid by them in cash notwithstanding anything to the contrary contained under the provisions of existing law other than the provisions of sub-section (2) of Section 11B of the Central Excise Act, 1944. The said provision expressly prescribed that the limitation provided in sub-section (1) of Section 11B is not applicable. The authorities below did not pay much attention to the documents placed on record by the appellants and they had merely given the findings on it without discussing in details about the documents placed on record by the appellant before them, therefore I do not want to comment about the admissibility or otherwise of the documents placed on record by the appellants in support of their claim. In my view it has to be done by the authorities below. The refund claim filed by the appellants are within limitation therefore for the purpose of verification/ eligibility of documents and also for calculating the eligible refund claim, the matter is remanded back to the Adjudicating Authority as this exercise needs to be done by the said authority and if the said authority find the appellants eligible for refund after verifying the documents then they are under obligation to grant cash refund of the amount to be refunded to the appellants in terms of Section 142(3) ibid. Appeal disposed off.
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2023 (2) TMI 99
Levy of Service tax - Business Auxiliary Service - amount received by the appellant in the name of commission while sub-contracting on back to back basis - invocation of extended period of limitation - penalties - HELD THAT:- The arrangement herein is that the appellant being a service provider for services as that of site formation, mining etc. were being awarded the tenders floated by various Government departments for receiving the aforesaid activities. Apparently and admittedly in such scenario the said different departments were the service recipients and the appellant has been the service provider as far as the service of site formation, mining etc., are concerned. Further, admitted facts are that for execution of the work of awarded tenders, the appellant was appointing sub-contractors to act on his behalf. Hence the tender awarding departments/companies remain the service recipients and the sub-contractor is the service provider but on behalf of the appellant - sub-contractor was stepping into the shoes of the appellant by virtue of a duly executed agreement by and between the appellant and the concerned sub-contractor purely for undertaking by the sub-contractor for the execution of the entire work under the respective tender, adhering to all such terms and conditions as were imposed upon the appellant by virtue of his agreement with the said employer. The perusal of few such agreements, as found on record, reveals that the sub-contractor was also made liable to compensate the appellant for any loss or damage to which the appellant might be held liable to the employer/tender agency on account of failure or improper execution of the work by the subcontractor and on account of not abiding by any terms and conditions of the agreement with the employer. The sub-contractor was not the service recipient of the appellant as such cannot be called as his client. He rather was been engaged by the appellant as his agent pursuant to the duly executed agreement where all profits and even all losses accruing to the appellant on any account pursuant to his agreement with the employer/tender agency were to be inculcated by the sub-contractor. In such circumstances, the arrangements between the appellant and the appointed sub-contractor cannot be called as an activity of the appellant meant to promote or market the service provided by the sub-contractor. Hence engagement of sub-contractor in the given circumstances cannot be called as the Business Auxiliary Service being provided to the subcontractor by the appellant. Extended period of limitation - penalties - HELD THAT:- There arises no case for the appellant to discharge any liability. The question of having any intent to evade the tax liability does not at all arises. There is nothing produced by the Department on record to shown a positive act of the appellant which may constitute an act of committing any fraud, misrepresentation or suppression on appellant s part. Nor there remains any question of contravention of the applicable act and rules - once there was no circumstance for appellant to be the service provider of Business Auxiliary Services to his sub-contractor, the question of suppression is held to have wrongly been indicated. The appellant had otherwise provided all relevant documents including Tenders, agreements etc. to the investigating team - the extended period has wrongly been invoked by the Department. Both the points of adjudication stands decided in favour of the appellant and against the Department - Appeal allowed.
