Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
June 20, 2020
Case Laws in this Newsletter:
GST
Income Tax
Customs
Insolvency & Bankruptcy
PMLA
Service Tax
Central Excise
TMI SMS
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
GST
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Classification of supply - Rate of Tax - to be treated as original works or not - y. The principal supply would be the goods i.e. the AFC system as a whole. Thus, the services of commissioning and installation cannot be said to be a principal or main supply under the contract - the supply of the AFC system would not qualify as ‘original works’. - Taxable @12%
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Works Contract - Composite Supply - The supply of the maintenance and management services to be provided post implementation of the AFC system under proposed contract would also qualify as a ‘composite supply’ with the AFC system, being the principle supply.
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Requirement of GST registration - medical store run by Charitable Trust - sale of medicine by the applicant is a taxable supply of goods. Applicant is providing medicines from its medical store at lower rate so price paid by the customers is consideration for the applicant as defined in sub-section 31 of Section 2 of the CGST Act, 2017 - the activity of supply of goods by the applicant does not fall under the list appearing in Schedule-III of the CGST Act, 2017.
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Computation of threshold limit for the purpose of GST registration - Interest received on PPF Account / Saving Bank Account / Personal loan account should be considered for the purpose of calculating the threshold limit of ₹ 20.00 Lakh for registration under GST Law.
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Levy of GST - sale of plot of land for which, as per the requirement of approved by the respective authority (i.e. Jilla Panchayat), Primary amenities such as, Drainage line, Water line, Electricity line, Land levelling etc. - The activity of the sale of developed plots would be covered under the clause ‘construction of a complex intended for sale to a buyer’. Thus, the said activity is covered under ‘construction services’ and GST is payable
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Classification of goods - Heat Activated Ultra-Violet (HAUV) Polyester Film with Adhesive Coating and UV Printing - The goods which fall under Chapter 3919, as in the subject case will not fall under Chapter 49.
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Export of Service or not - design & Development services provided by Lear India to Lear entities situated abroad - OIDAR services or not - this authority cannot admit the application in respect of this question because the question raised in the application is already pending before the department.
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Maintainability of Advance Ruling Application - Place of supply of services - “Commission” received by the Applicant in the convertible foreign exchange for rendering services as an “Intermediary” from overseas clients - cross-border sales/purchase of goods - intra-state supply - Application rejected as beyond the jurisdiction of this authority.
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Reopening of portal for claiming CENVAT Credit - The respondents are directed to ensure compliance of the captioned judgment by 19.06.2020, particularly since the cut of date fixed by the court in the said case is 30th June, 2020, which would leave only ten clear days for the petitioner and similarly placed assessees to take necessary steps.
Income Tax
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Reopening of assessment u/s 147 - validity of reasons to believe - The non-rejection of the explanation in the Assessment Order would amount to the Assessing Officer accepting the view of the assessee, thus taking a view/forming an opinion. - SC uphold the order of HC
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Depreciation on ATM - whether ATMs are computers and are eligible for 60% depreciation? - Yes - ATMs are computers and are entitled to higher rate of depreciation.
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Expenditure incurred on lease hold property for improvements - revenue or capital expenditure - The assessee therefore, got the business advantage and therefore, the tribunal has rightly treated the expenses incurred as revenue expenditure incurred for improvement in leasehold property as revenue expenditure.
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Correct head of income - income arising on sale of shares held as capital asset after conversion from stock in trade - business income or capital gains - Tribunal erred in treating the income arising on sale of shares held as capital asset after conversion from stock in trade as business income.
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Income accrued in India - Characterization of income - 'Salary' or 'Profit in lieu of Salary' OR 'Business income' - The amount paid to the employees under the non compete agreement is covered by the expression 'salary / profits in lieu of salary', which is not taxable in India in view of Article 16 of DTAA.
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Revision u/s 263 - AO has adopted one of the courses permissible in law and even if it has resulted in loss to the revenue, the said decision of the AO cannot be treated as erroneous and prejudicial to the interest of the revenue
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Capital gain computation - reference made u/s 55A - value of immovable property determined by the District Valuation Officer - pre-amended section 55A(a) is applicable to the assessee wherein the terminology used is “is less than its fair market value”
Customs
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Valuation - rejection of declared value - import of Synthetic Rubber PBR Non Oil Off Grade Loose Lumps in Super Sacks Packing - The Department has failed to show any contemporaneous evidence of higher price, and thus the transaction value cannot be rejected
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EPCG Scheme - import of the Mercedes car - allegation for use for personal purpose of director - no evidence have been adduced by the Department to sustain their claim that it was not used for the purpose for which it has been allowed to be imported by the EPCG licence on concessional rate of customs duty.
