TMI Tax Updates - e-Newsletter
August 21, 2024

Case Laws in this Newsletter:

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

TMI Short Notes

1. Stay of Tax Demand: Interpreting the Discretionary Power u/s 220(6) of the Income Tax Act

  Income Tax:

2. Interpreting "Technical Services" under Tax Treaties: A Comprehensive Analysis

  Income Tax:

Articles

1. Granting of hearing opportunity is mandatory under Section 75(4) before passing of adverse order

   By: Bimal jain

2. REJECTION OF DISSOLUTION OF CORPORATE DEBTOR

   By: DR.MARIAPPAN GOVINDARAJAN

News

1. Deposit Insurance: Keeping Pace with the Changing Times (Valedictory address delivered by Shri M. Rajeshwar Rao, Deputy Governor, Reserve Bank of India - August 14, 2024 - at IADI Asia-Pacific Regional Committee International Conference 2024 hosted by Deposit Insurance and Credit Guarantee Corporation (DICGC) at Jaipur)

2. India Australia RISE Accelerator calls for Start-ups and MSMEs in Climate Smart Agritech

3. Union Finance Minister Smt. Nirmala Sitharaman chairs the review meeting of the Regional Rural Banks (RRBs) in New Delhi

4. Union Finance Minister Smt. Nirmala Sitharaman chairs meeting to review performance of Public Sector Banks in New Delhi

Notifications

DGFT

1. 24/2024-25 - dated 19-8-2024 - FTP

Export of Non-Basmati White Rice under ITC(HS) code 10063090 to Malaysia through National Cooperative Exports Limited (NCEL)

Money Laundering

2. S.O. 3508(E) - dated 19-8-2024 - PMLA

Designation and Jurisdiction of Special Court under the PMLA in Kerala - Amendment in Notification No. S.O. 372(E), dated the 5th February, 2016

Circulars / Instructions / Orders

SEBI

1. SEBI/HO/ ITD-1/ITD_CSC_EXT/P/CIR/2024/113 - dated 20-8-2024

Cybersecurity and Cyber Resilience Framework (CSCRF) for SEBI Regulated Entities (REs)

2. SEBI/HO/AFD/AFD-POD-1/P/CIR/2024/112 - dated 19-8-2024

Guidelines for borrowing by Category I and Category II AIFs and maximum permissible limit for extension of tenure by LVFs

3. SEBI/HO/AFD/AFD-POD-1/P/CIR/2024/111 - dated 19-8-2024

Modalities for migration of Venture Capital Funds registered under erstwhile SEBI (Venture Capital Funds) Regulations, 1996 to SEBI (Alternative Investment Funds) Regulations, 2012

GST - States

4. CCT/26-4/2024-25/G/1610 - dated 30-7-2024

Clarification on the provisions of Clause (ca) of Section 10(1) of the Integrated Goods and Service Tax Act, 2017 relating to place of supply of goods to unregistered persons

5. CCT/26-4/2024-25/G/1611 - dated 30-7-2024

Clarification on valuation of supply of import of services by a related person where recipient is eligible to full input tax credit

6. CCT/26-4/2024-25/G/1612 - dated 30-7-2024

Clarification on time limit under Section 16(4) of CGST Act, 2017 in respect of RCM supplies received from unregistered persons

Highlights / Catch Notes

GST

• Uniform tax interpretations: CGST audit to consult policy wing before issuing show cause notice over divergent trade practices.

  Circulars : The Board directs that during audits, when the CGST Audit Commissioner encounters a scenario where an issue involves differing interpretations of the CGST Act, Rules, notifications or circulars, leading to non-payment or short payment of tax, and the taxpayer is following a prevalent trade practice based on a particular interpretation, the Zonal Chief Commissioner should make a self-contained reference to the relevant policy wing (GST Policy or TRU) before concluding the audit. This should be done as early as feasible before issuing a show cause notice. The aim is to promote uniformity and avoid litigation, especially if the matter may be placed before the GST Council. This procedure applies to ongoing audits as well.
  Visit to Get Source

  ---

• Jurisdictional Limits on Appellate Authority for Delay in Appeals u/s 107(4) of the 2017 Act.

  Case-Laws - HC : The judgment addresses the jurisdiction and competence of the Appellate Authority u/s 107(4) of the Act of 2017 to condone delays in filing appeals against decisions or orders passed by an adjudicating authority beyond the prescribed time limit. The Court relied on the Supreme Court's decision in Bengal Chemists and Druggists Association v. Kalyan Chowdhury, which interpreted a similar provision in the Companies Act, 2013. It held that the Appellate Authority cannot entertain an appeal u/s 107 if it is filed beyond four months from the date of communication of the decision or order. While the High Court has extraordinary jurisdiction to condone delays in exceptional circumstances to prevent gross injustice, the reasons provided by the petitioner were found insufficient to warrant such exercise. Consequently, the writ petitions were dismissed as lacking merit.
  Visit to Get Source

  ---

• Refund claim rejected on technicality; courts intervened to review interpretation & evidence, remanding case for fresh decision.

  Case-Laws - HC : Refund claim rejected solely on non-compliance of time limit u/s 34(2) of Central Goods and Services Tax Act, 2017. Appellant authority noted facts, grounds, submissions but dismissed appeal without addressing misinterpretation of Section 34(2) raised by appellants. High Court quashed orders of authorities, remanded matter to consider refund application u/s 54 based on documents, undisputed TPL certificate, and pass order in accordance with law. Petition disposed.
  Visit to Get Source

  ---

• Dismissing refund plea, Court upholds reasoned order; directs statutory appeal route over writ jurisdiction.

  Case-Laws - HC : High Court rejected petitioner's writ petition challenging refund rejection order, observing that respondent authority had passed reasoned order after considering petitioner's reply and deficiencies in refund application. Court held that petitioner ought to have availed statutory appeal remedy instead of directly approaching Court. Under Article 226, High Court's jurisdiction in certiorari is supervisory, limited to correcting errors of jurisdiction or natural justice violations, not re-appreciating evidence. Appellate forum offers wider canvas than writ jurisdiction. Petition dismissed, with liberty to pursue statutory appeal.
  Visit to Get Source

  ---

• Natural Justice Breach: Order Issued Without Petitioner's Response Due to Lost Documents; Disciplinary Action Considered.

  Case-Laws - HC : Violation of principles of natural justice by the respondents. Impugned order passed without giving opportunity to petitioner to reply to show cause notice. Non-receipt of documents hindered petitioner's reply. Respondents lost original documents admittedly taken from petitioner, prejudicing petitioner's rights - a serious matter requiring action. Commissioner directed to explain why disciplinary action should not be taken against him and concerned officers for losing documents. Order forwarded to CBIC, Principal Secretary, and Chief Commissioner for information and necessary action. Respondents to show cause for making false statement about not having records contradicted by Commissioner's affidavit stating documents received but lost. Matter adjourned.
  Visit to Get Source

  ---

• Tax transit goods detention if compliance lapses; paid u/s 129 adjustable in returns.

  Case-Laws - HC : The impugned circular dated 13.04.2018 does not lead to double taxation. Section 129 aims to recover tax on goods in transit where statutory compliance for removal was not met. The tax collected at detention stage is the tax payable in returns. If excess tax is paid in GSTR-3B after detention and payment u/s 129, the supplier can claim refund. The petitioner's apprehension of double taxation is misplaced, and the writ petitions are dismissed by the High Court.
  Visit to Get Source

  ---

• Business faces tax filing delay backlash, court offers reprieve on penalty condition.

  Case-Laws - HC : The petitioner challenged orders u/s 62 of the TNGST Act for failing to furnish returns from April to July 2023 within the prescribed period. The High Court held that considering similar circumstances where the petitioner was granted an opportunity upon payment of 25% of the differential tax, it directed the petitioner to deposit 25% of the differential tax between the tax remitted in GSTR 3B and the assessed tax within two weeks. If such tax is paid, the assessing officer shall redo the assessment after hearing the petitioner. The impugned order was set aside, and the assessing officer was directed to consider the impact of the amendment and pass fresh orders on merits in accordance with the law. The petition was disposed of.
  Visit to Get Source

  ---

• GST notices quashed over clerical error, petitioner to pay 15% disputed tax for fresh hearing.

  Case-Laws - HC : Challenge to an order issued under Form GST DRC-07 for the difference in tax amount between GSTR 3B and GSTR 1. The impugned orders were passed without considering the petitioner's reply, violating the principles of natural justice. The court held that the respondent failed to consider the petitioner's reply, which stated a clerical error in GSTR 3B and correct filing of GSTR 1, supported by necessary bills. Consequently, the impugned orders were set aside, and the matter was remanded for fresh consideration on the condition that the petitioner pays 15% of the disputed tax within four weeks. The petition was disposed of by way of remand.
  Visit to Get Source

  ---

• Financial crisis led to GST default, court restores registration to enable business & tax compliance.

  Case-Laws - HC : GST registration cancellation due to default in payment caused by financial crisis. Court set aside cancellation order, directing restoration of registration to enable business operations, filing returns, and remitting statutory dues as per law. Petition disposed, allowing petitioner to continue business and facilitate tax collection by the state.
  Visit to Get Source

  ---

• Court Rules GST Not Applicable on Maldives Exports; Orders Reimbursement of Taxes, Interest, and Penalties.

  Case-Laws - HC : Key issues of levy of GST on export of goods to the petitioner's Maldives office, zero-rate supplies, fixed establishment, location of recipient and supplier of services. The court held that the petitioner and respondent had fixed establishments in Addu City, Maldives, and the petitioner was re-registered there, not constituting a separate legal entity. The scope of judicial review was discussed, and the court found that the immovable property and place of supply were in Maldives, outside India. Section 13(4) of the IGST Act governs such cases where the supply, location of recipient and supplier are outside India, precluding GST levy u/ss 9 of CGST Act or 5 of IGST Act. Consequently, the impugned orders were set aside, and the respondents were directed to reimburse the GST, interest and penalty paid by the petitioner within 90 days.
  Visit to Get Source

  ---

• Tax assessment order challenged; HC grants interim protection, questions notification's legality.

  Case-Laws - HC : Interim protection granted by High Court against coercive action based on assessment order pending challenge to notification No. 56/2023 issued u/s 73(9) of CGST Act, 2017. Court prima facie observed notification may be ultra vires Section 168A. Examination required regarding applicability of force majeure based on GST Council meeting minutes. Respondents directed to file affidavits by 19.08.2024. No coercive action permitted till next date based on impugned assessment order dated 05.05.2024.
  Visit to Get Source

  ---

• High Court dismisses plea on reversing input tax credit availed by buyer due to factual dispute, not jurisdictional error.

