Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
April 3, 2020
Case Laws in this Newsletter:
GST
Income Tax
Customs
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
TMI SMS
Articles
News
Notifications
GST - States
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CCT/26-2/2018-19/54/02 - dated
2-4-2020
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Goa SGST
Prescribe return in FORM GSTR-3B of Goa Goods and Services Tax Rules, 2017 along with due dates of furnishing the said form for April, 2020 to September, 2020 under the Goa Goods and Services Tax Act, 2017
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CCT/26-2/2018-19/53/03 - dated
2-4-2020
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Goa SGST
Prescribe the due date for furnishing FORM GSTR-1 by such class of registered persons having aggregate turnover of more than 1.5 crore rupees in the preceding financial year or the current financial year, for each of the months from April, 2020 to September, 2020
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CCT/26-2/2018-19/52/01 - dated
2-4-2020
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Goa SGST
Extends the time limit for furnishing of the annual return specified under Section 44 of the Goa Goods and Services Tax Act, 2017 read with Rule 80 of the Goa Goods and Services Tax Rules, 2017
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38/1/2017-Fin(R&C)(139) - dated
2-4-2020
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Goa SGST
Under section 148 to prescribe the due date for furnishing FORM GSTR-1 for the quarters April, 2020 to June, 2020 and July, 2020 to September, 2020 for registered persons having aggregate turnover of up to 1.5 crore rupees in the preceding financial year or the current financial year under the Goa Goods and Services Tax Act, 2017
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38/1/2017-Fin(R&C)(138) - dated
2-4-2020
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Goa SGST
Under section 25(6C) to specify class of persons, other than individuals who shall undergo authentication, of Aadhaar number in order to be eligible for registration under the Goa Goods and Services Tax Act, 2017
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38/1/2017-Fin(R&C)(136) - dated
2-4-2020
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Goa SGST
Notification under section 25(6D) to specify the class of persons who shall be exempted from aadhar authentication under the Goa Goods and Services Tax Act, 2017
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38/1/2017-Fin(R&C)(135) - dated
2-4-2020
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Goa SGST
Goa Goods and Services Tax (Third Amendment) Rules, 2020
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25/GST-2 - dated
31-3-2020
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Haryana SGST
Notification to prescribe return in FORM GSTR-3B of HGST Rules, 2017 along with due dates of furnishing the said form for April, 2020 to September, 2020 under the HGST Act, 2017.
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24/GST-2 - dated
31-3-2020
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Haryana SGST
Notification to prescribe the due date for furnishing FORM GSTR-1 by such class of registered persons having aggregate turnover of more than 1.5 crore rupees in the preceding financial year or the current financial year, for each of the months from April, 2020 to September, 2020 under the HGST Act, 2017.
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23/GST-2 - dated
31-3-2020
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Haryana SGST
Notification under section 148 to prescribe the due date for furnishing FORM GSTR-1 for the quarters April, 2020 to June, 2020 and July, 2020 to September, 2020 for registered persons having aggregate turnover of up to 1.5 crore rupees in the preceding financial year or the current financial year under the HGST Act, 2017.
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22/GST-2 - dated
31-3-2020
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Haryana SGST
Notification under section 25(6C) to specify class of persons, other than individuals who shall undergo authentication, of Aadhaar number in order to be eligible for registration under the HGST Act, 2017.
Highlights / Catch Notes
GST
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Business Transfer Agreement - the applicant has transfer the business as a going concern - it may treated as supply of services - the same is exempted from levy of GST as on date.
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Valuation - Rate of Exchange - goods are supplied within India and billing is to be done in foreign currency - Rule 34 of the Rules is to be applied for valuation of supply - rate of exchange of imported goods shall be applicable in as much as the foreign currency price in the contract is to cover imported content of the material used for intended purpose.
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Classification of services - Rate of GST - services provided by M/S Garhwal Vikas Nigam - The services rendered by M/s. GMVN to the applicant during the period 01.07.2017 to 31.12.2018 attract GST at the same rate of central tax as on supply of like goods involving transfer of title in goods. i.e. 5%.
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Classification of services - Permission to extract accessory minerals (sand, gravel boulders) on payament of fees - service provided by Garhwal Mandal Vikas Nigam (GMVN) - Classifiable under Chapter 2505, 2517 and Chapter 25169020 as case may be - Rate of GST is 5% during the relevant period.
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Regularization of the Petitioner’s GSTR-3B for August, 2017 - the System had crashed - the petitioner had duly discharged the tax liability of August, 2017 within the period prescribed therefor; however, it was only on account of technical glitches in the System that the amount of tax paid by the petitioner for August 2017 had not been credited to the Government account. Hence, the interests of justice would best be served if the declaration submitted by the petitioner in October, 2019 along with the return of September, 2019 is treated as discharge of the petitioner’s tax liability of August, 2017 - The petitioner shall not be liable to pay any interest on such tax amount for the period from 21.9.2017 to October, 2019
Income Tax
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Residence in India - Section 6 of the Income-tax Act, 1961 as amended
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Meaning of the term "short-term capital asset" - New clause (hh) inserted to the Explanation 1 in respect of units referred in section 49(2AG) - Section 2(42A) of the Income-tax Act, 1961
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Meaning of the term "Chief Commissioner" extended to include Director General of Income-tax and Principal Director General of Income-tax - Section 2(15A) of the Income-tax Act, 1961
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Meaning of "business trust” u/s 2(13A) amended - Section 2(1) to 2(15) of the Income-tax Act, 1961
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Disallowance u/s 14A - the A.O had after necessary deliberations observed that with reference to the accounts of the assessee, he was not satisfied with the correctness of its claim as regards the expenses which were attributed to earning of the income not forming part of the assesse’s total income. Accordingly, we are of the considered view that the statutory requirement of arriving at a satisfaction by the A.O, as regards the correctness of the assesse’s claim of disallowance under Sec. 14A can safely be held to have been satisfied on his part. - However, additions restricted or deleted in certain situations.
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Unexplained cash - It is difficult to comprehend that when the assessee was neither the partner nor the director nor the owner of the said company then how the cash can be said to be belonging to a third party. In our opinion, this is a plea taken by the assessee just to explain the cash the said plea is required to be rejected as the said plea has been made by the assessee to serve his own purpose without any basis.
Customs
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Rate of Interest on duty as per the order of Settlement Commission - Interest rate reduced from 24% to 15% - there are no reasons to interfere with the impugned order. That apart the order of a Settlement Commission is final and conclusive in terms of Section 127J of the Customs Act, 1962. - Immunity granted by the commission if its order not complied with accordingly.
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Maintainability of appeal - monetary amount involved in the appeal - The learned Tribunal has powers to pass such orders on pending appeal before it, "as it thinks fit" and therefore, the power to remand the case back to the Adjudicating Authority is included within the amplitude of powers conferred upon the Tribunal by the Statute.