Service Tax
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Demand of service tax - corporate guarantee - The appellant is not liable to pay any service tax on corporate guarantee provided by the appellant to various banks/financial institutions on behalf of their holding company/associate enterprises for their loan or over draft facility under Banking and Financial Institutions after or before 01.07.2012
Central Excise
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Reversal of CENVAT Credit - iron ore fines which emerges during the course of manufacture of sponge iron ore are in unavoidable and inevitable by-product and therefore same does not fall under the category of manufacture goods and accordingly same are not excisable. Thus, such goods cannot be considered as exempted goods
Case Laws:
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GST
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2020 (6) TMI 451
Works Contract - Composite Supply - supply made by NEC under the Automatic Fare Collection (AFC) project - original works meant predominantly for use other than for commerce, industry, or any other business or profession - applicability of GST rate of 12% provided in the Notification 24/2017-Central Tax (Rate) dated 21 September 2017 - HSN classification of supply made by NEC would fall under 8470 or 9954 ? - maintenance and management services post implementation. HELD THAT:- The proposed contract is for supply of the AFC system comprising supply of multiple hardware and software and commissioning, installation and integration of the same. Under said contracts, the hardware and software to be provided by the applicant consists of POS machines, ETMs, flap gates, validators, station servers, communication components, control centre hardware, manual swing gates for disabled etc.. All the supplies i.e. hardware, software, installation and integration etc. are integral part of the AFC system - The term works contract has been restricted to contract for building construction, fabrication etc. of any immovable property only. Any such composite supply undertaken on goods say for example a fabrication or paint job done in automotive body shop will not fall within the definition of term works contract per se under GST. Such contracts would continue to remain composite supplies, but will not be treated as a Works Contract for the purposes of GST. As per Para 6 (a) of the Schedule II to the CGST Act, 2017, works contracts as defined in Section 2(119) of the CGST Act, 2017 shall be treated as a supply of services. Thus, there is a clear demarcation of a works contract as a supply of service under GST. Hence, Works contract will be treated as service and tax would be charged accordingly. The applicant s contention that the contract for supply of the AFC system to the local authority does not qualify as a Works contract under Section 2(119) of the CGST Act, 2017, since the installed AFC system cannot be said to result in the emergence of an immovable property is agreed upon - the AFC system is not an immovable property as it can be dismantled and moved to a different location without any damage. Further, it is found from their submissions and agreement that the contract is considering a clear demarcation of goods services to be provided by the applicant. The goods (hardware) and services (software, installation and integration etc.) are supplied as a combination and in conjunction and in the course of their business where the principal supply is supply of goods - there is a composite supply in the subject case. Classification of supply - Rate of Tax - to be treated as original works or not - HELD THAT:- In this case, the proposed contract is for supply of the AFC system comprising supply of multiple hardware and software and commissioning, installation and integration of the same. All the supplies i.e. hardware, software, installation and integration etc. are integral part of the AFC system and any of such individual supply is not the principal supply. The principal supply would be the goods i.e. the AFC system as a whole. Thus, the services of commissioning and installation cannot be said to be a principal or main supply under the contract - the supply of the AFC system would not qualify as original works . Thus, the rate of 6% as provided in entry number (vi) of the Notification No.11/2017 Central Tax (Rate) as amended by the Notification No. 24/2017 - Central Tax (Rate) should not be applied in case of the AFC system. Whether the HSN classification of supply made by the applicant would fall under 8470 or 9954 ? - HELD THAT:- The supply to be made under proposed Contract by the applicant does not qualify as a Works contract . Since, the supply by the applicant does not qualify as works contract, such supply should not get classified under 9954 - Considering that the main purpose of the AFC system is to compute the fare automatically and issue tickets along with integration of the system with the banks, the most appropriate HSN classification is to be 8470 . Considering the rate of GST prescribed for HSN 8470 is 18%, the same should be applicable in this case. Whether the maintenance and management services post implementation would qualify as composite supply as defined under section 2(30) of the CGST Act, 2017? - whether such supply would be eligible for exemption under Notification No.12/2017-Central Tax (Rate) dated 28 June 2017 in case value of supply of goods constitutes not more than 25% of the value of the said composite supply? - HELD THAT:- The supply of the maintenance and management services to be provided post implementation of the AFC system under proposed contract would also qualify as a composite supply with the AFC system, being the principle supply. Whether supply of the maintenance and management services post implementation of the AFC system would be eligible for exemption under Notification No.12/2017-Central Tax (Rate) dated 28 June 2017 in case value of supply of goods constitutes not more than 25% of the value of the said composite supply? - HELD THAT:- The Notification No. 12/2017 Central Tax (Rate), dated 28th June, 2017, as amended by the Notification No.02/2018 Central Tax (Rate) dated 25th January, 2018 provides that composite supply of goods and services in which the value of supply of goods constitutes not more than 25 percent of the value of the said composite supply provided to the Central Government, State Government or Union territory or local authority or a Governmental authority or a Government Entity by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution or in relation to any function entrusted to a Municipality under article 243W of the Constitution would be exempted from levy of GST - the said contract would be awarded for supply of the AFC system along with maintenance and management of the all hardware and software forming part of the AFC system. The supply of the AFC system comprises supply of goods (multiple hardware) and services (software, installation, commissioning, integration of the same). Further, the maintenance and management would also include supply of spares etc. for undertaking repairs of the AFC system. The proposed contract, thus, comprises composite supply of goods and services. M/s SSCDL is a company incorporated under the Companies Act, 2013 and, hence, does not fall under the definition of the local authority or a Governmental authority or a Government Entity. As such, supply of the maintenance and management services to be provided post implementation of the AFC system does not eligible for said exemption.
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2020 (6) TMI 450
Requirement of GST registration - medical store run by Charitable Trust - medical Store providing medicines at a lower rate - supply of goods or not - HELD THAT:- The applicant is a charitable trust which appears under the definition of person and falls at clause(m) of sub-section 84 of Section 2 of the CGST Act, 2017.As per definition, a charitable trust is a person as per clause (m) of sub section 84 of section 2 of CGST Act, 2017. The applicant is providing medicines from its medical store at lower rate, so activity of dealer is to provide medicines with less pecuniary benefit. As per the definition of business any trade, commerce, manufacture, profession, vocation, adventure, wager or any other similar activity, whether or not it is for a pecuniary benefit is termed as business. Hence, it is clear that any trade carried out whether for pecuniary benefit or not is a business as per CGST Act, 2017. Therefore, the applicant is carrying out business activity as per CGST Act, 2017. Applicant is selling medicines from its medical store. Medicine is goods as per subsection 52 of Section 2 of the CGST Act, 2017. Medicine is a taxable supply as per sub section 108 of section 2 of CGST Act, 2017 and GST is leviable on medicine as per Chapter-30 of HSN code. Therefore, sale of medicine by the applicant is a taxable supply of goods. Applicant is providing medicines from its medical store at lower rate so price paid by the customers is consideration for the applicant as defined in sub-section 31 of Section 2 of the CGST Act, 2017 - the activity of supply of goods by the applicant does not fall under the list appearing in Schedule-III of the CGST Act, 2017. The applicant is making taxable supply from its medical store, so as and when aggregate turnover (here medicine) of applicant exceeds threshold limit as specified in sub-section(1) of Section 22 of the CGST Act, 2017, the applicant has to obtain registration under the relevant provisions of the CGST Act, 2017.
