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Newsletter: Where Service Meets Reader Approval. TMI Tax Updates - e-Newsletter June 10, 2019 Case Laws in this Newsletter: GST Income Tax Customs Corporate Laws Insolvency & Bankruptcy Service Tax Central Excise CST, VAT & Sales Tax Indian Laws Articles Income from Renting of Real Estate-taxability under the Income-tax Act, 1961 REVENUE NEUTRALITY EXTENDED PERIOD OF LIMITATION AND PENALTY Notifications Companies Law F. No. 1/13/2013 CL-V, part-I, Vol.III - G.S.R. 411(E) - dated 7-6-2019 - Co. Law Companies (Incorporation) Sixth Amendment Rules, 2019 Highlights / Catch Notes Income Tax Addition u/s 68 - entry in the books of purchaser regarding cash payment - there is nothing on record which corroborates the fact that any such unaccounted money flowed to the assessee in cash - no further investigation /inquiry - opportunity to cross-examine the persons has never been provided and the assessee was directed to prove the negative i.e. that he did not receive any unaccounted money - no addition Visit to Get Source Mandation of E-filling of appeal to CIT(A) - the statutory right of appeal granted to the petitioner, a substantive right, should not be whittling down by virtue of a procedural infirmity, admittedly, committed by it - direct the petitioner to comply with the provisions of Rule 45 within three(3) weeks and the CIT(A) to take the appeal up for adjudication on merits Visit to Get Source Validity of assessment - the assessment order passed in the name of non-existent entity is invalid and subsequent proceedings arising there from are vitiated Visit to Get Source Penalty u/s 271D - default u/s 269SS - assessee has taken loan from his father and paternal aunt, who are family members and such transactions would not attract penalty u/s 271D Visit to Get Source Validity of assessment proceedings - admittedly notice u/s 143(2) was being issued on 08.08.2006 for AY 2005-06, which was far beyond the limitation prescribed under the proviso attached to Section 143(2) which ended on 30.09.2005 and thus was clearly hit by limitation - quashed the entire proceedings including the assessment order passed by AO Visit to Get Source Addition of bogus purchases - The CIT (A) came to the conclusion that it is a case of purchases from gray market and thereafter, bills have been procured from hawala operators - then neither the entire purchases can be considered as bogus nor the assessee be allowed to go scot free for not proving the genuineness of the purchases - addition to 10% of bogus purchases Visit to Get Source Maintainability of appeal - amended Para 10 of CBDT Circular the monetary limit for filing appeals would not apply where addition is based on information received from external sources in the nature of law enforcement agencies such as CBI, ED, DRI, SFIO, DG of GST Intelligence (DGGI) etc. - it does not cover information received from State Sales Tax Department - appeal dismissed Visit to Get Source Writ against assessment order - non consideration of belated defective and revised return - it is sine-qua-non for the AO to consider the claims of deduction/exemption and record “reasons” being a quasi-judicial authority - no reasons are forthcoming for rejecting the revised returns as well as the claims made u/s 54F - no bar to invoke the writ jurisdiction against a palpable illegal order - order quashed Visit to Get Source Power of Settlement Commission - Section 4(3) Black Money Act - the order dated 30.1.2019 of shall not be construed as conferring jurisdiction under the Black Money Act on the Settlement Commission to deal with the issue of undisclosed foreign income and assets - notice issued Visit to Get Source Addition being alleged excess value of stock calculated in survey - addition was based on statement of Director which was later on retracted - assessee company with the help of complete working established that the statements at the time of survey with regard to processing cost was wrong - actual process cost as arrived in books of account is to be taken for valuation of stock Visit to Get Source Customs Waiver of Penalty - Section 149 permits reassessment only in the circumstances and on the strength of “documentary evidence which was in existence at the time goods were cleared, deposited or exported”. It is not clear that country of origin certificate were available at the time of clearance of goods - appellants have correctly described the product in the bills of entry and claimed the notification - no penalty Visit to Get Source Corporate Law Oppression and Mismanagement - ex-parte order - petition u/s 130 of the Companies Act for recasting and re-opening the accounts accepted - submission that S. 230 is Draconian Section cannot be accepted till any person challenges the provisions before the Court of Competent Jurisdiction i.e. HC/SC - no ground is made out to hold the impugned order as illegal - no remand on the ground of violations of rules of natural justice Visit to Get Source IBC Constitution of Committee of Creditors (COC) - 66% needed for CIRP - as per Section 21(2) of IBC, 2016, COC shall comprise of all financial creditors and must be construed as one and cannot be segmented class wise particularly for the purpose of computation of voting share - The voting share as are prescribed and required to be achieved IBC are mandatory in nature and cannot be held to be directory Visit to Get Source Service Tax Interest on refunds of service tax - The appellant's claim is entirely justified having regard to the statutory regime of Section 11 BB of the Central Excise Act, 1944 r.w.s. 83 of the Finance Act, 1994 which expressly makes various provisions of the Central Excise Act applicable in relation to service tax - interest allowable from the expiry of three months from the date of receipt of the application for refund. Visit to Get Source Classification of services - laying of pipes for gas - services fall under Works Contract or otherwise was raised first time before this Tribunal - various factual aspects have to be verified that whether the service was provided along with the supply of material, whether the appellant have discharged the Sales Tax/WCT etc - remand to adjudicating authority Visit to Get Source Non-payment of service tax - the value of taxable services cannot be arrived at merely on the basis of the TDS statements even if the payments are not made by the clients, the expenditures are booked based on which the Form 26AS is filed, which cannot be considered as value of taxable services for the purpose of demand of service tax - remanded for correct computation Visit to Get Source Central Excise Maintainability of Settlement Commission application - the adjudication order passed by the Addl. Commissioner in pursuant to the SCN was withheld - Full and true disclosure to the satisfaction of the Commission is sine qua non to consider the application from the initiation of the proceedings till the conclusion thereof - empowered to reject applicant Visit to Get Source Clandestine removal - duty & penalty - shortages found during the physical stock carried out by the preventive Officers of the Department - shortage admitted and duty paid - neither there is any investigation regarding clandestine removal nor any charge was made, therefore, it cannot be said that there is a clandestine removal - penalty u/s 11AC and on the individuals are set aside Visit to Get Source CENVAT Credit - GTA service used for outward transportation of goods - sale being on FOR basis, the place of removal shifts to the buyer’s premises - credit not allowable Visit to Get Source Case Laws: GST 2019 (6) TMI 407 Release of seized goods - an appeal with the pre-deposit of 10% of the tax demand stands filed before the Appellate Authority against the order of assessment - HELD THAT:- On furnishing of adequate immovable security to the satisfaction of the Assistant Commissioner of State Tax (Mobile Wing), Chandigarh-II, against the total demand raised in the order of assessment dated 15.10.2018 (P-4) , minus the amount already deposited, the truck and goods shall be released to the petitioner within two (02) days of such satisfaction. Income Tax 2019 (6) TMI 406 Settlement Commission order u/s 245D(4) for undisclosed foreign income and assets under the Black Money Act - Jurisdiction in favour of the Settlement Commission to decide the issue pertaining to undisclosed foreign income and assets under the Black Money Act - HELD THAT:- As submitted that as per the provisions of sub-section (3) of Section 4, the income included in the total undisclosed foreign income and assets under the Black Money Act, does not form part of the total income under the Income Tax Act. Thus, the Settlement Commission has no authority and jurisdiction to deal with the undisclosed foreign income and assets. Additional Solicitor General of India, further submitted that till the matter is heard by the learned Division Bench, atleast the observation be made that the order under challenge dated 30.1.2019 shall not confer jurisdiction in favour of the Settlement Commission to decide the issue pertaining to undisclosed foreign income and assets under the Black Money Act. Issue notice, returnable on 17.6.2019. 