TMI Tax Updates - e-Newsletter
April 29, 2024

Case Laws in this Newsletter:

GST Income Tax Benami Property Customs Insolvency & Bankruptcy Service Tax Central Excise CST, VAT & Sales Tax

Articles

1. ADDITIONAL GROUNDS OF APPEAL AND ORDER IN APPEAL IN GST

   By: Dr. Sanjiv Agarwal

2. Know the Challenges and Issues with GST

   By: Ishita Ramani

3. WRONG FIXATION OF FEES PAYABLE TO INTERIM RESOLUTION PROFESSIONAL

   By: DR.MARIAPPAN GOVINDARAJAN

4. MANNER OF FILING APPEAL BY COMMISSIONER

   By: Dr. Sanjiv Agarwal

5. Recovery proceedings not to be initiated against the former director of the Company who was not the director during the concerned period

   By: Bimal jain

News

1. Important Update: Enhancement in the GST Portal

2. RBI invites comments on the Draft Circular on “Digital Lending – Transparency in Aggregation of Loan Products from Multiple Lenders”

Notifications

Customs

1. 31/2024 - dated 26-4-2024 - Cus (NT)

Appointment of Common Adjudicating Authority for the purpose of adjudication of finalization of Provisional Assessment in SVB case w.r.t. M/s Tyco Fire & Security India Pvt. Ltd

SEBI

2. SEBI/LAD-NRO/GN/2024/171 - dated 26-4-2024 - SEBI

Securities Contracts (Regulation) (Stock Exchanges and Clearing Corporations) (Amendment) Regulations, 2024

3. SEBI/LAD-NRO/GN/2024/170 - dated 26-4-2024 - SEBI

Securities and Exchange Board of India (Research Analysts) (Amendment) Regulations, 2024

4. SEBI/LAD-NRO/GN/2024/169 - dated 26-4-2024 - SEBI

Securities and Exchange Board of India (Investment Advisers) (Amendment) Regulations, 2024

5. SEBI/LAD-NRO/GN/2024/168 - dated 25-4-2024 - SEBI

Securities and Exchange Board of India (Alternative Investment Funds) (Second Amendment) Regulations, 2024

Circulars / Instructions / Orders

SEBI

1. SEBI/HO/AFD/PoD-I/P/CIR/2024/026 - dated 26-4-2024

Flexibility to Alternative Investment Funds (AIFs) and their investors to deal with unliquidated investments of their schemes

2. SEBI/HO/AFD/PoD1/CIR/2024/027 - dated 26-4-2024

Framework for Category I and II Alternative Investment Funds (AIFs) to create encumbrance on their holding of equity of investee companies

FEMA

3. 03 - dated 26-4-2024

Limits for investment in debt and sale of Credit Default Swaps by Foreign Portfolio Investors (FPIs)

Highlights / Catch Notes

GST

• Notice Under CGST/UPGST Act Invalidated Due to Missing Show Cause Notice Procedure for Unpaid Tax.

  Case-Laws - HC : Validity of Service of notice u/s 74(5) instead of u/s 74(1) of CGST / UPGST Act, 2017 - Non-payment of Tax / GST - The High Court observed that while a notice was issued to the petitioner under Section 74(5) of the Act on June 4, 2021, asserting tax liability, the procedure mandated by Section 74(7) of the Act, which requires issuance of a show cause notice under Section 74(1) upon non-payment of tax, was not followed. Given the failure to issue a proper show cause notice to the petitioner, the court concluded that the impugned orders lacked a legal basis.
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• Court Overturns Penalty for Minor E-Way Bill Delay Due to Vehicle Breakdown, Citing Lack of Intent to Evade Tax.

  Case-Laws - HC : Levy of penalty - the e-way bill had expired one hour fifteen minutes prior to interception - The High Court acknowledged that while the e-way bill had expired, the goods were accompanied by the necessary documents, and the delay was due to a vehicle breakdown. Citing previous judgments, the court emphasized that mens rea, or intention to evade tax, is essential for penalty imposition. It concluded that there was no evidence of such intent in this case. The court held that the authorities failed to consider the explanation for the delay, rendering the penalty unjustified. - It emphasized that the breach was minor and did not indicate any intention to evade tax. - The court concluded that the penalty order under Section 129(3) of the Act was not warranted.
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• Court Rules GST Tax Liability Must Be Assessed u/s 74, Overturns Section 130 Quantification for Fair Hearing.

  Case-Laws - HC : Ex-parte order - Quantification of Liability - intention of evade GST - improper accounting of goods - The High court agrees with the petitioner's contention regarding the impermissibility of quantifying tax liability under Section 130 of the Act. Referring to a previous judgment, the court emphasizes that tax liability should be determined according to the provisions of Section 74. Therefore, the court rules that the quantification of tax liability under Section 130 is unsustainable. - Considering the gravity of the matter and the principle of natural justice, the court sets aside the ex parte order and directs the authority to grant the petitioner an opportunity of hearing before passing a reasoned order.
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• Court Rules on Tax Assessment Error; Petitioner Must Pay and Case is Remanded Due to Notice Response Failure.

  Case-Laws - HC : Calculation of Tax Liability based on subsequent year's Balance Sheet - non-service of SCN - Obligation to monitor GST Portal - The High Court found merit in the petitioner's argument regarding the incorrect use of financial statements for the assessment period. It noted that the respondent should have utilized the 2017-2018 balance sheet for adjudication, rather than the subsequent year's balance sheet. - While acknowledging the petitioner's obligation to monitor the GST portal regularly, the court emphasized the need for proper communication of official notices. However, it also held the petitioner accountable for not responding to the notice within the stipulated period. - Matter restored back, subject to remit a specified sum as a condition for remand.
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• Assessment Orders Annulled Due to Lack of Personal Hearing; Court Mandates Reevaluation with Proper Procedure.

  Case-Laws - HC : Validity of assessment orders - The High court examined the timeline of events and observed that the petitioner responded to the show cause notice in January 2024. However, the respondent authority did not afford a personal hearing to the petitioner as required by subsection (4) of Section 75 of the relevant GST enactments. Since the statutory prescription for a personal hearing was not followed, the court concluded that the impugned orders were flawed. Consequently, the court set aside the orders and directed the respondent to reconsider the matters, providing the petitioner with a reasonable opportunity, including a personal hearing. The court further nullified the recovery notice associated with the impugned orders and clarified that the stay of recovery remained in effect for pending appellate proceedings.
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Income Tax

• Income-tax Dept Restructures: Renaming Authorities, Clarifying Hierarchy, Adding Units for Streamlined Operations.

  Notifications : Control of income-tax authorities - U/s 118 - Notification No. 39/2024 issued by the CBDT, introduces amendments to a prior notification related to the administrative structure and nomenclature within the Income-tax Department. The changes primarily involve the renaming of income tax authorities and schedules, clarification of hierarchical structures, and the addition of new administrative units.
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• Tribunal Rejects Tax Penalty: Assessee's Accurate Records and Minor Discrepancies Lead to Favorable Decision.

  Case-Laws - AT : Levy of penalty u/s 271(1)(c) - The Tribunal found no justification for imposing a penalty as the assessee had sufficient cash balances and transparently recorded the land purchase in the books, supported by audit reports. Emphasized that agreeing to additions in quantum proceedings does not automatically warrant a penalty. - Regarding the issue related to Contractual Receipts Discrepancy: Considering the meager amount of discrepancy compared to the total income, lack of mala fide intention, and explanation regarding accounting practices, the Tribunal deemed the penalty unjustified. Overall, the Tribunal concluded that neither issue warranted the imposition of penalties, thereby ruling in favor of the assessee.
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• Tribunal Upholds Decision to Delete Penalty for Underreporting Income Due to Depreciation on Mining Rights.

