TMI Tax Updates - e-Newsletter
June 19, 2021

Case Laws in this Newsletter:

GST Income Tax Customs Corporate Laws Insolvency & Bankruptcy PMLA Central Excise CST, VAT & Sales Tax

Articles

1. IGST on Oxygen Concentrator Negative approach of CBIC vis-a-vis Article 14, Constitution

   By: OmPrakash jain

2. GST CONCERNS @ 4 YEARS

   By: Dr. Sanjiv Agarwal

News

1. Minutes of the Monetary Policy Committee Meeting, June 2 to 4, 2021 [Under Section 45ZL of the Reserve Bank of India Act, 1934]

2. CCI approves acquisition in Magma HDI General Insurance Company Limited by India Advantage Fund S4 I & Dynamic India Fund S4 US I through a special purpose vehicle and by NHPEA Trisul Holding B.V

Notifications

GST - States

1. G.O.MS.No. 126 - dated 15-6-2021 - Andhra Pradesh SGST

Extension of the due date for filing of FORM GSTR-1

2. F. A-3-85-2017-1-V-(24) - dated 10-6-2021 - Madhya Pradesh SGST

Amendment in Notification No. F-A-3-85-2017- 1-V(07), dated the 8th February, 2019

3. F-A-3-27-2017-1-V (23) - dated 10-6-2021 - Madhya Pradesh SGST

Provide relief by lowering of interest rate for the month of March and April, 2021

4. 8/2021 - VI(1)/121(c-2)/2021 - dated 4-5-2021 - Tamil Nadu SGST

Amendment in Notification No. 3/2021, dated the 31st March, 2021

5. 7/2021-VI(1)/121(c-1)/2021 - dated 4-5-2021 - Tamil Nadu SGST

Extension of the due date for furnishing of FORM ITC-04 for the period January - March, 2021 till 31st May, 2021

6. G.O. Ms. No. 73 - dated 28-4-2021 - Tamil Nadu SGST

Tamil Nadu Goods and Services Tax (Second Amendment) Rules, 2021

Circulars / Instructions / Orders

SEBI

1. SEBI/HO/IMD/IMD-I/DOF1/P/CIR/2021/579 - dated 18-6-2021

Framework for administration and supervision of Investment Advisers under the SEBI (Investment Advisers) Regulations, 2013

DGFT

2. 07/2015-2020 - dated 17-6-2021

Amendment in Sl No. B VI of Appendix 4B ‘ List of Nominated Agencies’

Highlights / Catch Notes

GST

• Court Upholds Constitutional Validity of Section 13(8)(b) and Section 8(2) of IGST Act on Intermediary Services.

  Case-Laws - HC : Constitutional validity of Section 13(8)(b) read with Section 8(2) of the IGST Act - Supply of intermediary services as intermediary to his overseas customers - Neither Section 13(8)(b) nor Section 8 (2) of the IGST Act are unconstitutional - Also neither Section 13 (8) (b) nor Section 8 (2) of the IGST Act are ultra vires the IGST Act. Section 13 (8) (b) is also not ultra vires Section 9 of the CGST Act, 2017 or the MGST Act, 2017 - Section 13(8)(b) as well as Section 8(2) of the IGST Act are constitutionally valid and operative for all purposes. - HC
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Income Tax

• Court Clarifies Section 154: Not for Appeals or Disputable Issues, Limited to Explicit Circumstances in Income Tax Act.

  Case-Laws - HC : Rectification u/s 154 - Provision for bad and doubtful debts is under Section 36 (1) (viia) - This Court is of the considered opinion that Section 154 cannot be converted as an appeal for entertaining a ground for adjudication of merits or disputable issues. Thus, the scope of Section 154 is undoubtedly limited with reference to the circumstances narrated under the provision itself. - if at all the petitioner is of an opinion that the Authorities may venture into the adjudication of disputed issues, it is for them to place all the judgments and facts with reference to Section 154 of the Income Tax Act. - HC
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• Assessee's Business and Depreciation Losses Fully Set Off by 2013; No Losses Available for Current Year Offset.

  Case-Laws - AT : MAT computation u/s 115JB - In this case, the assessee had incurred business loss / depreciation losses as per books in the AYs 1999-00 & 2000-01 & AYs 2011-12 & 2012-13 alone, which were completely set off (ie both the losses viz unabsorbed business and unabsorbed depreciation losses were set off) , from the book profits of the remaining assessment years till the previous assessment year 2013-14 and the book profit as per the profit and Loss account balance as on 01.04.2013 per the balance sheet in the books of account - Thus, on the above facts, in effect there remains no brought forward business loss / unabsorbed depreciation loss available as per books for setting off against the book profit of this assessment year. - AT
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• Penalty for TDS Non-Deduction Disallowed: Minor Infraction u/s 271(1)(c) Not Justified for Penalty Imposition.

  Case-Laws - AT : Penalty levied u/s 271(1)(c) - disallowance u/s 40 (a)(ia) only for lack of payment of TDS while the payment was bonafide - Though the failure on the part of the assessee to deduct tax at source which it was obligated to deduct rendered the amount in question liable for disallowance as an expenditure, but, we are unable to concur with the view taken by the lower authorities that a disallowance for such technical and venial infraction of a statutory provision would justify saddling the assessee with penalty under Sec. 271(1)(c) of the Act. - AT
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• Revision u/s 263: Non-Disclosure of Share Applications and Premiums Leads to Erroneous Assessment Order by AO.

  Case-Laws - AT : Revision u/s 263 - undisclosed of share application and share premium - the failure of AO to examine the above facts during the assessment proceedings the assessment order is not only erroneous but prejudicial to the interest of the Revenue. Thus, the twin conditions of the provisions of section 263 is fulfilled. - AT
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• Assessing Officer Lacks Evidence for Expenses u/s 69C; Additions Based on Assumptions, Not Proof.

  Case-Laws - AT : Unexplained expenditure u/s 69C - The AO has not brought any evidence on record which can demonstrate that assessee has incurred expenses for development work. - There was no evidence with the AO to prove or even indicate that such amount was spent by assessee on the development of land in concern which was sold. AO made addition purely on surmises and conjecture. - AT
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Customs

• Modern Democracies Must Uphold Rule of Law, Reject Unfair Prosecution Methods in Love and War Contexts.

  Case-Laws - HC : Though the Sastras spoke of rules of war (Yudha Dharma), the approach was often that all is fair in love and war. Attainment of victory was more important than observing the niceties of the game. - a constitutionally governed democratic State which is committed to upholding the rule of law shall not adopt unfair methods when prosecuting citizens and non-citizens alike. And if the executive wing does, judiciary shall not wink - HC
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• High Court Emphasizes Fair Trial Rights in Customs Case; CCTV Footage Key in Gold, Electronics Smuggling Allegations.