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SEZ unit - Extension/renewal of Letter of Approval of the existing plastic recycling unit - the stand adopted by the Development Commissioner, for not complying with the earlier directions issued by this court appears to be an attempt to delay the implementation of the order and is in flagrant disregard of directions issued by this court.
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Refund of Customs Duty - Period of limitation - the order of this Tribunal dated 03.03.2011 was challenged by the Revenue before the Hon’ble High Court and before the decision of the Hon’ble High Court was delivered, the refund claim was filed by the appellant. In that circumstances, how can be said that the refund claim filed by the appellant is barred by limitation. In fact, the refund claim filed by the appellant before the limitation starts.
Service Tax
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CENVAT Credit availed by the Appellant for providing the output service of ‘renting of immovable property’ - there is no manner of doubt that CENVAT Credit availed by the appellant on inputs, inputs services and capital goods service used for construction of the Mall, which was ultimately let out could not have been denied to the appellant. - Further, even though the period in dispute may be from 1 April, 2011 to 31 March, 2012, but the ‘input services’ were received by the appellant prior to 1 April, 2011. - Credit allowed.
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Maintainability of appeal - time limitation - Proof of service of order - As per Section 37C of the Act of the Central Excise Act, 1994, the service is complete by speed post by proof of delivery. Admittedly, there is a presumption that if order has not been returned back, it has been delivered/ served but there is no clear cut proof of delivery of the adjudication order on the appellant. Therefore, benefit of doubt goes in favour of the appellant and by non filing of appeal within time, the appellant has not gained anything.
Central Excise
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Refund of closing balance of PLA - Period of limitation - whether the balance lying in the assessee’s PLA, which became non-usable with effect from 1 July, 2017 with the introduction of GST regime, is required to be refunded to them or not? - There are no justification for denial of the refund
VAT
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Classification of goods - rate of tax - H.P. Printer toner and cartridges - In the instant case toner cartridge being part of printer, which are sold alongwith printers have to be taxed at the same rate as the printers and not under the residuary provision.
Case Laws:
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GST
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2020 (4) TMI 68
Levy of GST - Medical Services with regard to providing vaccination from clinic - failure to comply with the provisions of Section 97 (1) of CGST Act, 2017, Rule 104 (1) of the CGST Rules, 2017, Rule 107 (A) of the CGST Rules, 2017 and Circular no. 25/25/2017-GST issued by the Central board of Excise and Customs on 21-12-2017 - HELD THAT:- As the applicant failed to comply with the aforesaid legal procedures despite being made known about the same as above vide letter dated 20.09.2019 and thereafter during the course of personal hearing held on 27.12.2019, this authority is of the considered view that their application at this stage cannot be entertained owing to the said failure to comply with the stipulated provisions of Act and Rules under State GST Act and/or Central GST Act. Application dismissed.
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2020 (4) TMI 67
Business Transfer Agreement - Applicability of exemption Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 - going concern which consists of transferring under-construction project - HELD THAT:- The acquisition of goods/ services for commencement of business is covered under the said definition. A transfer of a business as a going concern is the sale of a business including assets. In terms of financial transaction 'going concern' has the meaning that at the point in time to which the description applies, the business is live or operating and has all parts and features necessary to keep it in operation. Thus Transfer of a going concern' in a simple way can be describe as transfer of a running business which is capable of being carried on by the purchaser as an independent business. In the present case, the applicant is carrying on the business of constructing residential/commercial complexes and selling thereof and the applicant firm come into existence particularly for the said project. Further on perusal of the sale deed dated 24.10.2019, we find that the applicant has sold the under-construction building, as a whole, situated at village- Manoharpur, Pargana-Jwalapur, District-Hardwar with its all assets and transfer the rights of the same to the buyer including the approved map from the competent authority. The buyer has purchased the under-construction building/business to carry on the same kind of business as the purchaser themselves engaged in constructing residential/commercial complexes and selling thereof. Further as on date there is no series of immediately consecutive transfers of the said business. Thus, the applicant has transfer the business as a going concern to M/s. Ronav Infrastructure and it may treated as supply of services and as per serial no. 2 of the Notification No.12/2017-CentraI Tax (Rate) dated 28.06.2017 (as amended from time to time), the same is exempted from levy of GST as on date.
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2020 (4) TMI 66
Valuation - Rate of Exchange - goods are supplied within India and billing is to be done in foreign currency - application of rate to convert foreign currency into Indian rupees to pay GST. Determination of Transaction Value - HELD THAT:- Transaction Value' is the price actually paid or payable for supply of goods and/or services. We also observe that Section 15 of the Act provides the provisions for determining the value of goods and services. It provides the mechanism to know how to calculate the value of goods or services when supply of goods and services is made between unrelated persons and when the price is the sole consideration of the supply - Since the issue in hand is related to valuation of goods supplied within India and billing is being done in foreign currency, thus Rule 34 of the Rules is to be applied here. Which rate of exchange (import or export) shall be applicable as notified by the Board under section 14 of the Customs Act, 1962, to determine the value of goods? - HELD THAT:- In exercise of the powers conferred by Section 14 of the Customs Act, 1962, the Government of India issued notification time to time to determine the rate of exchange of conversion of the foreign currencies relating to imported and export goods. In this context, we have peruse the letter dated 23.12.2019 of the applicant wherein they intimated the authority that normally the foreign currency price in the contract is to cover imported content of the material used in setting up of Power Station in India wherein Indian company usually imported goods, make foreign currency payment to their supplier, in turn foreign currency from the customer - in the present case rate of exchange of imported goods shall be applicable in as much as the foreign currency price in the contract is to cover imported content of the material used for intended purpose.
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2020 (4) TMI 65
Classification of services - Rate of GST - services provided by M/S Garhwal Vikas Nigam, for which royalty is being paid - period 01.07.2017 to 31.12.2018 - HELD THAT:- Since we have already decided vide ruling IN RE : KULDEEP SINGH BUTOLA [ 2020 (3) TMI 239 - AUTHORITY FOR ADVANCE RULING - UTTARAKHAND] that that the service in question falls under residual entry 17 (viii) of said Notification and on perusal of aforesaid tables, we find that the said entry was amended vide Notification No. 27/2018-Central Tax (Rate) dated 31.12.2018 (applicable w.e.f 01.01.2019) which implies that the service in question provided during the period 01.07.2017 to 31.12.2018 attract GST at the same rate of central tax as on supply of like goods involving transfer of title in goods and w.e.f 01.01.2019 the said service attract GST @ 18%. The services rendered by M/s. GMVN to the applicant during the period 01.07.2017 to 31.12.2018 attract GST at the same rate of central tax as on supply of like goods involving transfer of title in goods. i.e. 5%.