  Case-Laws - AT : Penalty proceedings u/s 270A - under reporting of the income - The Tribunal noted that the issue of depreciation on mining rights was debatable, supported by various judicial precedents favoring the allowance of depreciation. Considering the bona fide belief of the appellant, supported by legal precedents and the application for immunity under Section 270AA, the Tribunal upheld the CIT(A)'s decision to delete the penalty.
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• Penalties for Delayed Compliance Overturned: Tribunal Accepts Genuine Constraints, Cites Reasonable Cause for Delays.

  Case-Laws - AT : Penalty proceedings u/s. 271(1)(b) - non-compliance with the 3 notices u/s. 142(1) - Delay in late response as per date mentioned in notice - The Tribunal found merit in the assessee's explanations for the delays, considering factors such as difficulties in data retrieval, operational challenges, and lack of technical expertise. It observed that the delays were not intentional but were due to genuine constraints faced by the assessee. - The ITAT noted that while there were delays in responding to the notices, the assessee eventually provided all the required details and participated in the assessment proceedings. - The ITAT held that there was reasonable cause for the delays in compliance and that the penalties were unjustified.
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• Tribunal Upholds Reopening of Assessment, Rules for Assessee on Section 69C Additions Due to Compliance and Evidence.

  Case-Laws - AT : Validity of reopening of assessment u/s 147 - Reason to believe - Addition u/s 69C on account of the capital introduced by the partner and unsecured loans - The Tribunal upheld the validity of the reassessment proceedings, citing the absence of a request for reasons during the assessment or appellate proceedings. However, it ruled in favor of the Assessee regarding the additions under section 69C. The Tribunal emphasized the Assessee's compliance with providing evidence and shifted the onus to the AO to justify rejecting the explanations provided.
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• Tribunal Overturns Charity Registration Rejection Due to Name Mismatch, Orders Reevaluation of Trust's Eligibility.

  Case-Laws - AT : Rejecting registration u/s 12A(1)(ac)(iii) - name mismatch between the certificate of registration issued by the Charity Commissioner, Vadodara and the PAN database - The Tribunal agreed with the appellant's argument that the trust's objectives aimed at the general public utility and weren't solely for the benefit of a particular community. - The Appellate Tribunal found the appellant's explanation reasonable and directed the Commissioner to reevaluate the issue considering the detailed submissions provided by the appellant. They concluded that the name mismatch alone wasn't sufficient grounds for rejection. - In conclusion, the Tribunal allowed the appeal for statistical purposes, directing the Commissioner to reevaluate both the name mismatch and the nature of the trust's activities for eligibility under Section 12AA.
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• Tribunal Allows Reduced Tax Rate for Company After Accepting Late Form 10-IC Filing Due to Met Conditions.

  Case-Laws - AT : Denial of benefit u/s 115BAA of reduced rate of tax @22% - Domestic Companies - Condonation of delay in filing of Form No. 10-IC by the assessee - The Appellate Tribunal carefully evaluates the submissions and the provisions of Circular No. 19/2023. It observes that the assessee has indeed fulfilled all the conditions mentioned in the circular for condoning the delay in filing Form No. 10-IC. Firstly, the assessee filed its income tax return within the due date specified under Section 139(1) of the Income Tax Act. Secondly, the option for taxation under Section 115BAA was duly exercised by the assessee in the filed return. Lastly, Form No. 10-IC was electronically filed within the extended timeline provided by the circular. - Given that the assessee has met all the prescribed conditions, the Appellate Tribunal concludes that the delay in filing Form No. 10-IC should be condoned.
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Customs

• Appeal on Imported Car Valuation Dismissed by High Court Due to Prohibition on Valuation Appeals.

  Case-Laws - HC : Maintainability of Appeal - Appropriate forum - matter relates to the valuation of a car which was imported - The High Court held that the appeal was not maintainable before it due to the clear bar on entertaining appeals concerning the valuation of imported goods. Therefore, the High Court dismissed the appeal.
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• Court Orders Review of Exemption Claim on Bill of Entry Amendment, Sets Six-Week Deadline for Resolution.

  Case-Laws - HC : Seeking amendment of bill of entry - The High Court acknowledged the oversight by the respondent in not considering the petitioner's exemption claim and directed them to dispose of the rectification application filed by the petitioner. The Court granted the respondent the authority to determine the petitioner's entitlement to the exemption during the disposal process, with a strict timeline of six weeks for completion.
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• Request to Convert Shipping Bills Denied Due to Time Lapse and Lack of Applicable Drawback Rates at Export Time.

  Case-Laws - AT : Request for conversion of free Shipping Bills into Drawback Shipping Bills - Long lapsed period between exports (1998) and the request for conversion (2007) - The Tribunal observed that conversion from free to drawback shipping bills is not merely an amendment but changes the entire nature of the document. The Tribunal reiterated that amendments under Section 149 are discretionary and can only be based on documents available at the time of export. Since there were no All-Industry Rates for the goods at the time of export and no brand rate applied for, the Tribunal found no basis for drawback claims. The Tribunal affirmed that notified All-Industry Rates are always prospective and cannot be applied retrospectively. Considering the significant lapse of time between exports and the request for conversion, the Tribunal upheld the Commissioner's decision not to allow the conversion.
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• Goods Seized Under Customs Act Ordered for Release After Delay in Show Cause Notice Issuance.

  Case-Laws - AT : Provisional release of the goods allowed - SCN not issued within time limitation - The Tribunal observed that the goods were seized under Section 110 of the Customs Act, 1962. As per Section 110(2), if no notice is given within six months of seizure, the goods must be returned to the person from whose possession they were seized. Since no show cause notice was issued within this timeframe, the Tribunal directed the adjudicating authority to release the goods immediately.
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• Tribunal Overturns Retrospective Bonded Warehouse License Cancellation, Citing Misalignment with Customs Act, FTP.

  Case-Laws - AT : 100% EOU - Cancellation of bonded warehouse licence, letter of permission (LOP) and registration - The Tribunal scrutinized the cancellation of the appellant's bonded warehouse license. It noted that while the license had been canceled retrospectively, the consequences of this cancellation were not addressed as per the Customs Act, 1962. The Tribunal emphasized that the provisions of the Customs Act did not align with the procedures outlined in the Foreign Trade Policy (FTP). It highlighted the lack of statutory reference to support the procedures outlined in the FTP, emphasizing that institutions governed by statute cannot be subordinated to policies. - As a result, the Tribunal set aside the impugned order and remanded the matter to the original authority for a fresh decision in accordance with the law.
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DGFT

• White Onion Exports: 2,000 Metric Tons Approved via Mundra, Pipavav, Nhava Sheva/JNPT; Certification Required.

  Notifications : Export of 2,000 MT of White Onion under Code 0703 10 19 - The exports are permitted only through three designated ports—Mundra, Pipavav, and Nhava Sheva/JNPT. - Each consignment must be accompanied by a certificate from the Horticulture Commissioner, Government of Gujarat. This certification must verify both the item and the quantity of white onions intended for export.
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• DGFT Extends Halal Certification and Export Registration Deadline by 3 Months to Boost Global Market Competitiveness.

  Notifications : The notification issued by DGFT extends the accreditation period for Halal Certification Bodies and the registration period for export units by three months, until 4th July 2024. This extension, made in partial modification of earlier notifications, aims to streamline the process of halal certification for meat and meat products, ensuring India’s competitiveness in global markets requiring such certification.
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FEMA

• Regulation 4 Amendment Expands Reporting for Equity Instruments on International Exchanges by Authorized Banks.

