TMI Tax Updates - e-Newsletter
March 26, 2020

Case Laws in this Newsletter:

GST Income Tax Customs Corporate Laws Insolvency & Bankruptcy Central Excise CST, VAT & Sales Tax Wealth tax Indian Laws

TMI SMS

• Filing of Form GST TRAN-1 - The time limit stipulated u/r 117 rws 164(2) is not ultra vires - ITC u/s 140(1) is a concession with conditions

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Articles

1. COVID 19- IS A FORCE MEASURE- MOREPRACTICAL APPROACH IS DESIRED WHILE GRANTING RELAXATION ( about GST & CUSTOMS)

   By: DEVKUMAR KOTHARI

2. GST LAWS & PROCEDURE ON DEATH OF PROPRIETOR

   By: Ramandeep Bhatia

3. AMENDMENTS NOTIFIED BY CBIC ON 23RD and 21ST DAY OF MARCH 2020

   By: Rachit Agarwal

News

1. Cabinet approves recapitalization of Regional Rural Banks to improve their Capital to Risk Weighted Assets Ratio

2. MPLADS funds may be utilized for COVID-19

Notifications

Companies Law

1. S.O. 1219 - dated 24-3-2020 - Co. Law

Seeks to amend Companies (Auditor's Report) Order, 2020

Customs

2. 31/2020 - dated 25-3-2020 - Cus (NT)

Tariff Notification in respect of Fixation of Tariff Value of Edible Oils, Brass Scrap, Poppy Seeds, Areca Nut, Gold and Silver

DGFT

3. 54/2015-2020 - dated 25-3-2020 - FTP

Amendment in Export Policy of Hydroxychloroquine

IBC

4. S.O. 1205 (E). - dated 24-3-2020 - IBC

Central Government specifies one crore rupees as the minimum amount of default for the purposes of the section 4 of IBC 2016

SEBI

5. SEBI Notification COVID 19 - dated 24-3-2020 - SEBI

SEBI Notification COVID 19

Circulars / Instructions / Orders

SEBI

1. SEBI/HO/IMD/DF3/CIR/P/2020/47 - dated 23-3-2020

Relaxation in compliance with requirements pertaining to Mutual Funds

2. SEBI/HO/DDHS/CIR/P/2020/42 - dated 23-3-2020

Relaxation from compliance to REITs and InvITs due to the CoVID -19 virus pandemic

3. SEBI/HO/MRD2/DCAP/CIR/P/2020/45 - dated 23-3-2020

Interoperability among Clearing Corporations: Revision of criteria for entering the risk-reduction Mode

Customs

4. PUBLIC NOTICE NO.08/2020 - dated 17-2-2020

"Implementation of Ease of Doing Bussiness(EODB) Score card"

5. PUBLIC NOTICE NO. 07/2019-20 - dated 7-2-2020

Revision of All Industry (AIRs) of Duty drawback

6. PUBLIC NOTICE No. 06/2020 - dated 6-2-2020

Budget 2020-21 - imposition of Custom Health Cess on imports

7. Public Notice No 04/2020 - dated 5-2-2020

Customs Health Cess and procedure to claim exemption

Companies Law

8. 11/2020 - dated 24-3-2020

Special Measures under Companies Act, 2013 (CA-2013) and Limited Liability Partnership Act, 2008 in view of COVID-19 outbreak

Highlights / Catch Notes

GST

• AAR Reviews GST Applicability and Exemptions for Textbook Printing and Supply, Including Various Printed Materials.

  Case-Laws - AAR : Exemption from GST - Printing and supply of Text books and Printed Materials, Karnataka Kaipidi, Annual Reports, Receipt Books, Measurement Books and Log books - Applicability of GST, exemption from GST and rate of GST under various circumstances examined by the AAR
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• GST TRAN-1 Extension Denied: Petitioner Failed to Prove Technical Difficulties with System Logs, Says High Court.

  Case-Laws - HC : Filing of Form GST TRAN-1 - technical difficulties - Those registered persons who could not submit the declaration by the due date because of technical difficulties on the common portal as can be evidenced from the system logs are given an extension on the recommendation of the Council. Where no such evidence is forthcoming, no recommendation is made. In the Petitioner’s case, no such proof emerges and, therefore, no direction as sought for can be issued - HC
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• GST TRAN-1 Filing Deadline Valid u/r 117; Supported by Section 164(2) and Conditions of Section 140(1).

  Case-Laws - HC : Filing of Form GST TRAN-1 - time limit for filing of the form - The time limit stipulated under Rule 117 of the Rules is not ultra vires of the Act. This Rule is traceable to the power conferred under section 164(2) of the Act. The time limit stipulated in Rule 117 is in consonance with the transitional nature of the enactment, and it is neither arbitrary nor unreasonable. Availment of input tax credit under section 140(1) is a concession attached with conditions of its exercise within the time limit. - HC
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• Court Questions Fairness in Detention of Goods: Emphasizes Need to Prevent Unnecessary Legal Battles by Officials.

  Case-Laws - HC : Detention of goods alongwith vehicle - reasonable opportunity of being heard provided to the petitioner or not - The 2nd respondent Commissioner or the Head of the Department concerned may ensure that necessary instructions are given to the officials concerned in the Department so that unnecessary litigations of this nature could be easily avoided.
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Income Tax

• Trust Denied Tax Exemption for Favoring Sindhi Community, Yet Not Deemed Solely Religious: Registration Benefits Upheld.

  Case-Laws - HC : Exemption u/s 11 - denial of exemption as assessee trust is for benefit of a Sindhi community - This institution should give help to Sindhi; as far as possible with a nominal charges, the banalce, if any, after giving benefit to Sindhi Community should also be given to non­-sindhi community (other community) - On perusal of the above clauses of the trust deed, it cannot be said the trust is only religious trust. - Benefit of registration cannot be denied.
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• Court Upholds Pr.CIT's Decision on Unexplained Cash Deposits; Calls for Detailed Investigation u/s 263.

  Case-Laws - AT : Revision u/s 263 - unexplained cash deposited in the bank account of the assessee - - when there is claim of investment being made out of unrecorded hospital receipts he ought to have made investigation regarding year wise investment. This observation of the Ld. Pr.CIT is sustained.
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• Corporate Guarantee Fee Not Considered Technical Service Under India-France DTAA Article 13 or Income Tax Act Section 9(1)(vii.

  Case-Laws - AT : Corporate guarantee - fee for technical services (FTS) under article 13 of the India France DTAA and section 9(1)(vii) - services of corporate guarantee by the assessee not being in the nature of services of managerial, technical or consultancy, the corporate guarantee fee received by the assessee cannot be termed as fee for technical services either under the section 9(1)(vii) or under article of the DTAA.
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• Section 263 Review: Vyapam Scam Income Assessment Not Flawed; No Harm to Revenue Interests Found.

  Case-Laws - AT : Revision u/s 263 - unaccounted income earned from Vyapam scam - A.O has applied his mind and therefore the assessment order is not vitiated on the ground that the order is erroneous and prejudicial to the interest of revenue because no enquiry were undertaken.
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• ITAT Dismisses Assessee's Appeal; Burden of Proof Misapplied u/ss 254, 153A, and 132(4A) in Search Case.

  Case-Laws - AT : Rectification u/s 254 - addition u/s. 153A - onus was upon the assessee to prove this in view of the materials found during search and the presumptions arising out of provisions of section 132(4A). Instead the learned CIT-A has put the onus on assessing officer to prove that the impugned sum was paid by other means by the assessee. In our considered opinion, the action of the learned CIT-A is clearly contrary to the mandate of provisions of section 132(4A) and the incriminating documents found - The assessee in its miscellaneous application is agitating the same points which have already been dealt with in the ITAT order. - Application dismissed.
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• Club Membership Fees Disallowed as Business Expenses Against Partnership Interest Income, CIT(A) Upholds AO's Decision.

  Case-Laws - AT : Expenditure incurred on Club membership and subscription fees - Claim of business expenses by the Partner against the interest income from partnership firm - there is no error in the findings of the Ld.CIT(A) in confirming disallowances made by the Ld. AO towards subscription and membership fees paid to clubs, while computing income under the head profits and gains of business or profession.
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• Assessment Orders Challenged: Invalid Jurisdiction u/s 143(1) and 143(3); Orders Deemed Unlawful and Annulled.

  Case-Laws - AT : Transfer of case - Validity of the assessment orders passed by the Additional CIT u/s 143(1) - Lack of inherent jurisdiction - The assessment order has been passed by the Addl.CIT without any transfer of jurisdiction in his favour - the assessment order passed by him u/s 143(3) is without jurisdiction, illegal, bad in law and hence ought to be quashed. - AT
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Customs

• New Facility Enables Direct Payment of Terminal Fees to Operators, Upholding Contractual Rights and Bypassing Shipping Lines.

  Case-Laws - HC : Facility of paying terminal handing charges and other charges of the port terminal directly to the terminal operators instead of shifting through the Shipping Lines - There was already a written contract between them and the client and obviously the apprehension expressed of deviation is at far-fetched. It will not curtail or take away their right to recover the handing charges as per the terms and conditions of the contract
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• Exporter Denied MEIS Benefit for Minor Error; Calls for Fair Treatment Regardless of Claim Submission Timing.

  Case-Laws - HC : Denial of MEIS benefit - omitted to check the Box stating 'Yes' - There is no justification in denying the claim, based on such an inadvertent omission. In the matter of condoning such an omission, there cannot be a discrimination between exporters who made the claim within six months and those who have raised the claim after six months of introduction of the Scheme.
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• Supreme Court Orders CESTAT Bengaluru Appeal to Exclude Specific Members; Writ Petition Concluded with Directions.

  Case-Laws - HC : Directions to not to hear the appeal by the Technical member whose appointment was challenged by the Advocate of the petitioner in the honourable Supreme Court - The writ petition is disposed of with a direction that the appeal of the petitioner pending before the CESTAT at Bangaluru shall be heard by judicial member and a different touring member than the one assigned for the Bangaluru also other than C.I.Mahar, Sanjeev Sreevastava, Sri.P.Venkita Suba Rao respondents in the writ petition before Supreme Court.
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• Court Awaits Larger Bench Decision on "Importer" Definition in Cargo Destuffing; Contract Terms Unchanged Pending Review.