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2020 (6) TMI 449
Computation of threshold limit for the purpose of GST registration - Receipt of Interest on savings / loans - receipts in the course or furtherance of Business or not - scope of supply - Interest received in form of PPF - Interest received on Personal Loans and Advanced to family/friends - Interest received on Saving Bank Account - whether the interest should be considered for the purpose of calculating the threshold limit of ₹ 20.00 Lakh for registration under GST Law? HELD THAT:- The services regarding interest income are covered under the above Notification. Therefore, such services are exempted from payment of GST and the individual is not required to discharge GST on the activity of providing services by way of extending deposits, loans or advances where the consideration is represented by way of interest. Therefore, in given case GST is not leviable on Interest Income earned by the Applicant. The applicant is an individual with an annual turnover of more than ₹ 20 Lakh. Since this income is interest-related, the turnover is exempt from GST. However, the Applicant also supplies services of Renting of immovable property along with activity of providing services by way of extending deposits, loans or advances where the consideration is represented by way of interest. His turnover from the rent income is ₹ 9.84 Lakh and we know that this transaction (Renting of immovable property) is chargeable to GST. However, his taxable turnover is only ₹ 9.84 Lakh. Going by the definition of aggregate turnover , the Applicant is required to consider the value of both the taxable supply i.e. Renting of immovable property and exempted supply of service provided by way of extending deposits, loans or advances for which they earned interest income, to arrive at Aggregate Turnover to determine the threshold limit for the purpose of obtaining registration under the GST Act. The Applicant is required to aggregate the value of exempted interest income earned by way of extending deposits in PPF Bank Saving accounts and loans and advances given to his family/friends along with the value of the taxable supply i.e. Renting of immovable property for the purpose of calculating the threshold limit of ₹ 20.00 Lakh for obtaining registration under GST law. The Interest received in form of PPF should be considered for the purpose of calculating the threshold limit of ₹ 20.00 Lakh for registration under GST Law - Interest received on Personal Loans and Advanced to family/friends should be considered for the purpose of calculating the threshold limit of ₹ 20.00 Lakh for registration under GST Law - Interest received on Saving Bank Account should be considered for the purpose of calculating the threshold limit of ₹ 20.00 Lakh for registration under GST Law.
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2020 (6) TMI 448
Levy of GST - sale of plot of land for which, as per the requirement of approved by the respective authority (i.e. Jilla Panchayat), Primary amenities such as, Drainage line, Water line, Electricity line, Land levelling etc. - HELD THAT:- The applicant is the owner of the land, who develops the land with an infrastructure such as Drainage line, Water line, Electricity line, Land levelling etc. as per the requirement of the approved Plan Passing Authority (i.e. Jilla Panchayat). After this development of the land, he sales developed land as plots. His sales price includes the cost of the land as well as the cost of common amenities, Drainage line, Water line, Electricity line, Land levelling charges, etc. on a proportionate basis - Schedule II of the CGST Act, 2017 pertains to activities or transactions to be treated as Supply of goods or supply of services . As per clause 5(b) of the Schedule-II of the CGST Act, 2017, construction of a complex, building, civil structure or a part thereof, including a complex or building intended for sale to a buyer is a Supply of service and, hence, is liable to the Goods and Services Tax (GST). The activity of the sale of developed plots would be covered under the clause construction of a complex intended for sale to a buyer . Thus, the said activity is covered under construction services and GST is payable on the sale of developed plots in terms of CGST Act / Rules and relevant Notification issued time to time.
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2020 (6) TMI 447
Classification of goods - Rice Bran (22+0il) - rate of tax on supply - HELD THAT:- In the instant case, the information provided by the applicant indicates that the product under consideration has not been obtained by milling rice but rather consists of Rice husk of poha and mamra and Sludge/ Wax oil. Thus, the product is clearly not Rice Bran in light of the meaning of Rice Bran. Further, in absence of the actual process undertaken on the raw materials it can only be concluded that product is a combination of Rice husk of poha and mamra and Sludge/ Wax oil. From the scarce information provided in the application, it is understood that the assessee is a chemical or allied industry. Further, the actual processes undertaken and the resultant product have not been accurately specified and as such, the only option available is to classify the said product in the residual entry of Chapter 38 pertaining to miscellaneous chemicals Products - Residual products of the chemical or allied industries, not elsewhere specified or included; Municipal Waste; Sewage Sludge; Other waste specified in Note 6 to this Chapter. The above product can be classified under Chapter 38259000 as the residual entry of the miscellaneous chemical products - Chapter 3825 is covered under Sr. No. 98 of Schedule III of Notn. No. 1/2017 CT (Rate) and attracts rate of 9% CGST and the corresponding State notification specifying the rate of 9% SGST.
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2020 (6) TMI 446
Maintainability of Advance Ruling Application - scope of Advance Ruling - Levy of GST - online or telephonic educational coaching from India for corporate, individuals or any other entities residing required outside India - Category under which taxable - HELD THAT:- As per Section 95 of the CGST Act, 2017, this authority can only pass a ruling on matters or questions specified in subsection 2 of Section 97 of the CGST Act, 2017, in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant. The supply of services is to entities situated outside India and therefore to answer their question we will be required to discuss the provisions of Section 13 and Section 2(6) of IGST Act, 2019, pertaining to place of supply of services - As per the Section 97(2) of CGST Act, the questions on which advance ruling is sought under this Act, shall be in respect of, matters or issues mentioned in Section 97 (2) (a) to (g) only. The place of supply of services does not find mention in the said Section 97 - this authority is not allowed to answer the subject question. The subject application is not maintainable and thus liable for rejection.
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2020 (6) TMI 445
Classification of goods - Heat Activated Ultra-Violet (HAUV) Polyester Film with Adhesive Coating and UV Printing - applicable HSN code - HELD THAT:- The subject product is nothing but a self-adhesive film which is able to stick permanently to paper and classifiable under Chapter 3919. Our finding is also strengthened by the fact that applicant is importing the said goods under Chapter 3919. The goods which fall under Chapter 3919, as in the subject case will not fall under Chapter 49. The fact of the matter is that the said goods during import are classified under Chapter 3919 and the same has been accepted by the applicant. It will therefore not be open for them to apply for a change of classification, for the same product, to this authority.