  Notifications : Amendment to Regulation 4 of FEMA, Mode of Payment and Reporting of Non-Debt Instruments - Expands the reporting responsibilities involving equity instruments traded or listed on international exchanges. Authorised Dealer Category I banks are now required to report both domestic and international transactions, including subscriptions, which are classified as Foreign Portfolio Investments.
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• FEMA Amendment Eases Foreign Investment in Indian Companies Listed Abroad, Enhances Financial Transaction Flexibility.

  Notifications : Amendment to Regulation 3.1 of FEMA, Mode of Payment and Reporting of Non-Debt Instruments - To facilitate the purchase or subscription of equity shares of Indian companies listed on international exchanges by permissible holders. Payments can be made either directly to a foreign currency account of the Indian company or via inward remittance through banking channels. - Proceeds from the sale of equity shares can be remitted outside India or credited to the bank account of the permissible holder, ensuring fluid financial transactions and compliance with international standards.
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• India Updates Rules for Foreign Currency Accounts, Impacting ECB, ADR, GDR, and International Equity Listings.

  Notifications : Foreign Exchange Management (Foreign Currency Accounts by a person resident in India) (Amendment) Regulations, 2024. - Notification revises the provisions of regulation 5 related to the holding of funds in foreign currency accounts by entities that have raised resources through External Commercial Borrowings (ECB), American Depository Receipts (ADRs), Global Depository Receipts (GDRs), or direct listings of equity shares on international exchanges.
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Benami Property

• Tribunal Upholds Attachment of Properties Held by Benamidar Post-2016 Amendment; Evidence Supports Beneficial Ownership.

  Case-Laws - AT : Prohibition of Benami Transactions - Provisional attachment order was confirmed - Who is the beneficial owner of property? - The Tribunal held that while the properties were indeed purchased before the 2016 amendment, they were held by the benamidar beyond this date. Under the amended Act, if a benami property is held after the amendment, then the new provisions apply. The Tribunal found substantial evidence supporting the claim that the properties were purchased benami. Statements from various sellers indicated that the beneficial owner, not the appellant, provided the funds for the purchases. The appellant's income and financial capacity were also deemed insufficient for the property acquisitions cited. - The Tribunal dismissed the appeal on several grounds but corrected the record regarding the identification of the beneficial owner for properties purchased later.
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SEBI

• New Regulations Enhance Supervision and Compliance for Research Analysts in Financial Services Sector.

  Notifications : Securities and Exchange Board of India (Research Analysts) (Amendment) Regulations, 2024 - This notification issued by SEBI brings about amendments to the existing regulations concerning research analysts, aiming to enhance the oversight and regulation of this crucial segment of the financial services industry.
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• SEBI Amends 2024 Investment Adviser Regulations to Boost Professionalism and Transparency with New Registration Rules.

  Notifications : Securities and Exchange Board of India (Investment Advisers) (Amendment) Regulations, 2024 - The amendments introduced by SEBI signify a proactive approach towards strengthening the regulatory oversight of investment advisers. By requiring advisers to be enlisted with recognized bodies or body corporates, SEBI aims to enhance professionalism, integrity, and transparency in the provision of investment advice. Furthermore, the recognition of a designated body or body corporate for supervision underscores SEBI's commitment to promoting investor protection and market integrity.
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• SEBI Updates Rules for Alternative Investment Funds with 2024 Amendment Regulations.

  Notifications : SEBI recently issued the Securities and Exchange Board of India (Alternative Investment Funds) (Second Amendment) Regulations, 2024, introducing several amendments to the existing regulatory framework for alternative investment funds (AIFs).
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Service Tax

• Tribunal Rules Separate Tax Classification for Handling and Transport Services; Distinct Contracts, Distinct Tax Liabilities.

  Case-Laws - AT : Service Tax Liability - Valuation - Reimbursements of expenses - Pure Agent - 'Freight Reimbursed' and 'Miscellaneous Expense Reimbursed' - Whether the services provided under two separate agreements (Handling Agent Agreement and Transport Agreement) should be classified independently or merged as a single clearing and forwarding agent service for tax purposes. - The Tribunal concluded that the services rendered under the two agreements were distinct and should not be merged for taxation. They supported the viewpoint that separate contracts dictate separate tax treatments. - It was held that reimbursements labeled as 'Freight Reimbursed' and 'Miscellaneous Expense Reimbursed' should not be taxed under the clearing and forwarding category when they clearly pertain to transportation services taxed under reverse charge mechanism elsewhere.
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• Contractor's Mistaken Tax Payment Must Be Refunded; Limitation Period Not Applicable for Mistake of Law.

  Case-Laws - HC : Refund of Service Tax - Payment of tax as a mistake of law - Period of limitation - The High Court held that if the contractor was not liable to pay tax, the department cannot withhold the amount paid, and the limitation under Section 11B cannot be invoked. Upon examination, the High Court determined that previous judgments from various High Courts established a clear precedent: when tax is paid mistakenly as a mistake of law, the limitation under Section 11B does not pose a barrier to refund.
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VAT

• Court Rules 2011 Amendment Governs Penalty Imposition, Emphasizing Fairness and Obsolescence of Previous Rule.

  Case-Laws - SC : Levy of penalty - Applicability of the substituted rule for imposition of penalty - The Supreme Court sided with the appellant, holding that the substituted rule from 2011 should apply to the proceedings. The Court found that the purpose of the amendment to the penalty rules was to achieve a proper balance between the offence and the penalty, reflecting a shift toward a more equitable approach in the imposition of penalties. - The Court clarified that once a rule is substituted, the old rule ceases to exist entirely and should not be applied to ongoing or future proceedings.
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Case Laws:

• GST

• 2024 (4) TMI 1060
  Validity of Service of notice u/s 74(5) instead of u/s 74(1) of CGST / UPGST Act, 2017 - Non-payment of Tax / GST - violation of principles of natural justice - HELD THAT:- From the record, it is clear that a notice was issued to the petitioner under Section 74(5) of the Act on June 4, 2021 wherein officer asserted that the tax is payable by the assessee. However, upon non-payment of the tax, Section 74(7) of the Act would come into play and the proper officer is required to give a notice under Section 74(1) of the Act. This procedure, that is to be followed, was not followed and no show cause notice was issued to the petitioner. Instead of the same, the impugned order dated July 7, 2021 was passed. Thus, it is clear that proper show cause notice was not issued to the petitioner, and therefore, all the orders impugned herein are without any basis of law. In my opinion, the impugned orders are required to be set aside. Petition allowed.

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• 2024 (4) TMI 1059
  Levy of penalty - the e-way bill had expired one hour fifteen minutes prior to interception - intent to evade tax or not - HELD THAT:- This Court in M/s Hindustan Herbal Cosmetics v. State of U.P. and Others [ 2024 (1) TMI 282 - ALLAHABAD HIGH COURT] and M/s Falguni Steels v. State of U.P. and Others [ 2024 (1) TMI 1150 - ALLAHABAD HIGH COURT] held that mens rea to evade tax is essential for imposition of penalty. The factual aspect in the present case clearly does not indicate any mens rea whatsoever for evasion of tax. The goods were accompanied by the relevant documents and the explanation of the petitioner with regard to slow movement of the goods clearly indicate that the truck had broken down resulting in delay. This factual aspect should have been considered by the authorities below. The breach committed by the petitioner with respect to not extending time period of the e-way bill is only a technical breach and it cannot be the sole ground for penalty order being passed under Section 129(3) of Act. The finding of the authorities with regard to intention to evade tax is not supported by the factual matrix of the case, and accordingly, the impugned orders are quashed and set aside - Petition allowed.

