Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
April 13, 2023
Case Laws in this Newsletter:
GST
Income Tax
Customs
Insolvency & Bankruptcy
PMLA
Service Tax
CST, VAT & Sales Tax
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
GST
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Refund of IGST - Export of services - intermediary - Place of supply - the petitioner is rendering the Market Research Services directly to OHMI, Japan. Therefore, insofar as providing Market Research Services is concerned, the petitioner cannot be held to be an intermediary. - HC
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Refund of integrated tax paid in respect of certain services - Zero Rated Supplies - intermediary services - the question as to the precise nature of services is vital for determining whether the services are in the nature of services rendered by an “intermediary”. The petitioner must be provided full opportunity to explain the nature of services before the concerned officer. - HC
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Classification of supplies - works contract services - The contract for shifting of cables and replacing with underground cables can be classified as contract for building, construction, fabrication, completion, erection, fitting out, improvement, modification, etc., of immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of such contract. Hence, there is no hesitation in holding that the applicant is supplying Works Contract Services. - AAAR
Income Tax
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Deduction u/s 80-IB - Duty Drawback and DEPB - on the profit from DEPB and Duty Drawback claims, the assessee shall not be entitled to the deductions under Section 80-IB as such income cannot be said to be an income “derived from” industrial undertaking and even otherwise as per Section 28(iiid) and (iiie), such an income is chargeable to tax. - SC
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Determination of residential status and place of earning the income of the company - Sikkim or Delhi (India) - place of control and management at Delhi - the business conducted/done in Sikkim - The findings of fact recorded by the AO, confirmed by the CIT(A) that the control and management of the affairs of the assessee companies was with Auditor (CA) at Delhi are based on the entire material on record. - SC
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Levy of penalty u/s 271C - delay in deposit of Tax deducted at source (TDS) - Section 271C(1)(a) shall be applicable in case of a failure on the part of the concerned person/assessee to “deduct” the whole of any part of the tax as required by or under the provisions of Chapter XVIIB. The words used in Section 271C(1)(a) are very clear and the relevant words used are “fails to deduct.” It does not speak about belated remittance of the TDS. - SC
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Additions u/s 68 - assessment u/s 153A - substantial question of law - Additions towards investment into share capital on the strength of the documents found at the resident of the Director of petitioner/Company. - the entire findings of Assessing Officer as well as the Tribunal are based on facts - Appeal of the assessee dismissed - HC
Customs
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Classification of goods proposed to be imported - Scented & Flavoured and Sweetened Supari - The learned CAAR has not been persuaded to accept a different view from that of the Supreme Court on the basis of the clarification issued in terms of the aforementioned circular - Learned CAAR has noted that the said circular does not provide any reasons for such clarification. - There are no infirmity with the decision of the learned CAAR - HC
IBC
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Resolution Process - determination of liquidation value - The liquidation value fixed by the Valuers cannot be ignored in the resolution process. It is true that CoC on any valid reason can take a call to ask for any fresh valuation due to any relevant circumstances, but the valuation done by the Registered Valuers and average of liquidation value taken up by the Valuers serves the specific purpose and cannot be allowed to be disregarded by the CoC. In event, it is accepted that the CoC can change the liquidation value on its own, that may lead to unsatisfactory results - AT
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Admissibility of claim after implementation of Resolution Plan - the appellant has failed to submit its claim before the IRP at the time of invitation of claim from creditors - after the implementation of the Resolution Plan, no subsequent claim can be entertained.- AT
Service Tax
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Levy of Service Tax - Design Services or not - The definition of “design services” is very clear and it is wide enough to cover all “design services.” Merely because “Engineering Design & Drawings” prepared and supplied by sister company were shown as ‘goods’ under the Customs Act and in the bill of entry, by that itself cannot be a ground to take such services out of the definition of “design services” under the Finance Act, 1994. - SC
VAT
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Classification of goods - Dettol Antiseptic Liquid - The dominant use of Dettol and the active ingredients of Dettol referred to hereinabove and that the Dettol is used as an antiseptic and is used in hospitals for surgical use, medical use and midwifery due to therapeutic & prophylactic properties the same would fall under Entry 36(8) (h) (vi) as claimed by the appellant and would not fall under the residuary entry as claimed by the Revenue. - SC
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Maintainability of appeal - The principle is now well settled that the litigant cannot file repeated appeals against the same order. Once the appellant has withdrawn the appeal without reserving any liberty to file afresh, the said remedy will stand exhausted. - HC
Case Laws:
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GST
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2023 (4) TMI 427
Cancellation of GST registration of petitioner - petition dismissed on the ground of limitation - HELD THAT:- From the perusal of the show cause notice and the reasons assigned for cancelling the registration, it is clear that the two are different and distinct which is clearly arbitrary. Even otherwise, the reasons recorded for cancellation are not mentioned in Section 29 of the UPGST Act. Thus, holding that the order dated 20.07.2022 is wholly arbitrary and also in violation of the principles of natural justice and also contrary to the provisions of Section 29 of the Act, the same cannot be sustained. The order dated 20.07.2022 is quashed leaving it open to the respondents to pass a fresh orders, if so advised in accordance with law. The writ petition stands allowed.
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2023 (4) TMI 426
Cancellation of GST registration of petitioner - time limitation - petitioner s appeal was dismissed for being beyond the period of limitation - HELD THAT:- Neither the Show Cause Notice nor the order dated 06.06.2022 cancelling the petitioner s registration provides any clue as to the reason why the petitioner s registration was cancelled - the purpose of a show cause notice is to enable the noticee to respond to the allegations on the basis of which adverse action is proposed. In the present case, the Show Cause Notice failed to provide any clue as to why the petitioner s registration was proposed to be cancelled. It merely stated that it had reason to believe, that there was a violation of specified provisions of the Act, without referring to those provisions. It is relevant to note that the petitioner had filed an application on 01.04.2022 requesting for cancellation of the GST Registration. In response to the said application, the concerned officer had issued a notice seeking certain additional information/documents/ clarifications. However, the petitioner had not provided the said documents. However, the petitioner s application was rejected. Thus, the impugned order dated 06.06.2022 cancelling the petitioner s registration is not traceable to the petitioner request for cancellation of his registration. This Court considers it apposite to set aside the Show Cause Notice dated 17.05.2022, the order passed by the proper officer dated 06.06.2022 cancelling the petitioner s registration; and the impugned order dated 31.01.2023 - Petition disposed off.