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2020 (6) TMI 444
Export of Service or not - design Development services provided by Lear India to Lear entities situated abroad - whether services fall under the category of OIDAR services? - HELD THAT:- A letter dated 23.01.2020 was submitted by applicant, wherein it was requested that they may be allowed to voluntarily withdraw the first question made in the subject application. The request of the applicant to withdraw the first question of application voluntarily and unconditionally is hereby allowed, without going into the merits or detailed facts of the case. Whether the Design Development services provided by the Applicant to Lear entities situated aboard would fall under the category of OIDAR services? - HELD THAT:- Prima facie this is a question, pertaining to classification and is covered by Section of the CGST Act, 2017 - he subject services are presently being classified by them as Consulting Engineering Services . However, the GST department has issued them a Show Cause Notice 27.08.2018 proposing to classify the services of the Applicant under On-line database access services wherein the SCN has alleged that the services provided by the Applicant is bundled service of design, prototype, testing in virtual world through computer network and online database access gives the essential characteristic of OIDAR to the said bundled service - In view of the provision to Section 98(2) of the CGST Act, 2017, this authority cannot admit the application in respect of this question because the question raised in the application is already pending before the department under the provisions of this Act as is seen from the SCN issued to the applicant on 27.08.2018.
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2020 (6) TMI 443
Maintainability of Advance Ruling Application - Place of supply of services - Commission received by the Applicant in the convertible foreign exchange for rendering services as an Intermediary from overseas clients - Trade in goods between an exporter abroad receiving such services and an Indian importer of goods, is an export of services falling under Section 2(6) outside the purview of Section 13(8) (b) - cross-border sales/purchase of goods - intra-state supply - HELD THAT:- As per Section 97(2) of CGST Act, the questions on which advance ruling is sought under this Act, shall be in respect of, matters or issues mentioned in Section 97 (2) (a) to (g) only. The place of supply of service does not find mention in Section 97. This authority is not allowed to answer the subject question - The subject application filed for advance ruling is rejected, as being non-maintainable as per the provisions of the GST Act, 2017 and Rules made thereunder.
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2020 (6) TMI 442
Maintainability of petition - availability of alternate remedy - validity of the action initiated by the revenue authorities when an alternate remedy would have been available to the assessee - HELD THAT:- Issue notice, returnable in twelve weeks - Till the next date of listing, there shall be a stay of operation of the impugned judgment and order of the High Court for the State of Telangana dated 4 March 2020 in WP No 2161 of 2020.
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2020 (6) TMI 441
Grant of Regular Bail - Offence under Section 132(1) a,b,c of Punjab Goods and Service Tax Act, 2017 - prevailing COVID-19 pandemic situation - HELD THAT:- Considering the existing situation due to COVID-19 and the fact that trial is likely to take some time, this Court deems it appropriate to direct the release of the petitioner on regular bail to the satisfaction of Chief Judicial Magistrate/Duty Magistrate concerned, subject to his furnishing bail bonds/surety bonds. However, it is made clear that anything observed herein shall not be construed as an expression of opinion on merits of the case - Petitioner is also directed to furnish security worth ₹ 10 lacs in the form of bank guarantee/original paper of immovable property, within 15 days. Petition disposed off.
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2020 (6) TMI 440
Reopening of portal for claiming CENVAT Credit - vires of Rule 117 of the CGST Rules, 2017 - HELD THAT:- Admittedly, the judgment in BRAND EQUITY TREATIES LIMITED, MICROMAX INFORMATICS LTD., DEVELOPER GROUP INDIA PRIVATE LIMITED, RELIANCE ELEKTRIK WORKS VERSUS THE UNION OF INDIA AND ORS. [ 2020 (5) TMI 171 - DELHI HIGH COURT ], has not been stayed so far and therefore, the respondents are under an obligation to abide by the directions issued therein by adequately publicising the said decision and uploading it on their website as also by opening its common portal to enable the petitioner and all similarly placed parties to upload Form GST Trans-1, for claiming CENVAT tax credit. The respondents are directed to ensure compliance of the captioned judgment by 19.06.2020, particularly since the cut of date fixed by the court in the said case is 30th June, 2020, which would leave only ten clear days for the petitioner and similarly placed assessees to take necessary steps. Petition disposed off.
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Income Tax
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2020 (6) TMI 439
Expenditure incurred on lease hold property for improvements - revenue or capital expenditure - expenditure towards purchase of workstations, improvement of interiors and electrical works, fee paid to the architect, cabling work for networking of computers in connection with setting up of office - HELD THAT:- It is evident that the assessee had taken the premises on lease for a period of three years and had incurred expenditure for improvements in the lease premises. The premises did not belong to the assessee and the expenditure did not bring into existence any capital asset for the assessee. The expenses were incurred for conducting the business of the assessee more profitably and more successfully. The assessee therefore, got the business advantage and therefore, the tribunal has rightly treated the expenses incurred as revenue expenditure incurred for improvement in leasehold property as revenue expenditure. Depreciation on ATM - whether ATMs are computers and are eligible for 60% depreciation? - HELD THAT:- The tribunal by placing reliance on the decision of DCIT VS. DATA CRAFT INDIA LTD. [ 2010 (7) TMI 642 - ITAT, MUMBAI ] has held that so long as functions of the computers are performed with other functions and other functions are dependant on the functions of the computer, ATMs are to be treated as computers and are entitled to higher rate of depreciation. It has further been held that computer is integral part of ATM machine and on the basis of information processed by the computer in ATM machine only, the mechanical function of the dispensation of cash or deposit of cash is done. Therefore, it was held that ATMs are computers and are entitled to higher rate of depreciation. Change in method of accounting - HELD THAT:- The Supreme Court in BILAHARI INVESTMENTS (P) LTD. [2008 (2) TMI 23 - SUPREME COURT] has held that in every case of substitution of one method by another method it has been held that burden is on the department to prove that the method in vogue is not correct and distorts the profit of a particular year. From perusal of the order passed by the assessing officer as well Commissioner of Income Tax (Appeals), it is evident that revenue has failed to discharge the aforesaid burden. Therefore, the tribunal has rightly held that the assessee is entitled to change the method of accounting.
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2020 (6) TMI 438
Liability of directors of private company in liquidation u/s 179 - Recovery proceedings - argument is that instead of recovering the aforesaid amount in tune with the provisions of Section 179 the Department proceeded to put the immovable properties to auction - HELD THAT:- Application for extension of time is allowed till 31.07.2020. However, if for any reason whatsoever, the entire amount is not deposited, the Special Leave Petition will stand dismissed without further reference to the Court.
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2020 (6) TMI 437
Exemption u/s 11 - Registration u/s 12AA denied - Tribunal was right OR not in overlooking the fact that in the absence of Dissolution Clause in the Trust Deed, the net assets of the Trust on its dissolution would be transferred to any entity / distributed among the trustees - as per HC partial expenditure which is not authorized by the Trust would not be itself lead to the Trust becoming nongenuine - HELD THAT:- SLP dismissed.