  Case-Laws - HC : Smuggling - Gold - Electronic goods - baggage rules - Where the fundamental right of the noticees to fair adjudication has been violated, adjudication proceedings cannot be allowed to continue for the purpose of determining their guilt - the petitioners' defence has been prejudiced because of the non-production of CCTV footage, the adjudication proceedings initiated against them can be allowed to continue only for the limited purpose of determining whether the goods in question can be allowed to be re-exported or whether they can be cleared on payment of applicable duties. - HC
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Corporate Law

• Oral Agreement on Water Lifting Ruled Unenforceable, Breaches Section 297 of the Companies Act. Contract Avoidance Moot.

  Case-Laws - HC : Enforceability and validity of Oral Agreement - oral agreement for lifting water, exists or not - The first Appellate Court rightly came to the conclusion that there has been a breach of Section 297 of the Companies Act. Since I have held that a oral contract of this nature cannot bind the defendant, the question of avoiding such a contract also does not arise. - HC
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VAT

• Court Overturns VAT Act Section 53(3) Penalty Due to Lack of Adequate Notice and Fair Procedure Violations.

  Case-Laws - HC : Levy of Penalty u/s 53(3) of the VAT Act - Under declaration of tax - as the petitioner-assessee was not put on adequate notice with regard to imposition of higher penalty and therefore, had no opportunity to respond thereto the impugned penalty order based on lack of plausible explanation on such score suffers from jurisdiction error and falls foul of principles of fair procedure and natural justice. - HC
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Case Laws:

• GST

• 2021 (6) TMI 594
  Constitutional Validity of levy of IGST on supply of services outside India - providing marketing and promotion services - Export of services - Constitutional Validity of section 13(8)(b) and section 8(2) of the Integrated Goods and Services Tax Act, 2017 are ultra vires articles 14, 19, 245, 246, 246A, 269A and 286 of the Constitution of India - HELD THAT:- The challenge in this matter is similar to the challenge in DHARMENDRA M. JANI VERSUS UNION OF INDIA AND OTHERS [ 2021 (6) TMI 563 - BOMBAY HIGH COURT ], which has been dismissed by a separate judgment holding that neither Section 13(8)(b) nor Section 8(2) of the IGST Act are unconstitutional. It is also held that neither Section 13(8)(b) nor Section 8(2) of the IGST Act are ultra vires the IGST Act. Also Section 13(8)(b) of the IGST Act is not ultra vires Section 9 of the CGST Act or MGST Act, 2017. Section 13(8)(b) as well as Section 8(2) of the IGST Act are constitutionally valid and operative for all purposes.

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• 2021 (6) TMI 591
  Reopening of proceedings - invocation of Section 32 K(3) of the CE Act - HELD THAT:- Since the petitioner has challenged the notice for confiscation of goods and conveyance dated 19.04.2021, the Court is not inclined to interfere with the same at this juncture. It is needless to say that as and when the final confiscation order is passed, the petitioner shall have an opportunity to file an appeal as may be permissible under section 107 of the Goods and Services Tax Act, 2017. Petition disposed off.

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• 2021 (6) TMI 590
  Refund of GST - Export of goods - Zero Rated Supplies - HELD THAT:- Without going into the merits of the case, it is directed that the respondent No. 3 Deputy Commissioner of Customs, Mundra (Katchh) shall decide the aforesaid representations at Annexures E and F of the petitioners as expeditiously as possible, preferably within 04 (four) weeks from the date of receipt of this order, in accordance with law. Petition disposed off.

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• 2021 (6) TMI 588
  Grant of Anticipatory Bail - justified arrest by police or not? - when can a person be arrested after filing FIR? - HELD THAT:- This Court finds that there is a case registered against the applicant. It cannot be definitely said when the police may apprehend him. After the lodging of F.I.R., the arrest can be made by the police at will. There is no definite period fixed for the police to arrest an accused against whom an F.I.R. has been lodged. The courts have repeatedly held that arrest should be the last option for the police and it should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required. Irrational and indiscriminate arrests are gross violation of human rights. In the case of JOGINDER KUMAR VERSUS STATE OF UP. [ 1994 (4) TMI 385 - SUPREME COURT] , the Apex Court has referred to the third report of National Police Commission wherein it is mentioned that arrests by the police in India is one of the chief source of corruption in the police. Without expressing any opinion on the merits of the case and considering the nature of accusation and his antecedents and also the second surge in the cases of coronavirus and possibility of further surge of the pandemic, the applicant is entitled to be released on anticipatory bail for limited period in this case - the applicant shall be released on anticipatory bail till cognizance is taken by the Court on the police report, if any, under section 173 (2) Cr.P.C. before the competent Court on furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station/ concerned Court with the conditions imposed. Application allowed.