  Case-Laws - HC : Destuffing of cargo - It is yet to be decided whether the definition of the importer has to be strictly interpreted in the manner as attempted to be put across at this stage when the matter has been referred to a larger bench. This court cannot change the terms and conditions of the contract and supplement the same as has been attempted to be done.
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Corporate Law

• RoC's Deactivation of DINs Challenged; Companies Act Lacks Provision for Action Based on Disqualification u/ss 164, 167.

  Case-Laws - HC : Deactivation of DINs of petitioner - Since such DIN is allocated under Section 154 of the 2013 Act, and there is no provision in the Act for the deactivation of the DIN of a director only on the ground of such disqualification under Section 164(2)(a) or Section 167(1)(a), the action of the RoC in the present case, in deactivating the DIN of the petitioners on the ground of such violation of Section 164(2)(a) of a particular company cannot confer a right on the RoC to deactivate such DIN.
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Central Excise

• Court Rules on Applicability of Rule 6(3) Cenvat Credit for Exempted Goods; Intent Requires Evidence for Fraud Claims. (3.

  Case-Laws - HC : CENVAT Credit - goods which were finally cleared were exempted - benefit of Rule 6(3) of the Cenvat Credit Rules - Whether the benefit of rule 6(3) of the Cenvat Credit Rules is available to the assessee, irrespective of his conduct and malafide intention to avail cenvat credit on the inputs used in manufacturing of exempted goods? - on mere assumptions the intention cannot be determined or it can be concluded that the conduct was fraudulent. The authorities have also not appreciated the difference in manufacture and clearance of goods. - HC
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• CENVAT Credit allowed despite handwritten serial numbers on invoices; discrepancies alone aren't grounds for denial.

  Case-Laws - AT : CENVAT Credit - duty paying invoices - rejection for the reason that invoices of input service bear handwritten serial number - merely for the for the said discrepancies cenvat credit cannot be denied - AT
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VAT

• Mango Drink "Slice" Classification Reviewed Under Entry 100D of HVAT Act; Favorable Interpretation for Taxpayer Adopted.

  Case-Laws - HC : Classification of goods - Mango Drink under the brand name “Slice” - whether fall under Entry 100D of Schedule-C of the HVAT Act or not? - There is of course the broad proposition that if two views are possible, the one advantageous to the Assessee should be preferred. - HC
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• High Court Stays Order on Property Attachment in CIRP; First Charge Claimed Under Gujarat VAT Act, Section 48.

  Case-Laws - HC : Attachment of property - CIRP proceedings - first charge over all the properties and assets in view of Section 48 of the Gujarat VAT Act, 2003 - pending the hearing and final disposal of the petition, the operation, implementation and execution of the impugned order is stayed. - HC
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Case Laws:

• GST

• 2020 (3) TMI 1088
  Exemption from GST - Printing and supply of Text books and Printed Materials, Karnataka Kaipidi, Annual Reports, Receipt Books, Measurement Books and Log books to Government Departments not registered under GST Act and Government Departments registered under GST Act - Printing supply of Answer booklets, Visiting cards, Letter heads, Forms, Covers, File wrappers, invitation cards, Scribbling pads, Rubber stamps to Government Departments not registered under GST Act and Government Departments registered under GST Act - Printing and supply of Annual Reports and Receipt Books to Autonomous bodies - Supply of Log Books to Autonomous bodies - Printing supply of Text books/ Karnataka kaipidis/Karnataka gazettes Economic Survey of Government of Karnataka to Public recognized book stalls - Supply of waste paper to public - Supply of old Machinery as Scarp to public - Supply of stationary Articles to Government Departments not registered under GST Act and Government Departments registered under GST Act - Transportation service received by applicant from GTA to Applicant is the recipient - Transportation service received by applicant from service provider other than GTA and courier agency to Applicant is the recipient - Printing and supply of Law reports to Honourable High Court of Karnataka - Issue of NOC to public - Printing and supply of Bus tickets to BMTC. Supply to Various Departments of Government of Karnataka - whether the instant activity of printing and supply of text books printed material / Annual Reports / receipt books/ measurement books log books to other departments of same Government of Karnataka, who have not obtained separate registration under the GST Act, amounts to supply in terms of Section 7(1)(a) of the CGST Act 2017 or not? - HELD THAT:- The applicant claims exemption for the above said activity under entry No.8 of the Notification No.12/2017-Central Tax (Rate) dated 28.06.2017. This entry exempts only the services provided by the State Government to another State Government and hence the said entry is not relevant to the instant issue. Supply of Goods to Various Departments of Government of Karnataka - supply of printed material i.e. answer sheets/visiting cards/ letter heads/ forms/covers/file wrappers/invitation cards/ scribbling pads / rubber stamps; content is provided by any of the Department of Government of Karnataka; physical inputs including paper belong to the applicant - HELD THAT:- The impugned activity of printing and supply of Answer sheets/visiting cards/ letter heads/ forms/covers/file wrappers/invitation cards/ scribbling pads / rubber stamps to other Departments of same Government of Karnataka who have not obtained separate registration under the GST Act does not qualify as supply in terms of Section 7(1)(a) of the CGST Act 2017 - However, if the said supply is done to the other Departments of Government of Karnataka who have obtained separate registration under the GST Act, said transaction qualify as supply in terms of Section 7(1)(a) of the CGST Act 2017 and liable to tax under GST. Supply of Service to Autonomous bodies - printing supply of Annual Reports / Receipt Books respectively, to autonomous bodies i.e. BRTS Company, Hubli-Dharwad Karnataka Electricity Regulatory Commission, Chamundeshwari Electricity Supply Company, Power Company of Karnataka Limited, BESCOM / HESCOM / MESCOM / KPTCL, Udupi / Bellary Nagarabhivrudi Pradhikara, Higher Education Council; content is provided by autonomous bodies - HELD THAT:- The impugned supply is that of services, classified under SAC 9989 and attracts 12% GST, in terms of Sl.No.27 of Notification No.11/2017-Central Tax (Rate) dated 28.06.2017. Supply of Goods to Autonomous bodies - Printing supply of Log Books to autonomous bodies i.e. Karnataka Kolageri Abhivruddi mandali, Karnataka State Aids Prevention Society, Karnataka Vasathi Shikshana Samsthe, Karnataka Sarvajanika Arogya Samsthe - HELD THAT:- In the instant case, the applicant is engaged in supply of Log Books to autonomous bodies, where the content is not provided by the recipient but provided by any of the department of Government of Karnataka. The applicant supplies the Log Books itself out of the readily available stock and hence supply of the said items amounts to supply of goods - Log book is nothing but a register to maintain the details of movement of the vehicle; merits classification under Chapter Heading 4820 and gets covered under entry No.154 of Schedule III to Notification 01/2017-Central Tax (Rate) dated 28.06.2017 and thereby attracting GST A 18%. Supply to Public Recognised Book Stalls - printing supply of Text books/ Karnataka kaipidis/Karnataka gazettes Economic Survey of Government of Karnataka to Public recognised book stalls - HELD THAT:- All the items in the instant issue, i.e. Text books/ Karnataka kaipidis/Karnataka gazettes Economic Survey of Government of Karnataka, are nothing but printed books and merits classification under Chapter Heading 4901. Entry No.119 of Notification 02/2017-Central Tax (Rate) dated 28.06.2017 exempts the printed books i.e. goods falling under heading 4901. The impugned items are squarely covered under the said entry and hence are exempted. Supply of waste paper etc. - supply of waste paper, old sweepings, old obsolete forms and books, unusable articles as waste - HELD THAT:- In the instant case it could be inferred from the question that the applicant seeks advance ruling with regard to rate of GST applicable on the sale/ supply of waste paper. Waste scrap paper is classified under heading 4707 and attract 5% GST. Supply / sale of old machinery as scrap - supply of old machinery as scrap - HELD THAT:- In the instant case, the old printing machinery of ferrous material is intended to be sold/ supplied as scrap and the said old machinery, if sold as scrap, is considered as Ferrous Waste and Scrap. Thus the rate of GST applicable on the said Ferrous Waste and Scrap is 18% in terms of the aforesaid notification/entry number. Supply of Stationery articles to Government Departments - pure agent services or not - HELD THAT:- In the instant case the applicant, being the part of Government of Karnataka, procures the required stationery and distributes the same to various departments, but does not procure any other services or goods or both for the supply / distribution of the stationery items and hence the applicant does not qualify to be a pure agent - the impugned activity of supply of stationary items to other Departments of same Government of Karnataka who have not obtained separate registration under the GST Act does not qualify as supply in terms of Section 7(1) (a) of the CGST Act 2017, as explained at para 10 (a) supra. However, if supply of stationary items is done to the other Departments of Government of Karnataka who have obtained separate registration under the GST Act, then the transaction qualify as supply in terms of Section 7(1)(a) of the CGST Act 2017 and liable to tax under GST. Taxability of Transportation charges paid by the Applicant - whether they are liable to pay GST on the transportation charges paid to the service provider, in relation to transportation of the text books other printed forms/PUC answer booklets? - The first situation i.e. the service provider is the GTA and also the applicant is receiver of the service of Transport of Goods by Road - HELD THAT:- In this case the applicant, being the receiver of the service, if falls under the specified 7 categories mentioned at column 4 of the Notification No. 13/2017 Central Tax (Rate) dated 28-06-2017, then the applicant is liable to pay GST on the service of GTA, under Reverse Charge Mechanism, in terms of the said Notification. The applicable rate of GST, on the said service is as per item (iii) of entry no 9 of the notification 11/2017 Central tax (Rate) dated 28/06/2017 as amended by the notification 20/2017 Central tax (Rate) dated 22/08/2017. The applicant, in the second situation, if receives the service of transportation of goods [the text books other printed forms/PUC answer booklets] by road from other than the GTA and Courier agency, such transportation service is exempted from payment of GST as per entry no. 18 of the notification 12/2017 Central Tax (Rate) dated 28/06/2017. Whether they can deduct TDS on the transportation charges paid? - HELD THAT:- The applicant has to pay GST, under RCM, in the first situation and not required pay in the second situation. Therefore in either of the situation the applicant not paying the tax (GST) to the provider of the service and hence the question of deduction of TDS on the transportation charges paid does not arise. Printing Supply of Indian Law Reports to the Hon ble High Court of Karnataka - HELD THAT:- In the instant case the applicant being a Government press, established by the Government of Karnataka, under the control and supervision of Primary Secondary Education Secretariat and hence becomes part of Government of Karnataka. Applicant printing supply the Indian Law Reports to the Hon ble High Court of Karnataka, Bengaluru; content is provided by Hon ble High Court of Karnataka; physical inputs including paper belong to the applicant. Therefore, in the instant activity, the principal supply is that of supply of printing service and transaction becomes supply of service - Therefore from the said entry it is observed that any service provided by the Government of Karnataka to business entity is excluded from exemption - thus, the printing supply of Indian Law Reports to the Hon ble High Court of Karnataka, Bengalure by the applicant is exempted om GST in terms of entry no 6 of the notification 12/2017 Central Tax (Rate) dated 28/06/2017. Issuance of No Objection Certificate (NOC) to private persons, for change of name - HELD THAT:- The applicant being the Department of Government of Karnataka, issues the No Objection Certificate to the private individuals and collects an amount of Rs. 100/-. This activity of the applicant amounts to provision of service by the State Government to an individual. The services provided by the State Government, where the consideration for such service does not exceed five thousand rupees are exempted from GST, in terms of entry number 9 of the Notification No.12/2017 Central tax (Rate) dated 28/06/2017. Thus impugned activity of issuing NOC to the private individuals for the consideration of Rs. 100/- is exempted from GST. Printing Supply of Bus Tickets to BMTC, Bengaluru - HELD THAT:- In the instant case the applicant is involved in printing supply of bus tickets; content is provided by the BMTC (recipient); physical inputs including paper belong to the applicant and hence the impugned activity amounts to supply of service, in terms of para 4 of the circular supra. The impugned supply is that of services, classified under SAC 9989 and attracts 12% GST, in terms of Sl.No.27 of Notification No.11/2017-Central Tax (Rate) dated 28.06.2017.