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2020 (6) TMI 436
Reopening of assessment u/s 147 - validity of reasons to believe - HC set aside the notice for reopening - HELD THAT:- Reasons in support of the impugned notice is the very issue in respect of which the Assessing Officer has raised the query dated 25 September 2017 during the assessment proceedings and the Petitioner had responded to the same by its letters dated 10 December 2017 and 21 December 2017 justifying its stand. The non-rejection of the explanation in the Assessment Order would amount to the Assessing Officer accepting the view of the assessee, thus taking a view/forming an opinion. Therefore, in these circumstances, the reasons in support of the impugned notice proceed on a mere change of opinion and therefore would be completely without jurisdiction in the present facts. No reason to interfere in the matter. This special leave petition is, accordingly, dismissed.
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2020 (6) TMI 435
Approval u/s 80(G)(5) - ITAT Lucknow remanded the instant matter to CIT (E) Lucknow - main contention raised by the assessee in this appeal is, the matter could not have been remanded back as the entire material was available before the ITAT to come to subjective satisfaction as to whether in the given circumstances the assessee was eligible for being granted a certificate u/s 80(G)(5), or not? - As per HC ITAT rightly remanded the matter back to the CIT (E) for fresh consideration and decision on the basis of the evidence available on record regarding genuineness of the documents and to pass a speaking order - HELD THAT:- Special Leave Petition is dismissed.
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2020 (6) TMI 434
Reopening of assessment u/s 147 - gain on sale of shares - profit out of sale of shares was taxable under the normal provisions or that it was excluded for the purpose of computing book profit u/s 115JB - HELD THAT:- Delay condoned. The Special Leave Petition is dismissed. Pending application stands disposed of.
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2020 (6) TMI 433
Correct head of income - income arising on sale of shares held as capital asset after conversion from stock in trade - business income or capital gains - HELD THAT:- It is evident prior to introduction of Finance Bill, 2018 by which provisions of the Act have been amended to provide for taxability of in cases where stock in trade is converted into capital asset, there was no provision to tax the same. In the absence of any provision in the Act, the transaction in question could not have been subjected to tax. Prior to amendment of the Act, which came into force with effect from 01.04.2019, the income arising on sale of shares held as capital asset after their conversion from stock in trade was treated as capital gains as has been held by various high courts viz., in the cases of EXPRESS SECURITIES PVT. LTD. [2013 (10) TMI 1182 - DELHI HIGH COURT] , DEEPLOK FINANCIAL SERVICES LTD. [2013 (10) TMI 1182 - DELHI HIGH COURT ] and ADITYA MEDI SALES LTD. [ 2016 (8) TMI 565 - GUJARAT HIGH COURT] and JANNHAVI INVESTMENT PVT. LTD. [2008 (1) TMI 314 - BOMBAY HIGH COURT ]. We agree with the view taken by various high courts on this issue. Tribunal erred in treating the income arising on sale of shares held as capital asset after conversion from stock in trade as business income. The substantial question of law framed in the appeals is answered in favour of the assessee and against the revenue.
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2020 (6) TMI 432
Income accrued in India - Characterization of income - 'Salary' or 'Profit in lieu of Salary' OR 'Business income' - Remittance of amounts to employees under non compete agreements are chargeable to tax under Section 5(2) of the Act - head of income under which it is liable for taxation under the Act and issue of its taxability under Double Taxation Avoidance Agreement 'DTAA' - Whether the Tribunal was correct in holding that a sum by the assessee is in the course of employment and would fall under the head 'Salary' or 'Profit in lieu of Salary' and not under the head 'Business income' as per Section 28(va) as held by the assessing officer? - HELD THAT:- Employees were rendering services outside India i.e., U.S. and payments were also made in U.S., Article 16 of DTAA applies and the same is taxable only in U.S.A. As held that income in the hands of the employees is salary / profit in lieu of salary and it has to be treated as such and in view of Article 16 of DTAA, the same is taxable in U.S. It was inter alia held that where the payments are in nature of salary, the payer need not approach the appropriate authority u/s 195(2) of the Act. Held that amount paid to the employees of the assessee being in the nature of salary is not taxable in India in view of Article 16 of DTAA between India and United States and therefore, the assessee was not under an obligation to deduct at source. The assessee, therefore, cannot be deemed to be an assessee in default under Section 201(1) of the Act. It was also held that since, the assessee has not been held to be an assessee in default, therefore, the interest under Section 201(1A) of the Act is not leviable. Accordingly, the appeal was allowed. From perusal of the substantial questions of law, on which the appeal has been admitted, we find that the findings of fact recorded by the tribunal have not been assailed as perverse. Even in the memo of appeal neither any grounds have been urged nor any material has been placed on record to demonstrate that findings of fact recorded by the tribunal are perverse. Therefore, the substantial questions of law as framed by a bench of this court, in fact, do not arise for consideration in this appeal, as the matter stands concluded by findings of fact. The amount paid to the employees under the non compete agreement is covered by the expression 'salary / profits in lieu of salary', which is not taxable in India in view of Article 16 of DTAA. We find that matter stands concluded by findings of fact and the revenue has not been able to either plead or place on record material to show that findings of fact recorded by the tribunal are perverse. - Decided in favour of assessee.
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2020 (6) TMI 431
Reopening of assessment - change of opinion - under valuation of the stock - HELD THAT:- It appears that the assessee had furnished all the necessary details with regard to the valuation of the stock. The stock certificate of the valuation issued by the site supervisor was also on record. In the tax audit report, we find reference as regards the method of valuation. It has been stated therein that the assessee is a developer and builder . The assessee is in the business of construction and sale of flats, buildings, land etc. it is impracticable to maintain item wise quantitative records of the items of building materials, which is shown in the Balance-Sheet as a closing stock in trade which is incomplete work at site. The valuation is taken on the basis of the valuation carried out by the site engineer. We, once again, go back to the reasons assigned for the purpose of reassessment. In the reasons, we find reference of the balance-sheet Form No.3CD, profit and loss account, and the very same material is now sought to be looked into for the purpose of reassessment. In the overall view of the matter, we are convinced that this is a case of mere change of opinion. The law in this regard is well settled as explained in the case of CIT vs. Kelvinator of India Ltd. [2010 (1) TMI 11 - SUPREME COURT] .The impugned notice is hereby quashed and set aside. - Decided in favour of assessee.