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• 2021 (6) TMI 563
  Supply of intermediary services as intermediary to his overseas customers - export of service by virtue of section 13(8)(b) of the IGST Act read with section 8(2) of the said Act or not - intra-State supply or not - Constitutional validity of Section 13(8)(b) read with Section 8(2) of the IGST Act - GST is a destination based tax on consumption and section 13(8)(b) of the IGST Act is contrary to the said principle - Vires of Article 246A read with Article 269A, Article 286 as well as Article 245 of the Constitution of India as the section results in levy on export of services as intra-State supply - vires of charging section 5 - vires of Section 9 of the CGST Act and MGST Act - violation of Article 14 of the Constitution being arbitrary, unreasonable and discriminatory - violation of right to carry on business viz. Article 19(1)(g) of the Constitution - Double Taxation is permitted or not. DISSENTING Judgement to [ 2021 (6) TMI 383 - BOMBAY HIGH COURT] HELD THAT:- Admittedly, Petitioner is an Intermediary (as defined in section 2(13) ) above rendering Intermediary Services (as provided for in section 13(8)(b) above) to its overseas customers based on which the overseas customers export their goods to importers in India for which Petitioner receives commission - the only exception is if the intermediary has provided the service on his own account in which case he may claim to be an exporter of the service if he otherwise falls within the definition. This would not be an export of services in as much as Intermediary Services are specifically provided in Section 13 (8)(b) under the authority of the Constitution of India provided in Article 269A read with Article 246A. Petitioner is providing intermediary service of arranging, marketing, facilitating the export of his overseas customers to Indian importers and that is the reason he receives commission. It is in respect of these intermediary services that Section 13(8)(b) refers to the place of supply of such service as the location of the supplier. The legislature keeping in mind the peculiar exigencies of fiscal affairs and underlying concerns of public revenue enacts provisions. Section 13(8)(b) of the IGST Act in respect of intermediary services is one such provision. Intermediary services are specifically dealt with, where it has been specifically provided that where the supplier or the recipient is outside India, then in respect of Intermediary services, the place of supply shall be the location of the supplier - when there is a specific provision defining Intermediary as in section 2(13) of the IGST Act and Intermediary Services are specifically dealt with in section 13(8)(b), the question of application of general provision of Section 2(6) of export of services would not arise. It is pursuant to the powers invested by the Constitution, that the Parliament, in Sections 7 and 8 of IGST Act has provided for determination of the nature of supply, whether inter-state or intra-State; Section 7 provides for what supply is inter-State and Section 8 provides for what is treated as intra-State - It is pursuant to the power in Article 269A(5) that Chapter V of the IGST Act entitled Place of Supply of Goods or Services or Both containing Sections 10 to 14 has been enacted by the Parliament. It is observed that the Explanation to Article 269A(1) deems supply of goods or services in the course of import into India to be supply in the course of inter-State trade or commerce - there is no doubt that the power to stipulate the place of supply as contained in Sections 13 (8)(b) of the IGST Act is pursuant to the provisions of Article 269A (5) read with Article 246A and Article 286 of the Constitution. The impugned provisions are in my view constitutional and are not in any way ultra vires the Constitution. If the Parliament pursuant to powers invested in it by the Constitution has in its wisdom dealt with Intermediary Services as that rendered by Petitioner, that is a matter within the Parliament s domain. Section 13(8)(b) invoking Section 8(2) to deem inter-state supply as intra-state supply - HELD THAT:- Section 13(8)(b) comes into the picture in the case of Petitioner. Once the Parliament has in its wisdom stipulated the place of supply in case of Intermediary Services be the location of the supplier of service, no fault can be found with the provision by artificially attempting to link it with another provision to demonstrate constitutional or legislative infraction - In any event Section 8(2) is not applicable to the case of Petitioner as location of supplier and place of supply is not within same State (in India) but in taxable territory viz. India. Article 246A (2) has invested exclusive power in the Parliament to make laws in respect of supply of goods or services in the course of inter-state trade or commerce. Article 269A(5) authorizes the Parliament to make law for determining place of supply and when a supply of goods or services takes place in the course of inter-state trade or commerce - There is no conflict between Article 246A, Article 269A or Article 286 which clearly empower the Parliament to formulate laws for determining place of supply and when a supply of goods or of services or both takes place in the course of inter-state trade or commerce or as to when supply of goods or services or both take place outside a State or in the course of import into or export out of the territory of India. A plain reading of Article 245, makes it clear that the impugned section in no way violates this provision as from the plain language of the said section it is clear that the same do not seek extra territorial operation nor seek to levy tax on service recipient outside India. All that Section 13(8)(b) does is to provide for place of supply in respect of intermediary services where the service recipient is outside India (as in the case of the Petitioner), to be the location of the supplier of services. Therefore, there is no question of extra territorial legislation here. In the facts of the present case, the recipient is located outside India and the intermediary services supplier is located in India and therefore section 13 (8)(b) would become applicable in that the place of supply would be the location of the supplier of services viz. in the taxable territory in India - Section 13(8)(b) of the IGST Act cannot be said to be ultra vires Article 245 of the Constitution of India. Thus, only the Parliament is empowered to legislate on matters pertaining to the supply of goods or services that take place in the course of inter state trade or commerce. As far as the Petitioner s supply is concerned admittedly the same is supply in the course of inter-state trade or commerce pursuant to the provisions of Section 7 of IGST Act. Also as can be seen from Sub-Section (5) of Article 269A of the Constitution that it is only the Parliament that can formulate the principles for determining the place of supply or when a supply of goods or of services or both takes place in the course of interstate trade or commerce. Challenge under Articles 14 and 19(1)(g) of the Constitution of India - HELD THAT:- The intermediary services rendered by Petitioner are specifically provided as one of the services in addition to banking services and transport hiring services where the place of supply has been provided as the location of the supplier of services as per Section 13(8)(b) of the IGST Act - between Petitioner and others there is no discrimination. Section 13(8)(b) would not be hit by Article 14 on this ground. For the same reason the second ground of discrimination, is also not tenable in as much as the Act has specifically provided for such intermediaries. Petitioner who is providing Intermediary Service to recipient outside India is on a different footing, the objective in my view would be to prevent revenue from escaping Therefore there is a reasonable classification founded on intelligible differntia which has a rational relation/nexus to the object sought to be achieved. The objectives could be, as stated in the Respondent s reply, to encourage the Make in India program and create the level playing field. It is however clarified that no view is being expressed with respect to the claims or counter-claims on the Make in India program referred to above as that is clearly a matter of the policy of the Government of India, which needless to say is the prerogative of the Government - levy on account of Section 13(8)(b) of the IGST Act is therefore neither arbitrary nor unreasonable nor discriminatory - Section 13 (8) (b) of the IGST Act is not unconstitutional or ultra vires Article 19(1)(g). Challenge that Section 13(8)(b) seeks to runs contrary to the scheme of the Act and deems an inter-State supply as intra-State supply - HELD THAT:- Section 13(8)(b) pertains to the case of intermediary services, where the service recipient is outside India and where the place of supply has been provided to be the location of the supplier. When the Constitution has empowered the Parliament to formulate principles determining the place of supply, in my view, Section 13(8)(b) cannot be said to be ultra vires the charging section as Section 13(8)(b) does not violate the levy on the supply made by the intermediary, particularly in view of Section 7, which designates such supplies to be inter-State supplies - There cannot be any dispute as to the doctrine of pith and substance as canvassed by Petitioner while deciding on legislative competence or that under Article 265 no tax can be levied without authority of law. Having already held that Section 13(8)(b) has been enacted pursuant to the authority of law and that the said Section 13(8)(b) cannot be linked with Section 8(2) of the IGST Act to deem an inter-state supply as an intra-state supply, the said concerns are unfounded. When the place of supply in the case of intermediary services, such as that rendered by Petitioner, the place of supply of such service is provided to be the location of supplier of services, viz., Petitioner, it could not be said that Section 13(8)(b) of the IGST Act is ultra vires the charging section or the scheme of the Act. Double Taxation - HELD THAT:- With respect to the second assertion that the same supply would be taxed by foreign service recipient in his hands in the importing country, that is also not really tenable in the eyes of law as IGST is not extra-territorial and generally speaking a commission paid by the recipient of service outside India would be entitled to get deduction of such payment of commission by way of expenses and therefore, it would not be a case of double taxation. A position of law, regarding the legitimacy of Section 13(8)(b) or Section 8(2) of the IGST Act cannot be doubted. Petitioner has neither made a case of nonexistence of competence nor demonstrated any constitutional infirmity in Section 13(8)(b) or Section 8(2) of the IGST Act, nor a case of applicability of Section 8(2) of the IGST Act to the case of Petitioner. Petitioner has also failed to make out a case that Section 13 (8) (b) or Section 8(2) of the IGST Act are ultra vires the scheme of the IGST Act. Petitioner has failed to demonstrate that Section 13(8)(b) of the IGST Act is ultra vires Section 9 of the CGST Act or the MGST Act. Neither Section 13(8)(b) nor Section 8 (2) of the IGST Act are unconstitutional - Also neither Section 13 (8) (b) nor Section 8 (2) of the IGST Act are ultra vires the IGST Act. Section 13 (8) (b) is also not ultra vires Section 9 of the CGST Act, 2017 or the MGST Act, 2017 - Section 13(8)(b) as well as Section 8(2) of the IGST Act are constitutionally valid and operative for all purposes. Petition dismissed.