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• 2020 (3) TMI 1087
  Filing of Form GST TRAN-1 - time limit for filing of the form - Petitioner has challenged the Rule 117 of the Central Goods and Services Tax Rules, 2017 as ultra-vires Sections 140(1), 140(2), 140(3) and 140(5) of the Central Goods and Services Act, 2017 to the extent that it prescribes a time limit for filing of TRAN-1 Form. Challenge to the impugned Rule on the ground of it being ultravires of the parent statute - HELD THAT:- The time limit in Rule 117(1) is traceable to the rule-making power conferred in Section 164(2). The credit envisaged under Section 140(1) being a concession, it can be regulated by placing a time limit. Therefore, the time limit under Rule 117(1) is not ultra-vires of the Act - In view of the finding that the rule-making power exists for Rule 117 and traceable to Section 164, laying the Rule before the Parliament strengthen the case of the Respondents for supporting its validity. Challenge on the ground of the Rule being unreasonable and violative of Article 14 of the Constitution on India - HELD THAT:- The GST Act deals with the generation and distribution of the revenue. The collected revenue is expended on various functions for which budgetary allocations are made and time limits are stipulated for the execution of various schemes. For fiscal planning, certainty regarding receipt and distribution of revenue is necessary. If relief is to be granted to the individual Petitioner overriding the time limit on equity, the perception of what is equitable will differ from authority to authority. This would lead to uncertainty. The operation of this complicated tax system will become unworkable. The time limit placed under the impugned rule being rooted in need to have certainty in fiscal management, we are of the opinion that equity jurisdiction ought not to be exercised - the time limit stipulated under Rule 117 is neither unreasonable or arbitrary nor violative of Article 14. This rule is in accordance with the purpose laid down in the Act. Meaning of the phrase technical difficulties under Rule 117(1A) and the role of the IT Redressal Cell and whether by creating categories discretion is being fettered - HELD THAT:- The categorization made by the Cell is not fettering the discretion but involving rules of evidence to determine whether a registered user encountered difficulties while submitting forms on the common portal. It is only if the registered user encountered technical difficulties on the common portal, that Rule 117(1A) comes into play - The input tax credit in the transitional provision is a concession to be utilised in a time-bound manner, and further extension is given if the GST Council finds that there was a technical difficulty at its end. If there is no technical difficulty on the common portal for the registered user, this additional concession is not extended. Whether to grant further concession as Rule 117(1A) will be determined from examination the system logs from the portal. Exercise of equity jurisdiction in some cases and not in other cases would cause an anomalous situation, particularly when a time limit has been placed in a taxing statute for achieving certainty and finality. Relief to the petitioner - HELD THAT:- The time limit stipulated under Rule 117 of the Rules is not ultra vires of the Act. This Rule is traceable to the power conferred under section 164(2) of the Act. The time limit stipulated in Rule 117 is in consonance with the transitional nature of the enactment, and it is neither arbitrary nor unreasonable. Availment of input tax credit under section 140(1) is a concession attached with conditions of its exercise within the time limit. The IT Grievance Redressal Cell is set up by the GST Council to examine the existence of technical difficulties on the common portal. Sufficient guidance is provided in the definition of technical difficulty in Rule 117(1A). Examining the system log to ascertain the existence of technical difficulties on the common portal for registered persons, is not arbitrary, nor does it lead to a fettering of discretion by the authorities - Those registered persons who could not submit the declaration by the due date because of technical difficulties on the common portal as can be evidenced from the system logs are given an extension on the recommendation of the Council. Where no such evidence is forthcoming, no recommendation is made. In the Petitioner s case, no such proof emerges and, therefore, no direction as sought for can be issued. Petition dismissed.

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• 2020 (3) TMI 1086
  Refusal of the system in uplodading the data to enable the petitioner to claim transitional credit of eligible duties in respect of stock held by the petitioner - Section 140 of Central Goods Service Tax Act, 2017 - HELD THAT:- The Nodal Officer, GST Division Range is directed to look into the aforesaid issue so that the petitioner can upload the correct figure and the revised GST-TRAN- 1 form so that he can get the benefit of the input tax credit. Petition disposed off.

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• 2020 (3) TMI 1085
  Detention of goods alongwith vehicle - reasonable opportunity of being heard provided to the petitioner or not - HELD THAT:- This Court would only venture to observe that in cases of this nature, elementary Cannons of natural justice and fairness would require that the party should be personally heard by the decision maker either in person or through authorised representative/counsel, if any, and thereafter a considered decision is taken thereon, instead of driving the affected party like the present petitioner having to approach this Court and then litigate the matter on account of violation of natural justice - It is trite and it is too elementary to require the citation of any judicial authority that where the decision taken by the decision maker would inflict adverse civil consequence on the affected party, then the elementary principles of reasonableness, fairness and natural justice would require that the affected party is heard by the decision maker before the latter renders decision thereon. The 2nd respondent Commissioner or the Head of the Department concerned may ensure that necessary instructions are given to the officials concerned in the Department so that unnecessary litigations of this nature could be easily avoided - petition disposed off.

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• Income Tax

• 2020 (3) TMI 1084
  Stay of demand - Recovery proceedings - HELD THAT:- It may be mentioned that petitioner has already paid Rs. 1,11,50,905.00 as part of the outstanding dues, ofcourse without prejudice to its rights and contentions. Without expressing any opinion on merit, we feel that it would be in the interest of justice if the first appellate authority hears the appeal filed by the petitioner and decides the same in accordance with law within a period of four months from the date of receipt of an authenticated copy of the order. Ordered accordingly.Till decision is rendered on the appeal of the petitioner by the first appellate authority within the period specified, there shall be stay of the demand notice issued pursuant to the assessment order dated 28th December, 2019.

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• 2020 (3) TMI 1083
  Submission of details of Deduction of Tax at Source on the amount deposited by the petitioner with the second respondent in Term Deposit - capital gain accounts - Form - 26AS, instead of Form No.16-A to the Income Tax Department, first respondent herein and issue a certificate to the petitioner under Section 203AA of the Income Tax Act, 1961 within stipulated time - HELD THAT:- 1st respondent, based on instruction, submitted that though it is true that the Bank has deducted tax from the petitioner s account and paid to the Income Tax Department, the Bank did not generate Form 26A and therefore, such payment has not reflected in the records maintained by the 1st respondent. However, as the Bank has given the Manual Form 16A to the petitioner, he can approach the 1st respondent by making appropriate application by enclosing Form 16A for the purpose of considering the claim of the petitioner. She further submitted that if the petitioner approaches the 1st respondent with the above required application and enclosures, the 1st respondent will consider the same and pass appropriate orders. In view of the above stated submissions made by the learned counsel for the 1st respondent, this Writ Petition is disposed of by directing the petitioner to approach the 1st respondent by making application with necessary enclosures. On receipt of such application, the 1st respondent shall pass orders within a period of four weeks thereafter.

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• 2020 (3) TMI 1082
  Deduction u/s 10A - Whether expenditure in foreign currency was not incurred for the purpose of export of software and therefore, should not be reduced from export turnover? - ITAT setting aside disallowance and held that the said amount has to be treated as part of export turnover - HELD THAT:- From perusal of the order passed by the Tribunal, we find that the Tribunal has followed the decision of this court in the case of CIT VS. M/S HEWLETT PACKARD GLOBAL SOFT LTD. [ 2017 (11) TMI 205 - KARNATAKA HIGH COURT] . Thus, the order passed by the Tribunal does not suffer from any infirmity. No substantial question of law.

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• 2020 (3) TMI 1081
  Condonation of delay in filing returns of the income tax for the assessment years - proof of genuine hardship which caused the delay in filing returns - HELD THAT:- Incidents in the petitioner s family is a great tragedy inasmuch as his daughter who was then only 2 years old, was diagnosed with a serious cancerous ailment and he had to run from hospitals to hospitals for treatment of his child and that it is only in view of the extreme mental strain and the circumstances under which the petitioner was forced to divert his energies solely for the purpose of treatment of his child, that the delay has occurred. True, that the petitioner could not concentrate on his business activities, which resulted in the delay in submissions of the returns, but the same occurred only due to these circumstances and that the department has no case that there is any element of culpable negligence or any malafides or there was any deliberate delay on the part of the petitioner in delaying the submission of his returns. Taking note of the overall facts of this case and more particularly, taking into account the tragic circumstances, under which the petitioner was forced to undergo in view of the serious cancer ailments, that had affected his young and infant daughter, this Court is of the considered view that the matter could be given a second look by the 1st respondent after considering all the matters afresh. Accordingly, It is ordered that the matter will stand remitted to the 1st respondent for consideration of all the matters afresh and after taking into account the additional materials that being produced by the petitioner without any further delay.