2019 (6) TMI 405 Writ against assessment order - non consideration of belated defective and revised return - grievance of the petitioner that the respondent without providing sufficient opportunity of hearing had proceeded to pass the impugned assessment order u/s 143(3) sans considering the return and the revised return vis- -vis the claims made towards deduction/exemption u/ss 48 and 54F - HELD THAT:- Ordinarily, this Court would have relegated the petitioner-assessee to avail the statutory remedy of appeal available under the Act provided the principles of natural justice are adhered to. As could be seen from the order impugned, the respondent has not whispered about the revised return filed by the assessee except observing that the returns filed by the assessee were invalidated being defective returns. If that being the position, no opportunity was provided to the petitioner u/s 139(9) to remove the defects in the returns pointed out by the Assessing Officer nor an opportunity was provided to file a return pursuant to the notice issued u/s 142(1]). Even assuming that the arguments of the learned counsel for the Revenue that no revised returns could be accepted enlarging the claim of deduction/exemption beyond the time prescribed under the Act, it is sine-qua-non for the Assessing Officer to consider the claims of deduction/exemption made by the petitioner-assessee and thereafter to return the said claims if the assessee is not entitled to the same by assigning the reasons. The impugned assessment order prima-facie establishes that the deduction claimed u/s 54F is not considered while computing the taxable turnover. This would certainly indicates the non-application of mind by the respondent. Recording of reasons is sine-qua-non for arriving at a conclusion by the quasi-judicial authority and it is essential to adopt, to sub-serve the purposes of justice delivery system. The reasons are the soul and heartbeat of the orders without which the order is lifeless and void. Where the reasons are not recorded in the orders it would be difficult for the Courts to ascertain the minds of the authorities while exercising the power of judicial review. It is well settled legal principle that there is no bar to invoke the writ jurisdiction against a palpable illegal order passed by the Assessing Authority in contravention of the principles of audi alteram partem. On this ground alone, the order impugned cannot be approved. There is no cavil with the arguments of respondent placing reliance on the judgment of Goetze [India] Ltd. [ 2006 (3) TMI 75 - SUPREME COURT] that no claim for deduction otherwise than, by filing a revised return can be considered but not in the absence of Assessing Officer analyzing, adjudicating and arriving at a decision by recording the reasons. It is apparent that no reasons are forthcoming for rejecting the revised returns as well as the claims made u/s 54F. Such a perfunctory order passed by the assessing officer cannot be held to be justifiable. Hence, for the a foregoing reasons, without expressing any opinion on the merits or demerits of the case, demand notice issued u/s 156 as well as the recovery notice issued by the respondent are quashed. 2019 (6) TMI 404 Stay of demand - deposit of 20% of the amount of tax determined for the assessment year 2013-14 - HELD THAT:- Relief was granted staying the recovery, subject to condition of the appellant depositing 10% of the tax demanded within six weeks from the date of the judgment and another 10% within six weeks thereafter. It was made clear that, in default of payment, the stay granted will be deemed to have been vacated. There was also a direction issued to the appellate authority to consider and dispose of the appeal as expeditiously as possible, at any rate within a period of six months. It is aggrieved by the said judgment, the above writ appeal is filed. Upon hearing arguments of the counsel for the appellant and Sri. Christopher Abraham, learned counsel for the respondents, we are not persuaded to interfere with the judgment impugned. Having confronted with the situation, learned counsel for the appellant sought indulgence of this Court to extend the period stipulated for deposit of the first instalment by a further period of one month from today. The appellant is a Co-operative Bank and the liability for payment of the amount, prima facie, cannot be disputed. However, we are inclined to show indulgence in extending the time limit stipulated, in order to facilitate deposit of the amount to satisfy the condition. Judgement modified to the extent of allowing deposit of 20% of the disputed amount under demand within a period of six weeks from today. 2019 (6) TMI 403 Validity of assessment proceedings - notice u/s 143(2) issued beyond the limitation prescribed under the proviso attached to Section 143(2) - period of limitation - HELD THAT:- There is no dispute that the return was filed in the financial year 2004-05 which ended on 31.03.2005 and the notice u/s 143(2) was being issued on 08.08.2006 as admitted by the Assessing Authority himself, which was far beyond the limitation prescribed under the proviso attached to Section 143(2) which ended on 30.09.2005 and thus was clearly hit by limitation. In such view of the matter, the entire exercise by the Assessing Authority u/s 143(3) is illegal and time barred and its affirmation by the appellate authority is an illegality perpetuated. For the reasons discussed, we quash the entire proceedings including the assessment order passed by the Assessing Authority for the assessment year 2004-05 - Decided in favour of assessee 2019 (6) TMI 402 Mandation of E-filling of appeal - appeal to CIT(A) - appeal had been filed manually within time was considered defective in the light of Rule 45 of the Rules - scope of amendment to Rule 45 w.e.f. 01.03.2016 - HELD THAT:- Central Bureau of Direct Taxes, in recognition of the position that assessees were not fully aware of the new procedure, had issued Circular No.20/2016 dated 26.05.2016. The Circular recognizes the lacunae in the e-filing procedures. It also admits that Electronic Verification Functionality for the verification of e-appeals was made operational only with effect from 12.05.2016 for individuals and from 19.05.2019 for other persons. There were other issues as well including the prescription for word limit for grounds of appeal as well as the mapping of jurisdiction of the Appellate Commissioner. In recognition of the aforesaid difficulties, the time limit for application of the Circular was extended up to 15th June, 2016. E-appeals filed within the aforesaid extended period were to be treated as valid. In the present case, the manual appeal has, admittedly, been filed on time. CIT(A) has also heard the matter on merits on two(2) occasions and written submissions of the petitioner are available on record. In such circumstances, the statutory right of appeal granted to the petitioner, a substantive right, should not be whittling down by virtue of a procedural infirmity, admittedly, committed by it. Without it setting a precedent, I thus, direct the petitioner to comply with the provisions of Rule 45 within a period of three(3) weeks from today. Upon being satisfied with compliance thereof, the CIT(A) will take the appeal up for adjudication on merits without reference to limitation. Since the manual appeal has admittedly, been filed within time and upon payment of necessary fee, there is no necessity for the petitioner to remit the appeal fee yet again in respect of the appeal filed electronically. Necessary instructions be issued in this regard by learned Standing Counsel to the Authorities. This writ petition is allowed in the aforesaid terms. In the light of my conclusion as aforesaid, the impugned order is set aside. 2019 (6) TMI 401 Addition of total consideration - joint property - distribution agreement, the sale proceeds were to be divided into 8 parts - CIT( A) allowed the claim - HELD THAT:- As perused relevant material on record including documents placed in the paper-book. The undisputed fact that emerges are that the stated plot of land was acquired by the assessee by way of inheritance from his mother. The documents on record has established that assessee was not the sole owner of the land under question and it was entitled for share to the extent of ₹ 16.42 Lacs only which has rightly been brought to tax in his hand. Deduction u/s 54F - HELD THAT:- Assessee supplied construction bills as well as certificate of civil contractor to suggest that the money was spent for construction of the residential building. The assessee in support of the claim had filed copy of construction bills, statement showing mode of payment to contractor, correspondence with Sarpanch of Grampanchayat, Naygaon, Uran, NOC from other legal heirs to build a house, 7/12 extract, property tax receipt etc. The said documents were filed during remand proceedings also to AO vide submissions dated 23/05/2015 and therefore, there was no violation of Rule 46A as urged by the revenue in grounds of appeal. The perusal of these documents clearly established the assessee s claim u/s 54F. Therefore, no infirmity could be found in the impugned order, in this regard. Ground No.1 stands dismissed. Addition u/s 68 - HELD THAT:- So far as the addition it emerges that except for third party documents / evidences, there is nothing on record which corroborates the fact that any such unaccounted money flowed to the assessee in cash. The assessee denied having received any such money and therefore, the onus had shifted on revenue to dislodge the assessee s claim. As rightly noted by CIT(A), no further investigation /inquiry has been conducted by Ld.AO to contradict the assessee s claim. The opportunity to cross-examine the persons has never been provided to the assessee and the assessee was directed to prove the negative i.e. that he did not receive any unaccounted money. Therefore, we do not find any infirmity in the impugned order on this issue. Ground No. 2 stand dismissed. 2019 (6) TMI 400 Disallowance u/s 14A - expense disallowance u/r 8D(2)(iii) computed @0.5% of average investments - adjustment thereof while computing Book Profits u/s 115JB - HELD THAT:- Submissions of AR are two-fold i.e. majority of the expenditure incurred by the assessee during impugned AY was directed towards construction activities and secondly, no expense has been incurred by the assessee towards earning of exempt income in view of the fact that the investments were old and there was no major shift in the investments. These two aspects, in our opinion, has remained to be examined in proper perspective by AO during assessment proceedings. Before proceedings to apply Rule 8D, it was incumbent on the part of AO in terms of Section 14A(2) to form an opinion as to why the disallowance offered by the assessee, having regards to the accounts of the assessee, was not satisfactory or correct. This would apply even in case wherein the assessee submits that no expenditure has been incurred to earn the exempt income. Therefore, the aforesaid satisfaction of AO, is sine-qua-non before clothing AO the power to acquire jurisdiction u/r 8D. In Maxopp Investment Ltd. Vs CIT [ . [ 2018 (3) TMI 805 - SUPREME COURT] has laid down certain vital propositions concerning disallowance u/s 14A as approved the applicability of disallowance u/s 14A to investments irrespective of motive to make such investments. Therefore, the said decision would have certain bearing on the issue under hand. We find that the quantum assessment orders for both the years have been framed prior to the aforesaid decision and both the parties did not have the benefit of the same. Keeping in view the entirety of facts and circumstances, we deem it fit to set-aside the finding of Ld. first appellate authority, in this regard, for both AYs. Disallowance u/s 115JB would be considered keeping in view the statutory provisions of Section 115JB as well as the decision rendered in ACIT Vs. Vireet Investment (P.) Ltd. [ 2017 (6) TMI 1124 - ITAT DELHI] and other binding judicial precedents. - Assessee appeals stand allowed for statistical purposes. 