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2020 (4) TMI 64
Classification of services - Permission to extract accessory minerals (sand, gravel boulders) on payament of fees - service provided by Garhwal Mandal Vikas Nigam (GMVN) - Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017 - whether classified under Service Code (Tariff) 9973, specifically under 997337 as licensing services for the right to use minerals including its exploration and evaluation or as any other service under the said chapter? - Rate of GST for the period 01.07.2017 to 31.12.2018. Classification of service provided by GMVN - HELD THAT:- Government of Uttarakhand had allotted specified areas to GMVN to extract accessory minerals (sand, gravel boulders) from the same and are required to pay prescribed fees to the Government of Uttarakhand for the said allotted work. GMVN further allotted the said work in particular specified area to the applicant and for that GMVN charging collecting consideration in the form of money from the applicant and GMVN is paying prescribed fees as royalty to the Uttarakhand Government from the said consideration - the services rendered by GMVN is covered under serial no. 257 of Annexure appended to Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017 as Licensing services for the right to use minerals including its exploration and evaluation having service code (tariff) 997337. Whether the said service classified under Service Code (Tariff 9973, specifically under 997337 as licensing services for the right to use minerals including its exploration and evaluation or as any other service under the said chapter? - HELD THAT:- The services rendered by GMVN is covered under serial no. 257 of Annexure appended to Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017 as Licensing services for the right to use minerals including its exploration and evaluation having service code (tariff) 997337. Rate of GST for the period 01.07.2017 to 31.12.2018 on services provided by M/s. Garhwal Vikas Nigam to Shri Ajay Kumar Dabral for which royalty is being paid - HELD THAT:- The description of service i.e. Licensing services for the right to use minerals including its exploration and evaluation , undertaken by the GMVN does not cover under serial no. 17 (i) to 17 (viia) of the said notification, therefore the service in question falls at residual entry (viii) of serial no. 17 of said Notification - the said entry was amended vide Notification No. 27/2018-Central Tax (Rate) dated 31.12.2018 (applicable w.e.f 01.01.2019) which implies that the service in question provided during the period 01.07.2017 to 31.12.2018 attract GST at the same rate of central tax as on supply of like goods involving transfer of title in goods and w.e.f. 01.01.2019 the said service attract GST @ 18%. In the instant case goods involved are sand, gravel boulders and thus their classification and applicable rate of GST are as under:- Sand - Chapter 2505 of Tariff Act - rate of GST @ 5%. Gravel - Chapter 2517 of Tariff Act - rate of GST @ 5%. Sonte Boulder - Chapter 25169020 of Tariff Act - rate of GST @ 5%. Since the transfer of title in goods attract GST @ 5%, therefore the supply of service in question also attract GST @ 5% during the period 01.07.2017 to 31.12.2018.
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2020 (4) TMI 62
Interest on delayed refunds - section 56 of CGST Act - this Court directed the applicants herein to pay simple interest on the delayed payment @ 9% per annum - case of applicant is that the directions could not have been for making payment @ 9% per annum but, in fact, it should have been @ 6% per annum as provided under Section 56 of the CGST Act. HELD THAT:- No case is made out for review of the order passed by this Court dated 10.07.2019. Having regard to the peculiar facts and circumstances of the case, this Court thought fit to award interest @ 9% per annum. Application dismissed.
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2020 (4) TMI 61
Confiscation of goods - Section 130 of Punjab Goods and Service Act, 2017 - appealable order or not - HELD THAT:- Considering the fact that the goods now stand released to the Petitioner subject to terms and conditions that have been fulfilled, the Court permits the Petitioner to raise all the points raised in the present writ petition in the statutory appeal to be filed by the Petitioner against the order dated 19th July, 2019. Petition disposed off.
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2020 (4) TMI 60
Release of Confiscated goods - section 130 of GST Act - appealabe order or not - HELD THAT:- Considering the fact that the goods now stand released to the petitioner subject to terms and conditions, the Court permits the petitioner to raise all the points which were raised in the present writ petition in the statutory appeal to be filed by the petitioner against the order dated 20th July, 2019. Petition disposed off.
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2020 (4) TMI 59
Release of detained goods alongwith the truck - Section 129 of the Central Goods and Services Act, 2017 - HELD THAT:- The writ applicant availed the benefit of the interm-order passed by this Court and got the vehicle, along with the goods released on payment of the tax amount. The proceedings, as on date, are at the stage of show cause notice, under Section 129 of the Central Goods and Services Act, 2017. The proceedings shall go ahead in accordance with law. It shall be open for the writ applicant to point out the recent pronouncement of this Court in the case of SYNERGY FERTICHEM PVT. LTD VERSUS STATE OF GUJARAT [ 2019 (12) TMI 1213 - GUJARAT HIGH COURT ] - It is now for the applicant to make good his case that the show cause notice, issued in GSTMOV- 6, deserves to be discharged. Application disposed off.
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2020 (4) TMI 58
Time limitation for filing petition - validity of order passed u/s 62 of the Uttar Pradesh Goods and Services Tax Act, 2017 - HELD THAT:- The writ petition has been filed on 24th February, 2020 - Even if we are to assume that the writ petitioner has approached this Court upon receipt of the impugned order only on December, 2019, the delay of six months, being the date from passing of the impugned order and the date of receipt of the same by the writ petitioner, clearly reflects on the question of bona fides of the writ petitioner. Since the order dated 3rd June, 2019, has already been passed by the concerned respondent authority, we do not consider the facts and circumstances of the case to be of such a nature to invoke our extraordinary discretionary jurisdiction of this Court under Article 226 of the Constitution of India - Petition is disposed of with the observation that if the writ petitioner has taken steps in respect of the order dated 3rd June, 2019, the concerned respondent authority shall deal with the same in accordance with law.
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2020 (4) TMI 57
Release of detained goods alongwith the conveyance - section 129(3) of the Uttar Pradesh Goods and Services Tax Act, 2017 - petitioner undertakes that the petitioner shall deposit the bank guarantee of the required amount stipulated in the show cause notice dated 20th March, 2018 within three weeks - HELD THAT:- In case such bank guarantee is deposited within three weeks from today, the proceedings taken out under section 129(3) of the Uttar Pradesh Goods and Services Tax Act, 2017 shall stand concluded in view of the provisions of section 129(5) of the Uttar Pradesh Goods and Services Tax Act, 2017. Petition disposed off.