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• 2020 (3) TMI 1080
  Exemption u/s 11 - denial of exemption as assessee trust is for benefit of a Sindhi community - Tribunal held that for granting registration u/s 12AA only nature of its object and genuineness of the activities of the trust are to be considered, even when the very basis and very object of creation of the trust was hit by the prohibition provided under Section 13(1) (b) - HELD THAT:- Referring to clauses of the trust deed, it cannot be said the trust is only religious trust. Thus, finding arrived at by the CIT that the objects of the trust were only for the benefit of a Sindhi community, is not correct. CIT was therefore not justified in rejecting registration of the Trust holding that the activities were carried out only for religious purposes as it would be the task of the Assessing Officer to be undertaken at the time of assessment on the basis of material that may be brought on record. At the time of registration of the trust under section 12AA of the Act, CIT is required to consider only nature of its object and genuineness of the activities of the trust. We are of the considered opinion that the respondent- trust is charitable and religious trust which does not give benefit to any specific religious community only, and therefore, it cannot be held that Section 13(1)(b) of the Act could be attracted to the respondent- trust, and thereby, it would be entitled to get registration under Section 12A of the Act. - Decided in favour of the assessee

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• 2020 (3) TMI 1079
  TP Adjustment - Wrong inclusion of certain comparable companies - HELD THAT:- Referring to marketing and sales support services of the assessee, companies functionally dissimilar with that of assessee need to be deselected from final list. Non-granting of working capital adjustment and risk adjustment while computing Transfer pricing adjustment - A.R. submitted that the working capital adjustment and risk adjustments are given in various cases and accordingly pleaded that suitable direction may be issued to the AO/TPO - HELD THAT:- It is stated by the AO/TPO in the remand report that the required details were not furnished by the assessee. Hence we direct the assessee to furnish required details to the AO/TPO. Since this issue also requires examination at the end of the A.O./TPO, we restore this issue also to their file. After affording adequate opportunity of being heard, the AO/TPO may take appropriate decision in accordance with law.

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• 2020 (3) TMI 1078
  Difference in stock found during the course of survey - HELD THAT:- D.R has submitted that this claim made on behalf of the assessee that the amount in question added to his income for the year under consideration on account of the difference in stock as found during the course of survey was already offered by the assessee as his income for A.Y. 2014-15 requires verification and since neither the AO nor the CIT(Appeals) has verified the same, the matter may be sent back to the Assessing Officer for such verification.Thus find merit in this contention of the ld. D.R. Even the assessee has not raised any objection for sending the matter back to the Assessing Officer for such verification. Accordingly set aside the impugned order of the ld. CIT(Appeals) confirming the addition made by the Assessing Officer on this issue and restore the matter to the file of the Assessing Officer for deciding the same afresh after verifying the claim of the assessee that the amount in question on account of difference in stock as found during the course of survey was already offered as income for A.Y. 2014-15. If the claim of the assessee is found to be correct on such verification, the Assessing Officer shall delete the addition of the same amount made in the year under consideration as the same would tantamount to double addition. - Appeal of the assessee is treated as allowed for statistical purposes.

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• 2020 (3) TMI 1077
  Assessment u/s 153A - Unexplained investment u/s 69 - HELD THAT:- Neither the Ld. CIT, DR as well as the AO were able to controvert the above findings of the CIT(A). AO in his report dated 05-02-2020 furnished before us reiterated his findings made in the order impugned and claimed that all the companies identified in the cash and billing trail are paper/shell companies, which showed that they had no existence at all. As regards the alleged cash trails, we find that the AO himself had traced the source of the monies credited to the assessee s account. From the charts extracted of assessment order, we note that the AO himself was not only able to identify the names of the payer companies but was also able to identify and establish the bank accounts of the source as well as source of source from which payments were received by the assessee. Both the source as well as the source of source was within the banking system only and there was no cash deposit found. It is true that there were cash deposits at the end of the 5th or 6th layer of the transaction, but as rightly held by the Ld. CIT(A) there was no conclusive evidence to show that the ultimate source of the amount received by the assessee was the cash deposit made in the accounts of the proprietary concerns whose identity was also not established by the AO. Even with regard to the billing trails, it is noted that the AO waunable to bring to our attention, any factual material which corroborated his finding that bogus payments made by these listed companies had come back to the assessee in the form of accommodation entries or that any cash was returned to them. In support of such an allegation no tangible material or evidence such as copies of the Income Tax assessments of the payer companies were furnished. Instead we note that the AO simply made a sweeping remark that some of the entities enlisted in the billing trail were paper/shell companies. In our considered opinion such general statement making sweeping allegation was not sufficient to justify the humongous addition while framing the addition u/s 153A of the Act, which necessarily had to be based on some tangible incriminating material found in the course of search. We therefore do not see any reason to interfere with the findings of the Ld. CIT(A). Accordingly all the grounds raised by the Revenue stand dismissed. Assessment u/s 153A - absence of any valid search u/s 132 conducted against - We note that the AO in his report dated 05-02-2020 did not dispute the fact that name of the assessee did not feature in any of the panchamas drawn up upon conclusion of the search, but he furnished a copy of the warrant of authorization dated 02-03-2016 which proved that the assessee s name featured therein. In our considered view therefore, although the name of the assessee does not feature in the panchnama but in view of the fact that warrant of authorization executed by the Department contained its name, the proceedings u/s 153A were validly initiated against the assessee.

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• 2020 (3) TMI 1076
  Revision u/s 263 - unexplained cash deposited in the bank account of the assessee - HELD THAT:- Where the assessing officer has made enquiry and if the Pr. CIT is not satisfied with such enquiry he should make himself enquiry and bring clearly on record as the finding of the assessing officer being erroneous and prejudicial to the interest of revenue. This is not the case in the present case. AO has made necessary enquiry and issue was also scrutinized by the JCIT while passing order u/s 144A of the Act. In our considered view when two officers at different stage examined the issue before setting aside these finding Ld. Pr. CIT ought to have made some enquiry. But Ld. Pr. CIT in the present case set aside the issue to the Assessing Officer which in our considered view is contrary to ratio laid by the judgment of ITO Vs D.G. Housing Projects [ 2012 (3) TMI 227 - DELHI HIGH COURT] is not mandate of law. Hence the direction of Ld. Pr. CIT cannot be affirmed. If it is presumed that the hundis as recovered during the survey proceedings were not genuine in that situation the amount that was reflected on such hundis cannot to be taken as income of the assessee. Therefore the incidence of tax would be on the unexplained cash deposited in the bank account of the assessee. In this case the amount surrendered by the assessee is higher than what it was found to be unexplained cash deposits in its bank account. Therefore there is no infirmity in the order giving set off of the maturity amount. It is however further clarified that we have not expressed our view regarding genuineness of hospital receipts being invested in hundis as surrendered by one of the partner of the assessee firm. Our finding is purely based on the material placed before us. Ld. PCIT has not brought any material suggesting that the amounts so surrendered by the partner of the firm is related to proceed of crime. AO failed to make enquiry in respect of year wise investment - No material is placed by the assessee regarding this issue. In our considered view when there is claim of investment being made out of unrecorded hospital receipts he ought to have made investigation regarding year wise investment. This observation of the Ld. Pr.CIT is sustained. CIT allowing higher depreciation claim of the assessee - We have perused rules and case laws as relied on by the assessee. We do not find any infirmity into the action of the assessing officer for granting depreciation @ 40%. Therefore, this ground of the Pr. CIT is also not sustainable for affirming the action u/s 263 of the Act. AO has allowed expenditure of salary without verifying whether TDS as per provisions of the Income Tax was made or not - It is stated that the details of TDS was duly filed in support of this contention. The assessee drew our attention to paper book pages 115-116 of the paper book and also pages no. 750-764, therefore, it cannot be inferred that the assessing officer was simply allowed as not verified the tax deducted at source. This ground of Pr. CIT is also not sustainable on the facts and material on records. Appeal of the assessee is partly allowed.

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• 2020 (3) TMI 1075
  Income accrued in India - management fee as taxable as the Fee for Technical Services (FTS) under article 13 of Double Taxation Avoidance Agreement between India-France read with protocol to the DTAA - assessee in the instant case, being a French entity, is covered by the Indo-French DTAA and in view of MFN clause, the restricted provisions of India-UK DTAA have been invoked by the assessee - HELD THAT:- In view of the arguments of the Learned DR, it is evident that the assessee has not provided the entire correspondence regarding the services rendered by the assessee to the Indian entity and in absence of which lower authorities has decided all the three issues on the basis of agreement only i.e.firstly, whether the services are purely managerial or falling under the technical/consultancy services; secondly, services are ancillary and subsidiary to the application or enjoyment of the right, property, information and thirdly, services make available technical knowledge, experience, skill, know-how etc. No other documents have been produced by the assessee in relation to the actual services rendered. This submission of learned DR has not been disputed by the learned counsel of the assessee. In our opinion, decision arrived by the lower authorities is not based on proper appreciation of the facts required for examining of the treaty provisions applicable in the case of the assessee, and therefore we feel it appropriate to restore this issue back to the file of the AO for deciding afresh, with the direction to the assessee to furnish all the necessary documentary evidence in support of the services rendered by the assessee to the Indian entity including the correspondence in respect of the services provided so as to enable the Assessing Officer to decide the issue in dispute in accordance with law. It is needless to mention that the assessee shall be afforded adequate opportunity of being heard. The ground No. 2 of both of the appeals is accordingly allowed for statistical purposes. Corporate guarantee fee held as fee for technical services under article 13 of the India France DTAA and section 9(1)(vii) - AO held that the said corporate guarantee fee received by the assessee from the JCD India was actually in lieu of services rendered though it has been paid in the guise of corporate guarantee fee and therefore its actual nature is FTS - HELD THAT:- AO held that corporate guarantee fee was in lieu of the services rendered for assisting the AE in providing loan from foreign banks, but no detail of kinds of services and evidence in this regard have been brought on record by the Assessing Officer and therefore this contention of the Assessing Officer that the guarantee fee was received in lieu of the services rendered, is rejected. In our opinion, services of corporate guarantee by the assessee not being in the nature of services of managerial, technical or consultancy, the corporate guarantee fee received by the assessee cannot be termed as fee for technical services either under the section 9(1)(vii) or under article of the DTAA. Characterizing reimbursement of Social Security Contribution to the assessee as fee for technical services under article 13 of India France DTAA - HELD THAT:- We note that the learned DRP in the assessment year 2012-13 has applied the ratio of the decision of the Hon ble Delhi High Court in the case of Centrica India offshore private limited [ 2014 (5) TMI 154 - DELHI HIGH COURT] . This issue of application of the decision of the Hon ble Delhi High Court came up before the learned DRP in assessment year 2012-13 for the first time. But we find that agreements with regard to secondment of the employees between the assessee and the JCD India, agreement between the expatriate employee and the assessee and employment agreement between the JCD India and expatriate, have not been examined either by the Assessing Officer or by the learned DRP and therefore in the interest of the justice, we feel it appropriate to restore this issue to the file of the Assessing Officer for verifying various agreements mentioned above and then decide the issuein-dispute in accordance with law after providing an adequate and sufficient opportunity of being heard to the assessee. The ground No. 4 of both the appeals, is accordingly allowed for statistical purposes. Education cess and secondary and higher education cess is not applicable while taxing the income on gross basis under the India France DTAA - HELD THAT:- In view of the provisions of the India France treaty on the issue being similarly worded with the provisions of the India UK DTAA, following the finding of the Tribunal in the case of BOC group Ltd. [ 2016 (1) TMI 414 - ITAT KOLKATA] we direct the Assessing Officer to delete the education cess and secondary and higher education cess levied on the Income-tax on the gross basis under the India France DTAA. The ground No. 5 in both assessment year is thus allowed. Credit of tax deducted at source by the JCD India while calculating the tax liability of the assessee - HELD THAT:- This is issue of verification of the credit of tax deducted at source by the Assessing Officer. Accordingly, we restore this issue to the file of the Assessing Officer with the direction to the assessee to produce all the necessary documentary evidence in support of its claim of credit of tax deducted at source for verification by the Assessing Officer along with the tax credit available in the database of the Income-tax department and then allow the credit in accordance with law. The ground No. six of the appeal in both the years is allowed for statistical purposes.