2019 (6) TMI 399 Addition u/s 68 - amount represented corpus donation received by the Appellant which was exempt u/s 11(d) - HELD THAT:- It is also noted that the mode of transaction viz. depositing of cash equivalent to the donations immediately before the issuing of demand drafts raises doubt as to the genuineness of transactions, as also observed by the ITAT and earlier denied by the two letters written by Chairman, LEARN during original assessment, enumerating therein the fact that the assessee had no capacity to pay donation and now reflected in DCIT, Circle Imphal, letter dated 21.3.2013 received in fax, that the said NGO, LEARN only received donations from other parties during the assessment year 2005-06. Aall sufficient steps have been taken by the AO in accordance with the ITAT directions to investigate and unearth the truth behind the genuineness of corpus donation but no new facts or evidence came up as a result of same. It is germane to mention here that during the course of reassessment proceedings various queries were asked from the LEARN, which was not provided to the AO. In view of above, in our considered opinion, the assessee has failed to discharge his onus to prove the nature and genuineness of the corpus donation of ₹ 95 lacs, therefore, Ld. CIT(A) has rightly affirmed the action of the AO in treating the corpus donation of ₹ 95 lacs allegedly received from LEARN as undisclosed income in the hands of the assessee u/s. 68 - Decided against assessee. 2019 (6) TMI 398 Condonation of delay - Assessment u/s. 144 - exparte order passed by the AO - no proper opportunity of hearing was not provided to the assessee - HELD THAT:- Keeping in view the exparte order passed by the AO u./s 144 as well as non-consideration of sufficient reasons for not condoning the delay by the CIT(A) in filing the appeal before him, we are of the considered view that the delay deserve to be condoned and the issues in dispute need to be readjudicated by the AO, after considering all the evidences/documents filed by the Assessee and assessee be given adequate opportunity of being heard. We remit back the issues in dispute to the file of the AO for do novo consideration, after giving adequate opportunity of being heard to the assessee and also consider all the documents/evidences filed by the assessee and then pass a speaking order. - Decided in favour of assessee for statistical purposes. 2019 (6) TMI 397 Levy of penalty u/s 271(1)(c) - defective notice - non specification of charge - disallowance of exemption of long term capital gains incurred on selling of shares and unexplained expenditure on account of commission - HELD THAT:- Penalty is not leviable in the matter. The Hon ble Karnataka High Court in the case of CIT vs. M/s. SSAs Emerald Meadows [ 2015 (11) TMI 1620 - KARNATAKA HIGH COURT] confirmed by [ 2016 (8) TMI 1145 - SC ORDER] in which the Tribunal has allowed the appeal filed by assessee holding that notice issued by the A.O. under section 274 r.w.s. 271(1)(c), to be bad in Law and it did not specify in which limb of Section 271(1)(c) , the penalty proceedings had been initiated i.e., whether for concealment of particulars of income or furnishing inaccurate particulars of income. In the present case, the A.O. issued show cause notice dated 28.12.2016 which is also mentioned in the penalty order in which A.O. did not specify under which limb of Section 271(1)(c), the penalty proceedings had been initiated i.e., whether for concealment of particulars of income or furnishing inaccurate particulars of income. Even in the assessment order A.O. did not mention as to under which limb of Section 271(1)(c), the penalty have been initiated against the assessee as noted above. Therefore, the show cause notice for levy of the penalty itself is invalid and bad in law - Decided in favour of assessee 2019 (6) TMI 396 Penalty u/s 271D - default u/s 269SS - borrowings made in cash at each stage exceeds the permissible limit - transactions between family members - HELD THAT:- Tribunal has considered an identical issue in the case of Smt. Deepika vs. Addl CIT [ 2017 (10) TMI 1405 - ITAT BANGALORE] and held that the transactions between family members would not attract penalty u/s 271D In the instant case also, we have noticed that the assessee has taken loan from his father and paternal aunt, who are family members. We notice that the co-ordinate bench has followed the decision rendered in the case of Sunil Kumar Goel [ 2009 (3) TMI 131 - PUNJAB AND HARYANA HIGH COURT] wherein it has been held that the family transactions would fall within the meaning of reasonable cause u/s 273B of the Act. Hon ble Madras High Court has cancelled the penalty in respect of loan transactions between father in law and daughter in law in the decision of M.Yesodha [ 2013 (2) TMI 211 - MADRAS HIGH COURT] - Decided in favour of assessee. 2019 (6) TMI 395 Levy of penalty u/s. 271(1)(c) - defective notice - non specifying the charge u/s. 271(1)(c) - concealment of income v/s furnishing inaccurate particulars of income - HELD THAT:- A perusal of assessment order shows that penalty u/s. 271(1)(c) qua disallowance u/s. 14A has been initiated by mentioning both the limbs of section 271(1)(c). Thereafter, while passing penalty order dated 05-03-2015 the Assessing Officer again mentioned both the limbs of section 271(1)(c) Hon ble Supreme Court of India in the case of T. Ashok Pai Vs. Commissioner of Income Tax [ 2007 (5) TMI 199 - SUPREME COURT] has held, Concealment of income and furnishing of inaccurate particulars carry different connotations. Expression concealment of income and furnishing inaccurate particulars of income cannot be used interchangeably. Concealment of income connotes where there is escapment of income from tax net by virtue of assessee concealing information/documents etc. or non-furnishing of information about income earned in the return of income during the relevant period. On the other hand expression furnishing inaccurate particulars of income signifies where the assessee has furnished particulars of income but the information/documents furnished are false/wrong/incorrect or erroneous. In the instant case, there was ambiguity and vagueness in the mind of Assessing Officer while recording satisfaction with respect to charge u/s. 271(1)(c) to be invoked. The same ambiguity persisted at the time of passing order levying penalty. The Assessing Officer has to be specific and categoric in mentioning the charge u/s. 271(1)(c) at the time of recording satisfaction, as well as at the time of levy of penalty. Where penalty provisions have been invoked in indistinct manner, penalty proceedings would fail the test of legal requirements. Accordingly, the impugned order is set aside and the appeal of assessee is allowed. 2019 (6) TMI 394 Addition of bogus purchases - Survey action u/s133A - CIT-A restricted addition to 10% - HELD THAT:- Undoubtedly, the primary onus to prove genuineness of purchase transactions is on the assessee and he should have in first place furnished cogent evidences to prove the genuineness of the purchases and suppliers. No confirmations were filed by the assessee from suppliers. We also observe that at the time of assessment proceedings, the AO has also not exercised his power to summon the Vendors u/s. 133(6). If the assessee had failed to produce Vendors, the AO could have summoned them. There was lack of effort from both the sides to bring the true colour of purchase transaction to fore. The CIT (A) after considering entire facts came to the conclusion that it is a case of purchases from gray market and thereafter, bills have been procured from hawala operators. In the given facts, the entire purchases cannot be considered as bogus. At the same time, the assessee cannot be allowed to go scot free for not proving the genuineness of the purchases. The Co-ordinate Bench of the Tribunal in the case of M/s. Chhabi Electricals Pvt. Ltd. Vs. DCIT [ 2017 (6) TMI 514 - ITAT PUNE] has held that in the cases of purchases from suspicious dealers, addition of 10% of the bogus purchases over and above the GP declared by the assessee for the year should be made. In the instant case, the CIT (A) has restricted the addition to 10% of the alleged bogus purchases. Hence, the impugned order is modified; the addition is restricted to 10% of alleged bogus purchases over and above the GP declared by the assessee. - Decided partly in favour of assessee. Penalty u/s 271(1)(c) - defective notice - furnishing inaccurate particulars of income - HELD THAT:- A perusal of the order levying penalty dated 22.07.2015 reveals that though penalty was initiated for furnishing inaccurate particulars of income , the Assessing Officer invoked the other limb of section 271(1)(c) while levying penalty i.e. concealment of income . The manner in which penalty has been levied by the AO u/s.271(1)(c) clearly shows that there was ambiguity in the mind of Assessing Officer with regard to charge u/s.271(1)(c) that is to be invoked for levy of penalty. It is a well settle law that penalty cannot be levied on the charge other than the charge for which it was initiated. SHRI SAMSON PERINCHERY [ 2017 (1) TMI 1292 - BOMBAY HIGH COURT] - Decided in favour of assessee. 2019 (6) TMI 393 Monetary limit for filing appeal by Revenue - low tax effect - rectification application u/s.254(2) - re-assessment proceedings in the case of assessee were initiated on the basis of information received from Sales Tax Department, Govt. of Maharashtra - amended Para 10 of CBDT Circular the monetary limit for filing appeals by the Department would not apply where addition is based on information received from external sources in the nature of law enforcement agencies such as CBI, ED, DRI, SFIO, Directorate General of GST Intelligence (DGGI) etc. - HELD THAT:- In the instant case, re-assessment proceedings were initiated on the basis of information received from Maharashtra State Sales Tax Department. Thus, we are of considered view that the exception mentioned in Para 10 (e) of the CBDT Circular No. 3 of 2018 (supra.) does not cover information received from State Sales Tax Department. Hence, the monetary limit as fixed by CBDT to file appeals by the Department would apply in the facts of the present case. We do not find any merit in the contentions of the Revenue. The Miscellaneous Application filed by the Revenue seeking recalling of the Tribunal order is dismissed, accordingly. 2019 (6) TMI 392 Validity of assessment in the name of non-existent entity - Scheme of merger conceived - company ceased to exist consequent to merger scheme adopted - notice in the name of company merged - HELD THAT:- We find merit in ground No.1 raised by assessee challenging validity of assessment in the name of non-existent entity. Thus, assessments order dated 27.03.2015 in the name of erstwhile Amdocs Business Services Private Limited is invalid and without jurisdiction as the said company had ceased to exist on the date of assessment order. The assessment order passed in the name of non-existent entity i.e. Amdocs Business Services Private Limited is invalid and subsequent proceedings arising there from are vitiated. Hence, ground No.1 raised in appeal by the assessee is allowed. 