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2020 (4) TMI 56
Waiver of interest - Regularization of the Petitioner s GSTR-3B for August, 2017 by bringing it in line with GSTR-1 furnished by the Petitioner - The petitioner s case was not that of furnishing erroneous details in GSTR-3B, but it was a case where the System had crashed - HELD THAT:- The respondents, in an affidavit dated 3.9.2019, had taken a stand that in the interest of smooth functioning of GST, it is desirable and necessary that manual filing is not permitted. However, subsequently the learned senior standing counsel for the respondents had submitted before the court that in the case of the petitioner, while filing GSTR-3B for September, 2019 in October, 2019, the tax amount of August, 2017 may also be added and thereupon the details submitted in electronic GSTR-3B shall be accepted by the portal. The learned senior standing counsel also submitted that only the principal amount of tax liability of August, 2017 may be declared in such return, and not the liability of interest, subject to the outcome of the petition - Accordingly, it appears that the petitioner was permitted to file FORM GSTR-3B for September, 2019 with taxes payable for August, 2017 and the same has been accepted by the system and, accordingly, the amount of tax payable for August, 2017, which was lying with the designated bank has now been credited to the Government account and the taxes payable are now shown as nil. Thus, the principal grievance voiced in the petition, therefore, no longer survives. Liability to pay interest for eighteen months from 21.9.2017 to October 2019 at a substantially high rate of 18% per annum - HELD THAT:- Despite the fact that the petitioner had approached them at the earliest point of time, the respondent authorities maintained silence for a considerable period of time and did not provide remedial measures till directed by this court. The errors in uploading the return were not on account of any fault on the part of the petitioner but on account of error in the system. In these circumstances, it would be unreasonable and inequitable on the part of the respondents to saddle the petitioner with interest on the amount of tax payable for August 2017, despite the fact that the petitioner had discharged its tax liability for such period well within time. Thus, the petitioner had duly discharged the tax liability of August, 2017 within the period prescribed therefor; however, it was only on account of technical glitches in the System that the amount of tax paid by the petitioner for August 2017 had not been credited to the Government account. Hence, the interests of justice would best be served if the declaration submitted by the petitioner in October, 2019 along with the return of September, 2019 is treated as discharge of the petitioner s tax liability of August, 2017 within the period stipulated under the GST laws. Consequently, the petitioner would not be liable to pay any interest on such tax amount for the period from 21.9.2017 to October, 2019. It is held that the declaration submitted by the petitioner in October, 2019 along with the return of September, 2019 shall be treated as the petitioner having discharged its tax liability of August, 2017 within the period stipulated under the GST laws. The petitioner shall not be liable to pay any interest on such tax amount for the period from 21.9.2017 to October, 2019 - Petition allowed.
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Income Tax
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2020 (4) TMI 55
Stay of demand - granting a scheme of installment to the petitioner by way of five (5) equated monthly installments of the demand to be paid by the 30th of each month - HELD THAT:- Petitioner confirms that no amount has been paid thus far towards the disputed demand. The total demand is for a sum of ₹ 42,43,57,970/-and the tax component comes to a sum of ₹ 25,11,05,384/-. Thereafter, the petitioner is permitted to file a stay application before the Commissioner of Income Tax (Appeals) before whom the appeal is pending, within a period of two (2) weeks from today. Stay of the balance demand till disposal of the stay application by the Commissioner of Income Tax (Appeals), upon a consideration of the matter, the petitioner is directed to remit 10% of the disputed tax of ₹ 25,11,05,384/- forthwith. Such application, if filed within the period as aforesaid and upon compliance of the terms imposed will be taken up and disposed after hearing the petitioner within a period of four (4) weeks from date of filing of the application. If no stay application is, as permitted, filed within the timeline as aforesaid, the order of the Assessing Authority impugned before me will stand revived and the stay granted early stands automatically vacated.
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2020 (4) TMI 54
Reopening of assessment u/s 147- Objections preceding the Assessment Order not been considered by the respondent - HELD THAT:- This Court is of a considered opinion that reprieve needs to be granted to the petitioner in view of settled position of law vide decision of the Apex Court in GKN DRIVESHAFTS (INDIA) LTD. V. INCOME-TAX OFFICER [ 2002 (11) TMI 7 - SUPREME COURT ] which states when a notice under section 148 is issued, the proper course of action for the noticee is to file return and if he so desires, to seek reasons for issuing notice. AO 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 AO is bound to dispose of the same by passing a speaking order. In the instant case, as the reasonshad been disclosed in the proceedings, the AO had to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment. This writ petition succeeds; a Writ of Certiorari issues quashing the impugned Assessment Order the consequential Demand Notice; matter is remitted to the respondent for consideration afresh from the stage of treating the Objections filed by the petitioner.
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2020 (4) TMI 53
Estimation of peak credit - Non rejecting books of accounts - HELD THAT:- In the fact situation of the case, the learned counsel had tried to rework the amount of peak credits, but the learned Appellate Tribunal was not impressed with that working since it was self serving. As such, in the facts and circumstances of the instant case, the learned Appellate Tribunal cannot be held to have not been legally justified in upholding estimation of peak credit made by the Assessing Officer without rejecting the books of accounts. As such, the order of the learned Appellate Tribunal does not warrant any interference on the basis of the substantial question of law as raised.
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2020 (4) TMI 52
Disallowance u/s 14A - Non recording of satisfaction - suo moto disallowance by assessee - as submitted by the assessee that no part of the interest bearing funds were utilised for the purpose of making investments in the exempt income yielding shares, also by it that a fair disallowance of the proportionate administrative expenses were already offered in the return of income - HELD THAT:- As decided in GODREJ BOYCE MANUFACTURING COMPANY LIMITED VERSUS DY. COMMISSIONER OF INCOME-TAX ANR. [ 2017 (5) TMI 403 - SUPREME COURT] it is only after recording of such satisfaction that the A.O can take recourse to the provisions of Sec.14A(2) and (3) r.w Rule 8D of the Rules. Although, we are in agreement with the claim of the ld. A.R that in the absence of recording of the requisite satisfaction as regards the correctness of an assesse s claim of disallowance under Sec.14A, the A.O is divested of his jurisdiction to dislodge the suo-moto disallowance made by the assessee under Sec. 14A of the Act, but then, we find that there is no such infraction of the said statutory requirement by the A.O in the case before us. As is discernible from the assessment order, the A.O had after necessary deliberations observed that with reference to the accounts of the assessee, he was not satisfied with the correctness of its claim as regards the expenses which were attributed to earning of the income not forming part of the assesse s total income. Accordingly, we are of the considered view that the statutory requirement of arriving at a satisfaction by the A.O, as regards the correctness of the assesse s claim of disallowance under Sec. 14A can safely be held to have been satisfied on his part. As such, we are unable to persuade ourselves to subscribe to the claim of the ld. A.R that the A.O had without arriving at a satisfaction as regards the incorrectness of the claim of the disallowance under Sec. 14A of the assessee, disallowed the same by taking recourse to the provisions of Sec. 14A(2) and (3) r.w. Rule 8D. We find substantial force in the claim of the ld. A.R that for the purpose of computing the disallowance under Sec. 14A r.w. Rule 8D(2)(iii) only those investments are to be considered for the purpose of computing the average value of such investments which had yielded exempt income during the year under consideration. It is the claim of the ld. A.R that the A.O while computing the disallowance under Sec. 14A r.w Rule 8D(2)(iii) had worked out the average value of the investments that also included certain investments which had not yielded any exempt income during the year under consideration. There is substantial force in the aforesaid claim of the ld. A.R that the investments which had not yielded any exempt income during the year under consideration ought to have been excluded for the purpose of computing the average value of the investments while computing the disallowance under Rule 8D(2)(iii). Our aforesaid view is fortified by the order of the Special bench of the ITAT, Delhi in the case of ACIT Vs. Vireet Investments Pvt. ltd. [ 2017 (6) TMI 1124 - ITAT DELHI] Accordingly, we restrict the disallowance under Sec. 14A r.w.Rule 8D(2)(iii) to the aforesaid amount of ₹ 2,13,730/-. As such, the disallowance under Sec. 14A r.w Rule 8D is restricted to an amount of ₹ 2,31,984/- viz. (i) U/rule 8D(2)(i): ₹ 18,254/-; and (ii) U/rule 8D(2)(iii): ₹ 2,13,730/-. Addition of the disallowance worked out under Sec. 14A r.w.Rule 8D for the purpose of computing the book profit under Sec.115JB - HELD THAT:- A.O for the purpose of computing the book profit under Sec. 115JB had made an addition of the disallowance of ₹ 10,94,782/- that was worked out by him under Sec. 14A r.w Rule 8D. We are unable to persuade ourselves to subscribe to the computing of the book profit under Sec. 115JB by the A.O. As per the order of the Special bench of ITAT, Delhi in the case of ACIT Vs. Vireet Investments Pvt. ltd. [ 2017 (6) TMI 1124 - ITAT DELHI] the computation under clause (f) of Explanation 1 to Sec. 115JB (2) is to be made without resorting to the computation as contemplated under Sec. 14A r.w Rule 8D. Accordingly, on the basis of our aforesaid observations we vacate the addition made by the A.O under Sec. 14A r.w Rule 8D for the purpose of computing the book profit under Sec. 115JB of the Act. Order passed CIT(A) is modified in terms of our aforesaid observations.