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• 2020 (3) TMI 1074
  Revision u/s 263 - unaccounted income earned from Vyapam scam - A.O has not examined the real source of the surrendered income allegedly represented by the assessee having earned unaccounted professional receipts which were invested in short term advances in the form of Hundis which matured during the year - HELD THAT:- In the instant case, the Learned Assessing officer has raised number of queries regarding the issues now sought to be revised by the CIT which were replied by the assessee through detailed submissions supported by relevant documents and other evidence coupled with legal propositions and decisions. It is also pertinent to note that the AO has passed a detailed order / note sheet entry while dealing and adjudicating the issues. There must be some prima facie material on the record to show that the order is unsustainable in law and the tax which was legally eligible has not been imposed. The present case is neither a case of no enquiry nor is a case where the AO, failed to make necessary enquiry and the assessment order was passed after making detailed inquiry and application of mind. Hon ble High Court of Delhi in the case of CIT vs. DLF Ltd. [ 2012 (9) TMI 626 - DELHI HIGH COURT] laid down the ratio that it is not mere prejudice to the Revenue or a mere erroneous view which can be revised u/s 263 of the Act but also there should be the element of unsustainability in the order of the assessing officer, which empowers the commissioner to issue notice and to proceed to pass an appropriate order. In ARVIND JEWELLERS. [ 2002 (7) TMI 50 - GUJARAT HIGH COURT] when the assessee had produced relevant material and offered explanation in pursuance of notices u/s 143(2) and 142(1) of the Act and after considering the material and explanations, the AO had come to a definite conclusion. Their Lordship further held that in this situation, since the material was there on record and the said material was considered by the AO and a particular view was taken, the mere fact that a different view can be taken should not be the basis for a valid action u/s 263 of the Act and therefore, dismissing the appeal of the revenue the Hon ble High Court held that the order u/s 263 of the Act was not justified and valid. In the light of above judgments and applying the facts of the instant case and perusal of the assessment order, paper book and the note-sheet of the assessment proceedings show that the AO has raised several queries by way of note sheet entries and notices. In the instant case wherein we have examined each and every issue raised by Ld. PCIT in the light of the reply filed by the assessee, information called by the Ld. A.O and the finding in the assessment order, we are of the considered view that under the given facts and in law the view taken by the AO in the order passed u.s143(3) of the Act dated 24.3.2015 seems to be reasonable and plausible which cannot be held as legally unsustainable and not in accordance with law. In our view it is passed with complete application of mind and thus it can neither be held as erroneous nor prejudicial to the interest of revenue. Therefore Ld. PCIT under the given facts and circumstances of the case erred in assuming jurisdiction u/s.263 of the Act since the Ld. A.O has made sufficient enquiry by way of questionnaire to which detailed reply have been filed from time to time and the Ld. A.O in the interest of revenue have also made addition of Rs. 7,74,12,941/- to the income disclosed by the assessee. A.O has applied his mind and therefore the assessment order is not vitiated on the ground that the order is erroneous and prejudicial to the interest of revenue because no enquiry were undertaken. Accordingly we find merit in the contention of the learned senior counsel for the assessee and are of the considered view that Ld. PCIT grossly erred in invoking the provisions of Section 263 of the Act on the basis of issues raised in the show cause notice. Thus the order of Ld. PCIT of setting aside the assessment order u/s 143(3) of the Act under consideration are beyond the scope of Section 263 of the Act and hence not valid and we accordingly quash the relevant order passed by Ld. PCIT u/s 263 of the Act dated 30.3.2017 and restore the assessment order u/s 143(3) dated 24.3.2015. - Decided in favour of assessee Unexplained credit u/s 68 - income surrendered during the year- HELD THAT:- Assessee is entitled for the telescoping benefit of the income surrendered during the year to the cash deposited in the bank account and thus find merit in the contention of the Ld. Senior Counsel for the assessee that the source of cash deposits is the maturity proceeds of hundis during the year which were made out of the unaccounted surrendered income offered to tax in the return of income for Assessment Year 2012-13. We therefore set aside the finding of Ld. CIT(A) and find no justification in the action of the Ld. A.O making addition u/s 68 of the Act for unexplained cash credit. We accordingly delete the addition and allow the sole ground No.2 raised by the assessee.

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• 2020 (3) TMI 1073
  Disallowance u/s 14A r.w.r 8D - CIT-A deleted the addition - AR submitted that the assessee has not received any exempt income during the year under consideration - HELD THAT:- CIT (A) has given a categorical finding that there is no exempt income received by the assessee during the year under consideration. This fact was not disputed by the Revenue. Therefore, the CIT(A) has rightly deleted this disallowance in view of the Cheminvestment Ltd. [ 2015 (9) TMI 238 - DELHI HIGH COURT] . Thus, Ground No. 1 of the Revenue s appeal is dismissed. Addition u/s 69C - Bogus purchases - purchases were not genuine and all the notices u/s 133(6) issued to parties were returned undelivered - AR submitted that all the export receipts are credited in the bank accounts where from the withdrawals were made for the disbursement of purchase and other expenses - CIT-A deleted the addition - HELD THAT:- ale of the assessee was never doubted by the Assessing Officer. As regards the purchase from the records as mentioned in the Assessment Order itself, was found that quantitative tally of purchases of meat and exports and the same was reflected in the credit column of the bank account of the assessee. It is not a case of the Assessing Officer that payments against purchases have been made by the assessee out of books of accounts. The contention of the Ld. DR are also not tenable as the assessee filed the details of the parties from whom purchases were made and the same is mentioned in the Assessment Order itself. The CIT(A) has also given categorical finding that only 20% of the purchases where disallowed on account of cash payment which was duly reflected in the books of account of the assessee - there is no need to interfere with the findings of the CIT(A). The appeal of the Revenue is dismissed.

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• 2020 (3) TMI 1072
  Revision u/s 263 - order of the AO (DCIT) passed U/s. 143(3) r.w.s 147 is erroneous and prejudicial to the interests of the Revenue - HELD THAT:- On perusing the order of the Ld. AO we do not find any mention regarding the issues discussed by the Ld. CIT in his order U/s. 263. Further, since the issues raised by the Ld. CIT is of grave consequence, it is necessary to examine those issues in detail. Accordingly, the ld. CIT has only directed the AO to examine those issues in detail and to pass appropriate order in accordance with law and merit which is appropriate. In this situation, we do not find much strength in the arguments advanced by the AR and we further find merit in the order of the Ld. CIT for invoking his powers u/s. 263 and directing the AO to examine the issues pointed out by him in detail and thereafter to pass appropriate order in accordance with law and merit. For the afore said reasons, we do not find it necessary to interfere with the order of the Ld. CIT. Hence, the appeal of the assessee is devoid of merits. Order passed by the Ld. CWT U/s. 25 of the Wealth Tax Act for setting aside the order of the Ld. WTO and directing him to frame fresh assessment order after verifying the issues pointed out in the order passed U/s. 25 of the Act - HELD THAT:- We find that the order of the Ld. CWT passed U/s. 25 of the Act dated 26/3/2012 does not survive because the revised wealth tax assessment order passed by the ld. WTO U/s. 16(3) r.w.s 17 of the Act, dated 23/12/2009 was quashed by the Tribunal for the AY 2002-03 in the assessee s case vide order dated 08/1/2014. Therefore, we hereby quash the order passed by the Ld. CWT U/s. 25 of the Act dated 26/3/2012 for the relevant AY 2002-03.

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• 2020 (3) TMI 1071
  Rectification u/s 254 - addition u/s. 153A - HELD THAT:- Assessee has failed to rebut the presumptions u/s. 132(4) and 132(4A) of the Act and the clear incriminating material found. CIT(A) has accepted various reasoning of the assessee which put onus on the A.O. to prove that certain items which were imaginary and the explanation of the assessee which are clearly an afterthought, were actually sold and the sale proceed was received. Once the assessee has been found to have failed to disprove the presumption u/s. 132(4) and 132(4A) and the incriminating material found, the various other submissions of the assessee are imaginary and merely an afterthought. CIT(A) is referring to case laws which are not at all in the context of the addition u/s. 153A. These are old case laws prior to the insertion of section 153A. CIT(A) is even mentioning that even if the addition is based upon the books of accounts of the assessee, the same should not be done as the A.O. has not been able to prove that what is recorded in the books as per assessee s afterthought has actually been realized by the assessee. This, in our considered opinion, it is totally unsustainable in law. Accordingly, in the background of the afore-said discussion and precedent, we set aside the order of the ld. CIT(A) and restore that of the A.O. Addition on the basis of material found during search - Addition u/s 69 - Documents incriminating in nature were found in the search. From the materials referred by the assessing officer here-in-above it was clear that a sum of Rs. 1.81 crores has been paid which has not been accounted for. CIT-A has deleted the addition by making conjectures that assessee might have made further negotiations with the payees and settled the matter for an amount less than Rs. 1.81 crores - onus was upon the assessee to prove this in view of the materials found during search and the presumptions arising out of provisions of section 132(4A). Instead the learned CIT-A has put the onus on assessing officer to prove that the impugned sum was paid by other means by the assessee. In our considered opinion, the action of the learned CIT-A is clearly contrary to the mandate of provisions of section 132(4A) and the incriminating documents found. Hence, we set aside the order of learned CIT-A and restore that of the assessing officer. A reading of the above makes it clear that in this miscellaneous application assessee is seeking a review of the order of the ITAT in the garb of rectification of mistake apparent from record under section 254(2) of the income tax act. The assessee in its miscellaneous application is agitating the same points which have already been dealt with in the ITAT order.