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2023 (4) TMI 425
Refund of IGST - Export of services - intermediary - providing Market Research Services - Place of supply - whether denial of refund of integrated tax is justified on the ground that the petitioner is an intermediary? - HELD THAT:- It is apparent that the impugned order passed by the appellate authority is without application of mind. The appellate authority has failed to notice that the petitioner s appeal was confined only for refund of integrated tax paid on invoices raised in respect of Market Research Services. The order passed by the adjudicating authority was premised on the basis that the petitioner was rendering services directly to the customers of OHMI, Japan. This was in the context of the Business Support Services rendered by the petitioner to OHMI, Japan. It is also apparent form the plain language of Section 2(13) of the IGST that intermediary is one that arranges or facilitates supply of goods and services. In the present case, there is no dispute that the petitioner had rendered Market Research Services on its own; there is no allegation that it had arranged supply of such services from a third party - Admittedly, in the present case, the petitioner is rendering the Market Research Services directly to OHMI, Japan. Therefore, insofar as providing Market Research Services is concerned, the petitioner cannot be held to be an intermediary. Petition allowed.
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2023 (4) TMI 424
Refund of integrated tax paid in respect of certain services - Zero Rated Supplies - intermediary services - rejection of refund on the ground that the services rendered by the petitioner fell within the definition of services by an intermediary and therefore could not be considered as export of services - HELD THAT:- After some arguments, the learned counsel appearing for the parties submit that the matter may be remanded to the proper officer (Adjudicating Authority) for consideration afresh, in the light of the decisions rendered by the High Courts including this Court. The aforesaid course also commends for the reason that the question as to the precise nature of services is vital for determining whether the services are in the nature of services rendered by an intermediary . The petitioner must be provided full opportunity to explain the nature of services before the concerned officer. The present petition is disposed of by setting aside the impugned orders dated 05.12.2020 and 28.12.2021 - matter is restored before the proper officer (Assistant Commissioner, GST) to consider the petitioner s case for refund afresh and to take an informed decision.
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2023 (4) TMI 423
Liability of IGST is imposed on the Petitioner on the amount of ocean freight charges - Constitutional validity of N/N. 10/2017- Integrated Tax (Rate) dated 28.06.2017; (2) Notification No. 8/2017-Integrated Tax (Rate) dated 28.06.2017 read with Corrigendum dated 30.06.2017; and (3) Rule 13(9) of the Integrated Goods and Services Tax Act, 2017 - Place of Provision Rules - constitutional validity of Sections 68(2) and Section 66 of the Finance Act, 1994 - recovery of Service Tax / IGST on the amount of ocean freight charges from the Petitioner. HELD THAT:- Insofar as the levy of tax under IGST is concerned, concededly, the same is covered in favour of the petitioner by the decision of the Hon ble Supreme Court in UNION OF INDIA ANR. VERSUS M/S MOHIT MINERALS PVT. LTD. THROUGH DIRECTOR [ 2022 (5) TMI 968 - SUPREME COURT] where it was held that The impugned levy imposed on the service aspect of the transaction is in violation of the principle of composite supply enshrined under Section 2(30) read with Section 8 of the CGST Act. Since the Indian importer is liable to pay IGST on the composite supply , comprising of supply of goods and supply of services of transportation, insurance, etc. in a CIF contract, a separate levy on the Indian importer for the supply of services by the shipping line would be in violation of Section 8 of the CGST Act. Levy of Service tax - HELD THAT:- The learned counsel for the petitioner states that an Enquiry Notice was issued but no further action has been taken by the Department for levy of service tax - Petitioner submits that the present petition be disposed of with liberty for the petitioner to challenge the levy of service tax on ocean freight in the event, any further action is taken by the concerned Department for assessing or recovering any such levy. The present petition is disposed of with liberty to the petitioner to apply afresh in the event any steps are taken by the respondents for assessing or recovering service tax on ocean freight.
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2023 (4) TMI 422
Profiteering - allegation is that petitioner has not passed the Input Tax Credit (ITC) on the supply of construction services to the flat buyers - violation of Section 171 of the Central Goods and Services Tax Act, 2017 (CGST Act) - HELD THAT:- Learned Counsel for the petitioner state that in matters where the constitutional validity of Section 171 of the CGST Act and Rule 122 of the CGST Rules have been challenged, a coordinate Bench of this Court has passed interim orders, staying the penalty and interest and restraining further investigations in respect to other projects of the petitioners. The respondents are restrained from conducting any further investigation into other projects that has been suo motu ordered by Respondent no. 3. There shall also be a stay on the penalty and interest as demanded. List on 29.08.2023.