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Central Excise
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2023 (2) TMI 98
Demand of differential duty - place of removal - inclusion of freight charges in the assessable value for payment of central excise duty - It was observed by the Department that the sale of cement to few of the customers was on FOR basis that too in terms of an agreement/ the purchase order - HELD THAT:- Learned DR has laid emphasis upon clause 3 of the definition of place of removal as was relevant for the period in question because said clause includes the place from where the goods are to be sold in the definition of place of removal , the buyer s place becomes the place of removal where sale gets concluded at buyer s place. The said submission is not acceptable in the light of decision of Hon ble Apex Court in COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, NAGPUR VERSUS M/S ISPAT INDUSTRIES LTD. [ 2015 (10) TMI 613 - SUPREME COURT] only wherein the Hon ble Apex Court has held that the words used in the provision are goods are to be sold . The contention of the Revenue would be correct if and only if the words in the provision would have been goods have been sold . Resultantly, the place of removal refers only to the place from where goods are to be sold by the manufacturer and thus it has no reference to the place of delivery which may be either the buyers premises or the premises as the buyer may direct the manufacturer to send his goods. The earlier decision in the case of ESCORTS JCB LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI-II [ 2002 (10) TMI 96 - SUPREME COURT] was held to have similar facts as were there in the case of Ispat Industries Ltd. The Hon ble Court also observed that in the case of COMMISSIONER, CUSTOMS AND CENTRAL EXCISE, AURANGABAD VERSUS M/S ROOFIT INDUSTRIES LTD. [ 2015 (4) TMI 857 - SUPREME COURT] the Hon ble Supreme Court had distinguished Escort s JCB s case. But based on the facts of that case (Roofit s), it was held that the sale of goods in terms of Section 19 of sale of goods Act did not take place at the factory gate of assessee. The Court also observed that the Court s attention was not drawn to Section 4 of Excise Act as originally enacted and as amended to demonstrate that the buyer s premises cannot, in law, be a place of removal under the said section. The value of freight charged by the appellant for delivering the cement to their buyers premises is not to be included while assessing the value for the purpose of payment of central excise duty - Appeal allowed.
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CST, VAT & Sales Tax
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2023 (2) TMI 97
Seeking declaration of entitlement to the benefit of exemption of sales tax (value added tax) for the balance period of five years from April, 2005 to July, 2008 - G.O.Ms.No.6 - HELD THAT:- Having regard to the object and spirit behind issuance of G.O.Ms.No.6 dated 18.12.1998, and the fact that petitioner was provided exemption thereunder for the assessment periods 2003-2004 and 2004-2005, denial of such benefit for the remaining period of five years as contemplated under the aforesaid government order does not appear to be justified. The respondents are directed to treat the petitioner as an eligible unit under G.O.Ms.No.6, dated 18.12.1998, and extend the benefit of sales tax exemption for the period of five years excluding the period for which benefit has already been granted to the petitioner. This shall be carried out within a period of four months from the date of receipt of a copy of this order. Petition allowed.
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2023 (2) TMI 96
Penalty under Section 51(7)(c) of the Punjab VAT Act, 2005 - driver of the vehicle did not furnish the information in respect of Invoices No. 526 and 527 both dated 12.7.2006 and GR Nos. 9411 and 9412 - failure to produce books of account before the detaining officer - failure to give any explanation for not submitting the information in respect of above said two invoices - HELD THAT:- In the facts of the present case, sale was processed to be made to CRPF as per supply order (Annexure A-1) and all the information were given at the computer centre and all the documents were shown but when the goods were detained, other two invoices were also shown. The supply order was also shown which was given by the Additional Deputy Inspector General of Police, CRPF, Jalandhar. Hence, it was a sale which was made to Government Department and the appellant had also produced GRs and all the invoices at the time of checking. There was no attempt made by the driver not to show invoices before the detaining officer. Reference can now be made to judgment passed in STATE OF PUNJAB AND ANOTHER VERSUS SHREE RAM PANELS [ 2011 (8) TMI 1027 - PUNJAB AND HARYANA HIGH COURT ], wherein a coordinate Bench of this Court had dismissed the appeal filed by the State of Punjab against the order of Tribunal as the Tribunal had accepted the appeal filed by the assessee and set aside the imposition of penalty on the ground that there was no violation of Section 51(4) of the Punjab Value Added Tax Act with a view to make an attempt to evade tax as the driver of the vehicle was in possession of goods receipts alongwith invoices and produced the same as well. In the facts of the present case, the appellant was making sale to Government Department all over India as the supply order was given by the Additional Deputy Inspector General of Police, CRPF, Jalandhar and the driver had produced 5 documents before the computer centre at ICC but VAT-XXXVI could not generate and at the time of checking, apart from 5 documents two invoices No. 526 and 527 dated 12.7.2006 and GR Nos. 9411 and 9412 were also produced. Since the respondents, in the present case, were not disputing the fact that the sale was being made to CRPF and only on account of non-generation of VAT-XXXVI, penalty could not have been imposed - The driver is not required to give any information with respect to details of the invoices. He is to only produce documents to show that there was a supply order and GRs had been issued and he was taking the goods to their destination outside the State. Further, it is not the case of the respondents that the two invoices No. 526 and 527 did not issue to CRPF. Hence, once the Government Department had accepted the invoices produced at I.C.C., there was no occasion not to accept Invoices No. 648, 225 and 8 dated 12.07.06. Similarly, invoices No. 526 and 527 were also issued on the same date i.e. 12.07.2006 with respect to supply order (Annexure A-1). The driver was not expected to know details of the supply order - in the present case, the driver had produced the documents at I.C.C. and subsequently at the time of checking, he showed all the invoices. There was no attempt to evade tax. Appeal allowed.