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2020 (6) TMI 430
Revision u/s 263 - deduction u/s.54F and section 54 - HELD THAT:- The twin conditions are that the order of the AO must be erroneous and so far as prejudicial to the interest of the Revenue. In the following circumstances, the order of the AO can be held to be erroneous order, that is (i) if the Assessing Officer s order was passed on incorrect assumption of fact; or (ii) incorrect application of law; or (iii)Assessing Officer s order is in violation of the principle of natural justice; or (iv) if the order is passed by the Assessing Officer without application of mind; (v) if the AO has not investigated the issue before him; then the order passed by the Assessing Officer can be termed as erroneous order. Whether the actions of the AO can be termed as prejudicial to the interest of Revenue? - In assessee`s case original assessment was completed much prior to search and seizure therefore the assessment year under consideration, that is, A.Y. 2010-11 is unabated and in unabated proceedings, the AO cannot disturb the findings given thereon in the original assessment unless there is incriminating material unearthed by the search team, since in assessee`s case under consideration there is no incriminating material therefore order passed by the assessing officer is neither erroneous nor prejudicial to the interest of Revenue. AO has adopted one of the courses permissible in law and even if it has resulted in loss to the revenue, the said decision of the AO cannot be treated as erroneous and prejudicial to the interest of the revenue as held in Malabar Industries Ltd. vs. CIT [ 2000 (2) TMI 10 - SUPREME COURT]. Since the order of the AO cannot be held to be erroneous as well as prejudicial to the interest of the revenue, in the facts and circumstances narrated above, the usurpation of jurisdiction exercising revisional jurisdiction by the Principal CIT is null in the eyes of law and, therefore, we are inclined to quash the very assumption of jurisdiction to invoke revisional jurisdiction u/s 263 by the Principal CIT. - Decided in favour of assessee.
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2020 (6) TMI 429
Capital gain computation - reference made u/s 55A - value of immovable property determined by the District Valuation Officer - AO adopted the fair market value of the property as on 01.04.1981 as determined by DVO for the purpose of computation of long term capital gain - scope of provisions of section 55A(a) as amended - HELD THAT:- Amended provisions of section 55A(a) is applicable from 01.07.2012, that is, (previous year 01.07.2012 to 31.03.2013) for assessment year 2013-14 onwards. Whereas the assessee sold the property on 21.07.2011, therefore amended provisions of section 55A(a) does not apply to the assessee under consideration. In assessee`s case the assessment year is A.Y. 2012-13 whereas amended provisions of section 55A(a) of the Act are applicable from A.Y. 2013-14. Hence, pre-amended section 55A(a) is applicable to the assessee wherein the terminology used is is less than its fair market value . We note that assessee`s qualified Registered Valuer of Income Tax had valued the property at fair market value on 01.04.1981 at ₹ 18,51,000/- which is not less than the fair market value done by the District Valuation Officer of Income Tax Department at ₹ 5,82,083/-. Based on the position in law as explained above, we direct the assessing officer to take the fair market value of the property as on 01.04.1981 at ₹ 18,51,000/- for the purpose of computation of long term capital gain. - Decided in favour of assessee.
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2020 (6) TMI 428
TP Adjustment - comparable selection - HELD THAT:- All the companies selected by the TPO are liable to be excluded on the basis of turnover filter applied by the ld. DRP and the decision rendered by the Co-ordinate Benches. Since no comparable company would remain for determining the Arms Length Price of international transaction, we are of the view the entire issue should be restored to the file of the AO/TPO for undertaking the exercise afresh by selecting fresh set of comparable companies in respect of sotware R D segment. Accordingly we set aside the order passed by the AO/TPO on this issue and restore the same to his file for examining the issue afresh. TP adjustment in respect of market support service - HELD THAT:- As A.R submitted that the TPO did not provide sufficient opportunity to the assessee to object to the comparable companies selected by him, we are of the view that this issue also needs to be set aside to the file of the AO/TPO. Accordingly, we set aside the order passed by AO on this issue and restore the same to the file of the AO/TPO. Computation of ALP on the entire operating costs - whether arm s length price ought to be computed only for the international transactions and not on the basis of costs incurred by the appellant? - HELD THAT:- PLI adopted by the assessee is operating profit by operating cost. The operating revenue has been generated by the assessee during the first two months namely April May, 2004 only. So we find merit in the contentions of the assessee that the operating cost relatable to the operating revenue generated by the assessee should alone be considered for computing operating margin for the purpose of determining Arm s length price of the international transactions. Considering the expenses incurred by the assessee in subsequent months, where no revenue was generated, would result in distorted picture. Hence there is merit in the contentions of ld. AR that the expenditure incurred during the first two months should alone be considered for arriving at the profit, in view of the fact that the assessee has stopped the operations in the month of May - we hold that the TPO was not justified in considering the operating results of the whole year for computing operating margins of the assessee. We notice that the workings furnished by the assessee for the first two months of the year have not been examined by the AO/TPO and hence the same requires examination in the light of discussions made supra. Accordingly, we restore this issue to the file of the AO/TPO for determining the operating margins of first two months by considering the operating revenue and operating cost of the first two months only in accordance with the discussions made supra. Appeals of the assessee are treated as allowed for statistical purposes.