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• 2020 (3) TMI 1070
  TDS u/s 195 - failure on the part of the assessee to deduct tax on payments made to foreign entities in connection with Bandwidth charges, Legal Professional charges and Direct cost and Networking Communication charges - AO levied tax u/s.201(1) and 201(1A) - HELD THAT:- As decided in own case [ 2018 (12) TMI 1805 - ITAT CHENNAI] the issue on which the Revenue has raised the levy u/s.201(1) and interest u/s.201(1A) has already been held to be not liable for deduction of TDS under the relevant provisions of the Income Tax Act, 1961. This being so, as there is no liability of the assessee to deduct TDS on the said payments, there can be liability on the assessee for the levy u/s.201(1) and consequently 201(1A) of the Income Tax Act, 1961. In the circumstances, we find no error in the order of the learned Commissioner of Income Tax, 1961 which calls for any interference. Set off of brought forward unabsorbed depreciation - HELD THAT:- As decided in own case . [ 2018 (12) TMI 1805 - ITAT CHENNAI] unabsorbed depreciation that was carried forward up to assessment year 2001-02 would be carried forward to assessment year 2002-03 and become part thereof and it would be governed by provisions of section 32(2) as amended by Finance Act, 2001 and would be available for carry forward and set off against profits and gains of subsequent years without any limit whatsoever. Addition u/s 14A - Since, the assessee has not earned any exempt income, in accordance with the Jurisdictional High Court decisions, supra, no disallowance can be made u/s. 14A

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• 2020 (3) TMI 1069
  Expenditure incurred on Club membership and subscription fees - Claim of business expenses by the Partner against the interest income from partnership firm - declaring loss from business - HELD THAT:- In this case, the assessee is neither carrying out any business activity, nor incurred said expenditure wholly and exclusively for the benefit of her business. Therefore, we are of the considered view that there is no merit in the contention of the assessee and also, the support taken from various case laws. Hence, we are of the considered view that there is no error in the findings of the Ld.CIT(A) in confirming disallowances made by the Ld. AO towards subscription and membership fees paid to clubs, while computing income under the head profits and gains of business or profession. Accordingly, we are inclined to uphold the findings of the Ld.CIT(A) and dismiss, appeal filed by the assessee.

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• 2020 (3) TMI 1068
  Transfer of case - Validity of the assessment orders passed by the Additional CIT u/s 143(1) - Lack of inherent jurisdiction - whether there was any order / notification issued u/s 127/ 120(4)(b) - HELD THAT:- We note that as per section 2(7A) AO means inter alia an Addl. CIT who is directed u/s.120(4)(b) of the Act to exercise or perform all or any of the powers and functions conferred on, or assigned to, an AO under the Act. As per Section 120(4)(b) of the Act, the CBDT has to first empower the Commissioner to issue orders and then the said authority has to assign or confer the authority of the AO on the Addl.CIT. In the present case none of such notifications/ orders as required by section 120(4)(b) of the Act have been issued. Further, as per section 127 of the Act when there is a transfer of jurisdiction, then the condition therein has to be fulfilled. In the present case, originally the jurisdiction to make the assessment over the company was with the Asstt.CIT. The assessment order has been passed by the Addl.CIT without any transfer of jurisdiction in his favour. Further, on a specific query of the Bench to the Ld.DR in the course of the hearing on as to whether there was any order/ notification issued under section 127/ 120(4)(b) of the Act, the Ld.DR conceded that there were no such orders issued. In view of the thereof, the ld Counsel of the assessee company argued that as the Addl.CIT did not possess the relevant jurisdiction to act as on AO, the assessment order passed by him under section 143(3) of the Act dated 29.12.2008 is without jurisdiction, illegal, bad in law and hence ought to be quashed. Respectfully, following assessee s own case [ 2019 (4) TMI 510 - ITAT MUMBAI] , [ 2017 (12) TMI 297 - ITAT MUMBAI] and [ 2016 (10) TMI 1228 - ITAT MUMBAI] we allow the additional ground raised by the assessee challenging the validity of the assessment framed by the Addl.CIT and accordingly, quash the assessment framed under section 143(3) of the Act. The cross appeal of the revenue is rendered infructuous as we have already quashed the assessment order passed by the Addl. CIT in the above para. Accordingly, the same is dismissed. Since, we have quashed the assessment order on jurisdictional issue, the other grounds on jurisdictional issue as well as on merits have become academic and hence, not adjudicated.

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• Customs

• 2020 (3) TMI 1067
  Facility of paying terminal handing charges and other charges of the port terminal directly to the terminal operators instead of shifting through the Shipping Lines - Allegation that impugned SCN issued without taking into consideration the pre-negotiated contracts already entered between the first petitioner s members and clients and without considering that it has no locus and/or authority for payment of the charges - HELD THAT:- On a perusal of the provisions of 141(2) of the Customs Act, no doubt certain procedure is being prescribed with regard to storage and arrival of the consignment but the argument that the notice having been issued without jurisdiction is not able to cut eyes on plain and simple reading of the provisions of Section 143AA inserted with effect from 29th of March 2018. On a perusal of the provision of section 141(2) of the Customs Act, the board of the custom is empowered to take measures for the facilitation of trade by prescribing accepted procedures, documentation for a class of importers or exporters or for categories of goods prohibiting accepted documentary clause on or category of goods basis of the modes of transport of goods, in order to maintain transparency in the import and export documentation or clearance or release of goods or reduction of transaction cost and balance between customs control and facilitation of legitimate trade. The petitioners do not have any cause of action in laying challenge to Ext.P1. There was already a written contract between them and the client and obviously the apprehension expressed of deviation is at far-fetched. It will not curtail or take away their right to recover the handing charges as per the terms and conditions of the contract - there are no justification warranting any interference under Article 226 of the Constitution of India, to bring the case under the realm of judicial review. Petition dismissed.

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• 2020 (3) TMI 1066
  Denial of MEIS benefit - denial of benefit on the ground that the writ petitioners have omitted to check the Box stating Yes , indicating their intention to avail reward under the Scheme, in the specific Box provided in the software intended for uploading details to the web portal of the Central Government - HELD THAT:- Even if there exists no claim for the benefit under the MEIS, naturally there will be physical verification with respect to the goods consigned by the exporter. Therefore the details of the shipping as well as the necessary verification preceding the export were already done at that time would clearly indicate the identity of the goods exported. If the identity of the goods exported would reveal that the goods exported are those goods with respect to which the benefit under MEIS is allowable, there is no necessity for further physical verification for deciding the question of allowing the claim. Learned counsel further pointed out that, by virtue of a Circular issued by the Director General of Foreign Trade, instruction was given to allow such claims in cases where the exporters had omitted to tick Yes in the portal, only for a limited period of six months from the date of introduction of the Scheme. We do not find any logic in putting such a limitation. As already found by the learned Single Judge, the intention was explicit from other details uploaded in the portal and also from the documents relating to the shipping. Therefore, the omission seems to have been quite inadvertent - There is no justification in denying the claim, based on such an inadvertent omission. In the matter of condoning such an omission, there cannot be a discrimination between exporters who made the claim within six months and those who have raised the claim after six months of introduction of the Scheme. Petition allowed.

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• 2020 (3) TMI 1065
  Maintainability of appeal - appeal was dismissed on 22nd August 2017 on the ground that they had failed to re-export the re-imported goods in accordance with the notification no. 158/95-CUS dated 14th November 1995 - HELD THAT:- According to the tribunal, the preventive officer had certified compliance when it ought to have been done by the Deputy Commissioner/Assistant Commissioner. Therefore, this alleged compliance with the condition was suspect before the tribunal. This is indicative of foul play - This Court is not empowered to reappraise these facts in this jurisdiction. There is no perversity in such finding. It is a plausible one. Appeal dismissed.

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• 2020 (3) TMI 1064
  Territorial Jurisdiction - transfer of appeal from the South Zonal Bench of Appellate Tribunal at Karnataka to the West Zonal Bench of Appellate Tribunal at Mumbai - HELD THAT:- As far as the relief of the petitioner for transfer of the appeal from CESTAT at Bangaluru to Mumbai is concerned, the same cannot be accepted by this Court as this court do not have any jurisdiction to pass such order. At this stage, the learned counsel submits that he would not press this prayer but would make an appropriate application to the Appellate Tribunal purportedly under sub-section 6 of Section 129(C) of the Customs Act, 1962. Directions to not to hear the appeal by the Technical member whose appointment was challenged by the Advocate of the petitioner in the honourable Supreme Court - HELD THAT:- Not only the law of equity but the interest of justice would warrant that any litigant would expect the hearing of the matter in the most unbiased and impartial manner. It is a matter of record that touring member (technical member of Bengalure) was the fifth respondent in the writ petition in the Supreme Court which has been now disposed of pending framing of the Rules, the outcome of the rule is not disclosed to this Court. But the fact of the matter is, the apprehension expressed cannot be said to be far-fetched for the reason, the presiding judicial member would not have any objection in case, the quorum for hearing the appeal is offered a different technical member than the one assigned as a touring member, particularly when the counsel representing the customs has expressed no objection. The writ petition is disposed of with a direction that the appeal of the petitioner pending before the CESTAT at Bangaluru shall be heard by judicial member and a different touring member than the one assigned for the Bangaluru also other than C.I.Mahar, Sanjeev Sreevastava, Sri.P.Venkita Suba Rao respondents in the writ petition before Supreme Court.