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Indian Laws
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2023 (2) TMI 95
SEZ unit - Levy property tax at industrial rates instead of Commercial Rates - it is argued that the petitioner's property which is IT/ITES and SEZ is liable to be classified under the category of Industry and cannot be treated as a subject matter of taxation under Para 2 F (xiii) of the notification dated 11.10.2013 (Annexure P-5) by virtue of the amendment carried out vide notification dated 03.03.2014 - violation of principles of natural justice. HELD THAT:- Clause 2 (G) of the notification dated 11.10.2013 (Anenxure P-5) stipulates that in case of the mixed used of premises in any property, the liability of tax shall be calculated as per area under different usage. In other words if a single building is being used for different and mixed purposes, then the property tax will be levied taking into consideration the usage of the specific area of the building/premises under different heads. The petitioner cannot escape the rigors of imposition of property tax at commercial rates in respect of such specific area which is being used for IT/ITES only on the basis that it falls under a separate distinct category of SEZ and as such ought to be levied property tax at industrial rates. It is not even the case projected in the pleadings that no area of the building/premises of the petitioner even though recognised as SEZ is not being used for IT/ITES purposes. Mere non-mention of IT in the SEZ category cannot be taken as a tenable ground for non-levy of property tax at commercial rates - there are no infirmity in the impugned order dated 30.11.2021 at Annexure P-1 whereby property tax stands levied as per actual usage of the petitioner SEZ and which would strictly be in terms of the charging provision i.e. Section 87 of the 1994 Act as also the notifications dated 11.10.2013 (Annexure P-5) and 03.03.2014 (Annexure P-6) respectively. In the present case, the charging provision is under Section 87 of the 1994 Act which rather permits levy of property tax based on various factors including actual usage of the premises. It is towards exercise of powers under the provisions of the 1994 Act that the notifications dated 11.10.2013 and 03.03.2014 Annexures P-5 and P-6 have been issued. The levy of property tax has to be necessarily as per the charging provision contained under the 1994 Act as also the notifications issued therein. The petitioner as such cannot be permitted to gain any mileage from the notifications/SEZ policies that may have been issued in relation to other states across the country. Violation of the principles of natural justice - HELD THAT:- Admittedly, after issuance of the demand notices levying property tax at commercial rates, the petitioner availed of the statutory remedy of appeal before the Divisional Commissioner under the provisions of the 1994 Act. The appellate authority took a view in favour of the petitioner. It is thereafter that Municipal Corporation Gurugram preferred a revision before the State Government under Section 140 of the 1994 Act. It is upon consideration of such revision petition that the impugned order dated 30.11.2021 (Annexure P-1) has been passed by the Principal Secretary, Urban Local Bodies Department. Both at the appellate and revisional stage the petitioner/authorized representative were granted effective opportunity of hearing - petitioner having contested the demand notices in terms of filing an appeal under Section 138 of the 1994 Act had succeeded at the appellate stage and merely for the reason that the revisional authority after granting due opportunity has taken a different view, would not tantamount to a situation which would permit the petitioner to allege violation of the principles of natural justice. The entire issue stands thrashed out on merits and after duly associating the petitioner/authorized representative/its counsel. The contention as such is sans merit. The impugned order dated 30.11.2021 (Annexure P-1) passed by the first respondent is based on cogent and valid reasoning and in conformity with the relevant provisions of the 1994 Act as also the notifications dated 11.10.2013 (Annexure P-5) and 03.03.2014 (Annexure P-6). Petition dismissed.
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