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• 2024 (4) TMI 1058
  Violation of principles of natural justice - Ex-parte order - non-appearance of petitioner on account of compelling grounds - quantification of liability under the Uttar Pradesh Goods and Service Tax Act, 2017 u/s 130 of the Act - intention of evade GST - improper accounting of goods - HELD THAT:- Upon a perusal of the judgement in M/S MAA MAHAMAYA ALLOYS PVT. LTD. VERSUS STATE OF U.P. AND 3 OTHERS [ 2023 (3) TMI 1358 - ALLAHABAD HIGH COURT] , it is clear that the quantification of tax liability cannot be done under Section 130 of the Act rather the authorities should take recourse to Section 74 of the Act. Furthermore, it appears from the record that the order impugned was passed ex parte. However, it appears that several opportunities were given to the petitioner, but the petitioner did not appear before the authorities. Counsel appearing on behalf of the petitioner submits that there were compelling grounds for non-appearance of the petitioner before the appellate authority. The impugned order dated December 7, 2023 is quashed and set aside, with a direction upon the authority below to grant opportunity of hearing to the petitioner and thereafter pass a reasoned order - petition disposed off.

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• 2024 (4) TMI 1057
  Breach of principles of natural justice - non application of mind - Calculation of Tax Liability based on subsequent year s Balance Sheet - non-service of SCN - petitioner did not reply to the show cause notice because the notice was uploaded on the View Additional Notices and Orders tab on the GST portal and not communicated to the petitioner through any other mode - HELD THAT:- The justification of the petitioner for not responding to the show cause notice is not convincing in as much as the petitioner is under an obligation to monitor the GST portal on an ongoing basis as a registered person. Therefore, it is also necessary to put the petitioner on terms. On instructions, learned counsel for the petitioner submits that the petitioner agrees to remit a sum of Rs. 10,00,000/- as a condition for remand. The impugned order dated 29.12.2023 is set aside on condition that the petitioner remits a sum of Rs. 10,00,000/- (Rupees Ten lakhs only) towards the disputed tax demand as agreed to within a period of three weeks from the date of receipt of a copy of this order. The petitioner is permitted to submit a reply to the show cause notice within the aforesaid period. The writ petition is disposed off.

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• 2024 (4) TMI 1056
  Breach of principles of natural justice - validity of assessment orders - contravention of sub-section (4) of Section 75 of applicable GST enactments by failing to provide a personal hearing after such reply was issued by the petitioner - HELD THAT:- On perusal of the documents on record, it is clear that the petitioner responded to the show cause notice. After receipt of such reply, the respondent did not offer a personal hearing to the petitioner. Subsection (4) of Section 75 of applicable GST enactments prescribes that a personal hearing should be offered either if requested for or if an order adverse to the tax payer is proposed to be issued. Since such statutory prescription was contravened in this case, the impugned orders call for interference. The orders impugned herein are set aside and the matters are remanded for reconsideration by the respondent. The respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue fresh orders within two months from the date of receipt of a copy of this order. Petition is disposed off.

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• Income Tax

• 2024 (4) TMI 1055
  Levy of penalty u/s 271(1)(c) - purchase of agricultural land - assessee could not explain the source of this investment and agreed for an addition - HELD THAT:- This is not a fit case of levy of penalty. The assessee has shown contractual receipts and had also produced copy of cash book, which showed that the assessee was having sufficient cash balance for the purpose of purchasing the aforesaid property. Further, the above agricultural land was also shown by the assessee in the books of accounts as well as in the Audit Report. Penalty under Section 271(1)(c) of the Act cannot be levied simply on the basis that the assessee has agreed to additions / not contested additions made in quantum proceedings. Accordingly, just because the assessee as agreed to the aforesaid addition in quantum proceedings, would itself not justify imposition / levy of penalty. Ground No. 1 of the assessee s appeal is allowed. Levy of penalty in respect of addition on account of contractual receipts - mismatch between the Revenue recognized by the assessee and the amount reflecting in Form 26AS - HELD THAT:- As the explanation given by the assessee on account of the possible cause of mismatch between the Revenue recognized by the assessee and the amount reflecting in Form 26AS, looking into the fact that the mismatch was only of a meagre amount of Rs. 1,05,827/- against the total contractual receipts of Rs. 2,14,08,976/- shown by the assessee as his contractual receipts, we are of the considered view that this is not a fit case for levy of penalty u/s 271(1)(c) of the Act Apparently the assessee has no mala fide intention to conceal the Revenue or furnish inaccurate particulars of his Revenue. In the result, levy of penalty with respect to addition on account of contractual receipts is hereby directed to be deleted. Decided in favour of assessee.

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• 2024 (4) TMI 1054
  Penalty proceedings u/s 270A - under reporting of the income - allowability of depreciation on acquisition of mining rights treating the same as intangible asset - malafide intentions to under report the income by claiming depreciation - allowability of depreciation so claimed by the assessee was denied by the revenue on account of no activity leading to income from extraction of Iron Ore in the relevant year or in the preceding year - CIT(A) was convinced with the explanations of the assessee, observing that the disallowance of depreciation is a subject matter of debate as in the case of holding company of the assessee i.e., NMDC the mining right has consistently been held as a depreciable asset eligible for depreciation u/s 32 HELD THAT:- Since there were different order of different courts including case of NMDC, the holding company of the assessee before us, wherein, the allowability of depreciation was a debatable issue. Moreover, since the mining right are held as an intangible asset eligible for depreciation u/s 32 of the Act by the ITAT, Hyderabad in the case of NMDC Limited for various assessment years from AY 2008-09 [ 2014 (3) TMI 682 - ITAT HYDERABAD] , AY 2009-10 [ 2014 (9) TMI 629 - ITAT HYDERABAD] , AY 2010-11 [ 2014 (7) TMI 993 - ITAT HYDERABAD] , AY 2011-12 [ 2015 (3) TMI 928 - ITAT HYDERABAD] , AY 2012-13 [ 2017 (5) TMI 1714 - ITAT HYDERABAD] , AY 2013-14, AY 2014-15 [ 2018 (10) TMI 1120 - ITAT AHMEDABAD] the assessee company has a bonafide belief that depreciation would be allowed on such mining rights to the assessee company. It is also an admitted fact transpired from the order of Ld. CIT(A) that the assessee appellant had filed an application before the Ld. AO, seeking immunity u/s 270AA of the Act after fulfilling all the pre-requisite conditions of the said section. There was no reason for the Ld. AO to deny grant of immunity to the assessee towards the application submitted u/s 270AA. Considering the facts and circumstances of the case, since there were justifiable reasons supporting the bonafide belief of the assessee in claiming the depreciation on mining rights and since mala-fide intentions of the assessee could not be established by the revenue in terms of any cogent material or explanation. The decision of Ld. CIT(A) found to be worth concurrence, in absence of any plausible argument, explanation, evidence or decision by the department to extricate the findings the Ld. CIT(A), thus, we uphold the same. Therefore, Ground No. 1 of the appeal of the revenue stands dismissed.