2019 (6) TMI 391 Deduction u/s. 54F - denied on the ground that on the date of transfer assessee has more than one residential house - whether the property at Bohri (Borari), Mumbai, i.e., the residential quarter on land measuring 1 Kanal 3 Marlas owned by the assessee, was a residential house as on the date of transfer - HELD THAT:- The burden to prove his claim u/s. 54F, is though on the assessee, as well as to meet the evidence gathered or sought to be relied upon by the Revenue. The remission would also meet the assessee s claim of having not been allowed a reasonable opportunity, raised before us per lengthy grounds of appeal, even as he has before us been unable to state or point out any evidence which he wishes to rely upon (or to meet the Revenue s reliance on the Inspector s Report), though could not for want of opportunity. There is no application for admission of additional evidence before the first appellate authority, or even a prayer for admission of additional evidence before us, so that, as we understand, the grievance could only extend to being unable to explain the evidence being relied upon by the Revenue. AO shall decide on the basis of the material on record, issuing definite findings of fact consistent therewith, taking into account the totality of the facts and circumstances, and after allowing the assessee a reasonable opportunity of being heard, and which he shall do in a time-bound manner. Sure, he is to decide the legal issue/s afore-referred as well, i.e., where the same arises in the facts and circumstances of the case. Needless to add, the assessee, on whom the primary burden to prove lies, shall cooperate in the said proceedings. The issue being principally factual, has in any case to be decided on the basis and strength of the evidences, for and against, and not on the basis of presumptions, with the assessee in any case bound to cooperate in the set aside proceedings. We decide accordingly. - Revenue s appeal is allowed for statistical purposes. 2019 (6) TMI 390 Assessment proceedings u/s 153A/153C - absence of any incriminating material recovered during the search - HELD THAT:- The assessment for the impugned assessment year was not pending on the date of recording of satisfaction by the AO and, therefore, would not abate by virtue of the second proviso to Section 153A and as held by the Courts that completed assessments can be interfered with by the AO while making the assessment u/s 153C only on the basis of some incriminating material unearthed during the course of search, therefore, in absence of any incriminating documents found during the course of search relating to unsecured loan and share application transaction with M/s Denim Developers Ltd and such transactions being duly recorded in the books of accounts, the additions made while passing the assessment order passed u/s 153C r/w 143(3) deserve to be deleted. - Decided in favour of assessee. We find that similar view has been taken by the Co-ordinate Bench in case of M/s Kota Dal Mill [ 2019 (1) TMI 344 - ITAT JAIPUR] wherein the Co-ordinate Bench has considered and discussed at length various decisions laying the legal proposition that in absence of any incriminating material, no addition can be made in cases where the assessment has not got abated on the date of search. Validity of assessment order passed u/s 143(3) r.w.s. 153B (1)(b) on the ground that notice u/s 143(2) was not issued within the stipulated time - HELD THAT:- Provisions of Section 292BB of the Act does not support the case of the Revenue as in the present case, the very issuance of notice u/s 143(2) is beyond the prescribed period of time whereas the section 292BB talks about the situations where the notice has either not been served upon the assessee or not been served in time or not have been served in a proper manner. In the present case, the matter is not about the service of the notice in time to the assessee rather the matter is very issuance of notice u/s 143(2) beyond the prescribed time period. Therefore, section 292BB cannot come to the rescue of the Revenue in the present case. In the entirety facts and circumstances, we are therefore of the considered view that since the notice u/s 143(2) has been issued beyond the prescribed limitation period, the entire proceedings suffer from the jurisdictional infirmity and deserve to be set aside. Ground no. 2 of assessee s cross-objection is thus allowed in favour of the assessee and against the Revenue. 2019 (6) TMI 389 Assessment u/s 153A - income assessable and, thus, the tax impact, if any, for the current year, on the basis of the seized material relating to the said year - if the income assessable for this year would stand to be telescoped against the income assessed for the following year (i.e., AY 2014-15) in-as-much as the same is, again, based on the entire seized material, including that for the current year - HELD THAT:- The non-acceptance of the assessee s claims, i.e., as to the nature of the transactions, as well as the results thereof, becomes quizzical; the Revenue admittedly not pointing out any defect therein. The assessee in fact nowhere admits these transactions to be regular purchase and sale transactions. In fact, even if he did, that would be of no consequence in view of the said working, based on seized material, showing complete details of the transactions, as well as the manner of their execution, i.e., as explained, including before us. Rather, the AO, though regards the same as purchase and sale transactions, yet admits them to be of whole-sale nature, i.e., different from the regular sales, in view of the quantities involved, justifying his non-application of the profit rate obtaining on the regular sales to the undisclosed turnover. He, in fact, admits to, albeit a part, of the transactions as being speculative (para 2.5 of the assessment order). There is also no mention of the parties to whom the sales, or from whom the purchases, are made, nor any evidence of any amount/s outstanding, i.e., receivable or, as the case may be, payable, qua these sale and purchase transactions respectively, which is again incomprehensible if the same are regarded as regular transactions of purchase and sale, particularly considering the large volumes. Revenue has wrongly not accepted the assessee s claim with regard to the nature of the transactions as well as the manner in which the same are executed and settled, receiving or, as the case may be, paying, the net difference, rejecting the working made on the basis of, and evidenced by, the seized material, which though ought to have been placed on record by either side. Rate of profit or, rather, the profit or, as the case may be, loss, arising to the assessee on these transactions - HELD THAT:- The transactions (both debit and credit) being in cash, Sh. Mahajan would show that the said working, for the period up to 03/9/2013, i.e., immediately prior to the date of search, agrees, save for a minor difference of ₹ 2850, with the unaccounted cash found during search, i.e., ₹ 49.58 lacs, establishing the veracity of the said working. What better proof, then, could the assessee furnish, both as to the nature of the transactions as well as the income (loss) arising therefrom? On the Bench making an inquiry with Sh. Mahajan in this regard, as there is no mention of the said working, either in the assessment or the appellate order, he would make a categorical submission that the same forms part of the assessment and the appellate record, toward which in fact certification (in terms of Income Tax (Appellate Tribunal) Rules, 1963) stands made by him. We, accordingly, have no hesitation in accepting the assessee s claim of having in fact incurred a trading loss of ₹ 16.91 lacs on the undisclosed turnover of gold (₹ 4570 lacs) and silver (₹ 194 lacs). Undisclosed transactions - HELD THAT:- If the assessee can introduce cash (to that extent) on 31/3/2013, he could also, on the transactions yielding profit (which is in cash) in the following year, withdraw the same. Further, it cannot be presumed that the cash depletion is met by the cash available, i.e., to the extent it is, from the assessee s regular (disclosed) business. This, apart from being without evidence, would amount to falsifying the assessee s regular books of account. Thus, while the assessee is not entitled to set off the admitted loss of ₹ 16.91 lacs which is on account of it being of a speculative business as well as not returning the same, an addition to that extent on account of unexplained cash balance, which is proved by his own working for the relevant year, arises. We hold so. At the same time, the additional profit of ₹ 110 lacs on the undisclosed turnover, as estimated by the Revenue, is deleted. We decide accordingly. Addition on account of the estimated investment involved in the undisclosed business - HELD THAT:- As already found the assessee to have undisclosed cash of ₹ 16.91 lacs. The same, in the absence of any material suggesting otherwise, is regarded adequate for the purpose. This adequacy, though, without doubt, cannot be assessed to the last rupee, and can only be taken as broadly indicative. In fact, it may well be that the loss, at ₹ 16.91 lacs up to 31/3/2013, works to a higher sum for the intervening period up to 28/2/2013 (say) resulting in a larger shortfall in cash, and stands reduced on account of subsequent profit. It is even otherwise inconceivable that a concern found with an excess (unaccounted) cash of nearly ₹ 50 lacs (as on 04/9/2013), i.e., other than cash reflected in its regular books of account, has nil cash balance at any time. The same is accordingly taken at ₹ 3.09 lacs, i.e., by assessing the unaccounted cash at a total of ₹ 20 lacs, of which ₹ 16.91 lacs stands depleted as on 31/3/2013 on account of loss, so that the balance ₹ 3.09 was available. This is particularly so as the cash with the assessee, for which addition stands confirmed, may, for all we know, obtain from the beginning of the year. The addition of ₹ 50 lakhs is accordingly restricted to ₹ 20 lacs, i.e., including ₹ 16.91 lacs already confirmed, so that no separate addition to that extent shall arise. The import of what is being said is that the addition for capital of the undisclosed business is restricted to ₹ 20 lacs, of which ₹ 16.91 lacs in fact gets proved. The assessee, needless to add, shall be entitled to telescoping of this addition to the extent of ₹ 3.09 lacs, against the asset-based additions for the following year. Telescoping of the addition - HELD THAT:- profit for the following year would in fact stand to increase by the amount of loss admittedly incurred for the current year in-as-much as that only would result in the total profit for the entire period amounting to that determined and assessed (₹ 100 in our example). True, the loss for the current year does not lead to, as found, a reduction in the cash balance to that extent. That, however, is as there can be no negative cash balance, so that cash to that extent is otherwise available to the assessee, and not because there is no cash depletion to that extent, which rather would be a contradiction in terms. The same ought not to be confused with the profit from trading operations. As such, rather than a reduction in profit for the following year as assessed, the same stands to be increased by the amount of loss incurred in the current year (₹ 16.91 lacs). No telescoping benefit qua the addition sustained, which is thus on account of unexplained cash, and not on account of profit which only would translate into asset/s, would stand to arise. Assessee appeal is partly allowed. 