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• Income Tax

• 2021 (6) TMI 593
  Rectification u/s 154 - Provision for bad and doubtful debts is under Section 36 (1) (viia) - HELD THAT:- As rightly pointed out by the learned counsel for the petitioner, by invoking Section 154 of the Income Tax Act, the authority cannot re-adjudicate the facts on merits. Disputable facts and circumstances cannot be adjudicated under Section 154 of the Income Tax Act. The learned counsel has pointed out that such an adjudication would cause prejudice to the interest of the assessee. This Court is of the considered opinion that Section 154 cannot be converted as an appeal for entertaining a ground for adjudication of merits or disputable issues. Thus, the scope of Section 154 is undoubtedly limited with reference to the circumstances narrated under the provision itself. This Court is of the considered opinion that even in respect of the grounds raised, if at all the petitioner is of an opinion that the Authorities may venture into the adjudication of disputed issues, it is for them to place all the judgments and facts with reference to Section 154 of the Income Tax Act. Contrarily, this Court cannot go into those facts and circumstances regarding the mistake apparent from record. The respondent is clear in their terms that they are not intended to go beyond the scope of Section 154 and the notice was issued specifically stating that the mistake apparent from record alone is to be created. Even impugned notice reveals that the nature of mistake proposed to be rectified is clear that the respondent has not taken any steps to adjudicate the disputable issues. In TS BALARAM, INCOME-TAX OFFICER, COMPANY CIRCLE IV, BOMBAY [ 1971 (8) TMI 3 - SUPREME COURT] held that the authorities competent cannot go beyond the scope of Section 154 of the Income Tax Act in the said case. The issue adjudicated was considered as disputable by Apex Court. However, the precedent laid down is that the Authorities Competent are empowered to invoke Section 154 of the Income Tax Act only if they find any mistake apparent on record and such a mistake is sought to be rectified. In the present writ petition, the respondent has established that they have not gone beyond the scope of Section 154 and they have taken steps to rectify the mistake apparent from record and the nature of mistake apparent from record is also furnished in the impugned notice issued under Section 154 of the Act. Thus the petitioner is at liberty to participate in the Section 154 proceedings and defend his case by availing opportunities provided by the Authorities. MP closed.

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• 2021 (6) TMI 589
  Narrow Time frame granted to file reply/objections to the show cause notice-cum-draft assessment order - lockdown situation - HELD THAT:- To our minds, this issue attained greater criticality, from the point of view of the petitioner, as his request for accommodation, which was tendered on 26.04.2021, was not dealt with by the AO and the AO proceeded to pass the impugned assessment order on 27.04.2021. AO could have easily accommodated the petitioner, in view of the fact that the limitation for passing the assessment order stood extended by the Central Board of Direct Taxes till 30.06.2021. We are, thus, of the opinion that given the circumstances, which have been adverted to in the writ petition, the impugned assessment order cannot be sustained, as it compromised the petitioner s right to effectively contest the position taken by the respondent/revenue, in its show cause notice-cum-draft assessment order dated 22.04.2021. Accordingly, the impugned assessment order dated 27.04.2021, concerning the assessment year 2018-2019, is set aside. Liberty is, however, given to the AO to take next steps in the matter, albeit, as per law.

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• 2021 (6) TMI 579
  MAT computation u/s 115JB - items eligible for reduction would be the lower of brought forward cash loss or brought forward depreciation loss as per books of accounts - HELD THAT:- What is contemplated in Clause (iii) of Explanation 1 to Section 115JB of the Act is the simple numerical figure being the amount of loss brought forward or unabsorbed depreciation whichever is less is to be deducted from the book profit . Hence, it is a simple determination of numerical amount which would be eligible for reduction from net profit for the purposes of arriving at the book profit u/s.115JB of the Act. The most crucial expression used in the said Clause (iii) of Explanation 1 to Section 115JB of the Act would be as per books of accounts . It simply means that such computation has to be made as per books of accounts from the year of incorporation to the current assessment year. In this case, the assessee had incurred business loss / depreciation losses as per books in the AYs 1999-00 2000-01 AYs 2011-12 2012-13 alone, which were completely set off (ie both the losses viz unabsorbed business and unabsorbed depreciation losses were set off) , from the book profits of the remaining assessment years till the previous assessment year 2013-14 and the book profit as per the profit and Loss account balance as on 01.04.2013 per the balance sheet in the books of account - Thus, on the above facts, in effect there remains no brought forward business loss / unabsorbed depreciation loss available as per books for setting off against the book profit of this assessment year. See M/S. GO AIRLINES (INDIA) LIMITED [ 2021 (2) TMI 665 - ITAT MUMAI] - Revenue s appeal is allowed.

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• 2021 (6) TMI 578
  Penalty levied u/s 271(1)(c) - disallowance u/s 40 (a)(ia) only for lack of payment of TDS while the payment was bonafide - HELD THAT:- As observed by us the commission expenses have been disallowed not for the reason that the same were either found to be bogus or unsubstantiated, but, on the ground that de hors deduction of tax at source, the same, were liable to be disallowed under Sec. 40(a)(ia) of the Act. In sum and substance, the genuineness and veracity of the commission expenses in question had not been doubted by the A.O. Though the failure on the part of the assessee to deduct tax at source which it was obligated to deduct rendered the amount in question liable for disallowance as an expenditure, but, we are unable to concur with the view taken by the lower authorities that a disallowance for such technical and venial infraction of a statutory provision would justify saddling the assessee with penalty under Sec. 271(1)(c) of the Act. In judgment of Hindustan Steel Limited Vs. State of Orissa [ 1969 (8) TMI 31 - SUPREME COURT] as observed that imposition of penalty under Sec. 271(1)(c) is nothing short of a quasi criminal proceedings. In the backdrop of our aforesaid deliberations, we are of a strong conviction that no penalty under Sec. 271(1)(c) for a simpliciter disallowance under Sec.40(a)(ia) could have been validly imposed by the A.O. Be that as it may, not finding favour with the view taken by the lower authorities, we, herein, quash the penalty imposed by the A.O under Sec. 271(1)(c) of the Act. - Decided in favour of assessee.

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• 2021 (6) TMI 577
  Bogus purchases u/s 69C - CIT deleted the addition - HELD THAT:- We find that Ld. CIT(A) has given a reasonable order. Without doubting the sales such disallowances tantamounting to 100% disallowances which is not sustainable on the touchstone of Bombay High court decision in Nikunj Eximp Enterprises Pvt. Ltd. vs. CIT 2014 (7) TMI 559 - BOMBAY HIGH COURT] - Hence, we uphold the order of Ld. CIT(A).Hence, we uphold the order of Ld. CIT(A). Appeal by the revenue stands dismissed.