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2020 (4) TMI 51
Disallowance u/s 14A read with rule 8D - HELD THAT:- The issue of disallowance of expenses u/s 14A relating to income not includable in the total income of the assessee has been dealt in various cases by the Tribunal and the High Courts wherein it was held that no disallowance is warranted in cases where no exempt income has been earned by the assessee. The Hon ble Courts has also ruled that, at the most the disallowance should be restricted to the tune of the dividend earned. As relying on the case of Cheminvest Ltd. Vs CIT [ 2009 (8) TMI 126 - ITAT DELHI-B] we hereby direct that the disallowance be restricted to ₹ 1,320/-. Addition of sum paid to an associate concerns M/s Hero Global Design Ltd - AO held that since M/s Hero Global Design Ltd. is deriving income only from the assessee and does not have business expertise in providing engineering services, the expenditure claimed is disallowed - HELD THAT:- The copies of the invoices submitted by the HGD Ltd. have been examined. It is an undeniable fact that HGD Ltd. has provided services to the assessee, the design engineers of HGD Ltd. are regularly available within in the shop floor of the assessee company, they have been working for the last ten years with the assessee and getting paid regularly against their services. In view of this, we decline to interfere with the order of the ld. CIT (A) in deleting the addition. - Decided against revenue.
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2020 (4) TMI 50
Exemption u/s 10(38) denied - Denial of an opportunity of fair hearing by providing copy of the statement and related details - HELD THAT:- As decided in case of Chandra Devi Kothari [ 2015 (2) TMI 1313 - KARNATAKA HIGH COURT] as held that since the petitioner has been denied an opportunity of fair hearing by providing copy of the statement and related details, the matter is required to be reconsidered by the AO by providing fair and reasonable opportunity of hearing to the assessee after furnishing details / copy of the statement based on which the impugned assessment order has been passed. From the above Para from the judgment of Hon ble Karnataka High Court, it is seen that matter was restored back to the file of the AO for fresh decision - Assessee s appeal is allowed for statistical purposes.
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2020 (4) TMI 49
Estimation of house hold expenses - additions challenged on the ground that, assessee is residing in village and supplementing his expenses by agriculture and its by product is arbitrary unjust and excessive - HELD THAT:- Though the assessee claims to be an agriculturist but the closure scrutiny of the case reveals that the assessee is co-owner of 300 bighas of land and further, he is into the business of money lending, contract business, therefore, in our view, the order passed by the Ld.CIT(A) was a reasonable order as it merely restricted to ₹ 2,50,000 /-. Hence, we do not find any error in the order of the Ld.CIT(A). Hence, this Ground is dismissed. Addition being loans raised from farmer - HELD THAT:- The assessee in the appellate proceedings had filed the affidavits of the farmers and have given the name and addresses to the Ld.CIT(A) for the purpose of the verification of the amount. The Ld.CIT(A) had sent the document along with submissions to the AO, who had given the remand report and had not mentioned anything about the affidavits and the loans. In our view, it is the duty of the AO to examine the affidavits and the deponents of the affidavits to find out the truth in the submissions made in the affidavits. Nothing had been done by the AO no adverse material was brought on record by the AO or by the Ld.CIT(A) in the appellate proceedings. It is a settled position of law that the addition cannot be made on the basis of some cogent and reliable evidence and not on the basis of conjectures and surmises. Accordingly, the Ground No.2 of appeal of assessee is allowed. Addition on the basis of third party statements recorded at the back of assessee - HELD THAT:- Despite assessee asking for the statement from the AO and also in the appellate proceedings, neither the statement was provided nor the opportunity to cross-examine Shri Alok Tripati was given to the assessee. Further, we are also of the opinion that the addition of ₹ 2 Lakhs cannot be made merely on the basis of the statement, unless a corroborative evidence/record is found by the AO. For the purpose of the conclusion that no such additions can be made based on the statement given by Mr.AlokTripati as it would be violative of Principle of Natural Justice and rules of fair and transparent adjudication, we may fruitfully rely upon the decision of the Hon ble Supreme Court in the case of Shri Kishinchand Chellaram vs CIT [1980 (9) TMI 3 - SUPREME COURT] - Thus we delete the addition. Recycling of loans - Addition on the basis of annexure BK - 15 made during the year - year of assessment - HELD THAT:- CIT-DR clearly had submitted that the entries which are subject matter of the Ground No.4, does not pertain to the assessment year under consideration. We have ourselves also examined the record and the paper book filed by the assessee and we found the force in the submissions of the assessee, which was seconded by the Ld.DR. As the addition sought to be added by the AO pertains to the earlier assessment year, therefore, keeping in mind the principle of accrual as mentioned in Section 4 and 5 of the Income Tax Act, we are of the opinion that these additions cannot be made in the year under consideration. Unexplained investment in money lending - HELD THAT:- Though the assessee had submitted that the entries do not pertains to the year under consideration, however, when we have examined the record, then we found that no date against these entries were mentioned in the record. As per the Evidence Act, the presumption is required to be drawn against the assessee and it is for the assessee to explain that these entries do not pertain to the year under consideration. The assessee failed to discharging the onus of satisfying the conscious of the AO as well as of the Tribunal that the entries do not pertain to the year under consideration. In view of the above, we do not find any merit and accordingly, the Ground of the assessee appeal is dismissed. Unexplained cash - statement receded u/s.132 of the Act on 03-03-2005 - HELD THAT:- The cash was recovered from the possession of the assessee and the assessee sought to explain the recovery of the cash as a payment required to be paid by the assessee on behalf of another firm of his brother pertaining to sand contract. It is difficult to comprehend that when the assessee was neither the partner nor the director nor the owner of the said company then how the cash can be said to be belonging to a third party. In our opinion, this is a plea taken by the assessee just to explain the cash the said plea is required to be rejected as the said plea has been made by the assessee to serve his own purpose without any basis. - Decided against assessee. Addition of security deposit payment - contract run by the six persons jointly - HELD THAT:- CIT(A) himself that the aforesaid six notebooks contains similar transactions relating to