2019 (6) TMI 388 Addition being alleged excess value of stock calculated during the course of survey - rejection of books of account - G.P. estimation - HELD THAT:- We found that addition was made on the basis of statement of Director. However, later on the director retracted his statements. The assessee company with the help of complete working established that the statements at the time of survey with regard to processing cost was wrong. However, A.O. could not point out any defect or discrepancy in factual working so submitted and which were duly supported by audited accounts. A.O. solely relied only on the statements to make the additions and had no other evidence. Thus there is no merit for the addition made on account of processing rate difference in so far as all processes as envisaged by the department were not carried out on all the finished goods and only the process required by the customers were so carried out. Therefore, actual process cost as arrived in books of account is to be taken for valuation of stock. It is clear from the above chart that even if the tentative quantity taken by the department with the rates as per books of account is taken total stock works out at ₹ 7,87,86,680/- as against the stock as per books of account at ₹ 8,18,90,637/-. Thus, there is shortage of stock as on the date of survey amounting to ₹ 31,03,957/- which can be considered as having been sold but not recorded in the books of account on the date of survey. At the most, the department can add GP earned on such shortage of stock, in so far as the A.O. has not doubted that all the purchases had been recorded in the books of account. Once the purchases is found to be accounted for, addition can be made with respect to G.P. earned on such shortage of stock. The G.P. during the year is 7.48%. - Appeal of the assessee is allowed in part. 2019 (6) TMI 374 Taxability of profits on sale of investments and securities - premium paid by the assessee on purchase of Govt. Securities as allowable as revenue expenditure on amortization - disallowance of expenses under Section 14A - HELD THAT:- Appeal admitted on question 1 to 5 Relief to the assessee u/s 10 - profits on sale of investment and securities - whether no such benefit is allowable to the assessee due to the non-obstante nature of Section 44? - HELD THAT:- This question similar to one considered by the Division Bench of this Court in THE NEW INDIA ASSURANCE CO. LTD., [ 2018 (3) TMI 589 - BOMBAY HIGH COURT] wherein as clarified that exemption available to any other assessee under clause 10(38) relating to long term capital, would also be available to a person carrying on non-life Insurance business. CBDT communication dated 21st February, 2006 addressed by the CBDT to the Chairman, IRTA, as well as the decision of this Court in GIC [ 2011 (12) TMI 70 - BOMBAY HIGH COURT] would be binding upon the Revenue. - Decided in favour of assessee. MAT provision u/s 115JB applicability - HELD THAT:- Issue covered against the Revenue by a detailed Judgment THE COMMISSIONER OF INCOME TAX-LTU, COMMISSIONER OF INCOME TAX (IT) -3 VERSUS UNION BANK OF INDIA, MASHREQ BANK PSC, BANK OF INDIA, M/S THE NEW INDIA ASSURANCE CO. LTD., CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK [ 2019 (5) TMI 355 - BOMBAY HIGH COURT] as held that provisions of Section 115JB of the Income Tax Act, as it stood at the relevant time, would not apply to Banking Companies or Insurance Companies. This additional question is therefore, not considered. 2019 (6) TMI 373 Rectification application u/s 254 (2) - As per Tribunal [ 2018 (7) TMI 1988 - ITAT PUNE ] the assessee has been held eligible for claiming deduction u/s.80IB(10) however, the issue was restored to the file of AOfor limited purpose to verify the date on which the assessee approached the Pune Municipal Corporation for issuance of completion /occupancy certificate - HELD THAT:- Since, the Assessing Officer has already verified from office of the Pune Municipal Corporation the date on which application for completion /occupancy certificate was submitted, we find that restoring the issue back to the file of Assessing Officer for the purpose of verifying date would be an exercise in futility. This vital fact was inadvertently overlooked while passing the order dated 20.07.2018; hence the mistake crept in the order that needs to be rectified. Miscellaneous Application filed by the assessee is allowed. 2019 (6) TMI 372 Rectification of mistake - restoration of matter back for reconsideration - HELD THAT:- The directions are contradictory and it is not clear whether the matter is restored back to the file of the CIT(A) or to the AO. When this fact was pointed out to the learned Counsel, he fairly agreed. We noted that there is mistake apparent from the record in the order of the Tribunal and matter is actually restored back to the file of the AO. We direct the AO to reframe the assessment after allowing reasonable opportunity of being heard to the assessee. In the result, MA of the Revenue is allowed Customs 2019 (6) TMI 387 Waiver of Penalty - benefit of reassessment under Section 149 of Customs Act - benefit of N/N. 72/2005-Cus - Extended period of limitation - HELD THAT:- In the instant case, the country of origin certificates were not produced before the original adjudicating authority. The dates on the country of origin certificates are not legible and it cannot be said that the said if country of origin certificate existed at material time when the assessment was made. Section 149 permits reassessment only in the circumstances and on the strength of documentary evidence which was in existence at the time goods were cleared, deposited or exported . It is not clear in the instant case that such country of origin certificate were available at the time of clearance of goods. Extended period of Limitation - HELD THAT:- It is seen that the appellants have correctly described the product in the bills of entry and claimed the notification. The complete facts were before the assessing officer. Thus there was no suppression of facts or misdeclaration - If the Revenue was not aware of the changes in law the assessee cannot be blamed - Extended period of limitation cannot be invoked. The demand of duty and interest in so far as period within limitation is concerned, is confirmed - penalty set aside - appeal allowed in part. 2019 (6) TMI 371 Imposition of penalty on CHA - it was found that the importer had availed irregular exemption from payment of Basic Custom Duty in respect of the items imported by them and it was also found that the present appellant had failed to advise the importer about the correct classification of the imported goods - Regulation 11(d) and 11(e) of CBLR - HELD THAT:- Commissioner of Custom after considering the report of the Inquiry Officer came to the conclusion that the appellant had neither abetted mis-declaration of the goods nor benefited from their acts and therefore, the suspension of license was revoked but still imposed penalty of ₹ 50,000/- without mentioning any provision under which the said penalty was imposed. Once the appellant had not committed any offence under the Customs Act as well as under the CBLR Regulations, then imposition of penalty is not warranted on the appellant. Penalty not warranted - appeal allowed - decided in favor of appellant. Corporate Laws 2019 (6) TMI 370 Restoration of the name of the Company Shree Narayan Developers Pvt. Ltd. in the Registrar of Companies, Uttar Pradesh - serious allegations of financial mismanagement and fraud - extension of time for filing documents - HELD THAT:- Before us, there is no dispute that the Appellant did deposit ₹ 50,000/- in August, 2018 itself with ROC. Apart from this, although NCLT had directed filing of the Statutory Returns within 30 days in para 7, in view of existence of specific provision in the form of Rule 153 of the National Company Law Tribunal Rules, 2016, the NCLT had sufficient powers to extend time - Rule 11 of the Rules gives Inherent Powers to the NCLT to pass such Orders as are required to meet the ends of justice. Thus we need not burden this Judgement by referring to Rulings referred to by parties on the subjects of Review, or Peremptory Orders. In the present matter, where clearly there was litigation going on between the parties and even Investigating Auditor had been involved and gave Report, and the Company Petition was pending, it was wrong on the part of ROC in the first place to have struck off the name of the Company in set of present facts. Looking to the period from 2003 till 2017, and the fact that NCLT itself accepted that it was necessary for the Appellants to have the records from the Respondents, the interest of justice required that NCLT should have extended the time which power it had under Section 153 of the Rules. The Impugned Order dated 10th September, 2018 set aside - appeal allowed. Insolvency & Bankruptcy 2019 (6) TMI 386 Constitution of Committee of Creditors (COC) - Whether the various threshold voting share fixed for the decision of the COC under Various sections of the I B Code needs to be followed literally or whether they are only directory, and if so, what procedure has to be followed in determining the voting percentage among the COC to pass a particular resolution? - Difference of Opinion - views of reference Bench of the Tribunal considered. Held that:- The Committee of Creditors (COC), taking into consideration Section 21(2) of IBC, 2016, shall comprise of all financial creditors and must be construed as one and cannot be segmented class wise particularly for the purpose of computation of voting share - The voting share as are prescribed and required to be achieved under the respective provisions of IBC, 2016 are mandatory in nature and cannot be held to be directory. For the computation of voting share required to be achieved as prescribed in IBC, 2016, class wise voting of financial creditors, be it home buyers or lenders or otherwise and to treat the majority vote of that particular class in relation to a resolution, particularly by adding the voting share of those financial creditors who had abstained, as the will and vote of the entire class in the COC cannot be accepted. This reference is thus returned to be placed before the Hon'ble President, NCLT with the above conclusions for onward transmission to the Division Bench of NCLT, Allahabad to be pronounced in open court for the benefit of the concerned parties. 