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• 2021 (6) TMI 574
  Exemption u/s 11 denied - registration under section 12AA granted or not? - AO disallowed the deduction of expenses by taking view that assessee failed to produce the evidence regarding registration u/s 12AA - HELD THAT:- We find that the assessee claim was not considered on merit in absence of production of registration under section 12AA of the Act and considering the fact that the assessee was granted registration dated 26.06.2018, though it is effective from 15.10.2017. The contention of the assessee throughout the assessment proceedings and at the first appeal as well as before this Tribunal is that assessee-trust is registered under section 12A and the revenue authorities have not examined their own record nor refuted the contention of the assessee that the registration number provided by the assessee in its references are not corrected. As before moving fresh application, the assessee filed application under the provisions of Right to Information Act (RTI), for seeking the copy of registration certificate granted initially. The assessee has also placed on record the reply of CPIO and the order of First Appellate Authority under RTI. Moreover, on further filing fresh application for registration under section 12AA, the assessee was granted fresh registration. The grounds of appeal raised by the assessee required fresh consideration by the ld.AO in view of the decisions of Mayur Foundation [ 2004 (12) TMI 48 - GUJARAT HIGH COURT] . Therefore, the appeal is restored back to the file of ld.AO to consider the claim of assessee afresh by considering the various decisions as referred above and pass the order afresh in accordance with law without being influence of any of our observation. The assessee is also directed to provide complete details, evidences and information to the ld.Assessing Officer. Appeal of the assessee is allowed for statistical purpose.

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• 2021 (6) TMI 573
  Unexplained cash credit u/s 68 - providing accommodation entry. - HELD THAT:- In the present case we note that the lower authorities have noted that notice u/s. 133(6) has not be responded - assessee has submitted that the assessee was not required to produce the director of the investor company - the issue of additional evidence and additional ground are no more germane to the issue at hand as the assessee has himself produced affidavit from Shri S.C. Shah for the proposition that he is not providing accommodation entry. Identity, creditworthiness and genuineness of the transaction - The same is not clear from the documents on record. The same is also cogently not brought out in the orders of the authorities below. Assessee submits that if the assessee is asked to produce representative/director of the investor company the same can be attempted. In the facts and circumstances of the case we deem it appropriate to remit this issue of addition u/s. 68 of the Act to the file of the Assessing Officer. The Assessing Officer shall issue necessary notices to the assessee company and shall make the necessary examination with respect to identity, creditworthiness and genuineness of the transaction. He shall properly examine the documents and financial statement being submitted by the assessee company and pass a speaking order. The grounds raised by the assessee for both the years are remitted to the file of the ld. AO to decide the same in the light of the aforesaid decision of this Tribunal. Accordingly, the grounds raised by the assessee are allowed for statistical purposes. Appeals of the assessee are allowed for statistical purposes.

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• 2021 (6) TMI 570
  Income from house property - Notional rental value against residential house property situated in Mumbai - addition under section 23 (a) by taking view that assessee has two residential house, one at Surat and another at Mumbai - HELD THAT:- Assessee has not filed any documentary evidence about the use of house property for the purpose of business, except making self-serving statement that property is being used for business purpose as and when the assessee visits the Mumbai. Assessee relied upon the decision in CIT Vs Rasiklal Balabhai [ 1978 (10) TMI 22 - GUJARAT HIGH COURT] . The facts of the said case are absolutely different. In the said case, the question before the Hon ble Court was that if the Tribunal was justified by holding that annual letting value of go down owned by assessee used for the purpose of business carried on by him in partnership. Clearly in the said case the house property was in the shape of Go-down. Go-down can only be used for business purpose. On the contrary the house property in the present case is a residential property situated in residential area. Thus, the case law relied by ld AR for the assessee is not helpful to the assessee. Hence, we affirms the order passed by ld. CIT(A). In the result, Ground No.1 of the appeal is dismissed. Adhoc disallowance of cash expenditure - assessee submits that during the assessment, the AO made disallowance @20% of the total expenses made in cash - CIT(A) restricted the disallowance to 10% - HELD THAT:- On appeal before the CIT(A), the assessee made similar submission as made before us. CIT(A) after considering the submission of the assessee and considering the earning of better Net Profit (NP) during the year compared to immediately preceding year, although the Gross Profit (GP Ratio) was slightly lower in this year. The ld. CIT(A) held that in the past, the Gross Profit Ration has been accepted by the Department. On his overall observation, the ld.CIT(A) took his view that it is to be fair and reasonable for both the parties, if the additions are sustained @10% of the expenses. Thus, the ld.CIT(A) allowed 50% relief to the assessee. Before us, assessee vehemently argued that the disallowance sustained by the ld. CIT(A) is on higher side and it may be reduced further. In our view, the ld. CIT(A) after considering the past practice and Net Profit ratio for the year under consideration generously accepted the contention of assessee in sustaining the 10% of the disallowance. In our view, the ld.CIT(A) has taken reasonable view, which we affirm. In the result, Ground No.2 of assessee is dismissed. Disallowance of depreciation on car - HELD THAT:- There is no dispute that assessee claimed depreciation of three cars. The assessee explained the one vehicle is exclusively available for the purpose of office staff. We find merit in the submission of ld.Sr.DR for the Revenue that the assessee has not debited any salary of staff in the profit and loss account. No name, post and proof of employment of staff is furnished before us. For remaining two cars, the assessee explained that one car is used within city of Surat for travelling from home to office and factory and other for frequent visit to Mumbai. The second contention of the assessee with regard to use of two vehicles i.e. one within the city and second is inter-state seems to be reasonable and plausible, therefore, we direct the AO to allow depreciation on two vehicles.

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• 2021 (6) TMI 569
  Revision u/s 263 - undisclosed of share application and share premium - HELD THAT:- Assessee failed to bring any material that issue related with the transaction of share application money and share premium of all these three entities was examined by AO. No submission with regard to the identity, creditworthiness or genuineness of the transaction of these three companies were made before us. Assessee rather insisted that assessment order is illegal and bad in law. We find that none of the case law relied by the assessee is helpful to the assessee. As during the assessment the assessing officer has not examined the issue related with the receipt of share premium received form three companies i.e. identity, creditworthy and genuineness of transaction of the share application and share premium, nor added to the total income of the assessee. In our view the failure of AO to examine the above facts during the assessment proceedings the assessment order is not only erroneous but prejudicial to the interest of the Revenue. Thus, the twin conditions of the provisions of section 263 is fulfilled. Hence, we affirm the order of ld. PCIT. In the result the grounds of appeal raised by the assessee are dismissed.