the business of toll tax collection of the two bridges, the receipts and savings have been divided equally from the contract run by the six persons jointly as above including that by assessee and the payments have been made to PWD equally as mentioned above, there was no justification of adding security deposit payment in the hands of assessee alone. Hence, the addition sustained by CIT(A) at ₹ 1,90,000/- +₹ 2,00,000/- =₹ 3,90,000/- being contrary to the finding given by CIT himself is illegal and arbitrary and may kindly be directed to be treated. Addition for toll bridge contract in which assessee had 167 share - HELD THAT:- Since the addition sustained on account of security at ₹ 1,90,000/- is illegal because the assessee held only 1/6 share. As submitted against Ground No.7 it would be in the interest of equity and justice that the addition which can be made out of ₹ 2,00,000/- + 1,90,000/- should be limited to l/6th₹ 65,000 /- which is the assessee's share in the toll bridge. Assessment u/s 153C - Addition sustained in the hands of assessee for the contract income earned by other persons Tahir Ali , Mohd Idris - HELD THAT:- assessee was liable to be charged for the 1/6th amount found as per the claim of the assessee which in the estimation would come to ₹ 45,832/-. In fact, the similar entries were found in all the six note books found during the course of survey pertaining to toll tax collection of two bridges. In our view, though the assessee claimed that he was entitled for 1/6th share in the toll tax collection of the bridges, but we failed to understand why 6 separate note books were maintained by the assessee in respect to the same business. The plausible answer would be in our understanding that the assessee was maintaining six separate note books with a view to suppress the actual toll collection or the six note books were maintained for the individual shareholders. The onus is on the assessee to prove that six note books were maintained for six partners and simultaneously the onus was also on the Revenue to prove that six note books were maintained for suppressing the toll collection. Therefore, a guess work is required to be done by the Bench and considering the totality of the circumstances and also peculiar facts of the present case, we restrict the addition to ₹ 1,90,000/-. Thus, the assessee gets the relief of ₹ 2 Lakhs. Addition of income earned by Mr.Pradeep Chauhan belongs to assessee - HELD THAT:- Addition confirmed by CIT(A) correctly on presumption that income might have been earned by the assessee also when no such paper has been found and seized in the name of assessee in the course of search. Addition sustained for house hold goods - HELD THAT:- We have already mentioned about the status of the assessee while dealing with Ground No.1 of the assessee s appeal and concluded that the assessee is a man of sufficient means therefore, the addition made by the AO and confirmed by the Ld.CIT(A) for a tune of ₹ 1,15,000/- is on the lower side, hence, needs no interference by the Tribunal, accordingly, the Ground raised by the assessee are dismissed. Addition making a vague remarks after considering the submissions it is concluded that the assessee could not explain satisfactory the transactions entered on page 1,2, 5,10 to 13 - HELD THAT:- So far as the amount of ₹ 5,00,000/-, ₹ 2,08,750/-, ₹ 16,666/- and ₹ 1,00,000/- totaling to ₹ 8,25,416/- are the payments relating to the earlier assessment years and therefore, the same cannot be added in the present assessment year. This fact has duly been verified by the Ld.CIT-DR during the course of argument. Accordingly, the amount of ₹ 8,25,416/- is deleted. With respect to the remaining amount of ₹ 16,03,470/-, during the course of proceedings before lower authorities, it was not disputed that these entries were not mentioned in the record sheet, recovered from the possession of the assessee. The onus is always on the assessee to prove and discharge that the payments made were relating to the business of Shri Suresh Kumar Pandey and brothers. In our view, the amount paid on the face of it appears to have been paid for the purposes of earning the income therefore, the assessee is entitled to the corresponding benefit which has been earned on account of such expenditure. In the absence of any help from any of the parties before us, we are required to make the guess of income which can be included for incurring the expenditure of ₹ 16,03,470/- - for the assessment year 2005-06 no purpose would be served to remand the matter back to the CIT(A) for granting a fresh opportunity for producing the books of account of M/s.Suresh Kumar Pandey and bothers. It would be sufficient if we restrict the addition to an amount of ₹ 6,03,470/- thus, the assessee gets the benefit of ₹ 10 Lakhs and the additions of ₹ 14,98,886/- are deleted. Hence, the Grounds is partly allowed. Addition under section 132 (4A) - unexplained investment - HELD THAT:- Additions were made by the lower authorities on the basis of the sale document found during the course of search. The documents on the face clearly gives the name and addresses of the instrument showing the ownership in the name of Smt. Shakuntala Devi and Smt.Radha Dubey. No steps were taken by the authorities to make the additions in their names nor any enquiry was conducted by the AO in the remand proceedings. Moreover, the law is fairly settled that the additions can only be made on the basis of some cogent and corroborative evidence and cannot be made on the basis of mere assumptions and surmises by taking recourse to Section 132(4A) of the Act. In the result, the ground raised by the assessee is allowed. Addition for purchase of jewellery - HELD THAT:- As already discussed in detail the status of the assessee while dealing with Ground No.1 and had decided the issue against the assessee by upholding the addition of ₹ 2,50,000/- on account of household expenses. In view of the above, the addition made by the AO towards purchase of jewellery is deleted as the same be subsumed in the addition confirmed by us regarding household expenses. This Ground of assessee is allowed.
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Customs
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2020 (4) TMI 48
Rate of Interest on duty as per the order of Settlement Commission - Interest rate reduced from 24% to 15% - EPCG Scheme - Failure to discharge export obligation - benefit of Notification No.28/97- customs dated 01.04.1997 - HELD THAT:- The Notification was amended by Notification No.46/2013-cus dated 26.09.2013. The said amendment has kept interest to maximum amount. However, by the time said Notification was issued, the impugned order had been passed - there are no reasons to interfere with the impugned order. That apart the order of a Settlement Commission is final and conclusive in terms of Section 127J of the Customs Act, 1962. In fact as per 127H(2) of the Customs Act, 1962, an immunity granted shall stand withdrawn if such person fails to pay any sum specified in the order of the Settlement Commission within the specified time or fails to comply with any other conditions subject to which the immunity was granted and upon the provisions of this act shall apply as if such immunity had not been granted. Petition dismissed.