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• 2024 (4) TMI 1053
  Penalty proceedings u/s. 271(1)(b) - non-compliance of 3 notices u/s. 142(1) - Delay in late response as per date mentioned in notice - nowhere assessee had denied that notices were not served upon him nor there was any plausible explanation for non-compliance of notice - HELD THAT:- Although it is correct that assessee had not complied the date fixed in the notice u/s. 142(1), however, the assessee had filed all the details in response to the said show-cause notice on 24/02/2022 and also on 20/03/2022. Further, in response to show-cause notice also assessee had filed the details and also brought to his knowledge that all the transactions which has been alleged had already been offered to tax and part of profit and loss account. The remarks in the chronology of events clearly justify the compliance made by the assessee before the ld. AO. Thus , it is not a case of failure to comply with the notice, albeit there is failure to respond on the date mentioned in the notice. Delay in late response have been explained that; firstly, it was an old matter and assessee took time for retrieving the old date; secondly, assessee was having heavy losses due to small scale business operation after Covid and during the Covid period office of the assessee was also not opened. Apart from that, assessee has no employee and director was old and was the only person who was handling the affairs of the assessee company and was not aware of any online technicalities of notices sent through online. It was later on when assessee sought for assistance of a Chartered Accountant; the assessee compiled and filed all the details before the ld. AO which has been duly acknowledged. Thus, it cannot be held that assessee has purposefully defied the compliance of notices u/s. 142(1) and there was sufficient and reasonable cause in filing the details belatedly. Thus it is not a fit case to levy penalty - Appeals of the assessee are allowed.

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• 2024 (4) TMI 1052
  Validity of reopening of assessment u/s 147 - Reason to believe - as argued AO has failed in giving the exact reason for reopening the assessment and the reasons which the assessee came to the knowledge of the assessee from the assessment order are vague in nature - HELD THAT:- When asked, during hearing, the Ld. Counsel agreed and confirmed that the reasons for reopening were not asked for by the assessee during the course of either assessment proceedings or appellate proceedings. The Hon ble Supreme Court in its judgement of GKN Driveshaft (India) Ltd.[ 2002 (11) TMI 7 - SUPREME COURT] held that when a notice u/s 148 of the Income tax Act is issued, the proper course of action for the noticee is to file return and if he so desires, to seek reasons for issuing notices. The assessing officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a speaking order. Thus as agreed by assessee has not sought for any reason during the course of entire assessment and therefore seeking relief merely on technical ground is not tenable. Therefore, relying on facts and the judgment of Hon. Supreme Court the ground of appeal is dismissed. Addition u/s 69C on account of the capital introduced by the partner - HELD THAT:- In the present case, the partner (Late Dhaval B. Patel, who is expired on 18.12.2021 and we have taken note of the death certificate placed on record) has explained the source funds towards introduction of the capital. Therefore, if the department was not satisfied with the explanation given by the partners, then it is legitimate for the department to draw inference that these amounts represent undisclosed profits/unexplained credits and to assess them in their hands in their own individual assessment. Thus, the amounts credited to the partners bank account cannot be assessed in the hands of the firm. Once the partner has owned that the money deposited in his accounts are of his own, the AO is entitled to and may proceed against the partner and assess the same in his individual hands. Thus we are of the opinion that Ld.CIT(A) has not taken into consideration, principles to the facts of the judicial pronouncement as referred above in case of CIT Vs. Pankaj Dyestuff Industries ( 2005 (7) TMI 601 - GUJARAT HIGH COURT] and has erred in confirming the addition. Therefore, the ground of the assessee is allowed. Addition u/s 69C of the Act on account of unsecured loans - HELD THAT:- Counsel explained with the help of remand report and the facts reproduced by the Ld.CIT(A) in his order, that the assessee has proved the identity and genuineness by providing PAN, bank statement and copy of ITR of the person who lent money to the assessee as unsecured loan. It was also observed by the AO in the remand report that the person who lent money by cheque to the assessee had deposited cash in his account to clear the cheque. Since the identity, genuineness and creditworthiness of the depositor are proved by the assessee and hence the primary onus cast upon the assessee is discharged and the onus now shifted to the AO to show why the assessee s case could not be accepted and why it must be held that such loans remained unexplained and treating as dubious and doubtful. In order to arrive at such a conclusion, the AO has to be in possession of sufficient and adequate material. Further the assessee cannot be presumed to have special notice about the source of source or origin of origin. Once the assessee has explained the source of the funds having come from the depositors as an explanation to support the loans received, it is not expected from the assessee to explain the source of the source. Even if it is assumed that the person who lent the money, was unable to explain the nature and source of the funds received by them which were given as loan to the assessee than its unexplained amount could be treated as unexplained investment in the hands of the depositors u/s. 69 of the Act or other section but could not be taxed in the hands of the assessee as unexplained expenditure u/s 69C of the Act in absence of any evidence. Thus CIT(A) is not justified in confirming the addition.

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• 2024 (4) TMI 1051
  Rejecting registration u/s 12A(1)(ac)(iii) - name mismatch between the certificate of registration issued by the Charity Commissioner, Vadodara and the PAN database - assessee/applicant submitted that the variation in nomenclature arises due to the English translation of the organization s name - HELD THAT:- Name of the assessee/applicant trust has not changed but in translation from Gujarati to English, words in Gujarati Bhutpurva Vidhyarthi Mandal is translated in English as Alumni Association . Instead of Bhutpurva Vidhyarthi the word Alumni is translated in English and for the word Mandal , it is translated as Association . Otherwise, the entity is the same as it is registered under the Bombay Public Trust Act, which is proved from the Trust Registration Number mentioned in Registration Certificate in Gujarati and translated in English. The Counsel for the assessee submitted that the applicant trust has got provisional registration in the name Parul University Alumni Association on the basis of legal documents like Trust Registration Certificate and Memorandum of Association. Same documents were also filed with the application form applied in the same name for registration in Form 10AB. Hence, name of the assessee/applicant trust is consistent with it s legal entity and it has remained the same before all Government Authorities. In our considered view, the assessee/applicant trust has been able to reasonably explain the mismatch between the name as appearing in the legal documents submitted by the assessee/applicant trust before CIT (Exemptions) and the name as appearing in the PAN database. In view of the detailed explanation in support of the alleged mismatch given by the assessee/applicant trust, we are of the considered view that it is not a fit case where the application filed by the assessee/applicant trust can be summarily rejected only the ground of name mismatch alone. Accordingly, CIT (exemptions) is directed to examine this issue afresh after taking on record the detailed submissions filed by the assessee/applicant trust in support of this contention/issue. Objects of the assessee/applicant trust are not for public at large - Looking into the objects of the trust, it cannot be held that the assessee/applicant trust has been formed only for the benefit of a particular community only. Further, we also agree with the Counsel for the assessee that this aspect should be considered at the time of grant of exemption under Section 11 of the Act and the provisions of Section 13 should not be invoked at time of grant of registration under Section 12AA of the Act. In the result, the matter is being restored to the file of CIT (Exemptions) to examine the activities carried out the trust (since we observe that the trust has been recently formed/registered) and to carry out the requisite analysis whether the trust is engaged in carrying out genuine activities, so as to be eligible for grant of registration under Section 12AA of the Act. Assessee s appeal is allowed for statistical purposes.

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• 2024 (4) TMI 1050
  Denial of benefit u/s 115BAA of reduced rate of tax @22% - Domestic Companies - Condonation of delay in filing of Form No. 10-IC by the assessee - scope of circulars or directions amending provisions of the Act - assessee submitted that CBDT has issued Circular No. 19/2023 for condoning the delay in filing of Form No. 10-IC for Assessment Year 2021-22 as stated that delay in filing of Form No. 10-IC may be condoned, subject to fulfilling of 3 conditions for claiming the concessional rate of tax under Section 115BAA of the Act. HELD THAT:- On going to the facts of the instant case, and the conditions as stipulated in Circular No. 19/2023 dated 23.10.2023, we are of the considered view that the assessee has fulfilled all the conditions as mentioned in the aforesaid Circular and the assessee has also filed Form No. 10-IC within the stipulated timelines as specified in the aforesaid Circular, and accordingly is eligible for claim of being taxed under Section 115BAA of the Act. Appeal of the assessee is allowed.