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2023 (4) TMI 421
Classification of supplies - rate of tax - pure services - supply of works contract services - services procured by the appellant from 3rd party contractor in providing services to GHMC and I CAD - eligibility to obtain services at reduced rate of 12% as per entry 3(iv) of Notification 11/2017 CTR dated 28 June 2017 - HELD THAT:- Works contract will be treated as service and tax would be charged accordingly. As per Section 2(119) of the CGST Act, 2017, unless the context otherwise requires, the term works contract means a contract for building, construction, fabrication, completion, erection, installation, fitting out, improvement, modification, repair, maintenance, renovation, alteration or commissioning of any immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of such contract. - It is evident from the abstract of estimate that they are supplying and erecting cables, OH line and Stainless Steel (SS) during the course of the work. Therefore, the implication is that the cables are enclosed in such RCC pipes which are kept under the ground at a certain depth and then the entire pipes with the enclosed cables are covered back with filling to make the road as it is. This clearly satisfies the condition of being attached to earth. The work schedule submitted by the applicant also indicates that their work involves shifting of HT LT Overhead line cable through underground. The contract for shifting of cables and replacing with underground cables can be classified as contract for building, construction, fabrication, completion, erection, fitting out, improvement, modification, etc., of immovable property wherein transfer of property in goods (whether as goods or in some other form) is involved in the execution of such contract. Hence, there is no hesitation in holding that the applicant is supplying Works Contract Services. It is also apparent that the nature of the works undertaken by the applicant are not in the nature of Original Works and is to be classified as works contract service. The applicant is not eligible for exemption available against Sl.No. 3 of the Notification ibid and the services are liable to classified as works contract services and therefore is subject to payment of tax as applicable. Rate of Tax applicable to services procured by the appellant from 3rd party contractor in providing services to GHMC and I CAD - HELD THAT:- As per definition of business in section 2(17) of the CGST Act,2017 any trade, commerce, manufacture, profession, vocation, adventure, wager or any other similar activity, whether or not it is for a pecuniary benefit is a business. It is evident from the above facts that TRANSCO is in the business of transmission of electricity and collecting charges for the said activity - it is seen that TRANSCO has been established on commercial principles in as much as Section 61 of the Electricity Act, 2003 stipulates the guiding principles for determination of tariff by the STATE Regulatory Commission and mandates that the Tariff should progressively reflect cost of supply of electricity, reduce cross subsidy and recover the cost of electricity in a reasonable manner. The legal maxim noscitur a sociis is not applicable to the present case as there is no ambiguity in relation to the word business having been clearly defined in the Act itself. The word business encompasses within itself activities undertaken whether or not for a pecuniary benefit, which removes any scope for exclusion of the activities undertaken by the appellant from the ambit of business . It is immaterial, if the Government entity (Appellant) is running with or without generating any surplus as long as the activity undertaken has commercial implication - the services provided by 3rd party are works contract services covered under residual entry 3(xii) of the notification as amended. As such, the appellants claim that the services procured by them from private contractors are eligible for concessional rate of tax is not sustainable. Tax liability for supply of works contract service by the applicant to South Central Railway - HELD THAT:- The work contract executed by the applicant is meant for the purpose of business. Thus, the facts of the case are analogous to the circular issued by CBIC vide No.152/08/2021-GST dated 17-06-2021. Hence, works contract service provided by M/s TRANSCO by way of construction of the said civil structure meant predominantly for the purpose of business is not covered under Entry 3(vi) of Notification No. 11/2017-CT(R) - The documents furnished indicate the service rendered to SCR where the service rendered was for construction of certain transformers for the purpose of extending the power supply including certain telecommunication work. The Services provided by TS Transco (Appellant) to SCR are classifiable as Works Contract Service falling under Chapter 99, Group 99542 as per the Scheme of Classification of Services provided under Annexure to Notification No. 11/2017- CT(Rate) dated 28.06.2017 as amended and are taxable @ 18% in terms of Serial No. 3(xii) of Notification No. 11/2017- CT(Rate) dated 28.06.2017 as amended. Appeal disposed off.
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Income Tax
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2023 (4) TMI 420
Deduction u/s 80-IB - receipts under the Duty Drawback Scheme (Duty Drawback) and on transfer of Duty Entitlement Pass Book Scheme (DEPB) - business of manufacturing and exporting wooden handicraft items - income taxable u/s 28(iiic) and 28(iiib) of the Act, 1961 - HELD THAT:- Section 80-IB provides for deductions in respect of profits and gains from certain industrial undertakings. Therefore, as such for claiming deductions under Section 80-IB, it must be on the profits and gains derived from industrial undertakings mentioned in Section 80-IB. An identical question came to be considered by this Court and, more particularly, with respect to the profit from DEPB and Duty Drawback Schemes, in the case of Liberty India [ 2009 (8) TMI 63 - SUPREME COURT] . Following the law laid down by this Court in the case of Sterling Foods, Mangalore [ 1999 (4) TMI 1 - SUPREME COURT ] and Liberty India [ 2009 (8) TMI 63 - SUPREME COURT] . as such, no error has been committed by the High Court in holding that on the profit from DEPB and Duty Drawback claims, the assessee shall not be entitled to the deductions under Section 80-IB as such income cannot be said to be an income derived from industrial undertaking and even otherwise as per Section 28(iiid) and (iiie), such an income is chargeable to tax. In view of the above and for the reasons stated above, the High Court has rightly held that the respondent assessee is not entitled to the deductions under Section 80-IB on the amount of DEPB as well as Duty Drawback Schemes. We hold that on the profit earned from DEPB / Duty Drawback Schemes, the assessee is not entitled to deduction under Section 80-IB of the Act, 1961. Any contrary decision of any High Court is held to be not good law. Decided in favor of the Revenue.