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• 2020 (3) TMI 1063
  Permission to petitioner or persons claiming under it to destuff the cargo from the containers - refrain and desist from demanding, collecting or in any way recovering or appropriating container detention charges and ground rent or any other charges - HELD THAT:- It is yet to be decided whether the definition of the importer has to be strictly interpreted in the manner as attempted to be put across at this stage when the matter has been referred to a larger bench. This court cannot change the terms and conditions of the contract and supplement the same as has been attempted to be done. Petition dismissed.

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• 2020 (3) TMI 1062
  Revocation of CHA License - forfeiture of security deposit - denial of the procedural right of the licensee in enquiry proceedings - regulation 17(4) of the Customs Brokers Licensing Regulation, 2018 - HELD THAT:- The manner in which the enquiry report has discarded the request of cross-examination received from the notice is not in conformity with regulation 17 of Customs Brokers Licensing Regulations, 2018. It was incorrect on his part to have come to the conclusion that the statements recorded therein, which is perceptible as the foundation of the show-cause notice, did not merit being subjected to the test of cross-examination. Considering the nature of defence offered in reply to the show-cause notice, the inference of substitution should have been permitted for ascertainment in the enquiry proceedings. This breach of responsibility by the disciplinary authority who was obliged to ensure compliance with the Regulations appears to have been further compounded by failure to dispose off the representation that this contravention of the principles of natural justice and the prescriptions in the statute renders the final decision to be unacceptable and inconsistent with law - matter remanded back to the original authority to order fresh enquiry proceedings under regulation 17 of Customs Brokers Licence Regulations, 2018. Appeal allowed by way of remand.

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• Corporate Laws

• 2020 (3) TMI 1060
  Deactivation of DINs of petitioner - It is submitted by learned counsel for the petitioners that although only one of the companies was alleged to have committed default, the DIN of the petitioners was deactivated in respect of the other companies, in which they were directors, as well, which was de hors the law - HELD THAT:- The disqualification of the DIN of the petitioners could not operate in respect of other companies than the defaulting company. In the event the DIN of a director is to be deactivated and not merely the name of the company struck out from the RoC, the said person has to be given notice individually and heard and given an opportunity to establish that he was not liable for the alleged default committed by the company. This court is of an opinion that an opportunity of hearing had to be given to the petitioners prior to the deactivation of their DINs, even in respect of the defaulting company, which has not been given in the present case. Further, the RoC cannot deactivate the DIN only on the ground that a director has incurred disqualification under Section 164(2)(a) or his office has become vacant under Section 167(1)(a). Since such DIN is allocated under Section 154 of the 2013 Act, and there is no provision in the Act for the deactivation of the DIN of a director only on the ground of such disqualification under Section 164(2)(a) or Section 167(1)(a), the action of the RoC in the present case, in deactivating the DIN of the petitioners on the ground of such violation of Section 164(2)(a) of a particular company cannot confer a right on the RoC to deactivate such DIN. Petition allowed.

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• 2020 (3) TMI 1059
  Oppression and mismanagement - illegal transfer of shares - HELD THAT:- This is a petition filed under section 111 of the Companies Act, 1956. Originally company petition was filed before the hon ble Company Law Board, Chennai bearing C. P. No. 4/111/CB/2014. On abolition of the Company Law Board and after establishment of National Company Law Tribunal, this case was transferred from the Company Law Board, Chennai and numbered as T. P. No. 149/HDB/2016. The petitioners claiming to be the share-holders are challenging invocation of pledge of equity shares 1,80,00,000. The petitioners are contending that transfer of shares in favour of respondent No. 2/ICICI Bank Ltd., is illegal. On the other hand it is the case of respondent No. 2-ICICI Bank Ltd., that the shares were pledged against the loan advanced. It is not necessary to go into the merits of the case due to developments that took place after filing of this petition. The dispute raised is in respect of the shares in respondent No. 1-company. It is undisputed fact that corporate insolvency resolution process (CIRP) was started against respondent No. 1-company in a petition filed under section 7 of the I and B Code by the Canara Bank bearing C. P. (IB) No. 41/07/HDB/17. The petition was admitted on July 5, 2017 - The petitioners have no locus standi to continue the proceedings. The petitioners have no subsisting interest in view of the fact that the resolution plan is approved for respondent No. 1-company. There is no need to go into the merits of the case rather it can be disposed of on the ground that the relief sought for by the petitioners becomes infructuous - Petition dismissed.

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• Insolvency & Bankruptcy

• 2020 (3) TMI 1061
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - Existence of debt and dispute or not - HELD THAT:- The Respondent company has failed to repay the outstanding amount of Rs. 39,84,788/- arising in usual and ordinary course of business and has become commercially insolvent - it is clear that the Corporate Debtor has defaulted in making payment in terms of the agreement to be paid to the Petitioner/Operational Creditor. Date of Default is on 01.04.2016. Application admitted - moratorium declared.

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• 2020 (3) TMI 1058
  Directions to liquidator to restrain from invoking or encashing the bank guarantee - section 60(5) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The burden is on the applicant to establish fraud in invoking bank guarantee. Admittedly, the bank guarantee is being invoked which is in terms of bank guarantee. It is not the case of applicant that any fraud was played in obtaining bank guarantee. Similarly, there is also no material to come to a conclusion that any fraud was played on the applicant in invoking the bank guarantee. It is also not the case of the applicant that any fraud was involved in invoking bank guarantee. It is true any disputed question of fact cannot be decided in a summary way. It is the case of applicant that it has not committed any breach of the performance of the obligations covered by the contract. Thus, it is clear, no material before the Adjudicating Authority that invocation of bank guarantee by corporate debtor in the present case is a fraudulent action and that the applicant will sustain irreparable injury. The only grievance of the applicant that it has completed the contract work assigned to it. The question whether applicant failed to perform its part of the contract or not, is a question to be determined by way of evidence. Application dismissed.

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• 2020 (3) TMI 1057
  Liquidation of Corporate Debtor - section 60(5) of the Insolvency and Bankruptcy Code, 2016 read with rule 11 of the National Company Law Tribunal Rules, 2016 - can this Adjudicating Authority ratify the Act of the liquidator subsequently, when the Act has specifically said that prior approval is must. And if so at what stage the de facto approval can be sanctioned and the effect of the same on the already filed suit/application? HELD THAT:- What ought to be done, if the parties failed to do. It cannot be ratified by the subsequent Act. However, the petitioner counsels vehemently argued that sanction of approval is only a formal Act. Hence, in the interest of justice and the overall view of the enactment for maximisation of the value of the assets of the corporate debtor. An approval will only amount to regularisation of appeal already filed and pending. It is only a formality to regularise the application which was filed before the District Court - The permission to go on appeal against the company under liquidation was obtained by the respondent herein and this Adjudicating Authority by order dated April 8, 2019 has given approval to the respondent to file appeal against the corporate debtor against the award passed by the hon ble sole arbitrator. Thus, in the interest of justice, keeping in mind the spirit of the IBC, focus of the company in liquidation is to maximisation of the asset - the application is allowed.

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• 2020 (3) TMI 1056
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt or not - pre-existing dispute or not - HELD THAT:- The applicant granted several facilities including cash credit facility to the corporate debtor and the corporate debtor fully availed those facilities. Those facilities carry interest applicable from time to time as per the terms and conditions mentioned in the sanction letters. Therefore, the amount due to the financial creditor from the corporate debtor is a financial debt. In the instant application, from the material placed on record by the applicant, this Authority is satisfied that the corporate debtor committed default in paying the financial debt to the applicant. As can be seen from the written communication of the proposed insolvency resolution process, no disciplinary proceedings are pending against him - In the instant case, the documents produced by the financial creditor clearly establish the debt . Section 13(2) notice issued by the financial creditor clearly indicates that entire debt was recalled. There is a default on the part of the corporate debtor in payment of the financial debt . Thus, there is existence of default and that the application under section 7(2) of the Code is also complete in all respect - the petitioner/financial creditor having fulfilled all the requirements of section 7 of the Code, the instant petition deserves to be admitted - petition admitted - moratorium declared.

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• 2020 (3) TMI 1055
  Approval of Resolution Plan - insolvency resolution of the corporate debtor as a going concern - section 30(6) read with section 31 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- On perusal of the records, it is found that the resolution plan conforms to the criteria as provided under clauses (a) to (f) in section 30(2) of the Code and the CoC approved the resolution plan by 92.44 per cent. majority of voting share. The resolution plan also conforms to such other requirements as may be specified by the Board - On perusal of the resolution plan, it is found that it meets the requirement of section 31 read with section 30(2) of the Code. Therefore, the present application I. A. No. 664 of 2019 is allowed subject to certain observations. Thus, approval of the resolution plan does not mean automatic waiver or abatement of legal proceedings, if any, which are pending by or against the company/corporate debtor as those are the subject-matter of the concerned competent authorities having their proper/own jurisdiction to pass any appropriate order as the case may be. The resolution applicant(s) on approval of the plan may approach those competent authorities/courts/legal forums/offices-Government or Semi-Government/State or Central Government, for appropriate relief(s) sought for in Clause No. (e) of Chapter IV of the resolution plan - Thus, not allowing the clause No. (e) of Chapter IV of the resolution plan, is not going to make any hindrance for proper implementation of the resolution plan as those are the subject-matter of the concerned/appropriate competent authorities. The resolution applicant(s) has/ have liberty to approach competent authorities for any concession, relief or dispensation as the case may be. The Adjudicating Authority, are of the considered opinion and also being satisfied that the resolution plan along with final addendum dated September 11, 2019 as approved by the committee of creditors (CoC) meets the requirements as referred to under section 30(2) of the Code - Application allowed.

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• 2020 (3) TMI 1054
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its debt - existence of debt and dispute or not - HELD THAT:- It is true that the proceedings under the Code are not in the nature of recovery. In the present application the financial creditor is seeking initiation of corporate insolvency resolution process by making prayer that all the financial creditors, operational creditors and other stakeholders may raise their claims and if corporate financial restructuring is possible then within the stipulated period it may be explored failing which the due process of law is to take its course. Therefore, by initiation of corporate insolvency resolution process the financial creditor is only highlighting the default committed by the corporate debtor with respect to its inability to pay. The same is required to be remedied. Therefore, it cannot be concluded that the filing of the present application would amount to recovery of the debts by the financial creditor. The applicant-financial creditor had disbursed the money to the corporate debtor as consideration for purchase of a residential unit. Though a considerable long period has lapsed and the said possession of unit is not handed over, it is accordingly held that corporate debtor has committed default. The outstanding financial debt exceeds the statutory limit of rupees one lakh, thus, the application warrant admission as it is complete in all respects. Accordingly, in terms of section 7(5)(a) of the Code, the present application is admitted. Application admitted - moratorium declared.