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• 2021 (6) TMI 568
  Unexplained cash credit u/s 68 - HELD THAT:- We note that during the assessment proceedings, the CIT(A), held that whatever the amount was deposited in the assessee s account and transmitted to the company was nothing but sale proceeds of land of the company. The assessee has acted just like as an agent of The Surat Dist. Co-op. Spinning Mills Ltd. As such, an amount so deposited in assessee s acount does not become the income of the assessee s undisclosed income. During the course of assessment proceedings, the assessee submitted full details of the source of deposits made. Hence, the question of adding the same in the assessee s hand does not make any sense. Accordingly, the CIT(A) deleted the addition correctly. - Decided against revenue. Unexplained expenditure u/s 69C - CIT-A deleted the addition - HELD THAT:- We note that assessee has not incurred the expenditure, although it is mentioned in various clauses of the development agreement. The AO has not brought any evidence on record which can demonstrate that assessee has incurred expenses for development work. There was no evidence with the AO to prove or even indicate that such amount was spent by assessee on the development of land in concern which was sold. AO made addition purely on surmises and conjecture. The burden of proving a transaction to be bogus has to be strictly discharged by adducing legal evidences, which would directly prove the fact of bogusness or establish circumstance unerringly and reasonably raising an interference to that effect. In the case of Umacharan Shah Bros. [ 1959 (5) TMI 11 - SUPREME COURT] held that suspicion however strong, cannot take the place of evidence. Therefore, we do not find any infirmity on the order of Ld.CIT(A), hence, we approve the order of Ld.CIT(A). Estimation of fees income - assessee was asked to show cause as to why 2% of total amount paid during the year to mill should not be considered as his income for acting as underwriter on the behalf of mill - HELD THAT:- As submitted that assessee was granted the right to sell the land on behalf of the mill, after developing it and he would get a commission at the rate of 5% of amount in excesses of sell price of Rs. 3951 per sq. mts. However, the assessee was facing difficulty to find out the customers for the price, more than Rs. 3951 per sq. mts. AO did not agree with the plea of the assessee because no prudent businessmen would carry out such responsible task without earning single rupee vis- -vis huge risk on his head. Assessee did not receive any amount as commission. There was no evidence with the AO either in cheque or cash or received but not shown in the books of account. AO made addition based on surmise and conjecture and such additions are not tenable in law, therefore, Ld.CIT(A) has rightly deleted the addition made by AO. Hence, no interference is required in the order of CIT(A), thus we dismiss Revenue s appeal.

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• 2021 (6) TMI 564
  Addition on account of hiring of vehicle expenses which were added back to the income of the assessee - ad hoc addition of vehicle expenses made by AO - CIT-A deleted addition - HELD THAT:- We find that CIT(A) while deleting the addition has inter alia noted that assessee is a public sector undertaking and it has been consistently claiming the vehicle hire charges and the same has been accepted by the Revenue authorities in earlier years and in subsequent years - as further given a finding that the AO had proceeded to disallow the expenses on ad hoc basis without pointing out any specific defects or incidents which could prove that the expenses was not for the purpose of business and that the AO was simply carried away by the quantum of expenditure. CIT(A) has further given a finding that during the course of assessment proceedings sufficient documents were furnished by the assessee to support its claim of expenses and the allegation of the AO of not furnishing the log book and other details of vehicle hire expenses by the assessee is not based on the material on record. Revenue has not pointed to any fallacy in the findings of CIT(A). We therefore find no reason to interfere with the order of CIT(A) and thus the ground of Revenue is dismissed

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• Customs

• 2021 (6) TMI 595
  Levy of IGST - oxygen concentrators that are imported as gifts for personal use - violative of Articles 14 and 21 of the Constitution or not - HELD THAT:- Issue notice, returnable in four weeks. Till the next date of listing, there shall be a stay of the operation of the impugned judgment and order of the High Court dated 21 May 2021.

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• 2021 (6) TMI 586
  Smuggling - Gold - Electronic goods - baggage rules - specific contention of petitioners is that they wanted to declare the goods before Customs Authority but before they could do so, they were intercepted and apprehended - HELD THAT:- The petitioners could have established their defence only by producing the CCTV footage. They have been denied access to this vital piece of evidence. The best evidence was very much available and it was allowed to vanish. The airport authority is a limb of the State. DRI cannot wash away its hands by taking the plea that they have not installed the CCTV and that it is not in their control. When a huge smuggling attempt was busted and when two of the arrested from whom recoveries were made wrote to the Additional Director General, DRI, Chennai that if he verifies the contents of the CCTV footage, their stand will be vindicated, then it was the bounden duty of DRI to have secured the CCTV footage. Since this was not done, adverse inference must necessarily be drawn against them. Where the fundamental right of the noticees to fair adjudication has been violated, adjudication proceedings cannot be allowed to continue for the purpose of determining their guilt - the petitioners defence has been prejudiced because of the non-production of CCTV footage, the adjudication proceedings initiated against them can be allowed to continue only for the limited purpose of determining whether the goods in question can be allowed to be re-exported or whether they can be cleared on payment of applicable duties. The petitioners are permitted to apply to the jurisdictional passport authority for issuance of duplicate passport and subject to fulfilment of the usual formalities, the jurisdictional passport authority is directed to issue duplicate passport to the petitioners without delay. Petition disposed off.

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• 2021 (6) TMI 580
  Smuggling - Cigarettes - charges based on statements - cross-examinations of statements not done - HELD THAT:- The entire case based on primarily on statement. The charges have also been established on the basis of these statements. It is seen that all three notices have denied any knowledge of the transaction of presence of cigarettes in the containers. There is no specific primary evidence produced by revenue, except the statements, to establish that the notices were aware of the presence of cigarettes in the container - Since it is seen that there no major evidence other than the statements has been produced about the knowledge of the appellants about presence of the cigarettes in the container. It is on paramount importance that the statements are properly tested with cross-examination. Since Cross-examination is not granted the impugned order is set aside and matters are remanded for fresh decision after giving opportunity of cross examination to the appellants - Appeal allowed by way of remand.

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• Corporate Laws

• 2021 (6) TMI 587
  Enforceability and validity of Oral Agreement - oral agreement for lifting water, exists or not - time limitation - Section 297 of Companies Act - HELD THAT:- Section 46 of the Act must be read along with Section 297 of the Companies Act. It has been established in evidence that the defendant company was having paid-up capital of not less than one crore. Therefore, the prior approval of the central government was required for entering into a contract, in which, the director of the company or his relative is having an interest. The suit well belongs to the appellant Subahani and her brother Mohammed Thasthakir was the managing director of the defendant company. Therefore, two conditions will have to be fulfilled - The first Appellate Court rightly came to the conclusion that there has been a breach of Section 297 of the Companies Act. Since I have held that a oral contract of this nature cannot bind the defendant, the question of avoiding such a contract also does not arise. Time Limitation - HELD THAT:- Filing of the suits by the defendant cannot operate as stay or suspension of the operation of the period of limitation for the claim of the plaintiff regarding the arrears of rent for lifting of water on the basis of oral contract. So, the allegation in the plaint that the earlier suits filed by the defendant operate as stay or suspension of right of claim of arrears cannot be sustainable and is liable to be rejected. This suit has been filed for the recovery of rent arrears for lifting of water on the basis of oral agreement entered into between the plaintiff and defendant company only in the year 1999 after the expiry of three years from the date on which the arrears of rent become due from the defendant company and as such the suit barred by limitation under Article 52 of Limitation Act. The suit agreement was clearly not binding on the respondent herein - substantial questions of law are answered against the appellant - Appeal dismissed.