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2023 (4) TMI 419
Determination of residential status and place of earning the income of the company - Sikkim or Delhi (India) - place of control and management at Delhi - the business conducted/done in Sikkim - the case of the Revenue was that the control and management of each of the assessee companies was wholly with their auditor (CA) who had their offices in Karol Bagh, New Delhi and therefore, were companies resident in India in terms of Section 6(3) of the Act. HELD THAT:- The sum and substance of the above decisions of this Court as well as various High Courts would be that where the head and seat and directing power of the affairs of the company and the control and management is must be shown is not merely theoretical control and power, i.e., not de jure control and power, but de facto control and power actually exercised in the course of the conduct and management of the affairs of the firm; that the domicile or the registration of the company is not at all relevant and the determinate test is where the sole right to manage and control of the company lies. Applying the above principles of law to the facts of the case at hand, and the findings recorded by the AO, confirmed by the CIT(A), it is rightly concluded that the control and management of the affairs of the respective assessees were with Rattan Gupta, Chartered Accountant in Delhi. The findings of fact recorded by the AO, confirmed by the CIT(A) that the control and management of the affairs of the assessee companies was with Rattan Gupta are based on the entire material on record. Genuineness of Comession Income earned in the state of Sikkim - HELD THAT:- In fact, the AO issued notices/summons to different persons who had allegedly paid amounts as commission, however, those persons had not responded. Therefore, the AO as such has rightly drawn an adverse inference. At this stage, it is required to be noted that as such the assessees did not produce any worthwhile evidence to prove the genuineness of the commission received. Once, the AO issued summons to those who had allegedly paid the commission to the assessees and the summons were issued under Section 131 which were not complied with and it was the assertion on behalf of the respective assessees that they earned the income of commission within Sikkim, the burden to prove the same was upon the assessees. Under the circumstances, the ITAT wrongly and erroneously shifted the burden upon the AO to prove the contrary. It appears that the assessees with mala fide intention and to evade the payment of tax under the Income Tax Act, 1961 came out with a case that they earned the income within Sikkim, which has not been established and proved. It was a clear attempt on the part of the respective assessees to wriggle out of the clutches of the Income Tax Act, 1961. Validity of Re-assessment proceedings - It was submitted that as there was no original assessment under the Income Tax Act, 1961, there could not have been the re-assessment under sections 147/148 of the Act, 1961 - HELD THAT:- the same has no substance in view of the binding decision of this Court in the case of Sun Engineering Works P. Ltd. [ 1992 (9) TMI 1 - SUPREME COURT] . Levy of interest u/s 234A, 234B, 234C - HELD THAT:- when the interest is levied as per the workings mentioned in ITNS 150 which is forming part of the assessment order, it is rightly held to be sufficient and good enough to charging interest. See [ 2015 (8) TMI 621 - SUPREME COURT]
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2023 (4) TMI 418
Levy of penalty u/s 271C - delay in deposit of Tax deducted at source (TDS) - belated remittance of the TDS - the meaning and scope of the words fails to deduct occurring in Section 271C(1)(a) - HELD THAT:- At the outset, it is required to be noted that all these cases are with respect to the belated remittance of the TDS though deducted by the assessee and therefore, Section 271C(1)(a) shall be applicable. At the cost of repetition, it is observed that it is a case of belated remittance of the TDS though deducted by the assessee and not a case of nondeduction of TDS at all. Section 271C(1)(a) shall be applicable in case of a failure on the part of the concerned person/assessee to deduct the whole of any part of the tax as required by or under the provisions of Chapter XVIIB. The words used in Section 271C(1)(a) are very clear and the relevant words used are fails to deduct. It does not speak about belated remittance of the TDS. At this stage, it is required to be noted that wherever the Parliament wanted to have the consequences of nonpayment and/or belated remittance/payment of the TDS, the Parliament/Legislature has provided the same like in Section 201(1A) and Section 276B of the Act. As observed hereinabove, fails to pay the whole or any part of the tax would be falling under Section 271C(1)(b) and the word used between 271C(1)(a) and 271C(1)(b) is or . At this stage, it is required to be noted that Section 276B provides for prosecution in case of failure to pay tax to the credit of Central Government. The word pay is missing in Section 271C(1)(a). Now so far as the reliance placed upon the CBDT s Circular No. 551 dated 23.01.1998 by learned ASG is concerned, at the outset, it is required to be noted that the said circular as such favours the assessee. - Even the CBDT has taken note of the fact that no penalty is envisaged under Section 271C of the Income Tax Act for nondeduction TDS and no penalty is envisaged under Section 271C for belated remittance/payment/deposit of the TDS. Even otherwise, the words fails to deduct occurring in Section 271C(1)(a) cannot be read into failure to deposit/pay the tax deducted. No penalty - Decided in favor of assessee.
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2023 (4) TMI 417
Additions u/s 68 - assessment u/s 153A - substantial question of law - Additions towards investment into share capital on the strength of the documents found at the resident of the Director of petitioner/Company. - AO treated this as unaccounted money of Directors utilized by the Directors of assessee/company to get shares capital accommodation entry from these to investors company at Mumbai. - HELD THAT:- After having gone through the order of Assessing Officer, CIT(A) and the Tribunal, this Court is of the view that the entire findings of Assessing Officer as well as the Tribunal are based on facts which do not appear to give rise to any substantial question of law, in the absence of which the appeal under Section 260A of the IT Act cannot be entertained. Decided against the assessee.
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Customs
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2023 (4) TMI 416
Classification of goods proposed to be imported - Scented Flavoured and Sweetened Supari - to be classified under sub- heading 080280 of the First Schedule of the Customs Tariff Act, 1975 or under Chapter 21 of the First Schedule of the Customs Tariff Act, 1975? - validity of Circular No.163/2019/2021-GST - HELD THAT:- This Court is not called upon to examine the validity of the said circular. The decision of the learned CAAR as well as the decision of this Court in M/S. GREAT NUTS IMPEX PVT. LTD. M/S. THE NUTS CO. VERSUS COMMISSIONER OF CUSTOMS DELHI ORS. [ 2023 (3) TMI 80 - DELHI HIGH COURT] , is rested on the decision rendered by the Supreme Court in CRANE BETEL NUT POWDER WORKS VERSUS COMMR. OF CUS. C. EX., TIRUPATHI [ 2007 (3) TMI 6 - SUPREME COURT] . The CAAR had not accepted that the clarification issued by the Circular No.163/2019/2021-GST dated 06.10.2021 would be material in determining the question. The learned CAAR has also not been persuaded to accept a different view from that of the Supreme Court on the basis of the clarification issued in terms of the aforementioned circular - Learned CAAR has noted that the said circular does not provide any reasons for such clarification. There are no infirmity with the decision of the learned CAAR - it is not required to examine the validity of the clarificatory circular issued by the respondent - appeal disposed off.