  Case-Laws - HC : Petition dismissed by High Court regarding reversal of input tax credit. Court found it was not a case where authorities proceeded on assumption that input tax credit was wrongly availed by buyer despite existence of seller/supplier. Factual dispute raised, not jurisdictional issue or violation of natural justice principles. Petitioner granted liberty to pursue alternative remedy.
  Visit to Get Source

  ---

Income Tax

• Employees' stock purchase at face value trumps FMV for tax despite valuation report if shares locked-in.

  Case-Laws - HC : Shares granted under Employees Stock Purchase Scheme (ESPS) had a lock-in period and could not be traded in the open market. The Fair Market Value (FMV) could not exceed the face value of INR 15 due to the restriction on marketability and tradeability. The Valuation Report by the employer for withholding tax purposes could not be considered for determining FMV. The quoted price or Valuation Report had no application for shares subject to lock-in and sale embargo. The value of stock purchase option exercised by the employee is reckoned at face value, not the market price difference from the cost paid to the employer. The High Court ruled in favor of the assessee, affirming that face value alone is conclusive for taxation purposes.
  Visit to Get Source

  ---

• Court Invalidates Reassessment Notices: Electronic Filing Errors Don't Justify Reopening Beyond 6-Year Limit.

  Case-Laws - HC : The High Court quashed the reassessment notices issued u/s 148 and the consequent initiation of reassessment proceedings, ruling in favor of the assessee. The key points are: 1) Failure to electronically upload Form 10CCB cannot lead to the conclusion that the assessee failed to make a full and true disclosure, as required for reopening assessment u/s 147. 2) For the assessment years 2013-14 and 2014-15, the reassessment action was initiated beyond the maximum permissible period of six years u/s 149, rendering it invalid. 3) Section 80-IA(7) prior to its amendment in 2020 only required furnishing the audit report along with the return, and failure to electronically file it u/r 12 cannot be considered fatal to the claim u/s 80-IA. 4) The requirement of furnishing the audit report before the specified date u/s 44AB was introduced only in 2020, and the court left open the question of its impact post-2020. 5) Section 10B(8) has more imperative language than Section 80-IA(7) regarding furnishing declarations before the due date u/s 139(1).
  Visit to Get Source

  ---

• Clarification Sought on Time Limits u/ss 144C and 153 of Income Tax Act; Awaiting Supreme Court's Decision.

  Case-Laws - HC : This case deals with the applicability of Section 153, the limitation provision, to proceedings u/s 144C of the Income Tax Act. The key issues are whether the 11-month period envisaged u/s 144C should be in addition to the time limit prescribed u/s 153(1) read with Section 153(4), or whether it needs to be subsumed within the timelines stipulated u/s 153. The High Court observed that the Supreme Court is currently considering this issue arising from decisions of various High Courts, including the present case. The Revenue has issued circulars seeking adjournments in pending cases involving this issue before the Income Tax Appellate Tribunal, awaiting the Supreme Court's decision. Regarding interim relief, the High Court noted that assessees in similar cases have succeeded before the Madras and Delhi High Courts, and the Supreme Court has not stayed those orders setting aside the assessment orders. Consequently, the High Court continued the ad-interim order dated 28 June 2024 till the final disposal of this petition.
  Visit to Get Source

  ---

• Tribunal Rules in Favor of Taxpayer: Improper Stock Differences Added as Unexplained Expenditure, Order Reversed.

  Case-Laws - HC : The assessee's reconciliation explained total purchases, including capital goods and purchase returns, tallying with recorded purchases. The Tribunal correctly held that the Assessing Officer lacked relevant workings of the stock difference determined during the search by the Investigation Wing. The Assessing Officer erroneously made additions towards the stock-in-trade difference u/s 69C of the Act as unexplained expenditure, purely based on surmises and suspicion without supporting evidence. Even the Assessing Officer did not have the benefit of relevant workings of the stock difference arrived at during the search. The Assessing Officer was directed to delete the additions made towards the stock-in-trade difference u/s 69C. The decision favored the assessee.
  Visit to Get Source

  ---

• Directors Cleared of TDS Delay Charges; No 'Principal Officer' Designation or Default Proven.

  Case-Laws - HC : Delay in deposit of TDS led to a complaint against the company and its directors for an offense u/ss 276B and 278B. However, the TDS was deposited with interest u/s 201(1A). No notice was issued to treat any director as a 'Principal Officer' u/s 201(3), nor was any order passed deeming them 'assessee in default'. For the relevant assessment year, the company was held not to be an 'assessee in default'. No penalty was imposed on the company or directors u/s 221 for failure to pay tax. The directors' roles regarding consent, connivance, or negligence u/s 278B(2) were not established. Prosecuting the directors would amount to abuse of process when the revenue chose not to invoke Section 221 against the company or principal officer. Relying on K.C. Builders case, the petition was allowed.
  Visit to Get Source

  ---

• Tribunal's lack of reasoning on multiplicative rate application under Sec 50C led to order being set aside.

  Case-Laws - HC : Section 50C's multiplicative rate applicability was challenged. The Income Tax Appellate Tribunal affirmed the Commissioner's order applying a factor of "1" to the property sold by the assessee. However, the Tribunal failed to provide reasoning, even rudimentary, for affirming the Commissioner's findings. Consequently, the High Court allowed the appeal, set aside the Tribunal's order, and remanded the matter for fresh adjudication by the Tribunal, leaving all questions open for consideration.
  Visit to Get Source

  ---

• Ruling: Valuation consistency intact, but market reality trumps average pricing for stock valuation.

  Case-Laws - HC : The High Court examined the method of valuation of stock and the application of the principle of consistency and regularity. It held that while the principle of consistency remains the same across assessment years, the valuation may change due to fluctuations in market prices and sale prices. The court agreed with the Assessing Officer's view that the average market price could not be used by the assessee because sale prices vary yearly. Regarding the decision in CIT vs. British Paints India Ltd, the court clarified that it was based on specific facts and cannot be treated as a binding precedent in all cases where sale prices change annually. The court ruled in favor of the revenue on both issues related to the method of stock valuation.
  Visit to Get Source

  ---

• Gift from NRI relative through NRE account proved genuine, taxed incorrectly. Double taxation of interest income.

  Case-Laws - AT : Non-resident Indian donor gifted funds to assessee through cheques from NRE account, proving identity, creditworthiness, and genuineness. Assessing Officer made addition to assessee's income by treating gift as income, which was incorrect as gift from relative is not taxable. Interest income from other sources was also doubly added by AO while processing return, leading to double taxation. ITAT directed AO to delete both additions as gift was genuine and interest income was already included in return, allowing assessee's appeals on both grounds.
  Visit to Get Source

  ---

• Taxpayer's Failure to Report Exempt Agricultural Income Leads to Dismissal of Appeal Due to Lack of Rectifiable Error.

  Case-Laws - AT : The CPC correctly processed the return of income u/s 143(1)(a)(ii) read with Explanation (a)(i) and (a)(ii). The assessee failed to report agricultural income of Rs. 1,15,69,580 as exempt in Schedule-EI. Despite a proposed adjustment communication, the assessee did not respond within 30 days. The CPC was justified in making the adjustment as the claim was inconsistent with the return. Rectification u/s 154 is not obligatory if clear data is unavailable, relying on Anchor Processing Pvt. Ltd. The assessee did not revise the return u/s 139(5). The appeal against the section 154 order has a narrow scope, precluding merit examination. The assessee conceded the mistake before CIT(A), leaving no arguable case. No patent error amenable for rectification exists, warranting dismissal of all grounds raised.
  Visit to Get Source

  ---

• Tribunal Grants Refund with Interest, Rules Against Retroactive Interest Denial for Late Tax Return Filing.

  Case-Laws - AT : The Assessing Officer (AO) denied interest u/s 244A for the period from April 2006 to January 2008, citing delay attributable to the assessee in filing the return. The assessee had filed the return on 08/01/2008, after the due date of 30/09/2006. The AO later invoked Section 154 to rectify the alleged mistake of granting excess interest for the 22-month period, assuming jurisdiction erroneously. However, the Tribunal held that such a mistake cannot be rectified u/s 154, as the proposed amendment is effective from 01/06/2016, while the return was filed on 08/01/2008. Additionally, the payer had deducted tax at source, benefiting the revenue irrespective of the return filing date. The refund with interest was granted after the assessee's appeal, and the Coordinate Bench ruled against rectification u/s 154 in similar cases.
  Visit to Get Source

  ---

• Audit Error Leads to Reassessment: Tribunal Remands Case for Corrected Audit Report, Setting Aside Initial Tax Orders.

  Case-Laws - AT : This case pertains to the validity of an order passed u/s 250 by the Commissioner of Income Tax (Appeals) regarding the disallowance of expenditure due to a typographical mistake in the audit report. The assessee's appeal was dismissed by the CIT(A) on the grounds that the assessee did not provide an explanation or a certificate from the auditor confirming the typographical error. However, before the Tribunal, the assessee filed a corrected audit report. Considering it as a case of a typographical mistake by the auditor, the Tribunal remanded the matter back to the Assessing Officer to assess the income based on the corrected audit report filed by the assessee. The orders of the CIT(A) and the Assessing Officer were set aside, and the assessee's appeals were allowed for statistical purposes.
  Visit to Get Source

  ---

• Transfer pricing adjustment in EPC firm's IPM segment: Issues with comparable selection based on profitability, functionality & FAR test.

  Case-Laws - AT : Comparable selection for transfer pricing adjustment in the Information Process Management (IPM) segment was examined. UB Engineering Ltd. with negative operating margin of 46.58% was rejected as profitability is not a criteria, and future years' data was considered. Holtec Consulting Pvt. Ltd. and Neil Soft Ltd. were excluded as their functionality differed from the assessee, an Engineering, Procurement, and Construction (EPC) company. Info Edge India Ltd., an online search portal with substantially higher turnover, was rejected due to failing the Functional Asset Risk (FAR) test. The assessee's appeal was partly allowed, upholding certain comparables while rejecting others based on functional dissimilarities and FAR analysis.
  Visit to Get Source

  ---

• Income Disclosures, ESI Deposit, and Property Income: ITAT Affirms Decisions on Additions and Disallowances.