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2020 (6) TMI 427
Deduction u/s. 80IC - Claim for 8th Year from the initial assessment year - substantial expansion having been made in the Plant machinery within the specified period as provided in the Act and having fulfilled all the condition for claiming deduction @ 100% for further 5 years the appellant had claimed deduction U/s. 80IC for which Audit report in Form No 10CCB was also furnished - HELD THAT:- Since the appeal of the assessee is covered by its own order by the judgment of the Tribunal in A.Y. 2013-14 and the ld. CIT(A) allowed the appeal of the assessee as accepted the claim of the appellant and has allowed Deduction @ 100% u/s 80IC Book profit u/s 115JC - set off of tax credit u/s 115JD for tax paid in earlier year on book profit - HELD THAT:- We direct the Assessing Officer to compute the book profit u/s 115JC of the Act and allow the set off of tax credit u/s 115JD for taxes paid by the assessee in earlier years on book profit in accordance with law. Statistical purposes the additional grounds raised by the assessee is allowed. Order is being pronounced after 90 days of hearing - HELD THAT:- Taking note of the extraordinary situation in the light of the Covid-19 pandemic and lockdown, the period of lockdown days need to be excluded. For coming to such a conclusion, we rely upon the decision of the Co- ordinate Bench of the Mumbai Tribunal in the case of JSW Limited [ 2020 (5) TMI 359 - ITAT MUMBAI ]
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2020 (6) TMI 426
Non granting of exemption to the Appellant u/s.12AA - assessee failed to file documentary evidences to enable him to bring satisfaction about the genuineness of the assessee-trust activities - AR submitted before us that assessee had already submitted all the required documents which were not considered by ld.CIT(E) - HELD THAT:- This matter requires reconsideration at the level of Ld.CIT(E). Since according to assessee, the assessee had already submitted the required documents before Ld.CIT(E), but the same do not find mention in the order. Therefore, it can be inferred that those documents filed by the assessee were not considered. The principle of audi alteram partem is the basic concept of natural justice. The expression audi alteram partem implies that a person must be given an opportunity to defend himself. This principle is sine qua non of every civilized society. The right to notice, right to present case and evidence, right to rebut adverse evidence, right to cross examination, right to legal representation, disclosure of evidence to party, report of enquiry to be shown to the other party and reasoned decisions or speaking orders. We took this guidance for right of hearing, from the ratio as is laid down by the Hon'ble Supreme Court in the case of Maneka Gandhi v. Union of India [1978 (1) TMI 161 - SUPREME COURT] wherein Hon'ble Supreme Court has laid down that rule of fair hearing is necessary before passing any order. We restore it back to Ld.CIT(E) and direct that all the documents filed by the assessee be considered and assessee be given one more opportunity of being heard and to file any other documents before the Ld.CIT(E), Ahmedabad as called for and the Ld.CIT(E) is also directed to decide the application for registration filed by the assessee - Decided in favour of assessee for statistical purposes.
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Customs
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2020 (6) TMI 425
Valuation - rejection of declared value - import of Synthetic Rubber PBR Non Oil Off Grade Loose Lumps in Super Sacks Packing - Confiscation - Penalty - HELD THAT:- The CIPET Test Report supports the correct description of the impugned goods in the Bills of Entry, which is rather more detailed than mentioned in the CIPET Report and thus there is no misdescription. We also find that there is no admission of Appellant admitting to undervaluation, or of any extra financial consideration apart from the declared transaction value, paid to the overseas supplier. Further, there is no evidence that the appellant and overseas supplier are related parties or that the invoice value was not the transaction value. The Department has failed to show any contemporaneous evidence of higher price, and thus the transaction value cannot be rejected, as held by the Hon ble Apex Court in COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, NOIDA VERSUS M/S. SANJIVANI NON-FERROUS TRADING PVT. LTD. [ 2018 (12) TMI 738 - SUPREME COURT] and COMMISSIONER OF CUSTOMS, CALCUTTA VERSUS SOUTH INDIA TELEVISION (P) LTD. [ 2007 (7) TMI 9 - SUPREME COURT] . The allegation of undervaluation cannot be sustained - Appeal allowed - decided in favor of appellant.
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2020 (6) TMI 424
EPCG Scheme - import of the Mercedes car - allegation for use for personal purpose of director - concessional rate of Customs Duty - N/N. 97/2004CUS - export of service under Tour and Travels services as per prevailing the import export policy - Circular No. RE-08/20032004 dated 7 May 2008 - HELD THAT:- since the imported capital good being a car which is a movable capital equipment and there is no allegation in the show cause notice or in the findings given in the order-in-original that the capital goods imported under the EPCG licence have been found in possession of the importing firm and its Director and was found parked at the residence of the Director - there are no violation of the condition of the EPCG licence has been done on this count as the vehicle found in the possession of the importing firm and no evidence have been adduced by the Department to sustain their claim that it was not used for the purpose for which it has been allowed to be imported by the EPCG licence on concessional rate of customs duty. The export obligation fulfillment documents have been accepted by the Additional Director General Foreign Trade and at the same time, it is also found that imported capital goods namely car in this case under EPCG licence was imported validly declaring all the relevant facts and subsequently also there has been no violation of any of the conditions of EPCG/Customs Notification, the impugned order-in-original is devoid of any merits and therefore the same is set aside. Appeal allowed.
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2020 (6) TMI 423
Maintainability of appeal - time limitation - appeal rejected on the ground that same has not been filed in time as provided under Section 128 of the Customs Act, 1962 which required that an appeal need to be filed before Commissioner (Appeals) within a period of 60 days from the date of the communication of the order-in-original - HELD THAT:- Even if the order of final assessment has been sent by the registered post to their Johari Bazar address same cannot be considered as the proper service of the order as per the provision of Section 153 of the Customs Act, 1962. Since the appellant were not available at the given address, we find that date of receipt of the order need to be taken as 25 July 2015 on which the order was actually been provided to the appellant and statutory time limit may be calculated from this date as provided under Section 128 of the Customs Act, 1962. Since the appeal has been filed well within 60 days from 25 July 2015, the Commissioner (Appeals) has erred in not considering the date of receipt of the order by the appellant as the relevant date for calculating the period of 60 days and therefore we find no merit in the Commissioner (Appeals) order and therefore set aside the same. The appeal is remanded back to the Commissioner (Appeals) for hearing the matter on merit - appeal allowed by way of remand.
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Insolvency & Bankruptcy
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2020 (6) TMI 422
Liquidation of Corporate Debtor - section 33(1) and (2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- In the instant case, the CoC has estimated the liquidation cost at ₹ 9,50,000/- (refer minutes of 7th CoC meeting dated 13-12-2019). However, the CoC has not estimated the value of the liquid assets under Regulation 39B(2) of the CIRP Regulations, 2016 and has not approved a plan providing for contribution for meeting the difference between the estimated value of the liquid assets and estimated liquidation costs. The Liquidator will, therefore, take necessary action under Regulation 2A of the Liquidation Process Regulations, 2016 - The CoC has not made any assessment of sale as a going concern under Regulation 39C of the CIRP Regulations, 2016. The Liquidator will, therefore, take necessary action under Regulation 32A(3) of the Liquidation Process Regulations, 2016. It is directed that all the directions/requirements and provisions of Chapter III of the Code and Liquidation Process Regulations, 2016 shall be strictly complied with.