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Insolvency & Bankruptcy
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2023 (4) TMI 415
Approval of the resolution plan - it is alleged that the Appellant s claim, which is borne out of the arbitral award in his favour, has not been considered in accordance of with the provision in section 30(2)(b) of the IBC - Successful Resolution Applicant, which is represented by the same persons, who were also part of the Board of Directors of the corporate debtor which went into CIRP, were ineligible to submit a resolution plan as per section 29-A of the IBC or not? - R-1 failed his duty to communicate admitted claim amount of the Appellant to him during the CIRP and also in the examination of the submitted resolution plan before its approval by the Adjudicating Authority. HELD THAT:- Admittedly, the Appellant submitted his claim in Form B to the Resolution Professional vide communication dated 3.6.2019 (attached at pp. 141-147 of the Appeal Paperbook), wherein the Appellant has made a clear disclosure that his claim pertains to an arbitration award dated 19.3.2015 and that an execution application thereof is filed by the Appellant and also an application under section 34 of the Arbitration and Conciliation Act, 1996 filed by the corporate debtor were pending adjudication. Therefore, it is clear that the Appellant made a clear disclosure about the arbitration award as well as the pendency of execution application and application under section 34 filed by the corporate debtor. On examining the various e-mail communications exchanged between the earlier Successful resolution Professional and R-1 and the Appellant, it is clear from the e-mail sent by Shri Ashish Vyas the then Resolution Professional on 29.6.2019 that the claim of the Appellant to the extent of Rs.16,78,15,035 was admitted in the CIRP. Thereafter, there was change in the Resolution Professional and by another e-mail dated 21.5.2020 sent by the Resolution Professional/R-1 Shri Vijendra Kumar Jain it is seen quite clearly that he sought details of the claim amount and its quantum, along with KYC particulars, which were sent by the Appellant. The same e-mail also notes that ''on scrutiny of claims list of corporate debtor, I could observe that your claim has not been admitted'' - the Resolution Professional R-1 failed in his duty by not pointing out such objectionable comments when placing the Resolution Plan for consideration of Committee of Creditors and the Adjudicating Authority. Thus the portion of the resolution plan as extracted in para 17 of this judgment is fit to be deleted from the Approved Resolution Plan. Section 238 of the IBC lays down that the provisions of IBC shall have effect, notwithstanding anything inconsistent therewith contained in any other law in force or any instrument having effect by virtue of any such law. Quite clearly, the operation of section 238 of IBC shall be applicable to micro, small or medium enterprise and thus section 240-A shall come into play. Section 240-A prescribes that the provision of clauses (c) and (h) of section 29-A shall not apply to resolution applicant in respect of CIRP of any MSME, admittedly the corporate debtor in the present case is a MSME and this fact is not disputed by the Appellant - any order view clauses (c) and (h) of section 29-A of the IBC shall not apply in respect of a resolution applicant in the present CIRP of the corporate debtor, and therefore, there is no disqualification or ineligibility attached to Shri Ashoke Atre or any member of the previous management of the corporate debtor in playing as a prospective resolution applicant in the CIRP of the corporate debtor. Thus, the comments made in the resolution plan which has been quoted from pages 62 to 65 of the reply affidavit of R-2 are completely uncalled for and are liable to be deleted from the approved resolution plan - appeal allowed.
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2023 (4) TMI 414
Resolution Process - determination of liquidation value - Power of RP and CoC to reject the value determined by the Valuer - liquidation value of security interest of the Appellant in project Universal Business Park - HELD THAT:- From the materials brought on record, it is clear that area which is covered by Conveyance Deed was 89,706 sq. ft., whereas total saleable area of the Universal Business Park was 2,15,915 sq. ft. Pleadings of RP was categorical that by BBA, area of 165,115.53 sq. ft. was allocated, which facts have not been disputed by the Appellants. The Appellants case rather is that execution of BBA does not amount to transfer/ sale under the provisions of the Transfer of Property Act, which plea has been specifically taken in paragraph 14 as extracted above. There can be no doubt about legal position that title is conveyed when Conveyance Deed is executed, but certain rights accrue to homebuyers under the BBA, which rights have been recognized by law Courts including the Hon ble Supreme Court. Promoter, who has entered into a BBA with allottee and allotted a particular flat and received the payment has no right to transfer the same. It is apparent from the materials on record, it is clear that with regard to Universal Business Park, entire area was sold by Conveyance Deed and by BBA to the allottees and the Promoters have received the money through the Conveyance Deed and BBA and after execution of the BBA, the allottees acquired the right to receive possession of the units for which payments have been made. It is clear that the entire super area of Universal Business Pak was conveyed by Sale Deeds and by BBA, rather, the facts indicate that total area conveyed/ allotted was more than total area of Ground Floor and all the Floors. When area has been allotted to homebuyers, who have also paid the amount as per the agreement, homebuyers get an interest to receive the possession of the unit - The Valuers did not enter into issue of encumbrance over the assets. The finding has been recorded by the Adjudicating Authority in paragraph 49 that since the units have already been sold, are no longer the asset of the Corporate Debtor, hence, the liquidation value of the Universal Business Park project is NIL. The Adjudicating Authority has rightly come to the above conclusion after considering the facts and circumstances of the present case. The liquidation value fixed by the Valuers cannot be ignored in the resolution process. It is true that CoC on any valid reason can take a call to ask for any fresh valuation due to any relevant circumstances, but the valuation done by the Registered Valuers and average of liquidation value taken up by the Valuers serves the specific purpose and cannot be allowed to be disregarded by the CoC. In event, it is accepted that the CoC can change the liquidation value on its own, that may lead to unsatisfactory results - the liquidation value found by the Registered Valuers cannot be allowed to be changed by the CoC. We, thus, are satisfied that direction by Adjudicating Authority to CoC to re-examine the issue of significant differences between liquidation value submitted by two Valuers was uncalled for. We may however, hasten to add that in the present case, liquidation value, which was to be ascribed to the Appellant was an issue, which cannot be said to have determined by the Valuers in their Valuation Report. Valuers in their Valuation Report has added a caveat, which we have already noticed, which clearly left the issue to be determined while allocating the amounts to be paid to the dissenting Financial Creditors. Appeal dismissed.