  Case-Laws - AT : Non-disclosure of income from maintenance charges was challenged. The assessee followed the mercantile system of accounting, and non-receipt of maintenance charges cannot be the basis for not crediting income. The CIT(A) deleted the addition, and the ITAT upheld the order, citing a lack of evidence suggesting the assessee received the maintenance charges. Late deposit of ESI funds was disallowed u/s 36(1)(va) based on the Supreme Court's judgment in Checkmate Services P. Ltd, which held that employees' contributions not paid within the due date are not allowable. The ITAT set aside the CIT(A)'s order and restored the AO's order. Regarding the disallowance u/s 14A, the addition was restricted to the extent of exempt income, following the Delhi High Court's judgment in Joint Investment Pvt. Ltd. The ITAT affirmed the CIT(A)'s order. The addition made on account of income from house property was deleted by the CIT(A), relying on the Supreme Court's judgment in M/S CHENNAI PROPERTIES & INVESTMENTS LTD and the Delhi High Court's judgment in M/S ANSAL HOUSING FINANCE AND LEASING CO LTD & OTHERS. The ITAT upheld the CIT(A)'s order, citing a lack of contrary material.
  Visit to Get Source

  ---

• Cash deposits during demonetization, though treated as unexplained income, found normal due to established cash sales pattern.

  Case-Laws - AT : The assessee made cash deposits during the demonetization period which were treated as unexplained u/s 69A. However, the Tribunal held that the cash deposits were within the normal trends and practices of the business, with cash sales ranging from 87% to 92% of total sales in previous years. The cash deposited during the financial year 2016-17 was lower at 87.92% compared to earlier years, indicating no variance from the established pattern. As the assessee had sufficient cash balance per the accepted books of accounts, the cash deposits could not be treated as undisclosed income. The Tribunal decided in favor of the assessee.
  Visit to Get Source

  ---

• Interest income not taxed due to late Form 15G/15H filing; no TDS required after submitting forms.

  Case-Laws - AT : Disallowance u/s 40(a)(ia) for late filing of Forms 15G and 15H is not justified. Even if the assessee fails to furnish the declaration forms before the concerned authority, they cannot be penalized for non-deduction of tax. Addition u/s 40(a)(ia) cannot be made when there was no requirement of deducting tax at source, once the declaration forms are submitted before the Assessing Officer u/s 197A(2). The department did not verify whether the payees declared the interest in their income tax returns. The direction of the Commissioner of Income Tax (Appeals) lacks legal foundation. The assessee's appeal is allowed.
  Visit to Get Source

  ---

• Loss of income due to wrong WDV calculation - Genuine mistake, no penalty imposed.

  Case-Laws - AT : Difference between assessed income and returned income arose due to inadvertent error in taking opening written down value (WDV) at book value instead of WDV under Income Tax Act. First Appellate Authority deleted penalty u/s 270A based on Prem Brothers Infrastructure LLP case, holding bona fide error cannot be basis for penalty. Revenue's appeal dismissed, Tribunal affirmed deletion of penalty, stating human error cannot invite penalty imposition.
  Visit to Get Source

  ---

Customs

• Revised tariff values for edible oils, gold, silver, brass scrap imports effective 15th Aug 2024.

  Notifications : This notification from the Central Board of Indirect Taxes and Customs, under the Ministry of Finance, amends the tariff values for import of edible oils like crude palm oil, RBD palm oil, crude palmolein, RBD palmolein, crude soyabean oil, brass scrap, gold and silver. It revises the tariff value tables providing the updated rates for these commodities effective from 15th August 2024. The notification exercises powers u/s 14(2) of the Customs Act 1962 to revise the tariff values periodically based on prevailing prices in international markets.
  Visit to Get Source

  ---

• Appeal Dismissed: Vehicle's Provisional Release Upheld, Compliance with Import Policy and Registration Confirmed.

  Case-Laws - HC : The court dismissed the appeal, upholding the CESTAT's order allowing provisional release of a seized vehicle upon fulfillment of policy condition (II)(iii) of Chapter 87 regarding import of vehicles at the Indian port before clearance for home consumption. The court relied on the Kerala High Court's judgment in Commissioner of Customs vs. Ankineedu Manganti, which held that the approval certificate from VRDE or ARAI under the policy condition is only to ensure compliance with legal requirements for vehicle registration and operation on roads. In the present case, since the vehicle was already registered under the Motor Vehicles Act, 1988, it implied compliance with the stipulations for operation on Indian roads, rendering the policy condition satisfied.
  Visit to Get Source

  ---

• Genuine exporters' claims shouldn't be denied on technicalities if procedural lapses rectified; courts direct authority to consider claims.

  Case-Laws - HC : Petitioner satisfied all requirements to claim benefits under Merchandise Export from India Scheme (MEIS) but failed to declare intent on shipping bills due to inadvertent and bona fide error. Court held that benefits should not be denied on hyper-technical grounds for a procedural lapse subsequently rectified u/s 149 of Customs Act. Petitioner's request was rejected due to system error beyond their control. Court opined that Policy Relaxation Committee should have considered inadvertent error and subsequent rectification. Since petitioner fulfilled prerequisites, court allowed petition and directed respondents to consider MEIS claims electronically/manually in accordance with public notices, respecting 17 shipping bills.
  Visit to Get Source

  ---

• Mis-declared imported car: Customs duty re-determined, no time bar for show cause notice.

  Case-Laws - AT : Section 124 of the Customs Act, 1962 does not impose any time limitation for issuing a show cause notice (SCN) for confiscation or penalty imposition. The appellant's plea of the notice being time-barred u/ss 111(m) or 124 cannot be accepted due to the absence of a time limit envisaged in these provisions. The reliance on the case of COMMISSIONER OF CUSTOMS VERSUS MMK JEWELLERS & ANOTHER is inapplicable as it pertained to a notice u/s 28 and penalty u/s 114(A). Based on the Mumbai Police report, it is evident that the imported car was mis-declared by tampering the chassis number and year of manufacture, warranting value redetermination at Rs.10,86,735/- u/r 5 of the Customs Valuation Rules, 1988.
  Visit to Get Source

  ---

• Tribunal Rules Imported Goods as 'Used Oil' Not Hazardous Waste; Overturns Misclassification and Penalties.

  Case-Laws - AT : The appellate tribunal held that the imported goods cannot be classified as hazardous waste based on the test results. The acidity, ash content, sediment, and water content were within permissible limits, and heavy metals were not detected. The goods appropriately fall under the category of 'used oil' suitable for recycling. The authorities failed to examine the parameters for determining classification as off-specification furnace oil/waste oil or hazardous waste systematically. The appellants' request for re-testing was dismissed without following due process and principles of natural justice. The evidence relied upon by the department to allege misclassification as 'fuel oil' and classification as 'hazardous waste' did not withstand legal scrutiny. The department failed to substantiate the grounds for confiscation, redemption fine, and penalty. Consequently, the tribunal set aside the impugned order and allowed the appeals in favor of the appellants.
  Visit to Get Source

  ---

• Request for Special Brand-Rate Drawback Denied Due to Missed Deadline and Insufficient Documentation.

  Case-Laws - AT : The assessee's request for fixation of special rate of brand-rate drawback was rejected due to non-fulfilment of basic requirements and time limitation. The assessee exported six consignments in 2006 under the claim of drawback at brand-rate and claimed to have filed an application for fixation of special rate u/r 6(1)(a) of the Drawback Rules, 1995. However, the assessee could not produce evidence of filing the application with the Commissioner of Central Excise within the stipulated time-limit u/r 6(1)(a). The application was filed before the proper authority only in 2012, while the exports were made in 2006. The time-limit prescribed u/r 6(1)(a) is a mandatory condition for consideration of the application. Since the assessee did not file the application within the mandatory time-limit or the condonable period, the adjudicating authority rightly rejected the application. The appellate tribunal upheld the order and dismissed the appeal.
  Visit to Get Source

  ---

DGFT

• New eCoO 2.0 System Launches with Multi-User Access, E-Signatures, and Dashboard for Exporters Starting August 2024.

  Circulars : The Trade Notice announces the launch of an enhanced Non-Preferential Certificate of Origin (eCoO) 2.0 system, offering new user-friendly features like multi-user access, e-signature options, and an integrated dashboard. Key implementation dates are provided: onboarding of issuing agencies from August 19-27, 2024, and exporters can file Non-Preferential Certificates through the new system from August 28, 2024. Detailed instructions are given for issuing agencies' administrators and officers regarding account registration, user management, and digital signature setup. Exporters can continue using existing DGFT website credentials. The legacy eCoO 1.0 system will operate simultaneously until transition is complete. An e-Wallet facility is introduced, with existing balances migrating later. Support channels, user guides, and awareness programs are mentioned.
  Visit to Get Source

  ---

• New Features for Exporters: Bulk Upload & API Integration for eBRC Self-Certification Streamline Processes.

  Circulars : The notice introduces two new functionalities for self-certification of electronic Bank Realization Certificates (eBRCs): a bulk upload facility and API integration. The bulk upload allows exporters to generate multiple eBRCs concurrently by uploading a spreadsheet with IRM mapping, Shipping Bill, and invoice details. The API integration enables exporters' ERP or accounting systems to interface directly with the DGFT eBRC system for retrieving IRM/ORM data and requesting/verifying eBRCs. API integration requires online registration, authentication, and credential management by exporters. User manuals, exporter outreach programs, and support channels (helpdesk, email) are provided for assistance. These initiatives aim to streamline operations, reduce complexity, improve ease of doing business, and empower exporters.
  Visit to Get Source

  ---

SEZ

• Govt rescinds SEZ notification for 1.72 ha IT/ITeS area in Pune.

  Notifications : The Central Government rescinds the Notification Numbers S.O. 1401 (E) dated 18.03.2019 and S.O. 4068 (E) dated 24th September, 2021, de-notifying the entire area of 1.72 hectares of the proposed Special Economic Zone for Information Technology and Information Technology Enabled Services at Wagholi and Kharadi Villages, Pune District, Maharashtra. The de-notification is based on the proposal by M/s. AIGP Developers (Pune) Private Limited, the No Objection Certificate from the State Government of Maharashtra, and the recommendation by the Development Commissioner, SEEPZ Special Economic Zone. After de-notification, the land parcel will conform to the State Government's Land Use Guidelines/master plans.
  Visit to Get Source

  ---

IBC

• India Introduces VRIN System for Valuation Reports to Enhance Transparency and Verification in Insolvency Processes.

  Circulars : This circular issued by the Insolvency and Bankruptcy Board of India (IBBI) introduces a Valuation Report Identification Number (VRIN) system for valuation reports conducted by Registered Valuers (RVs) or Registered Valuers Entities (RVEs) under the Insolvency and Bankruptcy Code, 2016. The key points are: IBBI has developed an online module where RVs/RVEs can generate a unique VRIN for each valuation report before submission. RVs/RVEs must mention the VRIN on the front page of the report. A verification facility on IBBI's website allows stakeholders to authenticate reports using the VRIN. The circular applies to all valuation reports dated on or after the circular date, and Insolvency Professionals must not accept reports without a VRIN in such cases. The circular is issued under IBBI's powers under the Insolvency and Bankruptcy Code and related regulations.
  Visit to Get Source

  ---

• Shareholder dispute - Oppression, mismanagement by equal owners. Quasi-partnership principles apply. Casting vote misused for self-interest.