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• Benami Property

• 2024 (4) TMI 1049
  Prohibition of Benami Transactions - provisional attachment order was confirmed - Who is the beneficial owner of property? - all the properties were purchased/ transferred prior to the amendment of 2016 in the Act of 1988 but properties were held by the benamidar even subsequent to the amendment - appellants submitted that perusal of the three tables would reveal that all those properties were purchased prior to the amendment in the Act, 1988 by the notification dated 01.11.2016 to amend various provisions of the Act of 1988. As submitted that the appellant Sukh Lal Baiga purchased all the properties alleged to be benami from his own sources. He was working with Padam Kumar Singhania alleged to be the beneficial owner from the childhood and earning salary out of his work. HELD THAT:- It is not in dispute that purchase of all the properties in the name of Sukh Lal Baiga is prior to the amendment of 2016 in the Act of 1988. It is however a fact that all those properties were held by Sukh Lal Baiga even after the amendment. Holding of the properties even subsequent to the amendment of the year 2016 has a consequence and elaborately discussed in reference to the definition of benami transaction given under the amended provision of section 2 (9) by this Tribunal in the case of Suresh Bhageria Versus the Initiating Officer, DCIT (BPU-2), Mumbai [ 2024 (1) TMI 203 - APPELLATE TRIBUNAL FOR SAFEMA AT NEW DELHI] It was held that if the benami transaction defined under section 2 (9) is to be applied, then it would be not only for transfer of the property but even its holding. The definition of benami transaction under the amended provisions was different than the un-amended provision. The judgement quoted above deals with the first issue raised by the appellant where it has been held that if the property was purchased prior to the amendment of 2016 and is not held by the benamidar, then the judgement of the Apex Court in the case of Union of India Anr. Versus M/s. Ganpati Dealcom Pvt. Ltd [ 2022 (8) TMI 1047 - SUPREME COURT] would apply. However, if the property is held even after the amendment of 2016, then amended provision would apply. The detailed discussion of issue in the case of Suresh Bhageria (Supra) applies to the facts of this case. In the light of the aforesaid and facts of this case, the first argument raised by the appellant cannot be accepted in the light of the detailed judgement of this Tribunal in the case of Suresh Bhageria (Supra). Whether appellant Sukh Lal Baiga was having sufficient source to purchase the property from time to time? - The income of the appellant Sukh Lal Baiga and his further statement that all the properties referred in the schedule were purchased by Padam Kumar Singhania. The appellant Sukh Lal Baiga did not retract his statement though counsel for the appellant submitted that it has been questioned in the appeal but that cannot be taken to be a retraction. It is also a fact that the statement of different seller of the properties were also recorded and referred by the Adjudicating Authority. They have stated about payment of consideration by Padam Kumar Singhania for all the properties. The statement of the seller have been corroborated by the evidence and the statement of Sukh Lal Baiga for purchase of property by Padam Kumar Singhania for which Sukh Lal Baiga was having no knowledge. In the light of the facts given above, we find that material was brought by the respondents to prove a case of benami transaction for purchase of the properties. Appellant questioned the statement of seller relied by the Adjudicating Authority without a chance of cross examination - An application to seek summoning of the witnesses to cross examination was not filed before the Adjudicating Authority. The statement of the seller was otherwise supplied to the appellant and has not been disputed. If the appellant was desirous of cross examination of those witnesses, he should have filed an application to summon them to provide an opportunity of cross examination before the Adjudicating Authority. No such application was submitted by the appellant. The opportunity of cross examination is otherwise a part of natural justice but it is to be provided when statement of the witnesses are recorded before the Authority who is adjudicating the matter. It is not a case where the statement of witnesses were recorded by the Adjudicating Authority so as to allow cross examination of those witnesses as a course. The statement of witnesses were recorded during the course of investigation and there is no provision to provide cross examination by the Investigating Officer. Hence, the allegation that Investigating Officer did not provide an opportunity of cross examination cannot be accepted. No one prevented the appellant to make an application to seek cross examination of the witnesses before the Adjudicating Authority. The appellant having failed to make an application to seek cross examination cannot now raise issue if the statement of witnesses have been relied after supplying a copy of those statement to the appellant. In the light of the aforesaid, even the legal issue in reference to cross examination cannot be accepted and accordingly we do not find any force even in the third issue raised by the appellant. We find a case for interference in the impugned order in reference to Aaditya Vikram Singhania holding him to be the beneficial owner only for the reason that he subsequently purchased benami properties in the year 2019. There is nothing on record to show that consideration of those properties was paid by Aaditya Vikram Singhania to purchase it in the name of Sukh Lal Baiga, otherwise mentioned in table C, rather the consideration was paid by Padam Kumar Singhania. Thus, for all the properties, he alone would be the beneficial owner and not Aditya Singhania. Mere subsequent purchase of the property by Aaditya Vikram Singhania would however not affect the attachment but allegation of his being a beneficial owner of the property cannot be accepted and finding of the Adjudicating Authority to that extent is interfered and set aside with the declaration that beneficial owner of all the properties is Padam Kumar Singhania while benamidar to be Sukh Lal Baiga. The finding aforesaid would however not affect the attachment.

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• Customs

• 2024 (4) TMI 1048
  Conspiracy with the consignee and other persons - Smuggling - cigarettes - alloy wheels - metal scrap - initiation of proceedings under Sections 112 and 117 of Customs Act - notice was issued in compliance of provisions of Section 155(2) of the Act - It was held by High Court that The larger issue thus, remains whether there was a conspiracy with the consignee and other persons. These are factual aspects which the writ Court will not go into. Since the reply has already been filed, it is opined that it is for the authorities to take a decision on the above said show cause notices and it is not for the writ Court to entertain the petition of an employee who prima facie is guilty of eating the fence. HELD THAT:- There are no reason to interfere with the order impugned herein under Article 136 of the Constitution of India. The Petition for Special Leave to Appeal is dismissed.

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• 2024 (4) TMI 1047
  Maintainability of Appeal - Appropriate forum - matter relates to the valuation of a car which was imported - rejection and redetermination of value - HELD THAT:- The matter concerns valuation of the imported goods and there is the clear bar of this Court (High Court) in entertaining this appeal. The appeal is held to be not maintainable before this Court.

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• 2024 (4) TMI 1046
  Seeking amendment of bill of entry - grant of benefit of N/N. 152/2009, dated 31-12-2009 - HELD THAT:- In the present case, it appears that nothing has been mentioned in the assessed bill of entry by the respondent with regard to the petitioner s entitlement of exemption under Notification No. 152/2009, dated 31-12-2009. Hence, the petitioner made a rectification application on 1-6-2023. However, in the said rectification application, no order has been passed by the respondent till date. The respondent is directed to dispose of the rectification application dated 1-6-2023 filed by the petitioner in accordance with law after affording an opportunity of personal hearing to the petitioner - the writ petition is disposed off.