2019 (6) TMI 369 Dissolution of the Company under Liquidation - HELD THAT:- The Liquidator in its Final Report dated 28.02.2019 has reiterated that as there was no records, documents, books of account available and the Directors/Promoters of Corporate Debtor were not traceable, the procedure provided under law for the CIR Process/Liquidation could not be effectively followed up. The report provides that an agricultural land admeasuring 5.26 acres situated at Pudhukottai belonging to the Personal Guarantor viz., R. Valli, one of the Directors and Promoters of the Corporate Debtor was mortgaged to State Bank of India (SBI), and the SBI being the mortgagee, shall hold the aforesaid land in furtherance to the order dated 20.01.2017 passed by the Debt Recovery Tribunal, Chennai, and in this regard, the SBI had submitted an Affidavit along with the claim stating that the aforesaid land belongs to the Promoter and mortgaged exclusively in favour of State Bank of India and the said asset does not fall under Liquidation Estate in terms of Section 36 of IBC, 2016 - The Report further provides that the Liquidator could not appoint any Valuers in the absence of Financial Records and/or any discoverable assets, as prescribed under the Insolvency and Bankruptcy Code, 2016. The Report also provides that there are no legal proceedings instituted, concluded or pending for and against the Company during the Liquidation proceedings. This Authority in exercise of the powers conferred under Sub-section (2) of Section 54 of the I B Code, 2016, hereby orders the dissolution of the Corporate Debtor viz . , M/s. Tech Megacorp International Private Limited from the date of this Order and the Corporate Debtor stands dissolved. Consequently, the Liquidator stands relieved - The Liquidator and the Registry are directed to send the copy of this order within 7 days from the date of pronouncement to the RoC with which the Corporate Debtor is registered. Application disposed off. 2019 (6) TMI 368 Initiation of Corporate Insolvency Resolution Process against Corporate Debtor - default in making the payment despite issuance of the demand notice under Section 13(2) of the SARFAESI Act, 2002 - HELD THAT:- On occurrence of the default, the financial creditor has to move an application in the prescribed form which has been done in this case in Form 1 as prescribed in Rule 4(1) of the Rules. The petitioner has thus, been able to satisfy the requirement of Sub-section (1) and (2) of Section 7 of the Code. In the instant case, the petitioner-financial creditor adduced abundant evidence to show the default which has been committed by the respondent-corporate debtor and the same has not been disputed. The respondent-corporate debtor is also stated to have executed the balance confirmation letter dated 13.02.2015 whereunder the loan facilities were renewed - The evidence of default is also borne out from the CIBIL record relied upon by the petitioner bank as Annexure A/31 dated 21.06.2018. As per clause (b) of Section 7(3) of the Code, the financial creditor is bound to propose the name of the Resolution Professional to be appointed as Interim Resolution Professional - In Part III of the application Form No.1, the petitioner has proposed the name of Mr. Rajender Kumar Jain a registered Resolution Professional proposed to be appointed as Interim Resolution Professional. The written communication in Form 2 furnished by Mr. Rajender Kumar Jain is at Annexure A/5 dated 14.06.2018 furnishing the required particulars. He is not serving as a Resolution Professional in any proceedings under the Code so far. It is further certified that there are no disciplinary proceedings pending against Mr. Jain with the Board or Indian Institute of Insolvency Professional of ICAI. We have perused Form No.2, the written communication furnished by the Resolution Professional which is found to be in order. The certificate of registration issued by the IBBI is at Page 53 of the paper book. The petition is admitted and the moratorium declared. Service Tax 2019 (6) TMI 385 Vires of provision Renting of immovable property , as defined under Section 65 (90a) read with Section 65 (105) (zzzz) as 'Declared Service', under Section 66 E (a) read with 65 B (22) - HELD THAT:- Declaration sought for in the instant writ petition cannot be granted, in view of a decision of the Hon'ble Division Bench, in GV. MATHESWARAN VERSUS THE UNION OF INDIA AND OTHERS [ 2015 (3) TMI 391 - MADRAS HIGH COURT] , wherein this Court, has dismissed the writ petition filed for the same relief. Request of the learned counsel for the petitioner to keep the instant writ petition pending, till a decision is arrived at by the larger Bench also cannot be countenanced, for the reason that only leave has been granted by the Hon'ble Supreme Court. Order made in G. V. Matheswaran (supra), has not been stayed by the Hon'ble Supreme Court. Law as on today is that the provision has been upheld and therefore, respondents should be allowed to act, as per the existing provision. Petition dismissed. 2019 (6) TMI 384 Interest on refunds of service tax - Section 11 BB of the Central Excise Act - HELD THAT:- The appellant's claim is entirely justified having regard to the statutory regime of Section 11 BB of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994. Section 83 of the Finance Act expressly makes various provisions of the Central Excise Act applicable in relation to service tax. Section 11 BB has been interpreted by the Supreme Court inter alia in UNION OF INDIA OTHERS VERSUS M/S HAMDARD (WAQF) LABORATORIES [ 2016 (3) TMI 68 - SUPREME COURT] . The Supreme Court has held that the liability of the Revenue to pay interest under the said provision commences from the expiry of three months from the date of receipt of the application for refund. The question of law is answered in the affirmative, i.e. in favour of the assessee and against the Revenue - appeal allowed - decided in favor of appellant. 2019 (6) TMI 383 Non-payment of service tax - period October 2010 to March 2015 - appellant had not discharged payment of service tax because of non receipt of payments from the clients, however off late he deposited the service tax in the course of adjudication - demand based on the figures appearing in Form 26AS statement filed by the clients - HELD THAT:- The value of taxable services cannot be arrived at merely on the basis of the TDS statements filed by the clients inasmuch as even if the payments are not made by the clients, the expenditures are booked based on which the Form 26AS is filed, which cannot be considered as value of taxable services for the purpose of demand of service tax - the ends of natural justice would be met if the matter is sent back to the Original adjudicating authority for the purpose of correct computation of service tax demand and interest thereon as per law. Services provided to National University of Study and Research in Law, Ranchi - HELD THAT:- I am not convinced with the arguments made by the appellant inasmuch as the phrase any person used in the definition of taxable services for being the service recipient, shall also include the government bodies. No specific exemption notification has been pointed out by the appellant pertaining to the period prior to 1st July, 2012, under which the appellant claimed their services to be exempt. It is my considered view that the appellant is not entitled to any relief on this count and held accordingly. Adjustment of excess service tax of ₹ 42,776/- for the period 2013-14 - HELD THAT:- From the total service tax liability for the impugned period October 2010 to March 2015, there is no dispute with regard to the fact that there has been excess payment of tax. When both the excess and short payment of tax has arisen during the period in dispute, there is no reason for not allowing the adjustment of excess amount of tax paid - the assessee is entitled for adjustment of excess amount of tax paid. Penalty - HELD THAT:- It is not a case where the service tax collected from the client has not been deposited. Therefore, there was a reasonable cause for delay in payment of service tax for which the appellant would be liable to pay interest as per law - however the appellant is entitled for waiver of penalty under Section 80 of the Act even in the instant case where extended period of limitation has been invoked - penalties set aside. Appeal allowed by way of remand. 2019 (6) TMI 382 Business Auxiliary Service - commission received as a distributor of Amway - liability of service tax - Extended period of limitation - HELD THAT:- On the identical issue this Tribunal has taken a view that demand for extended period will not be sustainable in case of Charanjeet Singh Khanuja [ 2015 (6) TMI 585 - CESTAT NEW DELHI ] wherein on the limitation it was held that When there is scope for doubt in the mind of an assessee on a particular issue, the longer limitation period, under proviso to Section 11 A(1) cannot be invoked - in the present case also the demand for the extended period is not sustainable. As regard, the demand for the period 2007-08 which is within the limitation, we find that the total commission received is 1,209/- whereas the exemption is available for the total aggregate value of ₹ 8 Lakhs, in terms of Notification No.6/2005-ST, therefore, this demand is also not sustainable as being exempted. Appeal allowed - decided in favor of appellant. 2019 (6) TMI 381 Classification of services - laying of pipes for gas - classified as works contract services or not - HELD THAT:- The issue that whether the services fall under Works Contract or otherwise was raised first time before this Tribunal and same was not raised before Original Adjudicating Authority to decide whether the services fall within Works Contract Services. Various factual aspects have to be verified that whether the service was provided along with the supply of material, whether the appellant have discharged the Sales Tax/WCT etc. Therefore, the matter needs to be reconsidered for the purpose of deciding the classification that whether the services fall under works contract. The issue of limitation is also kept open. Appeal allowed by way of remand. 