  Case-Laws - AT : Corporate dispute involving allegations of oppression and mismanagement by equal shareholders. Key points: Oppression implies lack of probity or equity, intention behind actions relevant. No majority shareholder, issue of control over management. Appointment/removal of directors not oppression. Quasi-partnership principles applicable. Casting vote misused for personal benefit after dispute arose. Disqualifying both directors impermissible. Removing casting vote justified to prevent one group's control. Equal shareholders entitled to board representation based on shareholding.
  Visit to Get Source

  ---

PMLA

• Anti-money laundering: Securities firms permitted Aadhaar authentication for KYC compliance.

  Notifications : Notification permits 15 reporting entities under Prevention of Money-laundering Act, 2002 to perform Aadhaar authentication as per Aadhaar Act, 2016 for purposes of section 11A after consultation with UIDAI and SEBI. The reporting entities are securities firms complying with privacy and security standards under Aadhaar Act. This enables Aadhaar authentication by these entities for anti-money laundering purposes.
  Visit to Get Source

  ---

SEBI

• New Guidelines Allow Alternative Investment Funds Limited Borrowing and Tenure Extensions for Large Value Funds.

  Circulars : The circular outlines guidelines for borrowing by Category I and Category II Alternative Investment Funds (AIFs) and maximum permissible limit for extension of tenure by Large Value Funds for Accredited Investors (LVFs). Category I and II AIFs can borrow up to 20% of proposed investment or 10% of investable funds or pending commitment from investors, whichever is lower, to meet temporary shortfall in drawdown amount from investors, subject to conditions. A 30-day cooling off period is mandated between two borrowing periods. LVFs can extend tenure up to 5 years with approval of two-thirds unitholders by value, aligning with this requirement within 3 months. Existing LVF schemes can revise original tenure with consent of all investors. The circular supersedes previous conditions for LVF tenure extension and mandates compliance reporting by AIFs.
  Visit to Get Source

  ---

• SEBI Announces Migration Process for Venture Capital Funds to Alternative Investment Funds Regulations by 2025 Deadline.

  Circulars : The circular provides modalities for migration of Venture Capital Funds (VCFs) registered under erstwhile SEBI (Venture Capital Funds) Regulations, 1996 to SEBI (Alternative Investment Funds) Regulations, 2012. It allows VCFs flexibility to migrate as "Migrated VCFs" under AIF Regulations and avail facility to deal with unliquidated investments upon expiry of tenure. Key points are: - VCFs can apply to SEBI for migration by July 19, 2025, by submitting requisite information. - For schemes whose liquidation period hasn't expired, tenure upon migration shall continue as per original PPM or be determined with 75% investor approval. - For schemes not wound up post liquidation period expiry, a one-time additional liquidation period of one year from July 20, 2024 is provided. - Investors, investments, and units issued under VCF Regulations shall be deemed those of Migrated VCF under AIF Regulations. - Regulatory reporting and compliance requirements from AIF Regulations are specified for applicability on Migrated VCFs. - VCFs not opting for migration face enhanced reporting or regulatory action based on status of liquidation period. The circular outlines responsibilities of trustees, sponsors, and managers, and comes into force immediately to facilitate migration of VCFs to AIF regime.
  Visit to Get Source

  ---

Service Tax

• Court Annuls Show Cause Notice on Service Tax for 2013-14 Due to Jurisdictional Error and Unchallenged Scheme.

  Case-Laws - HC : The court held that the show cause notice issued by the respondents alleging non-payment of service tax by the petitioner for the financial year 2013-14 was without jurisdiction. The basis of the show cause notice was that the High Court had approved the scheme of arrangement without considering its contravention to the Finance Act, 1954 and the Rules. However, the court observed that if the respondents were aggrieved by the order approving the scheme, they should have challenged it, but they did not. The order sanctioning the scheme has attained finality. Additionally, the Gujarat High Court had previously quashed a similar show cause notice under the excise law for the same petitioner. Agreeing with the Gujarat High Court's decision, the court exercised its discretion under Article 226 of the Constitution and quashed the impugned show cause notice.
  Visit to Get Source

  ---

• Tribunal: No Service Tax on Commissions via Trade Discounts to Foreign Agents; Appeal Allowed for Assessee.

  Case-Laws - AT : Reverse charge mechanism on commission paid to foreign commission agents does not attract service tax liability. Documentary evidence shows no direct payment made to commission agents by appellant, rather deduction from total invoice value raised on foreign buyer constitutes trade discount. Absence of contractual relationship between appellant and foreign service provider, coupled with lack of direct transaction, precludes service tax demand on commission shown in buyer's invoice. Tribunal relied on precedents in Laxmi Exports and Aquamarine Exports cases, where commission deducted was held as trade discount not subjected to service tax. Issue settled in favor of assessee, demand of service tax on commission deducted in sale invoice to foreign buyer not chargeable. Impugned order set aside, appeal allowed.
  Visit to Get Source

  ---

Central Excise

• Tribunal Confirms Correct Valuation Method for Goods Transferred to Depots, Dismissing Revenue's Appeal.

  Case-Laws - AT : This case deals with the determination of assessable value of goods at the factory gate, which were not sold but transferred to depots. The revenue failed to properly apply Rule 7 of the Central Excise Valuation Rules, 2000 by not adopting the correct sales price prevailing at the depots at or around the time of clearance from the factory. The short payment in the demand notice was due to incorrect application of depot sale invoices, applying the sale price of one depot to clearances meant for another depot. The Tribunal found no reason to interfere with the adjudicating authority's order, as it was based on correct verification of data, and no contrary data was provided by the revenue. The Tribunal upheld the impugned order and dismissed the revenue's appeal.
  Visit to Get Source

  ---

Case Laws:

• GST

• 2024 (8) TMI 955
  Jurisdiction - competence of Appellate Authority under Subsection (4) of Section 107 of the Act of 2017 to condone the delay in filing an appeal against a decision or order passed under the Act by an adjudicating authority beyond a period of one months after the expiry of three months period prescribed for filing appeal under Subsection (1) of Section 107 of the Act of 2017. HELD THAT:- Reliance placed in the decision of BENGAL CHEMISTS AND DRUGGISTS ASSOCIATION VERSUS KALYAN CHOWDHURY [ 2018 (2) TMI 487 - SUPREME COURT ], Hon ble the Supreme Court again considered the same question in the light of Section 421(3) of the Companies Act, 2013, which prescribed a period of forty five days for filing an appeal from the orders of the Tribunal. The proviso appended to Subsection (3), however, conferred discretion on the appellate tribunal to entertain the appeal even after expiry of said period of forty five days provided it was satisfied that the appellant was prevented by sufficient cause for filing the appeal within that period. However, the discretion to condone the delay was restricted to a period not exceeding forty five days after the expiry of the prescribed period of limitation. The question raised in these appeals is answered in favour of the respondents and against the appellant(s) and it is held that the appellate authority cannot entertain an appeal under Section 107 of the Act of 2017 against a decision or order of the adjudicating authority, if it is filed beyond the period of four months from the date such decision or order is communicated to the person aggrieved. The periods of limitation are procedural in nature. Therefore, the prohibition contained in Section 107(4) of the Act of 2017 to condone delay beyond one month cannot come in the way of Constitutional Court exercising extraordinary jurisdiction to render substantial justice. Therefore, while a statutory prohibition is a strong consideration to be kept in mind, yet it does not bar the jurisdiction of the High Court to condone the delay if it is of the opinion that application of delay barring statute would result in gross injustice. Each case is, thus, required to be evaluated on its specific facts and circumstances. The reasons put forth by the petitioner for seeking condonation of delay are only ipsi dixit of the petitioner and do not bring the case of petitioner under exceptional circumstances warranting exercise of extraordinary jurisdiction by this Court to condone the delay - all these writ petitions are found to be without merit, hence dismissed.

  ---

• 2024 (8) TMI 954
  Refund claim - rejection on the sole ground of non-compliance of the time limit prescribed under Section 34 (2) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The appellant authority has noted the statement of facts, grounds of appeal, submissions and discussion but in the conclusion at Paragraph No.26 and 27 has dismissed the appeal by simply saying that appellant is not eligible for refund on account of excess payment paid as per provisions of law. Respondent No.1 has noted in the impugned order that one of the grounds of appeal was that Respondent No. 4 while verifying the refund claim has completely mis-interpreted Section 34 (2) of the CGST Act and has applied it erroneously for rejecting the refund claim. Respondent No.1 has also noted that one of the ground is Section 34 (2) of the CGST Act has no relevance to decide the subject application for refund claim of appellants but does not even deal with the same in the impugned order. The order passed by Respondent No. 4 on 1st December 2020 and Respondent No.1 on 28th July 2021 needs to be quashed and set aside - the matter remanded to Respondent No. 4 to consider the refund application applying provisions of Section 54 of the CGST Act on the basis of documents already supplied and keeping in mind the certificate issued by TPL has not been disputed earlier and pass the order in accordance with law. Petition disposed off.

  ---

• 2024 (8) TMI 953
  Rejection of refund application of the petitioner - order has been passed without any application of mind and without considering the reply filed by the petitioner - violation of principles of natural justice - HELD THAT:- On perusal of the documents that the situation is otherwise, while the respondents have rejected the refund claim application, reasons for rejecting the refund and amount, have been given in the detailed order attached with it. In the detailed order of rejection, after considering the nature of business of the petitioner, the authority has noticed that there were certain deficiencies, as observed in the refund application, which were pointed out to the petitioner. Thereafter, petitioner has failed to meet-out the said deficiencies. It is also noticed that there is a specific provision for filing of appeal against the said order. Petitioner has, however, chosen not to file an appeal and has directly approached this Court. It is well settled that under Article 226/227 of the Constitution of India, the Appellate Authority not acted upon and factual aspects are not required to be examined by us. It is only in rarest of rare cases, when this Court would directly entertain a writ petition, more so, in cases, where there is a blanket violation of provision of law. Moreover, under Article 226 of the Constitution of India, exercising the jurisdiction like an appellate Court, is neither warranted nor appreciated by the Hon ble Apex Court. Thus, as per the dictum of the Hon ble Apex Court, rendered in SYED YAKOOB VERSUS KS. RADHAKRISHNAN [ 1963 (10) TMI 26 - SUPREME COURT] , this Court does not find any substantial reason to deviate from the view point taken by the learned Tribunal. The Hon ble the Apex Court has unequivocally established that the jurisdiction of the High Courts under Article 226, while issuing the writ of Certiorari, is limited. It is primarily aimed at rectifying the errors of jurisdiction or instances of violation of the principles of natural justice. Therefore, it constitutes a supervisory role, and High Courts ought to abstain from assuming the function of an appellate court while dealing with the issue of writ of Certiorari. High Courts should refrain from re-examining the evidence, particularly with regards to its sufficiency or adequacy. While exercising its power under Article 226 of the Constitution, High Court must cause interference only when there is error of law, which requires correction and not in general, when there is error of fact. The canvas at the level of Appellate Authority, is much larger than the scope at the writ petition. The petitioner ought to have failed to avail the remedy of appeal, should have been now, we allow the petitioner to go in appeal, if so advised - petition dismissed.