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2023 (4) TMI 413
Admissibility of claim after implementation of Resolution Plan - Appellant has alleged that the impugned order has failed to balance the interest of all stakeholders including operational creditors and therefore stand vitiated - HELD THAT:- This Appellate Tribunal observes that the Resolution Plan approved by the Adjudicating Authority has taken care of the interest of all the stakeholders who have filed claim with the IRP/RP. It is noted that the Appellant has not filed any claim with the IRP/RP nor raised any issue during the entire CIRP period or during the approval of the Resolution Plan by the Adjudicating Authority, therefore, the Appellant at this stage cannot be allowed to raise such issues especially when the Resolution Plan stand implemented. This Appellate Tribunal observes that the claim of the Appellant is of pre-CIRP period and moreover the Appellant has not even filed any claim with the IRP/RP and this Appellate Tribunal has held in several judgments that pre-CIRP dues cannot be recovered unless the creditor files a claim with the IRP/RP - It may be mentioned that once the resolution plan is approved, the said plan attains finality and becomes binding on all the stakeholders and after the approval of resolution plan, no fresh claim can be entertained. This Appellate Tribunal notes that the very intent of the I B Code, 2016 is for the revival of the Corporate Debtor and the matter has been greatly amplified by the Hon ble Supreme Court of India in the matter of Ghanshyam Mishra [ 2021 (4) TMI 613 - SUPREME COURT ] as well as catena of the other Judgments where it has been settled, loud and clear, that no claim remains/ sustains after the Resolution Plan is approved. If such claims are to be entertained at later stage then no Resolution Plan will ever be successful since uncertain, unclaimed and non- admitted claims will be keep on pouring in and subsequently the implementation of the Resolution Plan would be almost impossible. This Appellate Tribunal is of the opinion that after the implementation of the Resolution Plan, no subsequent claim can be entertained. This Appellate Tribunal has no hesitation in recording that the present appeal is not maintainable since the appellant has failed to submit its claim before the IRP at the time of invitation of claim from creditors on 14.09.2018 wherein the last date of submission of claim was stipulated as 28.09.2018 hence, the Appellant cannot claim at this late stage. There are no error in the impugned order dated 05.03.2020 - appeal disposed off.
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PMLA
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2023 (4) TMI 412
Money Laundering - seeking transfer of Sessions Case from the Court of the Special Judge, PMLA, Lucknow to the Court of the Special Judge, PMLA at Ernakulam, Kerala - unlawful association - Sections 43 and 44 of PMLA - HELD THAT:- The Special Court, PMLA, Lucknow cannot be said to be lacking in territorial jurisdiction to entertain the complaint. In any case, the lack of jurisdiction of a Court to entertain a complaint can be no ground to order its transfer. A congenital defect of lack of jurisdiction, assuming that it exists, inures to the benefit of the accused and hence it need not be cured at the instance of the accused to his detriment. Therefore, the first ground on which transfer is sought, is liable to be rejected. The second ground on which transfer is sought is that 7 out of 10 accused persons are residents of Kerala. But this can hardly be a ground for ordering the transfer of investigation. Similarly, the third ground that a majority of witnesses are also from Kerala/ South India is also no ground to order the transfer of the complaint - The fact that the petitioner was remanded to custody by the learned Special Judge at Ernakulam under Section 167(2) of the Code and that, therefore, the filing of the complaint at Lucknow is impermissible, is not legally well-founded. The petitioner was arrested on 12.12.2020 in Kerala and, hence, he was produced before the Magistrate on 13.12.2020, who remanded him to judicial custody till 24.12.2020. Therefore, the NIA moved an application under Section 167 of the Code before the Principal Sessions Judge, Ernakulam for the grant of Enforcement Directorate custody for a period of 14 days. An order under Section 167(2) of the Code had to be passed necessarily by the Magistrate to whom an accused person is forwarded . In fact, Section 167(2) contains the words whether he has or has not jurisdiction to try the case . Therefore, the argument revolving around Section 167(2) of the Code also fails. This transfer petition is dismissed.