2019 (6) TMI 380 Maintainability of appeal - condonation of delay - appeal was dismissed on the ground of limitation as also on the ground of non observance of the provisions of Section 35F - HELD THAT:- The date of 26.02.2016, as disclosed by the appellants themselves is the date when they retrieved the copy of the order from the drawer of the expired worker. This fact itself leads to inevitable conclusion that the order was received by the assessee prior to the said date and was kept in the drawer and was taken out only on 26.02.2016. In such a scenario, the date of recovery of the order from the drawer of the employee, who had since expired, cannot be treated as date of receipt of the order. Admittedly, the order was received by them much prior to the said date, inasmuch as there is no evidence on record to reflect that the order dispatched on 30.09.2013 was received back by the Revenue as undelivered. As such, we agree with the learned Commissioner (Appeals) that the appeal filed on 30.03.2016 against an order on 30.09.2013 is hopelessly barred by limitation. The legal issue as to whether the Commissioner (Appeals) can condone the delay beyond the period prescribed in the Act stands decided against the assessee in the case of SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [ 2007 (12) TMI 11 - SUPREME COURT] . Appeal dismissed - decided against appellant. 2019 (6) TMI 367 Real Estate Agent Service - the appellant has rendered non binding investment advisory service to its holding company - demand of service tax - HELD THAT:- The appeal is admitted. 2019 (6) TMI 366 Valuation - Telephone connection service - telegraph authority - The respondent appointed M/s. Reliance Industries Ltd. (RIL) as an agent to market the TRAI approved Tariff Plans with respect to telephone connections services provided by it by means of various schemes floated by the agent in this regard - HELD THAT:- Issue notice. 2019 (6) TMI 365 Restoration of appeal - appeal was dismissed on the ground of non-prosecution - HELD THAT:- There is no delay in filing the application for ROA in terms of Section 35(C)(2) of the Central Excise Act, 1944 made applicable to service tax appeal under Section 86(7) of the Finance Act, 1944 inasmuch as within 6 months from the date of the order of the Tribunal, the applicant has filed the application for restoration of appeal. The miscellaneous application filed for condonation of delay is dismissed as infructuous. Central Excise 2019 (6) TMI 379 Maintainability of Settlement Commission application - Section 32-E of Central Excise Act - Settlement Application rejected as not maintainable on the ground that the petitioner had failed to make true and full disclosure of the matter in as much as it had withheld the fact of the adjudication order passed by the Additional Commissioner - HELD THAT:- The Commission held that the petitioner has not only failed to make a true and full disclosure but gave a false declaration about the case pending and accordingly rejected the application. Full and true disclosure to the satisfaction of the Commission is sine qua non to consider the Settlement Application from the initiation of the proceedings till the conclusion thereof. The Commission is empowered to reject the application at any stage if it comes to its knowledge that the applicant/co-applicant has failed to make a true and full disclosure. Petition dismissed. 2019 (6) TMI 378 CENVAT Credit - input services - Goods Transport Agency service used for outward transportation of goods - place of removal - sale of Cement on FOR basis - HELD THAT:- Hon ble Apex Court in the case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [ 2018 (2) TMI 117 - SUPREME COURT] held that Cenvat Credit on goods transport agency service availed for transport of goods from place of removal to buyer s premises was not admissible to the respondent. The facts of the case in the present set of appeals being identical to the case of Ultratech Cement inasmuch as the credit being claimed is on the Goods Transport Agency services availed to transport cement from the factory gate to the buyer s premises on the ground that the sale being on FOR basis, the place of removal shifts to the buyer s premises and therefore Cenvat Credit is admissible, I am legally bound to follow the ratio of the judgment of the Hon ble Apex Court which held against the assessee that no Cenvat Credit is admissible. Credit cannot be allowed - appeal dismissed - decided against appellant. 2019 (6) TMI 377 CENVAT Credit - input services - Goods Transport Agency service used for outward transportation of goods - place of removal - sale of Cement on FOR basis - HELD THAT:- Hon ble Apex Court in the case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [ 2018 (2) TMI 117 - SUPREME COURT] held that Cenvat Credit on goods transport agency service availed for transport of goods from place of removal to buyer s premises was not admissible to the respondent. The facts of the case in the present set of appeals being identical to the case of Ultratech Cement inasmuch as the credit being claimed is on the Goods Transport Agency services availed to transport cement from the factory gate to the buyer s premises on the ground that the sale being on FOR basis, the place of removal shifts to the buyer s premises and therefore Cenvat Credit is admissible, I am legally bound to follow the ratio of the judgment of the Hon ble Apex Court which held against the assessee that no Cenvat Credit is admissible. Credit cannot be allowed - appeal dismissed - decided against appellant. 2019 (6) TMI 376 Clandestine removal - shortage of material - case of appellant is that shortage of the goods is due to various reasons such as Slippage during rain, loading-unloading of the goods - Penalty - HELD THAT:- The dispute is only on shortages found during the physical stock carried out by the preventive Officers of the Department. Neither there is any investigation regarding clandestine removal nor any charge was made, therefore, it cannot be said that there is a clandestine removal. Penalty - HELD THAT:- The shortage of the goods have been admitted by the appellant, accordingly, they have paid the duty. Since there is no evidence of clandestine removal, penalty under Section 11AC cannot be imposed - Moreover, the demand is for the normal period and no extended period was invoked, therefore, the penalty imposed under Section 11AC and consequential penalty on the individuals are set aside. Redemption fine - HELD THAT:- It is an admitted fact that due to shortage of the goods, the goods were not available, the goods which are not available cannot be confiscated and consequentially no redemption fine can be imposed. Appeal allowed - decided in favor of appellant. 2019 (6) TMI 364 Repair and maintenance service - Repair, maintenance or airworthiness of an aircraft - Liability of service tax - HELD THAT:- Leave granted. Tag with SLP (C) No. 6083/2014. 2019 (6) TMI 363 Clandestine manufacture and removal - whether learned Commissioner has exceeded the brief in relation to the CESTAT s order while continuing proceedings in remand? - HELD THAT:- This Bench has given a categorical finding, not once but twice, in the above cited order that the entries at the pocket dairies are not corroborated by any evidences. Therefore, we find that there is substance in the submissions of the appellants, as far as the impugned order travelling beyond the remand order is concerned. The Learned AR for the department has reiterated the findings of the OIO and submitted that learned Commissioner has dealt with the evidences in detail in para 13 of OIO dated 26.9.2007. We find that learned Commissioner has given similar findings as in the earlier order based on the statements recorded only. The key issues, raised by the Tribunal, like corroborative evidences in the form of transport documents, purchase of raw materials, invoices, raw material consumption etc. to prove the clearances, were not discussed - Even accepting the contention of the learned AR that all issues were kept open, we find that as observed by the Tribunal in the above cited order, no corroborative evidences to prove the clandestine removal alleged in Annexure-D1 to the show cause notice are coming forth. Whether the appellants are liable to pay the duty on the alleged clandestine removal and whether the penalty imposed against a person who is no more abates? - HELD THAT:- As we find that none of the above evidences have been put up in the show-cause notice and discussed in the OIO, we hold that demand as per as Annexure -D1 should go away. Therefore, we set aside the duty demand as per Annexure D1 to the show-cause notice. Demand as per Annexures-D2 and D3 of the show cause notice - HELD THAT:- The appellants have accepted the liability only with a request for extending cum-duty benefit. We find that the request can be accepted. For computation of duty, the matter needs to go back to the original authority. Duty demand as per Annexure-D4 - HELD THAT:- The appellants contended that the goods were very much lying in the factory and as such, no duty can be demanded as it is not the case of the department that the goods have been removed without payment of duty. Penalty imposed on the main appellant i.e., M/s. Suraj Machine Tools - HELD THAT:- Since the duty is confined only to Annexures-D2 and D3, we hold that penalty will be equivalent to the duty payable by the appellants in terms of the annexures after extending cum-duty benefit. Appeal allowed by way of remand. 