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PMLA
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2020 (6) TMI 421
Grant of Bail - Money Laundering - scheduled offences - submissions of applicant is that the applicant is an innocent person and has been falsely implicated in the case, he is having no previous criminal history and in jail since 07.01.2020 - HELD THAT:- The schedule offence was registered on 30.11.2007 by the CBI and the applicant co-operated in the aforesaid schedule offence and thereafter, charge sheet was filed before the Special Judge, CBI (Central), Lucknow on 06.10.2009, then the applicant surrendered before Special Judge, CBI (Central), Lucknow and he was released on bail on 15.12.2009, thereafter, the Enforcement Directorate registered the ECIR on 31.03.2010 and started investigation, but the applicant was not taken into custody under Section 19 of The Act and no Provisional Attachment Order under Section 5 of The Act was issued by the Enforcement Directorate in relation to the property related to the proceed of crime, his statement under Section 50 of The Act was recorded on different occasions and after eight years from the date of registering of ECIR, the complaint under Section 45 of The Act was filed on 28.09.2018 before the Sessions Judge/Special Judge PMLA, Lucknow, but merely on the basis of statement of the applicant and other accused persons, the complaint has been filed as no any statement of witness in support of the case as mentioned in para 4.5 etc. is annexed to the complaint and it was informed by the counsel for the Directorate of Enforcement that all the witnesses will be called and examined before the trial court as the applicant is in jail since 07.01.2020 and the maximum punishment provided for the offence under Section 4 of The Act is seven years, therefore, without expressing any opinion on the merits of the case, the applicant is entitled to be released on bail. Let applicant Vinod Kumar Mishra be released on bail in the aforesaid Case Crime on his furnishing personal bond amounting to ₹ 3,00,000/- and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to conditions imposed.
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Service Tax
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2020 (6) TMI 420
Permission for withdrawal of appeal - Manpower recruitment or supply agency - HELD THAT:- The permission is granted for withdrawal of appeal - appeal dismissed as withdrawn.
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2020 (6) TMI 419
Commercial or industrial construction service - service tax liability of the sub-contractor - mis-statement of facts or not - extended period of limitation - HELD THAT:- The matter stands decided on merit in favour of the Department vide the decision of this Tribunal s Larger Bench in the case of COMMISSIONER OF SERVICE TAX VERSUS MELANGE DEVELOPERS PVT. LTD. [ 2019 (6) TMI 518 - CESTAT NEW DELHI] herein it has been held that in the scheme of service tax the every individual service provider need to discharge his service tax liability and since the scheme of Cenvat credit is very much available to all the service provider as per the chain of events, the credit of the service tax paid by the sub-contractor can be availed by the principal service provider. Extended period of limitation - HELD THAT:- Since the issue has been under dispute and there have been several interpretation regarding the service tax liability of the sub-contractor where the main contractor has paid the service tax on the entire value of the service. It cannot be alleged that there have been element of fraud, collusion, willful mis-statement or suppression of acts with an intent to evade service tax, the demand in such circumstances can only be confirmed for the normal period of demand as provided under Section 73 (1) of the Finance Act, 1994. Insofar as the demand of the service tax on merit is concerned, the appeal of the appellant is dismissed, however, the period of demand need to be restricted on the normal period of demand as per the Section 73 (1) of the Finance Act, 1994 - appeal allowed in part.
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2020 (6) TMI 418
Demand of service tax - amount earned for executing corporate guarantee in favour of their sister - non imposition of penalty for the preferential location charges recovered from the flat owners - Revenue alleges that the such activity is taxable under Banking and Finance Institution Services whereas the appellant is contesting that they are not liable to pay service tax on the said activity as they have not received any consideration for providing corporate guarantee to various banks on behalf of their associates - HELD THAT:- It is an admitted fact that the appellant has not received any consideration from either from the financial institutions or from their associates for providing corporate guarantee, in that circumstances, no service tax is payable by the appellant. Moreover, the demand raised in the show cause notices are on the basis of assumption and presumption presuming that their associates have received the loan facilities from the financial institution at lower rate, therefore, the differential amount of interest is consideration, but there is no such evidence produced by the revenue on that behalf. The appellant is not liable to pay any service tax on corporate guarantee provided by the appellant to various banks/financial institutions on behalf of their holding company/associate enterprises for their loan or over draft facility under Banking and Financial Institutions after or before 01.07.2012 - the demand of service tax on corporate guarantee provided by the appellant is set aside. Imposition of penalty - HELD THAT:- The charges leviable on account of prime location charges etc., the appellant has already paid service tax along with interest before issuance of the show cause notice. Therefore, in terms of Section 73(3) of the act, the proceedings were not required to be initiated against the appellant, therefore, penalty imposed on the appellant is set aside. Appeal allowed - decided in favor of appellant.
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Central Excise
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2020 (6) TMI 417
Classification of goods - Light Diesel Oil (LDO) - it was held by Tribunal that While it is wrong to test the product LDO against the parameters prescribed in IS 1460:2000 which applies solely to HDO after 2008, it is seen that the test reports of the appellant do not cover a large number of parameters prescribed in IS 1460:2000. The same also applies to the parameters available in IS 15770:2008. HELD THAT:- The appeal is without any merits - appeal dismissed.
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2020 (6) TMI 416
CENVAT Credit - manufacture of taxable as well as exempt goods - iron ore fines - period April 2015 to June 2016 - Rule 6 (3) of the Cenvat Credit Rules, 2004 - HELD THAT:- The issue is no longer res-integra as it has already been decided in several decisions of this Tribunal that iron ore fines which emerges during the course of manufacture of sponge iron ore are in unavoidable and inevitable by-product and therefore same does not fall under the category of manufacture goods and accordingly same are not excisable. Thus, such goods cannot be considered as exempted goods and provisions of Rule 6 of the Cenvat Credit Rules, 2004 are not applicable - reliance can be placed in the case of CCE, RAIPUR (CG.) VERSUS M/S. SARDA ENERGY AND MINERALS LTD. [ 2013 (12) TMI 859 - CESTAT NEW DELHI] . Appeal allowed - decided in favor of appellant.
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