  ---

• 2024 (8) TMI 952
  Violation of principles of natural justice - Challenge to assessment order - seeking direction to the 1st respondent to remove the attachment of the petitioner s bank account - HELD THAT:- Considering the fact that the impugned assessment order was not at all served on the petitioner in physical form, which is a violation of principles of natural justice and the petitioner came to know about the same only after his bank received a communication from the 1st respondent freezing his bank accounts for recovering the tax demand and also the fact that the petitioner cannot be expected to view the GST web portal, as his registration was cancelled, this Court is inclined to set aside the assessment order passed by the 1st respondent dated 30.12.2023 and the communication of the 1st respondent to the 2nd respondent dated 20.05.2024 and accordingly, the same are set aside on condition that the petitioner shall deposit 10% of the disputed tax demand, within a period of four (4) weeks from the date of receipt of a copy of this order and thereafter, file a reply within a period of two (2) weeks. These writ petition is disposed of.

  ---

• 2024 (8) TMI 951
  Violation of principles of natural justice - impugned order has been passed without giving an opportunity to the petitioner to even reply to the SCN - Non-receipt of documents by the petitioner hindering the reply to the notice - HELD THAT:- By losing the original documents which have been admittedly taken from petitioner, respondents have prejudiced the rights of petitioner. This is a very serious matter which requires serious action. The Commissioner of Central Excise and Central Goods and Services Tax, Pune-1, Dange shall explain why disciplinary action should not be taken against him and the concerned officers for losing original documents. It should be noted that by losing these original documents, respondents have also prejudiced their own case against petitioner. This is a serious issue. Therefore, this order be also forwarded to the Central Board of Indirect Taxes and Customs (CBIC), Principal Secretary, Department of Revenue, Ministry of Finance, Government of India and to the Chief Commissioner to whom the said Dange may report for information and necessary action. Petitioner s advocate is permitted to forward. Respondents are also to show cause why no action be taken against them for making false statement that they do not have records and in affidavit of Dange stating to the contrary that documents were received but lost. Stand over to 19th August 2024.

  ---

• 2024 (8) TMI 950
  Violation of principles of natural justice and non-application of mind - petitioner had not responded to the notice in DRC-01, dated 26.12.2023 - HELD THAT:- While this Court is conscious of the fact that, if there is an alternative remedy, the Court must exercise restraint in entertaining Writ Petition, the same is however a self imposed limitation. Importantly, there are exceptions to the above rule of alternative remedy and one such exception is where the complaint is violation of principles of natural justice. This Court is of the view that the impugned order inasmuch as it suffers from violation of principles of natural justice apart from non-application of mind to the objections/reply filed, thereby, warrants interference. In view thereof, the impugned orders are set aside. The respondent is directed to consider the objections already filed and also grant a reasonable opportunity of hearing to the petitioner and thereafter, pass orders in accordance with law. This writ petition stands disposed of.

  ---

• 2024 (8) TMI 949
  Challenge to impugned circular dated 13.04.2018 - case of the petitioner is that, the petitioner cannot mulct with tax liability twice, once at the stage of detention and other at the stage of payment of tax in the regular returns in GSTR-3B - HELD THAT:- The apprehension of the petitioner that the tax is being levied twice by virtue of the impugned circular and is contrary to Section 129 of the respective GST enactments cannot be countenanced. The purpose of Section 129 as it stood during the material period was to recover tax on such goods in transit, where removal of such goods fell short of any of the statutory compliance required for removal of goods - the tax was to be collected to the extent of tax that was payable in the returns at the stage of detention of such detained goods. Tax is to be debited from an assessee s electronic credit account maintained under the respective GST Act. If a supplier s goods were detained and subjected to tax and penalty under Section 129 of the GST Act as it stood prior to amendment, such supplier is entitled to claim refund of the excess tax, if any, paid in the returns filed in GSTR-3B. Therefore, the apprehension expressed in the writ petitions misplaced and unwarranted. These writ petitions are liable to be dismissed. Accordingly, these writ petitions are dismissed.

  ---

• 2024 (8) TMI 948
  Violation of principles of natural justice - Challenge to assessment order - without assigning any specific or new reasons, the respondent reopened the case and passed the impugned orders for the very same year - excess claim of Input Tax Credit - HELD THAT:- It is an admitted fact that in respect of the issue pertaining to the assessment year 2018-2019, the respondent had already dropped the proceedings after being satisfied with the petitioner s reply submitted by them. Despite this, the respondent reopened the case and issued a show cause notice for the very same assessment year 2018-19, which ultimately ended in passing of the impugned order. Though the petitioner submitted its detailed reply to the said notice, the respondent rejected the same by simply stating not satisfied , without giving any adequate or specific reason. Such course adopted by the respondent is contrary to law and in violation of the principles of natural justice. The order dated 29.04.2024 passed by the respondent is set aside and the respondent is directed to pass a detailed order afresh, on merits and in accordance with law, more specifically addressing each grounds raised by the petitioner in their reply. Such an exercise shall be completed within a period of eight (8) weeks from the date of receipt of a copy of this order. This writ petition is disposed of by way of remand.

  ---

• 2024 (8) TMI 947
  Cancellation of Goods and Service Tax (GST) registration - It is apparent from the impugned SCN that the same does not provide any specific reason for proposing to cancel the petitioner s GST registration - violation of principles of natural justice - HELD THAT:- It is apparent from the impugned SCN that the same does not provide any specific reason for proposing to cancel the petitioner s GST registration. The impugned SCN has merely reproduced Rule 21(b) of the Central Goods and Services Tax Rules, 2017 (hereafter the CGST Rules). The impugned SCN also does not indicate as to which bill or transaction is alleged to be in non-compliance of the statutory provisions. Although, Rule 21(b) of the CGST Rules provides for the cancellation of the GST registration in case the tax payer issues the invoice or bill with out the supply of goods or services in violation of the provisions of the CGST Act. However, the Proper Officer has failed to specify as to which invoice / bill has been allegedly issued by the petitioner without the supply of goods or services. No document is annexed with the impugned SCN which provides any clue as to which allegation is sought to be raised. In the present case, the impugned SCN fails to meet the requisite standards of the show cause notice. Thus, the impugned SCN is liable to be set aside. The impugned SCN is set aside. The respondents are directed to restore the petitioner s GST registration forthwith. It is clarified that this order will not preclude the proper officer from initiating any fresh proceedings, if warranted, in accordance with law - the present petition is allowed.

  ---

• 2024 (8) TMI 946
  Challenge to orders u/s 62 of TNGST Act - petitioner has failed to furnish the Return for the period from April to July 2023 within the prescribed period - HELD THAT:- Considering the fact that this Court, under similar circumstances, has found that the petitioner can be granted one opportunity on payment of 25% of the differential tax, this Court is inclined to direct the petitioner to deposit 25% of the differential tax between the tax remitted in terms of GSTR 3B and that which is arrived at in terms of the order of assessment within a period of two weeks. If such tax is paid, the assessing Officer shall redo the assessment after hearing the petitioner. The impugned order is set aside and the Assessing Officer/respondent shall consider the impact of the above amendment and thereafter, proceed to pass fresh orders on merits and in accordance with law - Petition disposed off.

  ---

• 2024 (8) TMI 945
  Challenge to order in Form GST DRC - 07 - difference of tax amount between GSTR 3B and GSTR 1 - impugned orders passed without considering the reply submitted by the petitioner - violation of principles of natura; justice - HELD THAT:- It is an admitted fact that there was a discrepancy in respect of tax liability of the petitioner in GSTR 1 and GSTR 3B for the month of July, 2021. According to the petitioner, they filed its reply dated 01.11.2022 to the notice issued under section 61 stating that there was a clerical error in GSTR 3B and GSTR 1 has been filed correctly and that, they also produced the necessary bills for the same. However, the respondent has not considered the same on the premise that the reply was filed beyond the stipulated time. Thus, it is evident that the respondent, without considering the reply submitted by the petitioner, passed the impugned orders, which are in violation of the principles of natural justice. The orders impugned herein are set aside and the matter is remanded to the respondent for fresh consideration on condition that the petitioner shall pay a 15% of the disputed tax to the respondent within a period of four weeks from the date of receipt of a copy of this order; and the setting aside of the impugned orders will take effect from the date of payment of the said amount. Petition disposed off by way of remand.

  ---

• 2024 (8) TMI 944
  Cancellation of GST registration - Default in GST payment due to financial crisis - HELD THAT:- This Court is of the view that unless and otherwise the order impugned is set-aside, it is difficult for the petitioner to carry on the business and the State, will not be able to collect the revenues. On the other hand, if the registration is revoked, it will motivate the petitioner to do his business and to pay tax. Taking into consideration all the aspect, this Court is inclined to set-aside the order passed by the first respondent. Hence, the petitioner s GST registration stands restored. Accordingly, the third respondent is directed to restore the GST registration of the petitioner, so as to enable him to file all the returns as well as to remit all the statutory dues in accordance with law. The petition is disposed off.