2019 (6) TMI 362 CENVAT credit - taxable as well as exempt goods - inclusion of value of clearances of export made by the appellant of the goods for which the exemption under Notification No. 30/2004 has been availed - Rule 6 (6) (v) of the CENVAT Credit Rules, 2004 - HELD THAT:- Rule 6 (6) (v) of the CENVAT Credit Rules, 2004 states that provisions contained in Sub-Rules (1), (2), (3) and (4) of Rule 6 shall not be applicable in case the excisable goods removed without payment of duty are cleared for export under bond in terms of the provisions of the Central Excise Rules, 2002 - Thus, as per Rule 6 (6) (v) of the CENVAT Credit Rules, 2004, when exempted goods are cleared for export under bond, the bar under Rule 6 (1) ibid not to avail credit on common inputs/input services is not applicable - Thus, even if the exempted goods are exported, credit is eligible. Whether the amendment brought forth to do away with the requirement to execute a bond while exporting exempted goods would change the situation? - HELD THAT:- The Tribunal in M/s. Jolly Board Ltd. [2014 (3) TMI 124 - CESTAT MUMBAI] had occasion to consider the issue post amendment vide Notification No. 42/2001. In paragraph 7 of the said judgement, the Tribunal, after referring to the decision in M/s. Repro India Ltd. [2007 (12) TMI 209 - BOMBAY HIGH COURT] , has held that the requirement for execution of a bond is only a procedural one and therefore, refund cannot be denied - The credit availed on input services is eligible and the contention of the Department that the credit has to be reversed is against the provisions of law. CENVAT Credit - input contained in the waste - Requirement of including the turnover of yarn waste cleared by the appellant - Department is of the view that the credit on inputs contained in the waste is not eligible and has to be reversed by the appellant - HELD THAT:- Paragraph 3.7 of the Supplementary Instructions issued by the Department after introduction of the CENVAT Credit Rules, 2002 states that credit is admissible on the amount of inputs contained in any waste, refuse or by-product. The argument of the Ld. AR for the Department that the appellants are manufacturing waste cannot be accepted. The appellants are not consciously manufacturing waste and it is merely a refuse or waste which is not dutiable, as held by the Hon ble Supreme Court in various decisions - The credit on inputs contained in waste is not required to be reversed. Appeal allowed - decided in favor of appellant. 2019 (6) TMI 361 CENVAT Credit - duty paying documents - invoices issued by ISD - denial of credit on the ground that ISD was not registered at the time of issuance of invoices - denial of credit was also on the ground that invoices are deficient for want of ISD registration number, description of input services and payment of service tax by the service provider. Denial of CENVAT credit on the ground that the appellant have availed the cenvat credit on ISD invoices issued by the unregistered ISD - HELD THAT:- The invoices along with attachment contain of the registration number of the input service provider and there is a clear correlation with ISD invoices. There is no dispute that services in respect of which credit was passed on are duly service tax paid, there is no finding of the adjudication authority that the appellant have not used the services covered under ISD invoices in their factory. The only deficiency is that the ISD is not registered while issuing ISD invoices - the issue is settled that even though the credit by the head office is passed on to the manufacturing the unit without having registration, only on this ground credit cannot be denied. Denial of CENVAT credit on the ground that the ISD invoices were not contained the details as required under Rule 4A of service tax Rules, 1994 - HELD THAT:- The relevant sub Rule in case of ISD is sub Rule (2) of Rule 4A. According to which the ISD invoices should contain the information was provided under Clause 1 to 4 above. On the perusal of the ISD invoices, that along with its attachment found that all the four details as required under sub-Rule 2 Clause (i) to (iv) are clearly mentioned in the invoices and its attachment. The adjudicating authority has gone beyond the requirement mentioned in sub Rule (2) of Rule 4A and denied the credit on the ground that certain information as provided under Rule 4A(1) are not mention in the ISD invoices - on reading of Rule 4A, we found that the details required under Clause (i) to (iv) of sub-Rule 4A(1) is required only for an invoice issued by a service provider and not by the ISD, therefore, expecting information by the adjudicating authority is without authority of any legal provision, therefore, on this ground also the credit cannot be denied. Denial of credit on the eligibility of the input services - scope of SCN - HELD THAT:- No such allegation was made in the SCN. Hence, the admissibility of input services which was not raised in the SCN, the adjudicating authority has no jurisdiction to decide an issue which was not available in the SCN, therefore, the impugned order on this count has clearly travelled beyond the scope of SCN. Penalty - enhancement of penalty - HELD THAT:- The Revenue s appeal since it is only for the enhancement of the penalty which is consequential to the demand which is not sustained, the Revenue s appeals only on the penalty will not survive, hence, the Revenue s appeal is dismissed. Appeal allowed - decided in favor of appellant. 2019 (6) TMI 360 100% EOU - applicability of various Rules to the 100% EOU - confiscation to goods under Rule 209 - confiscation of Land, Building, Plant and Machinery under Rule 173 Q(2) is not applicable - HELD THAT:- Ld. Counsel has raised an issue heavily that Rule 53,209A and 1733Q of Central Excise Act, 1994 are not applicable in the case of 100% EOU. However, the applicability of this legal provision to 100 % EOU has not been examined by the adjudicating authority. Since this is very important legal issue raised by the appellant it is necessary, the same should be answered by the adjudicating authority. Matter remanded back to the adjudicating authority for passing a fresh order on all issues including the fresh issue of applicability of various Rules to the 100% EOU - appeal allowed by way of remand. 2019 (6) TMI 359 SSI Exemption - use of Brand name of others or not - N/N. 1/93-CE dated 28.02.1993 - HELD THAT:- Though the Ld. Commissioner (Appeals) remanded the matter twice to the Adjudicating Authority only for verification of status of ownership of brand name however, the Adjudicating Authority in the third round of adjudication dropped the demand on the basis of the evidence of drugs authority that the brand name belongs to the appellant - Commissioner (Appeals) did not agree with the views of the Adjudicating Authority for the reason that there is no dispute on the fact that product bore mention that Registered trade mark Mercury Antibiotics Pvt. Limited, Baroda , accordingly held that the brand name belongs to Mercury Antibiotics Pvt. Limited, Baroda and not to the appellant. In the case of medicines, all the material description including the ownership of brand name and marking, the labels are required to be submitted to the drug authority and the same is approved by the said authority, therefore, even the mention of Registered trade mark of Mercury Antibiotics Pvt. Limited, Baroda and Marketed by Mercury Laboratory Pvt. Limited, Baroda under the statutory provisions of Food and Drugs Control Act. Therefore, the said mention on the product cannot be ignored. Therefore, once this fact is not otherwise contradicted, it is clear that the Brand Name of the medicine clearly belongs to Mercury Antibiotics Pvt. Limited, Baroda . Hence, the appellant are not eligible for exemption. Appeal dismissed - decided against appellant. CST, VAT & Sales Tax 2019 (6) TMI 375 Comprehensive Karasamadhana Scheme, 2019 - Demand of tax - HELD THAT:- Though the contention merits consideration, we are of the opinion that the same as being rendered of academic value in view of the undertaking by the respondent to pay the remaining tax dues by resorting to the comprehensive Karasamadhana Scheme, 2019. The affidavit of the respondent is taken on record. Sales Tax Revision Petitions are disposed off. 2019 (6) TMI 358 Production of books of accounts and other documents - conclusion of proceedings under Section 9 (2) of the CST Act read with Section 72 (2) of the KVAT Act - primary challenge of the petitioner is that no incriminating documents relied upon by the respondent authorities have been made available to the petitioner and as such, the order impugned are passed without jurisdiction - principles of natural justice - HELD THAT:- It is not in dispute that the petitioner having suffered an order from the appellate authority is before this court on the grounds as aforesaid. There is no legal impediment for the petitioner to urge all these grounds before the appellate tribunal, the machinery provided under the statute. Circumventing the same, the petitioner cannot invoke the writ jurisdiction merely on the alleged ground that no documents are furnished to the petitioner. It is also significant to note that the statement of objections has been filed by the revenue and the documents at Annexures-R1 and R2 are placed along with the statement of objections. In such circumstances, the challenge made by the petitioner on the ground of non furnishing of the documents requires to be negated. Moreover, the disputed facts involved in the petition cannot be adjudicated under the writ jurisdiction. Hence, writ petition stands dismissed with liberty to the petitioner to avail the alternative remedy of statutory appeal available under the KVAT Act. Petition dismissed. Indian Laws 2019 (6) TMI 357 Refund of amount already paid - grievance of the complainant is that the possession of the allotted unit has not been` offered to him and even the construction is not complete despite he having paid ₹ 1,08,16,881/- to the opposite party - it was contended by the learned counsel for the OP that since the prayer made in the complaint is for cancellation of the allotment, clause 37 of the agreement between the parties comes into force and therefore, the OP is entitled to forfeit 15% of the cost of the unit as cancellation charges. HELD THAT:- The aforesaid clause would apply to a case where the allottee, for his own reasons, seeks cancellation of the allotment and does not apply to a case where he is forced to seek cancellation of the allotment and refund of the amount paid by him to the developer on account of the failure of the developer to deliver possession of the house within the time period committed by him in this regard. Had the complainant sought cancellation of the allotment before December 2016, by which the possession was to be delivered to him even after giving benefit of the grace period to the OP, there could have been some merit in the contention. But, he having filed the complaint after expiry of the aforesaid timeline, clause 37 of the agreement would have no application. The possession of the house, as per the agreement, ought to have been delivered by December 2016, even after giving benefit of the grace period to the OP. The construction of the house is not complete till date and there is no certainty as to when the construction would be complete and the OP would be in a position to offer possession of the allotted flat after obtaining the requisite Occupancy Certificate. The learned counsel for the OP states that they have already committed July 2021 to RERA Authority for completing the construction and therefore, they will be in a position to deliver possession on or before that time. The opposite party shall refund the entire principal amount of ₹ 1,08,16,881/- to the complainant alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date of refund - Complaint disposed off.
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