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• 2021 (6) TMI 565
  Seeking to restore the Company in the Register of Companies - Section 252(3) of the Companies Act, 2013 - HELD THAT:- It has been brought to the notice of this Tribunal that the Petitioner has not complied with filing of balance sheet and other statutory returns before the RoC. The Registrar of Companies, Chennai, the respondent herein, is ordered to restore the original status of the Company i.e. M/s. Cricket Archive Private Limited as if the name of the Company has not been struck off from the Register of Companies with resultant and consequential actions like changing status of Company from strike off to Active - Application allowed.

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• Insolvency & Bankruptcy

• 2021 (6) TMI 576
  Seeking for forwarding the name of the proposed Resolution Professional (RP) to IBBI for its confirmation - Section 60(5) r/w Section 22(3)(b) of the Insolvency Bankruptcy Code, 2016 (IBC, 2016) and Regulation 17(3) of the IBBI Regulations - HELD THAT:- This Tribunal takes a strong exception to the attitude of Punjab National Bank Housing Finance Ltd. on the one hand abstaining from attending the meeting altogether and/or also failing to exercise its voting share at least through e-voting, but however, raising objections before this Tribunal in relation to the change of IRP to RP. We are unable to consider the objection of Punjab National Bank Housing Finance Ltd. in this regard and the same is brushed aside. On its part in relation to Dhankalash Distributors Pvt. Ltd., Ld. Senior Counsel Mr. Ganda appearing for the said Financial Creditor having a miniscule voting share of 0.31% contends that without disposing of the Applications filed by the said Financial Creditor, this Tribunal should not dispose of the present Application as in the said Applications the very constitution of the CoC having their voting share presently as disclosed by the IRP is sought to be challenged as the mode of computing the claim in relation to the Homebuyers as well as their proportionate voting share is being questioned. Repeatedly the Hon ble Supreme Court has held that the commercial decision taken by the CoC brooks no interference by this Adjudicating Authority. Be it in the case of approval of the resolution plan or in the case of liquidation of the Corporate Debtor - Similarly, it is also required to be noted as correctly pointed out by the Ld. Counsel for the Applicant that the Hon ble NCLAT has held in numerous decisions as rendered by it and as cited before this Tribunal that replacement of IRP to RP either under Section 22 and in relation to also Section 27 of IBC, 2016 does not call for the interference of this Adjudicating Authority and further that no reason is also required to be ascribed for such a change. Keeping in mind the decision of the CoC being a commercial decision made by more than 66% of the Homebuyers constituting the CoC having their voting share on the given date, namely 04.05.2020, this Tribunal is required to perforce allow this Application. As a consequence of allowing this Application taking into consideration Section 22(4) of IBC, 2016 the name as recommended by the CoC for appointment of Resolution Professional (RP) being Mr. Ayyagari Viswanadha Sarma, is required to be forwarded to the IBBI for its confirmation - Application disposed off.

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• 2021 (6) TMI 575
  Seeking exclusion of time from CIRP period - HELD THAT:- I.B.B.I. inserted a Regulation 40(C), thereby the time lost due to lockdown are excluded in the calculation of the Corporate Insolvency Resolution Process time frame. In view of the same, the period from 25.03.2020 till date of this application i.e., 29.09.2020 is excluded from the time frame of 270 (180+90) days of the Corporate Insolvency Resolution Process period. Relief as sought is allowed - application allowed.

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• 2021 (6) TMI 572
  Prayer for withdrawal of Company Petition filed under section 9 of IBC - HELD THAT:- The present application is filed under Section 12A IBC 2016 read with Regulation 30A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and not under Rule 11 of the NCLT Rules, 2016 - Mere plain reading of the provision shows that nowhere it is mentioned in the Regulations that a claim can only be verified on the last date. The applicant has not explained the reasons when he received the claim on 18.02.2021 and the last date was on 19.02.2021 then what prevented him to verify the claims within this period. And why he has waited for 7th day as provided in the Regulation 13(1) of the IBBI (Insolvency Resolution of Corporate Persons) Regulation, 2016 when he has received the claim of the financial creditor, who according to the regulations and laws would have been the sole member of the CoC. This has not been explained by the applicant/IRP. Admittedly, the CoC has not been constituted but from the material available on record, it is crystal clear, that claim of the financial creditor and other creditors (Operational Creditors) were received prior to the submission of the Form FA and as per the averment made in the application, the IRP instead of verifying the claims of the creditors, had waited for settlement, which was going to be arrived between the applicant and Corporate Debtor. Which in our considered view is not the letter and spirit of Section 12A and Regulation 30A of the IBBI (Insolvency Resolution of Corporate Persons) Regulation, 2016 as well as the decisions upon which the applicant has placed reliance - Since, the IRP has received a claim of one of the financial creditor, which is more than One Crore. Therefore, it is the duty of the IRP; before considering the Form FA, verify the claim and if the claim is found to be genuine then constitute the CoC and if the claim is not genuine then reject the same. Since, before the submission of Form FA, there was a claim of more than One Crore of the financial creditor, under such circumstances, there are no option but to reject the application submitted by the IRP to permit the applicant to withdraw the application - application rejected.

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• 2021 (6) TMI 571
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- Though there is no specific date of default mentioned, the same issue was considered by the bench and vide order dated 30.01.2020, the bench has decided that the matter is within limitation - Accordingly, demand notice was issued on 16.09.2017 and the present application is filed on 21.05.2019. Hence the application is not time barred and filed within the period of limitation. The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application - The present application is filed on the Performa prescribed under Rule 6 of the Insolvency and Bankruptcy Code, 2016 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 r/w Section 9 of the code and is complete. Existence of debt and dispute or not - HELD THAT:- There exists an operational debt which is due and payable by the corporate debtor. An objection has been raised by the corporate debtor, with regards the service of the demand notice, which is not maintainable, as the demand notice was served at the registered office of the corporate debtor as per the MCA records and was returned with the remark refused to accept , which is considered as good service in the eyes of law as held by the Hon ble Supreme Court time and again. Further, disputes have also been raised by the corporate debtor, but there is a clear admission of debt of more than 1 Lakh in reply filed by the corporate debtor in August 2019. The application is admitted - moratorium declared.

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• 2021 (6) TMI 567
  Liquidation order - Section 33(2) of the Insolvency Bankruptcy Code, 2016 - HELD THAT:- The RP prepared the Information Memorandum and apprised the CoC in its 4th meeting dated 29.04.2020 that the Copy of Information Memorandum may be obtained after submitting the confidential undertaking and Form G for inviting the expression of interest was published on 17.08.2020 after the approval of the CoC in same meeting. The Form-G was again issued on 14.09.2020 after the discussion held in the fifth CoC meeting held on 07.09.2020. This authority also extended the CIR Period for further 90 days and excluded the period from 25.03.2020 to 31.07.2020 due to Covid-19. In furtherance to the publication of Form G, the resolution professional received an expression of interest from 4 prospective resolution applicants. The liquidation of the company is ordered.