  ---

• 2024 (8) TMI 943
  Levy of GST on export of various goods to its Maldives office - zero rate supplies - fixed establishment of the petitioner - location of recipient of services and location of supplier of services Fixed Establishment/Separate Legal Entity - HELD THAT:- A careful reading of Section 94 (a) leaves no room for any doubt that an existing company registered outside Maldives needs to get itself re-registered before commencing any business in Maldives. The aforesaid Certificate of Re-registration was obtained by the petitioner as per the requirement of Section 94 (a). It is clear like noon day that same company registered outside Maldives (in India) got re-registered. Thus, it is difficult to hold that merely because petitioner got Certificate of Re-registration under the Maldivian law, the Maldivian entity became a separate legal entity or person. Admittedly, no contract is entered into between respondent Nos.1 and 2 with the re-registered entity of Maldives. In absence thereof, it is difficult to give seal of approval to the finding that the works contract services were rendered at Maldives by independent/separate legal entity. For these cumulative reasons, it is constrained to hold that the petitioner and respondent No.2 had fixed establishments at Addu city, Maldives and the petitioner was re-registered at Addu which is evident from the re-registration certificate. Scope of Judicial Review - HELD THAT:- The parties have rightly placed reliance on the judgment of Supreme Court in the case of APPROPRIATE AUTHORITY AND ANOTHER VERSUS SMT. SUDHA PATIL AND ANOTHER [ 1998 (11) TMI 124 - SUPREME COURT] . As per the said judgment, the interference can be made if (i) High Courts come to the conclusion that in arriving at the conclusion, the authority has failed to consider some relevant material (ii) has considered some extraneous irrelevant materials, (iii) findings are based on no evidence and (iv) the finding is such that no reasonable man can come to such a conclusion on the basis of which the finding has been arrived. Location of recipient of services and Location of supplier of services - HELD THAT:- Admittedly the location of immovable property i.e., ISLES is located in Maldives/outside India. Hence, the place of supply shall determine the location of recipient . As analysed above, the place of supply of services is at Addu, Maldives. The location of recipient is already interpreted by us by holding that as per Section 2(14)(b), it will be the fixed establishment of respondent No.2 which will be the location of recipient. Thus, even as per the aforesaid proviso to Section 12(3), we are unable to give our stamp of approval to the OIA passed by the Appellate Authority. Section 13 of the IGST Act is a direct and special provision which deals with a matter of this nature where the place of supply of service (carrying out construction work) and location of supplier and location of recipient is outside the territory of India - A plain reading of Section 13 (4) makes it clear like cloudless sky that the place of supply in relation to an immovable property for carrying out construction work shall be the place where the immovable property is located. Section 13 is clear and unambiguous and hence must be given effect to irrespective of its consequences. In the peculiar facts of this case, since the supply of service and location of recipient and supplier is outside India, the question of levy and collection of tax in the teeth of Section 9 of the CGST Act or Section 5 of IGST Act does not arise. The said provisions can be pressed into service only in cases of intra-state and inter-state supplies respectively. The merged order dated 05.08.2021 are set aside. The respondents shall reimburse the amount of GST, interest and penalty (if any) deposited by the petitioner to him in respect of construction services provided in Maldives as per contract dated 08.07.2016 within 90 days from the date of production of copy of this order. The Writ Petition is allowed.

  ---

• 2024 (8) TMI 942
  Quantification of interest at the time of detention - requirement to give notice before 7 days specifying the penalty payable - HELD THAT:- The petitioner is ready to deposit bank guarantee of the original amount of Rs.8,40,924/- and subject to depositing the same, his truck and material may be released. If the petitioner deposits bank guarantee of Rs.8,40,924/- before the respondents, his struck and material may be released after obtaining photographs and after fulfilling other formalities - the respondents are at liberty to issue notice to the petitioner as per Section 129 (3) of the Act for imposition of penalty - this petition is disposed off.

  ---

• 2024 (8) TMI 941
  Challenge to action on the part of the Central Board of Indirect Taxes and Customs in issuance of a notification bearing No. 56/2023 dated 28.12.2023 - time limit for passing of the order under Sub-Section (9) of Section 73 of the CGST Act, 2017 - Ultra vires of Section 168A of the CGST Act, 2017 - HELD THAT:- It prima facie appears that the notification bearing No.56/2023 is not in consonance with the provisions of 168(A) of the Central GST Act, 2017. If the said notification cannot stand the scrutiny of law, all consequential actions so taken on the basis of such notification would also fail. This Court also finds that an examination would be required as regards the applicability of the force majeure in respect to the notification bearing No. 56/2023 taking into account the contents of the Minutes of the 49th Meeting of the GST Council. However for the purpose of deciding the same, this Court is of the opinion that an opportunity has to be granted to the Respondent Authorities to place on record their stand as well as bringing on record the materials on which they claim the applicability of the force majeure. Taking into account the above, this Court is of the opinion, that the Petitioner herein is entitled to an interim protection pending the notice. Till the next date, no coercive action shall be taken on the basis of impugned assessment order dated 05.05.2024 - The Respondents are directed to file their affidavits on or before 19.08.2024.

  ---

• 2024 (8) TMI 940
  Seeking to invoke extraordinary jurisdiction of this Court on the submission that there is no proper consideration of the reply of the petitioner - seeking reversal of input tax credit - HELD THAT:- It is found that present is not a case where the Authorities have proceeded on assumption and admission of factual premise that though there exist seller/supplier, input tax credit has been wrongly availed by the buyer or the seller so as to first take action against the supplier/seller before buyer is proceeded against. Without commenting upon the sufficiency of the material on record with regard to the alleged supplier firm being a fake/bogus firm not in existence, suffice it to say that this petition raises a factual dispute and has nothing to do with any jurisdictional issue, much less violation of principles of natural justice. This petition is dismissed with liberty to the petitioner to avail alternative remedy.

  ---

• Income Tax

• 2024 (8) TMI 939
  Addition as perquisite value of shares granted under Employees Stock Purchase Scheme (ESPS) - assessee took the position that since the shares were not marketable in view of the lock-in stipulation, the Fair Market Value [FMV] could not exceed the face value of the shares - HELD THAT:- As in light of the restriction with respect to marketability and trade ability of the stock in question, the FMV could not have been recognized to exceed the face value of the shares and thus the determinative being INR 15/-. The Valuation Report, was at best a medium adopted by the employer in order to broadly ascertain its obligations for the purposes of withholding tax. The same could not have consequently been taken into consideration for the purposes of FMV. The position which was advocated by the respondents, namely, for the quoted price or the Valuation Report being taken into consideration is clearly untenable, since the same could have had no application to a share which was subject to a lock-in stipulation and could not be sold in the open market owing to a complete embargo on the sale of those shares. We accordingly answer Question 1 posited in the affirmative and in favour of the assessee. Whether value of stock purchase option exercised by the employee/Assessee is to be reckoned on the date of exercising such option and taxing it for the difference in market price had cost paid by the assessee to its employer? - Question 2 is answered in the negative and it being held that the face value alone would be conclusive for purposes of taxation.

  ---

• 2024 (8) TMI 938
  Reopening of assessment u/s 147 - failure on the part of the petitioner to electronically upload Form 10CCB along with its Return of Income and as per the time frames contemplated under Section 139 - directory and procedural requirement - HELD THAT:- The Proviso clearly required the respondents to establish that income liable to tax had escaped assessment on account of a failure of the petitioner to make a full and true disclosure of all material facts. In our opinion a failure to digitally upload a Form cannot lead one to conclude that the assessee had failed to make a full and true disclosure. In any event, the respondents have woefully failed to establish or assert how that folly, if it may be so termed, resulted in escapement of income. The Section 148 action would thus and following the view taken by us in Associated Chambers be liable to be struck down on this short ground alone. Also reassessment actions for AYs 2013-14 and 2014-15 were commenced with the issuance of notices u/s 148 - An action to reopen assessment prior to the amendments introduced by virtue of Finance Act, 2021 could have at best been initiated within a period of four years and subject to a maximum of six years in terms of the provisions of Section 149 as it existed at the relevant time. The reassessment action, insofar as AY 2013-14 is concerned, being beyond the maximum window of six years would thus falter and fail on this score additionally. Legal requirements flowing from Section 80-IA read along with Rule 12 - We find that insofar as the directory nature of Section 80-IA (7) is concerned, the same stands conclusively answered by this Court in Contimeters Electricals [ 2008 (12) TMI 4 - HIGH COURT DELHI] and the aforesaid position having been followed consistently by various other High Courts. We thus find no justification to tread down a different path or deviate from a position in law which has clearly held the field for some time. Analysed independently, we note that Section 80-IA (7) as it existed prior to its amendment in terms of Finance Act, 2020, only placed a requirement of the assessee furnishing the Audit Report along with his Return of Income in the prescribed form. Discernibly, Section 80-IA (7) as it stands in its present form uses the expression before the specified date referred to in section 44AB and the assessee furnishes by that date . Thus, it is only by virtue of Finance Act, 2020 that Section 80-IA (7) now embodies a stipulation for the Audit Report being furnished before the specified date referred to in Section 44AB. The requirement of the said report being furnished electronically, however, came to be introduced for the first time in 2013 and which is when Rule 12 came to be amended. However, at this point in time, the requirement of an electronic submission of Form 10CCB stood confined to Rule 12 since Section 80-IA (7) had not been amended in the manner noted above. As long as that Audit Report was duly furnished to the AO and was available to be scrutinized and examined by that authority during the assessment proceedings, the provisions of Section 80-IA (7), as it stood prior to the amendments introduced in 2020, would be recognized to have been substantially fulfilled. In any event, a failure to digitally file that report cannot be countenanced to be fatal to the claim that may be laid in terms of Section 80-IA (7). We note that the various decisions which speak of the electronic submission of the Audit Report being directory and procedural were all rendered prior to the amendments introduced by Finance Act, 2020. These writ petitions too are concerned with actions initiated prior to the passing of Finance Act, 2020 and the amendments consequently made in Section 80-IA (7). The present decision is thus not liable to be read as an exposition on the legal position which would prevail post 2020 or the likely impact in light of the inclusion of the phrase before the specified date referred to in section 44AB . We thus leave that question open to be examined in an appropriate case. We also bear in mind the indubitable fact that Section 10B (8) is clearly couched in terms more imperative than Section 80-IA (7). This becomes manifest from a reading of that provision and which requires the assessee to furnish a declaration before the AO that it chooses not to be assessed in accordance with that provision and the said declaration being liable to be furnished before the due date for furnishing of a Return of Income under Section 139 (1). This requirement has always existed in Section 10B from inception and since its insertion by virtue of Finance Act, 1988. This is a significant distinguishing feature bearing in mind the indisputable position of the Audit Report being tied to the specified date contemplated in Section 44AB was a stipulation which came to be introduced for the first time and with sufficient certitude by virtue of Finance Act, 2020. Writ petitions allowed. We thus quash the impugned notices issued u/s 148 and the consequent initiation of reassessment proceedings quashed. - Decided in favour of assessee.