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2023 (4) TMI 411
Money Laundering - framing of charges - Scheduled Offence - proceeds of crime - impugned order rejecting the application preferred by the petitioner No.2 for discharge is legally sustainable or not - Whether the charges framed against the petitioner No.2 are liable to be quashed by exercising the revisional jurisdiction? - HELD THAT:- Section 3 of PMLA states inter alia that whoever knowingly assists or knowingly is a party or is actually involved in any process or activity connected with proceeds of crime including its concealment, possession, acquisition or use shall be guilty of offence of money-laundering - PMLA deals only with the process or activity connected with the proceeds of a scheduled crime, including its concealment, possession, acquisition or use and it has nothing to do with the launch of prosecution for scheduled offence and continuation thereof. Scheduled offence is only a trigger point to initiate investigation under PMLA and once ECIR is recorded, case registered under PMLA is independent, distinct and stand alone. Even if the predicate/scheduled offences are compromised, compounded, quashed or even in case the accused is acquitted, it does not affect proceedings under PMLA. The offence under the 2002, Act deals only with laundering of money acquired by committing a scheduled offence. Except that it starts with an offence of possessing, concealing, using, converting or projecting proceeds of a scheduled crime as untainted money, it has nothing to do with the launch of prosecution for scheduled offence and continuation thereof and once a case is registered under PMLA, it is an independent offence. In the present case, the husband of petitioner no. 2 has been prosecuted for amassing disproportionate assets. He had been prosecuted for that offence under Section 13(2) r/w 13(1)(e) of the PC Act. It is alleged that she knowingly assisted in activities connected with the proceeds of scheduled crime committed by her husband. She assisted her husband by concealment, possession, use etc. of tainted money and also by claiming it as untainted property and thus, abetted the offence punishable under section 13(1)(e) r/w 13(2) of the PC Act. They have been prosecuted, convicted and sentenced for amassing disproportionate property as well as abetting the offence of amassing disproportionate property. There cannot be any dispute that amassing disproportionate property as punishable under section 13(1)(e) of the PC act is a scheduled offence under the PMLA. Thus, she had abetted a scheduled offence and has been convicted accordingly with the aid and assistance of section 109 of the Indian Penal Code. It is held that there is no infirmity in the impugned order dated 03.06.2022 of the learned trial Court holding that prima facie case exists against petitioner No.2 of the alleged commission of the offence under Section 3 of the PMLA, 2002 punishable under Section 4 of the said enactment, inasmuch as, she allegedly acted prima facie in the company of her husband i.e. petitioner No.1 in a careful deliberate manner and engaged in money laundering with the proceeds of crime and thus, obtained property as the result of the criminal activity relatable to the scheduled offence as the proceeds of crime to make her prima facie culpable under Section 3 of the PMLA, 2002. Petition dismissed.
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2023 (4) TMI 410
Seeking grant of bail - Money Laundering - proceeds of crime - twin conditions under Section 45 (1) of the Prevention of Money Laundering Act, 2002, satisfied or not - HELD THAT:- The bail application of the applicant has to be decided keeping in view the provisions contained in Section 45 (1) of the PMLA, including proviso appended thereto - the instant case has been lodged primarily with the allegation that the named co-accused Yadav Singh had committed corrupt practices while awarding certain engineering works, regarding which agreement bonds for Rs. 954.38 Crores were executed. The applicant happens to be the wife to Yadav Singh. She is a director of M/s Kusum Garments, in whose account Rs. 50,00,000/- were deposited. The amount deposited is claimed to have been given to M/s Kusum Garments by way of loan and it is the case of the Enforcement Directorate, that the amount has been transferred by layering so that it could not be detected and in fact it was a part of the proceeds of crime committed by the co-accused Yadav Singh. The applicant is a woman and one of her kidneys has been removed and she is surviving with one kidney and she is suffering from anxiety, depression and panic attacks. The Proviso appended to Section 45 (1) of PMLA provides that a woman or a sick or infirm person may be released on bail. The amount deposited in the account of M/s Kusum Garments is Rs.50,00,000/- and the Proviso also provides that a person who is accused of money-laundering a sum of less than one crore rupees, may be granted bail - The principal co-accused Yadav Singh has already been granted bail. Sri Mohan Lal Rathi, who had deposited the amount in the account of Kusum Garments, and who has stated in his statement recorded by the Enforcement Directorate, that he had given this amount to Kusum Garments as loan, has not been made accused in the present case. Sri Mohan Lal Rathi had received the amount from co-accused Pradeep Garg and Pradeep Garg has also been granted bail. Other co-accused person Pankaj Jain and Vinod Kumar Goel have also been granted bail. It is only the applicant who is in jail in connection with the present case. Bail application allowed.
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Service Tax
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2023 (4) TMI 409
Levy of Service Tax - Design Services or not - whether activity of import of Engineering Design Drawings from the sister companies by the notice during the period under dispute i.e., June, 2007 to September, 2010 is classifiable under taxable category design services under section 65(35b) read with Section 65(105) (zzzzd) of the Finance Act, 1994? - HELD THAT:- The definition of design services is a wide and conclusive one, specifically excluding only fashion design and interior designing, which were already taxable under separate taxable category - In the present case, the respondent was engaged in manufacture of Wind Turbine Generator (WTG). It entered into product development and purchase agreement with three of its sister companies. It is required to be noted that the said designs were to be exclusively used by the respondent in the territory of India and it was a tailormade design. The respondent engaged the sister concern M/s SEG for the activity of Engineering Design Drawings used in manufacturing of WTG, that was reduced as blue print on paper and delivered to the respondent on the same medium. Such designs were subjected to the service tax even as per the clarification by the Board dated 18.03.2011 on the issue of applicability of indirect taxes on packaged software. Therefore, as such, the respondent was liable to pay service tax on the design services received from abroad under reverse charge - M/s SEG raised the invoice/bill on the assessee treating it as paper . However, when the said bill of entry was presented treating the same as paper for which the duty payable was Nil . Therefore, neither any custom duty was paid due to exemption from payment of duty treating it as paper nor the service tax was paid. The definition of design services is very clear and it is wide enough to cover all design services. Merely because Engineering Design Drawings prepared and supplied by sister company were shown as goods under the Customs Act and in the bill of entry, by that itself cannot be a ground to take such services out of the definition of design services under the Finance Act, 1994. The order of CESTAT to the extent that, the respondent is not liable to pay service tax as design services on importing various models of Engineering Design Drawings for the purpose of manufacturing of Wind Turbine Generator (WTG), as defined under Section 65(35b) r/w section 65(105)(zzzzd) of the Finance Act, 1994 is hereby quashed and set aside - the matter is remitted back to the CESTAT to consider the grounds raised on behalf of the respondent, namely, whether the services (if any) rendered by a foreign entity will not fall within the purview of design services and that the department was not justified in invoking the extended period of limitation. Appeal disposed off.