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• 2024 (4) TMI 1045
  Request for conversion of free Shipping Bills into Drawback Shipping Bills rejected - long lapsed period between exports (1998) and the request for conversion (2007) - section 149 of Customs Act, 1962 - HELD THAT:- The free shipping bills in question pertain to 1998 and the request for conversion was made in 2007. Although the request was made in terms of section 149 of the Act, as per the interpretation of this section by Delhi High Court in M/S. TERRA FILMS PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS [ 2011 (4) TMI 13 - DELHI HIGH COURT] and Madras High Court in THE COMMISSIONER OF CUSTOMS (SEAPORT-EXPORT) VERSUS M/S. SUZLON ENERGY LIMITED [ 2013 (3) TMI 506 - MADRAS HIGH COURT] , conversion of shipping bill from one scheme to another is not an amendment because it changes the entire nature of the document. Viewed in this legal position, the appellant s request for conversion of free shipping bills to drawback shipping bills cannot be accepted for more than one reason - Firstly, it changes the entire nature of the Shipping Bills and it is not merely amendments to them - Secondly, any amendment can be permitted only on the basis of documents available at the time of export. The appellant s prayer that the rates notified much later may be applied to it s case retrospectively cannot be accepted because the notified All-Industry Rates are always prospective and also because these rates had not existed when the goods were exported - Thirdly, any amendment under section 149 is a matter of discretion of the officer and not a right of the exporter. Considering the long period that lapsed between exports (1998) and the request for conversion (2007), the Commissioner was correct in not allowing the conversion. The impugned order is upheld - Appeal dismissed.

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• 2024 (4) TMI 1044
  Provisional release of the goods allowed - SCN not issued within time limitation - seizure of goods under Section 110 (2) of the Customs Act, 1962 - HELD THAT:- As per Section 110 (2), the adjudicating authority was required to issue show cause notice under section 124 of the Customs Act within six months of seizure. The period of six months may on sufficient cause being shown can be extended for another period of six months, but in this case, neither any show cause notice has been issued to the appellant under section 124 of the Act nor the period for issuance of the show cause notice has been extended till date. Admittedly the goods have been seized on 22.09.2023 and presently it is 19.04.2024. As the provision of section 110(2) of the Customs Act has not been complied with, therefore, the goods in question are to be released to the appellant immediately - the adjudicating authority is directed to do so. The goods in question are to be released to the appellant immediately without any condition for provisional release - Appeal disposed off.

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• 2024 (4) TMI 1043
  100% EOU - Validity of EPCG Licenses - Cancellation of bonded warehouse licence, letter of permission (LOP) and registration - Duty liability u/s 28 - interest - export promotion capital goods (EPCG) scheme in the Foreign Trade Police (FTP) - breach of the principles of natural justice - HELD THAT:- On a perusal of the scheme of Customs Act, 1962, we find that there is no provision whatsoever for the consequences of cancellation of a warehousing licence other than through section 58 of Customs Act, 1962 by giving one month notice in writing and opportunity to be heard. Therefore, notwithstanding the issue of letter of permission which was also the genesis of the private warehousing licence, provisions of Customs Act, 1962 do not envisage such deftailing of a scheme in Foreign Trade Policy with the self content and apprehensive provision for a warehousing in chapter IX of Customs Act, 1962 with the procedures formulated for implementation of such a scheme did prescribe the licencing of a private bonded warehouse for enabling operation as export oriented unit (EOU). Such a procedure cannot correct the existence and sanctity of a warehouse licenced under the provisions of chapter IX of Customs Act, 1962. Any termination of the said warehousing licence and its consequence, was necessarily follow the provisions embodied in the said chapter and cannot be said to be linked to a permission accorded under the Foreign Trade Policy (FTP). It may also be noted that the said appendix in the Handbook of Procedures cited in the impugned order had been put in a place solely for the purpose other than the effect of the exemptions in Income Tax Act, 1961. There is no statutory reference whatsoever but Customs Act, 1962 and therefore the procedure prescribed for a scheme under a policy cannot render an institution established and controlled under a statute to be subservient them too. It would, therefore, appear that the impugned order, fastening the consequences of payment of duty on goods that continued to be warehoused till 6th of April 2015 is not only contrary to the provisions of Customs Act, 1962 but also in breach of the principles of natural justice which prescribes consequences of termination of warehousing licence only after completion of the due process. Thus, we set aside the impugned order and, as the show cause notice had not been decided after due consideration of the legal provisions, the matter is remanded to the original authority for a fresh decision on the termination of warehousing licence and consequences thereof, if any, strictly in accordance with law.

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• Insolvency & Bankruptcy

• 2024 (4) TMI 1042
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Debt or not - Civil Suit for specific performance - non-allotment of 39100 sq. ft. built-up area of land or not - default in terms of Section 3(12) of the I B Code, 2016 - it was held by NCLAT that There is no financial debt in favour of the Appellant. It is pertinent to mention that Appellant s pleading is that the amounts have been paid by the Appellant to the Respondent and the consent decree itself is the debt for which Section 7 Application has been filed - HELD THAT:- There are no good ground and reason to interfere with the impugned judgment and hence, the present appeal is dismissed.

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• Service Tax

• 2024 (4) TMI 1041
  Refund of Service Tax - tax paid as a mistake of law - applicability of time limitation as per Section 11B of the Act, 1944 - HELD THAT:- This question came up for consideration before the Delhi High Court in HIND AGRO INDUSTRIES LIMITED VERSUS COMMISSIONER OF CUSTOMS [ 2007 (8) TMI 215 - DELHI HIGH COURT ]. After considering the judgment of the Hon ble Supreme Court in case of Mafatlal Industries Ltd. [ 2002 (11) TMI 707 - CEGAT, MUMBAI] , the Delhi High Court held that the judgment of Mafatlal Industries Ltd. nowhere talks of a situation where the refund of a tax paid under the relevant Act albeit erroneously was required to be made under the Excise Act or the Customs Act and under no other enactment. It was clearly held that judgment of Mafatlal Industries Ltd. (supra 1) is of no assistance in a case where tax is erroneously paid as a mistake of law. The Tribunal has also taken note of the judgment of Karnataka High Court in COMMISSIONER OF CENTRAL EXCISE (APPEALS), BANGALORE VERSUS KVR CONSTRUCTION [ 2012 (7) TMI 22 - KARNATAKA HIGH COURT ]. The Karnataka High Court also considered the judgment of Delhi High Court in case of Hind Agro Industries Limited [ 2007 (8) TMI 215 - DELHI HIGH COURT] and the judgment of Mafatlal Industries Ltd. and in no certain terms made it clear that where the tax is admittedly paid as a mistake of law, the limitation will not come in the way for refund. Thus, no substantial question of law subsists and needs to be answered, because curtains are already drawn on this issue by various High Courts. Thus, admission is declined. The Central Excise Appeal is dismissed.

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• 2024 (4) TMI 1040
  Payment through CENVAT credit not accepted - supporting documents furnished were also not referred - HELD THAT:- There are no doubts as to the availability of CENVAT credit in the books of the appellant. But however, the lower authority has brushed aside the request of the appellant which is borne on record, but it was incumbent upon the original authority discharging the role of an adjudicating authority to verify/cross verify and then give proper findings through speaking order as to whether the claims of the appellant were acceptable or not. It is precisely the case of the appellant that they had discharged service tax liability to a larger extent through credit balance, but however, the original authority has ignored the claims of the appellant, which is not in accordance with law. Further, it is not even the case of the Revenue that the claims of the appellant were wrong insofar as the availability and the utilization thereof, CENVAT credit towards the payment of their service tax liability, however as contended by the learned Advocate, there may be a slight delay, for which statutory provisions are available to safeguard the interest of the revenue. If the stand of the appellant is to be accepted upon verification, then, the demand once again would amount to double taxation, which is not the spirit of the taxing statute. In that view of the matter, it is deemed most appropriate to set aside the impugned order and remit matter back to the file of the original authority for de-novo adjudication, who verify the claims of the appellant and thereafter, pass a speaking order in accordance with law. Appeal is allowed by way of remand.