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2020 (4) TMI 47
Maintainability of appeal - monetary amount involved in the appeal - On the question of litigation policy, the learned counsel for the Revenue submitted that the Assessee cannot insist upon the Revenue to withdraw the Appeal - HELD THAT:- No question of law, muchless a substantial question of law arises for our consideration in the present case in accordance with Section 130 of the Customs Act, requiring our further consideration. The learned Tribunal, despite the objection raised by the Assessee has considered the case in a detail and has found it fit to remit the matter back to the Adjudicating Authority for holding a fresh enquiry in the matter and then decide the case again - The learned Tribunal has powers to pass such orders on pending appeal before it, as it thinks fit and therefore, the power to remand the case back to the Adjudicating Authority is included within the amplitude of powers conferred upon the Tribunal by the Statute. Petition dismissed.
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2020 (4) TMI 46
SEZ unit - Extension/renewal of Letter of Approval of the existing plastic recycling unit - HELD THAT:- When the decision of the Board of Approval has been set aside and this court has allowed the request of the petitioner for renewal of the Letter of Approval for a period of one year; there was no question of then placing the matter for consideration of the Board of Approval inasmuch as the directions issued by this court had to be followed by the Development Commissioner, KASEZ by issuing the formal letter of renewal of the petitioners Letter of Approval for extension of recycling of plastic waste and scrap. Therefore, the stand adopted by the opponent No.3, Development Commissioner, for not complying with the above directions issued by this court appears to be an attempt to delay the implementation of the order and is in flagrant disregard of directions issued by this court. The opponent No.3 Development Commissioner, KASEZ has, for totally unjustified reasons, not complied with the directions issued by this court - the opponent No.3, Development Commissioner, is directed to forthwith renew and issue a formal Letter of Approval. Stand over to 07.02.2020.
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2020 (4) TMI 45
Refund of Customs Duty - amount paid under protest - time limitation - HELD THAT:- The amount under dispute has been paid by the appellant under protest during the course of investigation. Further, the order of this Tribunal dated 03.03.2011 was challenged by the Revenue before the Hon ble High Court and before the decision of the Hon ble High Court was delivered, the refund claim was filed by the appellant. In that circumstances, how can be said that the refund claim filed by the appellant is barred by limitation. In fact, the refund claim filed by the appellant before the limitation starts. Moreover, the refund claim filed by the appellant of the amount which has paid under protest, and not the duty, the limitation is not applicable - the refund claim is to be sanctioned to the appellant within a period of fifteen days on receipt of the copy of this order. Appeal allowed - decided in favor of appellant.
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Service Tax
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2020 (4) TMI 44
Classification of services - Telecom Services - case of petitioner is that the Telecom Services being separately classified, even assuming that the petitioners are rendering any service that is related to the specific service, the service of the petitioners cannot be brought under the general classification - HELD THAT:- The writ petitions are disposed of directing the petitioners to file their objections to the impugned show cause notices, meeting out all the points raised therein, within a period of two weeks from the date of receipt of a copy of this order. Petition disposed off.
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2020 (4) TMI 43
Recovery of short paid service tax alongwith interest and penalty - GTA Services - period October 2006 to March 2007 - HELD THAT:- A perusal of the order passed by the Principal Commissioner clearly shows that the Chartered Accountant certificate submitted by the appellant to substantiate his claim regarding exemption under the notification dated 3 December 2004 has not been considered at all, even though in the earlier part of the order the Principal Commissioner has noted that the appellant had produced the said certificate during the course of hearing of the appeal on 12 May 2015. There is no good reason as to why the certificate issued by a Chartered Accountant should not have been taken into consideration and in any case if there was any doubt, the Principal Commissioner could have sought information from the appellant to satisfy himself about the claim of exemption made by the appellant, but that was not done. This inaction on the part of the appellant was required to be examined in the light of the Circular dated 11 June 2007 issued by the Central Board of Excise Customs. This Circular clearly mentioned that in small consignment it may not be possible to goods transport agency to provide the vehicle number and that in such a case this could be provided at a later stage. The Principal Commissioner, if he wanted to satisfy himself about the vehicle numbers, could have required the appellant to submit proper documents but that was not done. It would be appropriate to remand the matter to the Principal Commissioner for a fresh consideration - appeal allowed by way of remand.
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2020 (4) TMI 42
Recovery of CENVAT Credit along with interest and penalty - admissibility of CENVAT Credit availed by the Appellant for providing the output service of renting of immovable property - inputs, input services and capital goods used in the construction of the Hall for providing RIP service - Period of dispute from 1 April, 2007 to 31 March, 2010 - HELD THAT:- The issue as to whether the CENVAT Credit availed for the construction of a Mall and subsequent renting has been considered time and again by the High Courts and the Tribunal - reliance can be placed in the case of Dymos India Automotive [ 2018 (9) TMI 1135 - MADRAS HIGH COURT ], Navaratna S.G. Highway [ 2012 (7) TMI 316 - CESTAT, AHMEDABAD ] and Vodafone Mobile Services [ 2018 (11) TMI 713 - DELHI HIGH COURT ]. In view of the aforesaid decisions of the High Courts, there is no manner of doubt that CENVAT Credit availed by the appellant on inputs, inputs services and capital goods service used for construction of the Mall, which was ultimately let out could not have been denied to the appellant. The findings to the contrary recorded by the Commissioner cannot be sustained and are, accordingly, set aside. Interpretation of statute - HELD THAT:- It clearly transpires from the reply filed by the appellant as also from the documents enclosed in the appeal that even though the period in dispute may be from 1 April, 2011 to 31 March, 2012, but the input services were received by the appellant prior to 1 April, 2011 - The clarification contained in the Circular dated 29 April, 2011, clarifies that credit on such service shall be available if its provision had been completed before 01.04.2011 - thus, CENVAT Credit could not have been denied to the appellant for this reason. Impugned order do not sustain - appeal allowed - decided in favor of appellant.
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2020 (4) TMI 41
Maintainability of appeal - time limitation - Proof of service of order - objection that, appeal is filed beyond the prescribed time limit in terms of Section 85(3A) of the Finance Act, 1994 - HELD THAT:- As per Section 37C of the Act of the Central Excise Act, 1994, the service is complete by speed post by proof of delivery. Admittedly, there is a presumption that if order has not been returned back, it has been delivered/ served but there is no clear cut proof of delivery of the adjudication order on the appellant. Therefore, benefit of doubt goes in favour of the appellant and by non filing of appeal within time, the appellant has not gained anything. As Revenue has failed to produce the proof of delivery of the adjudication order on the appellant, it is held that the appellant have received the impugned order only on 15.01.2019 and filed the appeal on 21.02.2019 before the learned Commissioner (Appeals) is within time. Matter remanded back to the learned Commissioner (Appeals) to decide the issue on merits - appeal allowed by way of remand.