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CST, VAT & Sales Tax
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2023 (4) TMI 408
Classification of goods - Mosquito Mats, Coils and Vaporizers - Mortein Insect Killers - Harpic Toilet Cleaner and Lizol Floor Cleaners - Dettol Antiseptic Liquid - classifiable under Entry No. 44(5) of the III Schedule to the Kerala VAT Act as being 'pesticides, insecticides' corresponding to HSN Code 3808 and therefore subject to VAT at the rate of 4% or not? - Dettol Antiseptic Liquid, classifiable under Entry 36(8) (h) (vi) being medicaments corresponding to HSN Code 3004.90 of the III Schedule or not - HELD THAT:- It is required to be noted that HSN Code 3808 has been deleted from Entry 44(5) w.e.f. 01.07.2006 and from 21.01.2006 the aforesaid products would fall under Sl. No.66 namely Mosquito repellant , which is the specific entry and subject to VAT at 12.5%. The insecticides under Entry 44(5) therefore can be said to be a general entry. Once there is a specific entry the Mosquito Repellant , thereafter one is not required to go to the definition under another Act namely Insecticides Act. Sl.No.66 of Notification SRO 82/06 dated 21.01.2006 issued under Section 6(1)(d) of the Kerala VAT Act which covers Mosquito Repellants - Even otherwise it is required to be noted that Entry 44(5) which includes insecticides relates to products which are used in agricultural operations. All the products in the Entry are used in the agricultural field in relation to growing of agricultural products and controlling of pets, insecticides etc. which are attacking the plants. Therefore, in view of the specific Entry 66 of Notification SRO 82/06 dated 21.01.2006 the aforesaid products namely Mosquito Repellants, electric or electronic mosquito repellants, gadgets and insect repellants, devices and parts and accessories thereof are rightly classified as Mosquito repellants. In the present case under the KVAT Act there is a specific Entry Mosquito repellant so far as the product electric or electronic mosquito repellents, gadgets and insect repellents, devices and parts and accessories thereof are concerned and therefore the said specific entry shall be applicable in any case, the same cannot be said to be insecticides. We are in complete agreement with the view taken by the High Court that Mosquito Mats, Coils and Vaporizers and Mortein Insect Killers products shall not be classifiable under Entry 44(5) as insecticides. Harpic and Lizol - HELD THAT:- What is required to be considered is the dominant use which is cleaning and removal of stains of floor and the toilet. Thereafter, the same shall not fall under Entry 44(5) HSN Code No.3808 as insecticides or disinfectant. Entry 27(4) of SRO No. 82 of 2006 is with respect to stain busters, stain removers, abir, blue and all kinds of cleaning powder and liquids including floor and toilet cleaning. In that view of the matter Entry 27(4) being a specific entry the same shall be applicable and the aforesaid two products namely Harpic and Lizol shall not be classifiable under general Entry 44(5) and in any case the same cannot be classifiable under Entry 44(5) as insecticides - the product Harpic and Lizol shall not be classifiable under Entry 44(5) and shall be classifiable under Entry 27(4) of SRO 82/2006 chargeable to tax at 12.5%. Dettol - HELD THAT:- The active ingredients of Dettol are Chloroxylenol IP, Terpineol BP, Alcohol Absolute IP (denatured) and it is an antiseptic having germicidal properties and it kills germs, bacteria and it prevents infection therefore it is applied on wounds, cuts, grazes, bites and stings. It is also used in hospitals for surgical use and medical use - the Dettol is used as an antiseptic liquid and is used in hospitals for surgical use, medical use and midwifery, due to therapeutic prophylactic properties. Therefore, the same can be said to be an item of medicament to be treated as a drug and medicine. Here also the dominant use is a relevant consideration. In the case of PONDS INDIA LTD. VERSUS COMMISSIONER OF TRADE TAX, LUCKNOW [ 2008 (5) TMI 46 - SUPREME COURT] this Court has held that while deciding the issue whether any particular item would be covered under relevant entry or classification, different tests viz. the dictionary meaning, technical meaning, user s point of view, popular meaning etc. are to be applied. The dominant use of Dettol and the active ingredients of Dettol referred to hereinabove and that the Dettol is used as an antiseptic and is used in hospitals for surgical use, medical use and midwifery due to therapeutic prophylactic properties the same would fall under Entry 36(8) (h) (vi) as claimed by the appellant and would not fall under the residuary entry as claimed by the Revenue. To that extent the impugned judgment and order passed by the High Court deserves to be quashed and set aside. The impugned judgment and order passed by the High Court in so far as the products Mosquito Mats, Coils and Vaporizers and Mortein Insect Killers; Harpic Toilet Cleaner and Lizol Floor Cleaners is hereby confirmed. So far as the impugned judgment and order passed by the High Court with respect to Dettol Antiseptic Liquid is concerned, the impugned judgment and order passed by the High Court is set aside and it is held that the product Dettol would fall under Entry 36(8) (h)(vi) of Schedule III of the KVAT Act and shall be liable to be taxed at 4%. Appeal allowed in part.
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2023 (4) TMI 407
Maintainability of appeal - movement of goods in terms of Section 3(1)(a) of the Central Sales Tax Act, 1956 - HELD THAT:- The Supreme Court in VINOD KAPOOR VERSUS STATE OF GOA ORS [ 2012 (10) TMI 1041 - SUPREME COURT] had, while examining whether a special leave petition against an order passed by the High Court would be maintainable in a case where on a prior occasion, the special leave petition had been dismissed, held that the appeal would not be maintainable. The principle is now well settled that the litigant cannot file repeated appeals against the same order. Once the appellant has withdrawn the appeal without reserving any liberty to file afresh, the said remedy will stand exhausted. The present appeals are dismissed as not maintainable.
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