  ---

• 2024 (8) TMI 937
  Applicability of the provisions of Section 153, being the limitation provision to the proceedings u/s 144C - whether the period of eleven months as envisaged u/s 144C, should be over and above the time limit prescribed u/s 153 (1) r/w. 153 (4) - whether such time period needs to be subsumed within the timelines stipulated u/s 153? - HELD THAT:- We are not persuaded to accept Respondents s submission that as merely large number of proceedings are pending in which the stake of about Rs.5 lakh crores in tax is involved on such issue, we need to take a different view of the matter including to refer the issue for consideration of a Larger Bench. In our opinion, such approach would not bring about any concrete conclusion as such question of law is pending determination before the Supreme Court, arising not only from the decision of this Court, but also from the decision of the other High Courts. It would be thus appropriate and desirable, that this Court awaits the decision of the Supreme Court in the pending proceedings in Shelf Drilling Ron Tappmeyer Limited [ 2023 (8) TMI 460 - BOMBAY HIGH COURT] and Roca Bathroom Products Pvt. Ltd [ 2022 (6) TMI 848 - MADRAS HIGH COURT] We may also observe that Petitioner has also tendered circulars issued by the Revenue to all its representatives in Mumbai to seek adjournments in all pending cases involving this issue before the Income-tax Appellate Tribunal to submit that the piling up of the cases and the size of the amount involved is because the Revenue not pursuing the matters, awaiting the Supreme Court to decide the appeals. Insofar as the interim relief in the present petition is concerned, we may observe that assessees similarly placed as the petitioner, have succeeded before the Madras High Court inter alia in Roca Bathroom Products Pvt. Ltd. (supra) as also before the Delhi High Court in Nokia India Pvt. Ltd [ 2017 (9) TMI 1298 - DELHI HIGH COURT] As noted above, proceedings arising from such decisions of the Madras and the Delhi High Courts are pending before the Supreme Court. The orders of the High Courts setting aside the assessment orders are not stayed by the Supreme Court. Thus, in similar proceedings the assessees having succeeded before the other High Courts. Rule. Respondents waive service. As and by way of interim relief, ad-interim order dated 28 June, 2024 shall continue to operate till the final disposal of this petition.

  ---

• 2024 (8) TMI 936
  Bogus purchase - Addition of difference in stock in trade u/s. 69C - workings of stock difference arrived at during the course of search by the Investigation Wing - Tribunal held that the respondent/assessee has filed a reconciliation explaining total purchases including purchase of capital goods and purchase returns and tallied with purchases recorded in the books of accounts of the assessee and deleted addition - HELD THAT:- Tribunal correctly held that even the Assessing Officer did not have the benefit of relevant workings of stock difference arrived at during the course of search by the Investigation Wing and that the Assessing Officer has completely erred in making additions towards difference in stock in trade as unexplained expenditure u/s. 69C of the Act. Under these circumstances, AO was directed to delete the additions made towards difference in stock in trade u/s. 69C. Assessing Officer has made additions towards stock in trade difference u/s. 69C of the Act purely on surmises and suspicion manner, without there being any supporting evidence to justify additions - even the AO did not have the benefit of relevant workings of stock difference arrived at during the course of search by the Investigation Wing. AO has completely erred in making additions towards difference in stock in trade as unexplained expenditure u/s. 69C - Decided in favour of assessee.

  ---

• 2024 (8) TMI 935
  Offence punishable u/s 276B r/w 278B - principal officer treated deemed to be assessee in default - complaint has been filed against the Company and the petitioners who are it s Directors, for delay in deposit of TDS. HELD THAT:- Admittedly, TDS deducted by the Company had already been deposited with interest as provided under section 201 (1A) of the I.T Act. No notice has been issued by the Assessing Officer to any of the petitioners under Section 2 (35) (b) of the I.T Act to treat any of them as Principal Officer of the Company. No order as contemplated under Section 201 (1) r/w Section 201 (3) of the I.T Act has been passed treating any of the petitioners as Principal Officer of the company and by which such Principal Officer is whereby deemed to be assessee in default . In respect of assessment year 2017-2018, a positive order has been passed holding the Company not to be Assessee in Default . No order imposing penalty (either initially or further penalty) as deemed to be an assessee in default under Section 221 has been passed against the company or any of the petitioners. The petitioners are Directors of the Company, however, no averment has been made in the complaints regarding Consent , Connivance or negligence as required under Section 278B (2) of the I.T Act. In the present case, the Revenue has chosen not to invoke the provisions of Section 221 r/w Section 201 (1) of the I.T Act to impose penalty against the company or the principal officer of the company for failure to pay the whole or any part of tax, as required by or under this Act . The Revenue cannot now be permitted to prosecute the petitioners for the same substantive act which is also categorized as an offence under Section 276B of the I.T. Act. As such, further trial of the petitioners by the criminal Court cannot be permissible which would tantamount to abuse of process of the Court. The Counsel has, therefore, rightly placed reliance on a decision in the case of K.C. Builders [ 2004 (1) TMI 7 - SUPREME COURT] Petition allowed.

  ---

• 2024 (8) TMI 934
  Applicability of Section 50C - multiplicative rate which was to be applied at the behest of the appellant - ITAT [ 2020 (2) TMI 1723 - ITAT DELHI] affirming the order of CIT (A) holding that multiplicative factor of 1 is applicable to property sold by the appellant assessee - HELD THAT:- Tribunal has failed to record or assign any reasoning, even if it be rudimentary, while proceeding to affirm the ultimate findings returned by the CIT(A). In our considered opinion, the appeal must succeed on this short ground alone and the matter consequently be placed before the concerned Tribunal for adjudication afresh. We consequently allow the instant appeal and set aside the order of the Tribunal. We leave all questions open to be addressed before the Tribunal afresh.

  ---

• 2024 (8) TMI 933
  Method of valuation of stock - Material on Record and rejecting the consistency and regularity of the method of valuation - CIT(Appeals) had examined the order of the AO and found that the AO had not rejected the books of accounts - HELD THAT:- We are of the firm view that so far as the principle of consistency and validity of method of valuation is concerned, the same would remain same for different assessment years. So far as the valuation is concerned, for each year the market price of a particular goods may change and therefore, the value of the stock would also accordingly change and the same even for the same amount of stock, valuation will have to be different. In the present case, the valuation of stock has changed on account of the change in market price as well as change in the sale price, the average market could not have been taken up by the Assessee because the sale price of goods could not change in every year. Keeping in view the above, we are in agreement with the view taken by the A.O. and affirmed by the ITAT and answer question No. (i) in favour of respondent-revenue. Method of valuation of stock - We find that the decision of CIT vs. British Paints India Ltd [ 1990 (12) TMI 2 - SUPREME COURT ] has laid down the method of valuation of stock, considering the facts and circumstances of the said case alone and would therefore not be a binding precedent in all cases as noticed above. The sale price of goods having not changed every year, the method of valuation of stock cannot be applied in the same manner as held in CIT vs. British Paints India Ltd. (Supra). We accordingly answer question No. (ii) in favour of the respondent/revenue.

  ---

• 2024 (8) TMI 932
  Revision u/s 263 - petitioner had surrendered during search operation an additional income on account of excess stock, construction of residential house and renovation of business premises - AO assessed the income from professional usage before depreciation and interest apart from income u/s 44AD HELD THAT:- Surrendered Income was to be assessed under the head income from other sources at special rate u/s 115BBE, Further, taxability of professional receipts were required to be assessed in accordance with provisions of section 44ADA of the Act @ 50%. Thus, we find that the assessment under the head income from other sources was to be done under Section 115 BBE, We find that the assessment in accordance with provisions of Section 44ADA of the Act of 1961 has to be @ 50 % and thus, the AO has erred in making its assessments and consequently, the order is prejudicial to the interest of the revenue. Therefor, the order u/s 263 of the Act of 1961, has rightly been passed and same has been upheld by the Income Tax Appellate Tribunal.

  ---

• 2024 (8) TMI 931
  Addition u/s 56(2)(x) - purchase value of property is less than the value of stamp authority - Assessee submits that difference in the property value compared to stamp duty valuation is because of distress sale and in the absence of any Co-op Housing Society as well as the location - It is the claim of the assessee that nobody was ready to buy the property as the property is in low lying water logging area - AO referred to the Valuation Officer u/s 55A - HELD THAT:-We find that where any person receives any immovable property for a consideration less than the stamp duty value of such property, then the said excess consideration is the income of the assessee. However, as per clause (ii) of that sub-section amount equal to 10% of the consideration is not chargeable to tax. In the present case, the amount of difference between the value determined by the ld. DVO and the transaction value is less than 10% of the consideration. Therefore, no addition is required to be made in the hands of the assessee. The various judicial precedents cited by the AR also supports the case of the assessee. Accordingly, we direct the AO to delete the addition made in the hands of the assessee. Accordingly, the appeal of the assessee is allowed.

  ---

• 2024 (8) TMI 930
  Penalty imposed u/s 272A(1)(d) - non-compliance of notices/questionnaires issued u/s 142(1) - HELD THAT:- Admittedly, in the present case, the assessee failed to respond certain notices of the AO, which were issued u/s 143(2) and 142(1) of the Act, however, in response, subsequent notices, the assessee has made necessary replies and accordingly assessment was completed u/s 143(3), therefore, respectfully, following the analogy drawn in the decision referred, we find that the penalty-imposed u/s 272A(1)(d) of the Act is not justifiable in the present case. AO himself has deemed to have condoned the absence of assessee or his Authorized Representative on earlier occasions, subsequently the necessary information and evidences were furnished by the assessee to assist in the completion of the assessment and since assessment was completed u/s 143(3) of the Act, the penalty u/s 272A(1)(d) cannot be imposed. Considering the ratio of law followed in various judicial decision, we find it appropriate to set aside the order of Ld. CIT(A), and direct the Ld. AO to delete the penalty. Decided in favour of the assessee.

  ---

• 2024 (8) TMI 929
  Addition of gift received - gift from a brother of the assessee who is a non-resident Indian carrying on the business of laundry services in Dubai for last more than 25 years - submitted that the gift is received by 3 cheques - HELD THAT:- The name of the father of the assessee and the name of the donor is the same. Therefore, it cannot be denied that assessee and the donor are the real brothers. The bank account of the donor from Bank of Baroda and from ICICI Bank are also submitted. The Bank of Baroda account is NRE Savings Bank Account of the donor from which the available fund shows that cheques have been issued out of the funds available with the donor. Similarly, the ICICI Bank Account also shows that assessee has continuous balance available for last several months. As such the gift from a brother is not chargeable to tax in the hands of the assessee being relative. Assessee has proved identity, creditworthiness and genuineness of the gift received as well as relationship with Donor. Therefore, the amount received by the assessee clearly shows that above amount is not the income of the assessee. Despite above information being available with the lower authorities, an addition is made to the total income of the assessee. We direct the AO to delete the addition in the hands of the assessee being gift received from his non-resident brothers whose identity, creditworthiness and genuineness is proved. Accordingly, ground no. 1 of the appeal is allowed. Double taxation of income from other sources - Addition of income from other sources being interest income - We find that assessee individual filed his return of income on 01.01.2022 declaring total income - In the computation of income, assessee has already disclosed income from other sources being interest income of Rs. 40,500/- which has been once again added by the AO while processing the return. Therefore, same is double addition. CIT(A) directed the AO to verify and allow the claim of the assessee. We find that there is no need of verification when the relevant document submitted by the assessee clearly shows that there is a double addition of the income. Accordingly, we direct the ld. assessing officer to delete the addition to the total income of the assessee. Accordingly, ground no. 2 of the appeal is allowed.