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Central Excise
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2020 (4) TMI 40
CENVAT credit - waste and scrap - plastic drums - sale of plastic drums as waste and scrap - Commissioner (Appeals) placed reliance on Board s Circular No. 1027/15/2016-CX. dated 25.4.2016 which treats Bagasse as an exempted good for the purpose of reversal of credit of input in terms of rule 6 of the CENVAT Credit Rules 2004. - HELD THAT:- The Board s Circular No. 1027/15/2016-CX. dated 25.4.2016, strongly relied upon by the Commissioner (Appeals) stands declared ultra virus in the case of M/S BALRAMPUR CHINI MILLS LTD. THROUGH ITS GENERAL MANAGER VERSUS UNION OF INDIA, MINISTRY OF FINANCE DEPARTMENT OF REVENUE [2019 (5) TMI 972 - ALLAHABAD HIGH COURT] , where it was held that In absence of Bagasse being a manufactured final product, the obligation of reversal of CENVAT Credit under Rule (1) of the CENVAT Credit Rules, 2004 is not attracted - As such, nothing survives in the Revenue s decision. Appeal allowed - decided in favor of appellant.
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2020 (4) TMI 39
Refund of closing balance of PLA - bar on utilization of deposits in PLA - whether the balance lying in the assessee s PLA, which became non-usable with effect from 1 July, 2017 with the introduction of GST regime, is required to be refunded to them or not? HELD THAT:- Admittedly, in the present case such deposits are made by the appellant for utilization in future. In case the same could not be used on account of introduction of GST and there being no transitional provision for transfer of such PLA deposit, the same would be refundable to the appellant. The lower authorities have taken the deposit of the same as the relevant date and since the application stands filed after a period of one year from the date of deposit, they have rejected the same on the ground of limitation. Apart from the fact that limitation provisions are not applicable, it is also seen that such refund becomes admissible only with effect from 1 July, 2017 and not before that - The refund application having been filed on 26 June, 2018 is required to be considered as having been filed before the period of one year as the cause of action arose only on 1 July, 2017. There are no justification for denial of the refund - appeal allowed - decided in favor of appellant.
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2020 (4) TMI 38
Levy of Excise Duty - delivery charges of the liquid gas - denial of Cenavt credit availed on ISD invoices - HELD THAT:- The Commissioner, in the impugned order, has decided that the inclusion of delivery charges in the assessable value of service in favour of the appellant. The computation of the Cenvat credit in respect of five services, which is disputed need to be re-quantified by the adjudicating authority on the basis of available documents required for such credit. For claim of benefit of the proportionate Cenvat credit, same is required to be looked into afresh in terms of their eligibility and calculation. The matter is remanded to the adjudicating authority to re-compute the demand after hearing the appellant within three months from the receipt of the order.
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CST, VAT & Sales Tax
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2020 (4) TMI 37
Deferral Scheme - deferral availed before reaching the volumes of base sale and base production fixed by the TIIC Limited, Chennai - case of the petitioner is that as per the terms and conditions of the scheme, once the industry crosses the base volume of production, the interest free deferral scheme would come into operation - HELD THAT:- The petitioner is granted two weeks time from the date of receipt of a copy of this order for filing appropriate objections. The petitioner is also permitted to adduce evidence and file necessary documents / forms along with their objections. Petition disposed off.
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2020 (4) TMI 36
Classification of goods - rate of tax - H.P. Printer toner and cartridges - whether under the entry computer hardware, software and other computer consumable would include the toner and printer cartridge, which are used alongwith the computer printer? - HELD THAT:- Undoubtedly, the printer is sold along with the 'Cartridge' and is included in the package containing the printer and therefore from the above fact it can be deduced that the printer includes a 'Cartridge' and are sold together. 'Cartridge' being a consumable item has to be periodically replaced/recharged with toner. This Court is of the considered view that toner cartridges are part of a printer and are liable to be taxed at the same rate as printer. It is the duty of the taxing authority, firstly to see that whether an item falls in any of the category mentioned in the schedule and only when such an item is not found falling in any of the schedule can the same be taxed in the ancillary clause - In the instant case toner cartridge being part of printer, which are sold alongwith printers have to be taxed at the same rate as the printers and not under the residuary provision. Revision allowed.
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Indian Laws
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2020 (4) TMI 63
Withdrawal of Bid - forfeiture of Earnest Money Deposit (EMD) - blacklisting the Petitioner from participating in future Tenders for not having separately mentioned the GST rate in the tender - HELD THAT:- There is considerable force in the submissions made by the learned counsel for the Petitioner with reference to the materials brought on record. Insofar as there is no dispute that the GST rate originally notified as per Annexure P/3 came to be modified and segregated into two, vide Annexure P/4 dated 22.08.2017 (stipulating a lesser rate of 12% for construction of roads for public purpose ( Section B ) and a higher rate of 18% for construction of roads for internal/private purpose ( Section C ), it was obligatory for the Respondents to have provided separate columns in the Annexure P/2 tender issued on 09.09.2019 when Annexure P/4 notification was governing the field. That apart, by virtue of the clear stipulations under clause 12.4 of the ITB, read with Section 9 of the GST Act, payment of GST was to be the liability of the awarder and hence, mentioning or non-mentioning of the rate of GST was to be of no consequence as it is a 'constant figure' with regard to which no alteration can be thought about either by the bidder or by the awarder. Above all, if at all, there was any mistake or the bid was defective for not quoting the proper amount with reference to the duties/taxes payable, it was quite open for the Respondents to have 're-evaluated the bid' in terms of clause 23.3, read with clause 23.2.3 of the ITB to work out the actual quote and to identify the L-1 bidder. Obviously, it is without any regard to these vital aspects, that the proceedings were sought to be pursued hastily, by issuing Annexure P/8; virtually without considering the objection/ explanation raised by the Petitioner vide Annexure P/7 in response to Annexure P/5 - Annexure P/8 order/proceedings dated 09.01.2020 impugned in the writ petition is not liable to be sustained and hence, it is set aside. It is still open for the Respondents to re-evaluate the bid submitted by all the participants including the Petitioner and to work out the actual bid amount, if the GST was also to be considered as part of the bid and thus, adding it on, instead of deducting the GST from the bid quoted by the Petitioner or such other bidder - Since there cannot be any dispute with regard to the 'rate of tax' payable and as to the liability of the employer/awarder to satisfy the same, it is open for the Respondents to consider the quotes made by the bidders including the Petitioner (treating the same as excluding the GST) as nobody has claimed it to be inclusive of the GST and further when the tender conditions stipulate that it has to be excluding the GST. Petition allowed.
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