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• 2024 (4) TMI 1039
  Interest on delayed refund - deposit of whole amount of service tax demanded, under protest - HELD THAT:- Admittedly, in this case, the appellant has made the pre-deposit of whole of the demand of service tax although under protest, but the same was not required to be paid by the appellant to file appeal before this Tribunal - In that circumstances, the appellant is entitled to claim the interest on 7.5% of the demand of service tax deposited (Rs.7,90,08,905/-) on 28.12.2018 till its realization i.e. 01.09.2022. In terms of the decision of this Tribunal in the case of M/S. PARLE AGRO PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS SERVICE TAX, NOIDA (VICE-VERSA) [ 2021 (5) TMI 870 - CESTAT ALLAHABAD] , the appellant is entitled for interest at the rate of 12% per annum - the appellant is entitled to interest on 7.5% of Rs.7,90,08,905/- from 28.12.2018 till 01.09.2022 at the rate of 12% per annum. Appeal disposed off.

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• 2024 (4) TMI 1038
  Non-payment of service tax - Valuation - Reimbursements of expenses - Pure Agent - Freight Reimbursed and Miscellaneous Expense Reimbursed - Whether the services provided under two separate agreements (Handling Agent Agreement and Transport Agreement) should be classified independently or merged as a single clearing and forwarding agent service for tax purposes. - Reverse Charge Mechanism - extended period of limitation - HELD THAT:- The dispute in this case is for the inclusion of freight amount in the value of C F service for which a separate agreement has been entered into with the principal, which we do not consider legally tenable. In the case of Gunesh India Pvt. Ltd [ 2022 (5) TMI 1042 - CESTAT NEW DELHI] in similar type of arrangement with M/s Ultra Tech Cement Ltd Delhi Bench has held under this agreement under the scope of work, the appellant have correctly treated the work as GTA service and service tax have been rightly discharged by the recipient Ultratech Cement Ltd under Reverse Charge Mechanism. Thus, the confirmation of demand on the appellant is bad and accordingly set aside. The demand in terms of the above decision which is squarely on the same set of facts have been set aside both on the merits and also limitation. In case of Srinivasa Transports [ 2014 (6) TMI 205 - CESTAT BANGALORE] Bangalore bench has held the appellant has provided labour for undertaking miscellaneous jobs and payment has been made to the appellant based on number of man-days involved. This service also would not come under the category of cargo handling service. Therefore, clubbing all the activities undertaken by the appellant under Cargo Handling Service and levying Service Tax under the said category cannot be sustained in law. The adjudicating authority has to examine the individual activities carried out by the appellant and then classify the same, considering the definitions provided in the law, which has not been done in the present case. Therefore, the matter has to go back to the adjudicating authority for fresh consideration. The impugned order cannot be sustained and the same is set aside - Appeal allowed.

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• Central Excise

• 2024 (4) TMI 1037
  Denial of irregularly availed CENVAT Credit - allegation on the ground that there was no manufacturing facility in factory premises and appellant was engaged only in paper transactions - cross-examination of statement of witnesses not allowed - HELD THAT:- In this case the appellant has intimated suspension of their manufacturing activities vide letter dated 10.07.2008 and thereafter surrendered their registration on 01.08.2008 and whole of the investigation have been started thereafter. Moreover, the appellant has procured inputs from various dealers, manufacturers and suppliers and made payments through account payee cheques and investigation was conducted at their end and no inculpatory statement has been made by the supplier of the goods. Further, the appellant has supplied to various recipients of the goods whose investigation was also conducted at their end - It is also evident on record that whatever Cenvat credit has been taken by the appellant, the appellant has utilized the same for payment of duty on the clearance of the goods and also paid sufficient amount of duty through PLA. The case of the Revenue is based only on the statements of certain transporters and on assumption and presumption that as no machinery was found at the time of investigation, the appellant was involved only on paper transactions and certain transporters have made inculpatory statements against the appellant - It is found that the transporters were not allowed to be crossexamined by the appellant in terms of section 9D of the Central Excise Act, 1944 which prescribes that to rely on the statement of a witness, the witness has to be tested by recording their statement at the time of adjudication in chief and thereafter to offer for cross-examination which has not been done in this case, therefore, the statement of the transporters which are inculpatory cannot be relied upon in terms of Section 9D of the Act. The appellant is entitled to take Cenvat credit which has been utilized for payment of duty and the appellant has paid duty through PLA also. In that circumstances, the impugned proceedings are not sustainable - the demand on account of denial of Cenvat Credit is set aside, as the demand against the appellant is not sustainable, therefore, penalty on the appellants are not imposable. Moreover, the appellant No.1 is the proprietor of the appellant No.2, therefore, penalty on both the appellant is also not sustainable in the facts and circumstances of the case. The impugned demand confirmed and penalty imposed on the appellant are set aside - Appeal allowed.

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• 2024 (4) TMI 1036
  Exemption for captive consumption - benefit of exemption N/N. 67/95 dated 16.3.1995 - Rectified Spirit - excisable goods or not - covered by the term final product or not - HELD THAT:- This Bench has considered almost identical issue, in their own case to hold that the denial of exemption Notification No.67/95 was incorrect, for the reasons discussed therein, by also relying upon an earlier order of Chennai Bench in the case of Sri Ambika Sugars Ltd. [ 2014 (11) TMI 919 - CESTAT CHENNAI] has held The Tribunal in the case of RAJSHREE SUGARS AND CHEMICALS LTD. AND OTHERS VERSUS COMMISSIONER OF CENTRAL EXCISE, PUDUCHERRY AND OTHERS [ 2014 (11) TMI 919 - CESTAT CHENNAI] held that the denial of exemption notification 67/95 on molasses captively consumed to manufacture Rectified Spirit DNA cannot be justified. The impugned order is set aside - appeal allowed.

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• CST, VAT & Sales Tax

• 2024 (4) TMI 1035
  Penalty for diversion and unlawful sale of foreign liquor - Applicability of the relevant rule for imposition of penalty - whether it is the rule that existed when the violation occurred during the license period of 2009-10 or the rule that was substituted in 2011 when proceedings for penalty were initiated? - HELD THAT:- The operation of repeal or substitution of a statutory provision is thus clear, a repealed provision will cease to operate from the date of repeal and the substituted provision will commence to operate from the date of its substitution. This principle is subject to specific statutory prescription. Statute can enable the repealed provision to continue to apply to transactions that have commenced before the repeal. Similarly, a substituted provision which operates prospectively, if it affects vested rights, subject to statutory prescriptions, can also operate retrospectively. The principle governing subordinate legislation is slightly different in as much as the operation of a subordinate legislation is determined by the empowerment of the parent act. The legislative authorization enabling the executive to make rules prospectively or retrospectively is crucial. Without a statutory empowerment, subordinate legislation will always commence to operate only from the date of its issuance and at the same time, cease to exist from the date of its deletion or withdrawal. The reason for this distinction is in the supremacy of the Parliament and its control of executive action, being an important subject of administrative law. The regulatory process requires the Government to deal with the problem of diversion and unlawful sale of foreign liquor and also provide an appropriate penalty and punishment. The process of identifying a crime and prescribing an appropriate punishment is a complex and delicate subject that the State has to handle while making rules and enforcing them. The gravity of the offence, its impact on society and human vulnerability are taken into account to provide the required measure of deterrence and reform - depending on the nature of offence, the proportionate penalty is required to be modulated from time to time. The single Judge as well as the Division Bench have adopted two different approaches and we have not agreed with either of them. The single Judge was of the view that the amendment by way of substitution has the effect of repealing the law which existed as on the date of repeal. We have already explained the limitation in this approach. The Division Bench on the other hand, held that levy of penalty is substantive law, and as such, it cannot operate retrospectively. This again is a wrong approach. The substituted penalty only mollifies the rigour of the law by reducing the penalty from four times the duty to value of the duty. The judgment of the Division Bench of the High Court set aside - appeal allowed.

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