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• 2021 (6) TMI 566
  Rejection of Liquidator/Respondent s decision for not accepting his claim - applicant offered personal services as a Freelancer and was not an employee - HELD THAT:- It is seen from the e-mails which were sent by the Applicant to the erstwhile Managing Director of the Corporate Debtor which shows that the Applicant was not in employment of the Company after April 2013 - It is also seen from the documents that the Applicant was offering his personal services to a few Companies as a Freelancer and as rightly contended by the Learned Counsel for the Respondent, as per the Standing Orders, 1946 issued by the Joint Commissioner of Labour, Government of Tamil Nadu under the Tamil Nadu Industrial Employment (Standing Orders) Rules, 1946. In the present case, the Applicant has not given any documentary evidence as well as not furnished copies of IT returns as directed by this Tribunal dated 04.11.2019 and further stated that ITR V for assessment Years 2012-2013 and 2013-2014 were only furnished and in regard to Form 26 AS for the Assessment Years 2015-16 and 2016-17 reflects that remuneration is being paid to the Applicant by the 2 Companies viz., M/s. TUV-SUD South Asia P. Ltd. and M/s. Kilburn Engineering Ltd. The claim of the Applicant seems to be a bogus one and hence the rejection order dated 28.01.2019 passed by Respondent/Liquidator does not warrant any interference by this Adjudicating Authority - Application dismissed.

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• PMLA

• 2021 (6) TMI 583
  Petition pertains to the stage prior to completion of investigation and filing of complaint by Respondent - Summons issued pertaining to the same ECIR, in respect of which present petition is filed - HELD THAT:- An arguable issue arises in the present case, which needs consideration. There is no dispute about the fact that petitioner nos. 1 to 3 are already enjoying an order of interim protection given by the Supreme Court in the pending writ petition. It is only the petitioner no. 4 who is presently apprehending coercive action in pursuance to summons issued by respondent no. 2. Further investigation undertaken by respondent no. 2 can proceed, subject to the result of the present writ petition - issue notice to respondents, returnable on 30.04.2021.

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• Central Excise

• 2021 (6) TMI 585
  CENVAT Credit - input services - outward transportation services - period August, 2014 to March, 2016 - Circular bearing No.1065/4/2018-CD, dated 08.6.2018 was not considered - HELD THAT:- The aspect of non-consideration of the impact of the Circular, dated 08.6.2018, is fatal to the order passed by the Appellate Tribunal. In the considered opinion of this Court, the matter requires reconsideration by the Appellate Tribunal after taking into account, the impact and effect of Circular bearing No.1065/4/2018-CD, dated 08.06.2018. The matter is remanded to the Appellate Tribunal for fresh consideration of the issue and for passing appropriate order afresh - Appeal allowed by way of remand.

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• CST, VAT & Sales Tax

• 2021 (6) TMI 592
  Levy of Penalty u/s 53(3) of the VAT Act - Under declaration of tax - fraudulent or wilful neglect - validity of SCN - HELD THAT:- The present show-cause notice also suffers from similar infirmity. There is no indication in the show-cause notice with regard to the factual foundation alleging fraud or wilful neglect on the part of the petitioner-assessee in relation to under declaration of tax. Sri Naidu, learned Government, sought to wriggle out of the situation by referring to the finding of the authority relating to absence of plausible explanation for non-disclosure of turn over by the assessee as the foundation for wilful neglect - The initial onus was on the department to aver the factual foundation of fraud or wilful neglect in the show-cause notice. Only then the petitioner-assessee would have been put on adequate notice to respond to such allegation, which may entail higher penalty. In the absence of allegation of fraud or wilful neglect in the show-cause notice, the question of offering any explanation on such score did not arise. The authority wholly misdirected itself in imposing higher penalty on the premise the assessee had failed to give plausible explanation for non-disclosure of turn over - We are constrained to hold as the petitioner-assessee was not put on adequate notice with regard to imposition of higher penalty and therefore, had no opportunity to respond thereto the impugned penalty order based on lack of plausible explanation on such score suffers from jurisdiction error and falls foul of principles of fair procedure and natural justice. Petition allowed - penalty set aside.

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• 2021 (6) TMI 584
  Rejection to grant of stay pending appeal before the Tribunal - pre-deposit for maintaining the appeal - Section 33 of the APVAT Act, 2005 - invocation of Article 226 of the Constitution of India - HELD THAT:- Since the petitioner herein has already deposited 50% of the disputed tax amount i.e., 12.5% before the first appellate authority and 37.5% before the Tribunal and also deposited another 50% while filing the appeals before the first appellate and second appellate authorities questioning the penalty imposed and since the contentions raised by the petitioner herein in the grounds of appeal are required to be gone into by the Tribunal under Section 33 of the APVAT Act, this Court does not find any justification on the part of the 1st respondent in declining to consider the request of the petitioner herein by going into merits of the appeal. Petition allowed.

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• 2021 (6) TMI 582
  Concessional rate of duty - issuance of C-Forms - inclusion of High Speed Diesel Oil as a commodity in the registration certificate - HELD THAT:- R liance on the said circular is misplaced in view of the subsequent judicial pronouncement. It cannot be in dispute that the case on hand is covered by the decision reported in THE COMMISSIONER OF COMMERCIAL TAXES, CHEPAUK, CHENNAI, THE ADDITIONAL COMMISSIONER (CT) VERSUS THE RAMCO CEMENTS LTD. AND THE STATE TAX OFFICER, THE JOINT COMMISSIONER (CS) (SYSTEMS) VERSUS SUNDARAM FASTENERS LIMITED [ 2020 (3) TMI 450 - MADRAS HIGH COURT] where it was held that Appellant State and the Revenue Authorities are directed not to restrict the use of C Forms for the inter-state purchases of six commodities by the respondent/assessees and other registered dealers at concessional rate of tax and they are further directed to permit online downloading of such declaration in C Forms to such dealers. The petitioner is entitled to the inclusion of High Speed Diesel Oil as a commodity in the registration certificate - petition allowed - decided in favor of petitioner.

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• 2021 (6) TMI 581
  Concessional rate of duty - issuance of C-Forms - inclusion of High Speed Diesel Oil as a commodity in the registration certificate - HELD THAT:- R liance on the said circular is misplaced in view of the subsequent judicial pronouncement. It cannot be in dispute that the case on hand is covered by the decision reported in THE COMMISSIONER OF COMMERCIAL TAXES, CHEPAUK, CHENNAI, THE ADDITIONAL COMMISSIONER (CT) VERSUS THE RAMCO CEMENTS LTD. AND THE STATE TAX OFFICER, THE JOINT COMMISSIONER (CS) (SYSTEMS) VERSUS SUNDARAM FASTENERS LIMITED [ 2020 (3) TMI 450 - MADRAS HIGH COURT] where it was held that Appellant State and the Revenue Authorities are directed not to restrict the use of C Forms for the inter-state purchases of six commodities by the respondent/assessees and other registered dealers at concessional rate of tax and they are further directed to permit online downloading of such declaration in C Forms to such dealers. The petitioner is entitled to the inclusion of High Speed Diesel Oil as a commodity in the registration certificate - petition allowed - decided in favor of petitioner.

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