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• Central Excise

• 2020 (3) TMI 1053
  CENVAT Credit - goods which were finally cleared were exempted - benefit of Rule 6(3) of the Cenvat Credit Rules - Whether the benefit of rule 6(3) of the Cenvat Credit Rules is available to the assessee, irrespective of his conduct and malafide intention to avail cenvat credit on the inputs used in manufacturing of exempted goods? HELD THAT:- There is no dispute raised on the fact that till 20.8.2012, the nature of pipes manufactured was not determined as exempt because GMADA was not granted exemption certificate. The respondents were not maintaining separate books of account. The goods cleared were on payment/adjustment of duty under Rule 6(3) and also dutiable goods albeit in small ratio. The finding recorded by the Tribunal that dutiable goods were cleared on 5.11.2012 has not been challenged - The contentions raised by learned counsel for the appellant are not well founded. Rule 6(2) provides no minimum ratio for the manufacture of exempted and dutiable goods. It deals with manufacturing of exempted and duty chargeable goods and in case of non-maintaining of separate accounts, then Rule 6(3) comes into operation and as per first option the manufacturer is liable to pay 6% of the value of exempted goods. The submission that from September to 4.11.2012, WCL was only manufacturing exempted goods is merely on presumptions and the argument falls flat in view of the finding recorded by the Tribunal that on 5.11.2012 the goods were cleared on payment of duty. Without there being any manufacturing of dutiable goods prior to 4.11.2012, the goods could not have been cleared on 5.11.2012 on payment of duty. More-so, when clearance and supply of dutiable goods is accepted and there is no denial to the fact that a purchase order existed for supply of dutiable goods, on mere assumptions the intention cannot be determined or it can be concluded that the conduct was fraudulent - The authorities have also not appreciated the difference in manufacture and clearance of goods. It cannot be concluded that WCL till 04.11.2012 was indulging only in manufacture of exempted goods. No perversity has been pointed out in the order - Appeal dismissed - decided against appellant.

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• 2020 (3) TMI 1052
  CENVAT Credit - duty paying invoices - rejection for the reason that invoices of input service bear handwritten serial number - HELD THAT:- In the appellant s own earlier case a show cause notice F.no. V(CH.70) 3-31/DEM/10- 11 dated 30/05/2011 was issued on the same issue that whether the appellant is entitled for Cenvat Credit on the invoice issued by the service provider which bears handwritten serial number. That case was travelled up to this Tribunal in appeal no. E/11069/2015. This Tribunal in KRUPA TRADING COMPANY VERSUS C.C.E S.T. -VALSAD [ 2020 (2) TMI 293 - CESTAT AHMEDABAD] decided the matter in appellant s favour. The reason for denial of the Cenvat Credit in the above decision of the Tribunal and in the present case is absolutely identical. Appeal allowed - decided in favor of appellant.

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• CST, VAT & Sales Tax

• 2020 (3) TMI 1051
  Re-assessment of the proceedings u/s 17D of the Kerala General Sales Tax Act, 1963 - escaped turnover - method of fast track completion of assessment - time limitation - case of Revenue is that once Section 17(D) of the Act, 1963 do not envisage any period of limitation, the argument that the applicability of Section 19 of the Act, 1963 would not apply and impugned order noticing the escaped turn over cannot be said to be erroneous or barred by law of limitation - HELD THAT:- On perusal of the aforementioned provisions, particularly Section 19 of the Act, 1963 empowers the assessing authority may, at any time within five years from the expiry of the year to which the tax relates, proceed to determine the best of its judgement in respect of the turn over alleged to have escaped assessment to tax - There was an amendment in Section 17 whereby the assessment relating to year up to and including 2004-05 running as on 31st March, 2010 or to be completed on or before 31.03.2011. However, in the instant case the Ext.P2 notice was issued on 20.11.2019 followed by an assessment order dated 14.12.2009 and Ext.P4 notice, Ext.P7 order commanding the petitioner to pay the penalty and interest under the KGST Act, 1963. There is no justification for this department or a material placed on record as per the provision of Section 17D, in the absence of any statutory period referred to Section 17D escaped assessment way of fast track assessment can be taken almost 14 years later. The reasonable period can be extended upto the period referred to other provisions regarding the escaped assessment under Section 19. Even from perusal of the assessment order and the notice there is no reference to the additional material forming an opinion to undertake the fast track assessment. Demand not sustainable - petition allowed.

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• 2020 (3) TMI 1050
  Classification of goods - Mango Drink under the brand name Slice - whether fall under Entry 100D of Schedule-C of the HVAT Act or not? - taxable @ 12.5% or 5%? - HELD THAT:- An Entry similar to Entry 100-D came up for consideration before the Gauhati High Court in Pepsico India Holding Pvt. Ltd. v. State of Assam [2009 (4) TMI 853 - GAUHATI HIGH COURT]. This was in the context of classifying Potato Chips sold under the brand name Lays and Uncle Chips under the Entry 80 Part A of the Second Schedule to the Assam Value Added Tax Act, 2003 (Assam VAT Act) - It was held that potato chips manufactured and sold by the petitioner-company under the brand name Lays and Uncle Chips would be covered by entry 80 of Part A of the Second Schedule to the Assam Value Added Tax Act, 2003 during the relevant period. This Court is satisfied that both the RA and Tribunal erred in holding that product in question i.e. Slice is not covered under Entry 100-D of Schedule C to the HVAT Act. The impugned orders of the RA as well as the Tribunal are accordingly set aside. The question of law framed is answered in the negative i.e. in favour of Appellant/Assessee and against the Respondent. Appeal allowed.

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• 2020 (3) TMI 1045
  Attachment of property - CIRP proceedings - first charge over all the properties and assets in view of Section 48 of the Gujarat VAT Act, 2003 - lifting of attachment sought so that they can be put to sale by the liquidator and thereupon the sale proceedings be distributed under Section 53 of the I B Code in order of priority prescribed - Section 48 of the Gujarat Value Added Tax Act, 2003 - HELD THAT:- Issue Notice to the respondents returnable on 16.01.2020. In the meantime, pending the hearing and final disposal of the petition, the operation, implementation and execution of the impugned order dated 18.11.2019 passed in Misc. Application No. 2357 of 2019 in Company Petition (IB) No. 1514 (MB)/2017 is stayed.

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• Wealth tax

• 2020 (3) TMI 1049
  Refund of the wealth tax paid by the assessee by virtue of the amendment to section 2(ea) of the WT Act - CIT (A) dismissed the appeals as not maintainable because the assessee itself has offered the net wealth to tax - Assessee submitted that since the amendment to section 2(ea) of the Act has been made with retrospective effect from 1.4.1993, the said land does not fall within the purview of the Wealth Tax Act and therefore, the assessee should be refunded the wealth tax paid by the assessee - HELD THAT:- In view of the CBDT Circular dated 11/06/2015, we remand the appeals to the file of the AO with a direction to reconsider the issue in accordance with the amended provisions of the Act. The assessee is also directed to approach the Pr. CIT u/s 25 of the Act and seek refund in accordance with the CBDT Circular and on such receipt of the application, the Pr. CIT shall dispose of the application within a period of one year from the end of the financial year in which the application is received and the AO thereafter shall refund the taxes paid by the assessee, if the Pr. CIT so directs. Assessee s appeals are treated as partly allowed for statistical purposes particularly because the CIT (A) orders are also dated 12.02.2014 i.e. prior to the CBDT Circular dated 11.06.2015.

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• 2020 (3) TMI 1048
  Wealth tax assessment - urban land is held by the assessee attracts provisions of section 2(ea) of the Wealth Tax Act or not - HELD THAT:- As assessee has not produced any documentary evidence to establish that the lands are used for the agricultural purposes. The CIT(A), therefore, correctly confirmed the orders of AO in both the years under consideration that urban lands owned by the assessee are not at all used for agricultural purposes, therefore, the retrospective amendment made by the Finance Act, 2013 in Explanation 1 to section 2(ea) does not applicable to the case of the assessee. Accordingly, the AO completed the wealth tax assessment vide his order dated 30/12/2011 u/s 16(5) of the Wealth Tax Act, 1957 and made the addition correctly - Decided against assessee

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• 2020 (3) TMI 1047
  Wealth tax assessment - assessee is a non-resident Indian residing in Jeddah, Saudi Arabia - assessee was owning assets exceeding the taxable limits - HELD THAT:- The assessee is having 5 properties, which according to the AO are taxable under the Wealth Tax Act and comes within the purview of section 2(ea) of the WT Act. We are of the view that the revenue authorities without appreciating the facts as well as the explanation offered by the assessee, passed the orders. In respect of properties mentioned at 4 5 of the table (supra), the assessee has filed unregistered stamp paper, it shows that he has gifted the properties to his son as well as to his nephew. However, the revenue authorities without taking into consideration the material evidence and explanation offered by the assessee, made the additions. Under these facts and circumstances of the case and to meet the ends of justice, we set aside the order of CIT(A) and remit the file back to the file of CIT(A) with a direction to adjudicate the issues in accordance with law and pass a detailed order after giving reasonable opportunity of hearing to the assessee. The assessee is directed to appear before the CIT(A) without fail and submit the necessary documentary evidence to substantiate his claim. We order accordingly - Appeal of the assessee is treated as allowed for statistical purposes.

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• Indian Laws

• 2020 (3) TMI 1046
  Maintainability of the arbitration proceeding - Joint Venture - strict compliance of sub-clause 67.1(d) of the COPA - HELD THAT:- In the present case, the appellant joint venture was awarded the contract by the respondent. The arbitration agreement is between the appellant joint venture and the respondent is the claimant in the arbitral proceeding. It is the appellant joint venture who was entitled to and invoked the arbitration clause. Further, the respondent has also invoked the arbitration agreement against the appellant joint venture who has executed the contract. The appellant joint venture is the claimant in the arbitral proceeding. Accordingly, the joint venture is entitled to maintain this appeal. The present appeal filed by the appellant is maintainable.

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