  ---

• 2024 (8) TMI 928
  TDS u/s 195 - remittances made to different subsidiary companies in different countries without deduction of tax at source - AO treating the assessee as assessee in default - HELD THAT:- Since the remittance made by the assessee to the foreign subsidiary companies have been held to be not taxable in India in the hands of the recipient company, there would be no obligation for the payer i.e. assessee company to deduct tax at source u/s 195 of the Act. This proposition is already settled in the case of GE India Technology India Ltd [ 2010 (9) TMI 7 - SUPREME COURT] - Decided in favour of assessee.

  ---

• 2024 (8) TMI 927
  Addition made by the CPC u/s 154 - income was accepted to be exempt as agricultural income in the assessment order passed u/s 143(3) - HELD THAT:- CPC has correctly processed the return of income under section 143(1)(a)(ii) of the Act r/w the Explanation (a)(i) and (a)(ii). The learned A.R. fairly accepted the mistake in filing the return of income Schedule EI was not filled. The communication of proposed adjustment dated 01/01/2019, was not responded within 30 days. The entire profit claimed as agricultural income for Rs. 1,15,69,580, was not reported as exempt income in Schedule E1. Hence, the CPC was justified in making the adjustment, because the claim was inconsistent with item in the return of income. Rectification u/s 154 of the Act is not obligatory on the part of the AO if clear data is not available and in this regard we rely on the judgment of Anchor Processing Pvt. Ltd.[ 1986 (7) TMI 1 - SUPREME COURT] The assessee failed to submit revised return of income u/s 139(5) of the Act to take care of the omission in the original return of income. This is an appeal against order passed by the AO u/s 154 of the Act. The scope is narrow and constricted and merits of claim need not be explored. The learned Authorised Representative pressed that the income was accepted to be exempt as agricultural income in the assessment order passed under section 143(3) - But at this stage, we are precluded from examination of the merit of the claim. DR rightly pointed out that when the assessee himself has conceded the mistake before the learned CIT(A), he has no arguable case any further. The appeal has no merits since there is no patent and manifest error amenable for rectification and hence liable to be dismissed. Thus, we are in consonance with the order passed by the learned CIT(A) who upheld the order passed by the CPC. Accordingly, all the grounds raised by the assessee in this appeal are dismissed.

  ---

• 2024 (8) TMI 926
  Allowability of deduction u/s. 80P(2)(d)/ 80P(2)(a)(i) - interest income earned by a Cooperative Society formed with the object of accepting deposits from Members and lending money to its Members - HELD THAT:- On perusal of provisions of section 80P(2)(d), it is clear that the income derived by a cooperative society from its investment held with other cooperative societies shall be exempt from the total income of a cooperative society. What is relevant for claiming of deduction u/s 80P(2)(d) is that interest income should have been derived from the investment made by the assessee cooperative society with any other cooperative society. This issue was considered in the case of CIT vs. Totagars Cooperative Sale Society [ 2017 (1) TMI 1100 - KARNATAKA HIGH COURT] wherein after referring to the decision of Totgar s Co-operative Sale Society Ltd.Vs. ITO ( 2010 (2) TMI 3 - SUPREME COURT] held that the ratio of decision of the Hon ble Supreme Court is not to be applicable in respect of interest income on investment as same falls under the provisions of section 80P(2)(d) and not u/s 80P(2)(a)(i) of the Act. In the light of this discussion, I am of the considered opinion that the interest income earned by cooperative society on deposits made out of surplus funds with cooperative banks qualify for deduction under the provisions of section 80P(2)(d) of the Act. Therefore, the grounds of appeal raised by the appellant stand allowed.

  ---

• 2024 (8) TMI 925
  Interest on refund u/s 244A - AO was of the opinion that interest u/s 244A should not be granted to the assessee for the period from April, 2006 to January, 2008 as interest is not payable to the assessee if there is any delay for the reasons attributable to the assessee - rectification u/s 154 - HELD THAT:- It is not in dispute that the assessee filed its return of income on 08/01/2008 when the due date was 30/09/2006. The returned income was Nil but the payment received from Standard Charterd Bank were considered as payments for royalty and fees for technical services. These additions were deleted by the Tribunal and while giving effect to this order of the Tribunal, interest u/s 244A of the Act was granted to the assessee. Subsequently, assuming jurisdiction u/s 154 AO was of the opinion that a mistake has crept on record while giving effect to the order of the Tribunal, by which erroneously excess interest on refund u/s 244A of the Act was granted to the assessee for the 22 months period from April, 2006 to January, 2008. The proposed amendment is to take effect from 01/06/2016 whereas the return of income has been filed by the assessee on 08/01/2008. Even otherwise, the payer Standard Chartered Bank has deducted tax at source on the impugned payments which was in the credit of the revenue from the date of deduction of the tax at source, irrespective of the date of filing of the return of income, which means that the revenue was benefitting with the tax payment when there was no liability of the assessee. The assessee claimed the refund of tax after filing the return of income and because of the appeal effect, the refund was granted with interest subsequently. We are of the considered view that such mistake cannot be rectified u/s 154 of the Act as held by the Co-ordinate Bench in the cases mentioned elsewhere.

  ---

• 2024 (8) TMI 924
  Validity of order passed u/s 250 by CIT (A) - Disallowance of expenditure due to typographical mistake in the audit report - due to the typographical mistake done by the auditor in the audit report the amount which has been added in the total income in amount in admissible column - assessee submits that ld. CIT(A) has dismissed the appeal of the assessee only on this ground that the appellant had not filed any explanation as to how the above auditor s report is incorrect nor the auditor has given any certificate confirming that there was some typographic mistake on their part and the figure shown in the original tax audit report was not correct. HELD THAT:- It appears from the order of the ld. CIT(A) that ld. CIT(A) has dismissed the appeal of the assessee on this ground that appellant had not filed any explanation as to how the auditor s report is incorrect, the auditor had not given any certificate confirming that there was typographical mistake on their part and the figure shown in the original tax audit report was not correct and to file the correct figure. Before this Tribunal,assessee filed a tax audit report that includes the FY 2017-18 assessment year up to 2018-19 and date of audit report dated 30.07.2018 and as per the submission of the ld. Counsel for the assessee is that on the basis of this audit report assessment could be made. Since it is a case of typographical mistake done by auditor in his audit report and before this Tribunal correct audit report has been filed, hence, we are in this view that the case is remanded back to the file of the AO to assess the income after going over the correct audit report filed by the assessee as above. Accordingly, the orders of both ld. CIT(A) and ld. AO is set aside, case is remanded back to the file of ld. AO to assess the income after going over the correct audit report of the assessee. Appeals filed by the assessee are allowed for statistical purposes.

  ---

• 2024 (8) TMI 923
  Estimation of 8% profit on gross contract receipt - CIT (A) accepted the contention of the assessee for estimating 5% profit on gross contract receipts, however, directed the AO to verify the claim of the assessee of gross contract receipt based on Form 26AS filed for the relevant A.Y and any other relevant documents - HELD THAT:- We find that in Form 26AS, number payments has been booked on various dates and the same has been subsequently reversed. If we go by the entries in Form 26AS, in our considered view, the argument of the appellant that the main contractor M/s. Madhucon Projects Ltd has filed revised statement of TDS and corrected misreporting of turnover in the name of the assessee and the same has been finally updated in Form 26AS appears to be bonafide and genuine. Therefore, we are of the considered view that, when the appellant is able to file necessary evidences including Form 26AS to justify the turnover reported for the year under consideration, then the AO is incorrect in adopting the turnover of Rs. 58,00,87,847/- only on the basis of letter filed by the assessee. Although the CIT (A) has in principle agreed with the contention of the assessee in respect of rate of profit and turnover, but erred in directing the AO to verify the claim of the assessee in light of Form 26AS and any other relevant documents. In our considered view what is the other relevant documents is not explained by the learned CIT (A). In absence of any evidences or other relevant documents which supports the contention of the AO that the appellant has received gross contract receipt in our considered view the arguments of the assessee that it has received gross contract receipt needs to be accepted. Thus, we reverse the findings of the learned CIT (A) and direct the AO to estimate the net profit @ 5% on total contract receipt as per Form No.26AS filed by the assessee for the A.Y 2016-17. Assessee appeal allowed.

  ---

• 2024 (8) TMI 922
  TP Adjustment - Comparable selection - IPM segment - HELD THAT:- UB Engineering Ltd. had operating margin of (-) 46.58%. AR submitted that profitability is not a criteria and FAR should be taken into consideration and the TPO has used the data relating to the future years also and the same comparable has been accepted for the A.Y. 2013-14. DRP held that the assessee has incurred abnormal losses only in the current financial year compared to the earlier years. Hence, it cannot be included. Holtec Consulting Pvt. Ltd. - Entire income of the comparable Holtec Consulting Pvt. Ltd. is by way of consultancy and hence cannot be compared with an EPC company. The revenue argued that the distinction is devoid of merit as the assessee is also fundamentally a service organization to facilitate execution. We do not find any strength in the argument of the revenue as the functionality of the comparable has not been met with that of assessee. Neil Soft Ltd. - AR submitted that the company is functionally not comparable as Neil Soft Ltd. is engaged in software engineering services and selling software products. The revenue argued that the distinction is devoid of merit as the assessee is also fundamentally a service organization to facilitate execution. We do not find any strength in the argument of the revenue as the functionality of the comparable has not been met with that of assessee. Market Support Service - Info Edge India Ltd. is a online search portal such as naukari.com and revenue is primarily from subscription based services and the turnover is 322 times than that of the assessee and the FAR is not comparable. The ld. DRP held that the comparable is also providing business market support system and it passes all the filters. We hold that the primary test of FAR have not been passed through and hence cannot be taken as a right comparable. Appeal of the assessee is partly allowed.

  ---

• 2024 (8) TMI 921
  Denial of Deduction u/s 80P - intimation u/s 143(1) - assessee had preferred rectification u/s 154 of the Act against the intimation passed u/s 143(1) - HELD THAT:- AR had submitted that assessee had made a mistake in filing the appeal before the first appellate authority as against the intimation issued u/s 143(1) of the Act instead of the rectification order. Accordingly, as per the prayer of the ld. A.R., this appeal is dismissed as withdrawn with the liberty to the assessee to file fresh appeal before the first appellate authority as against the order passed u/s 154 of the Act. Appeal filed by the assessee is dismissed.

  ---

• 2024 (8) TMI 920
  Non disclosure of income from maintenance charges - assessee was following mercantile system of accounting and non-receipt of maintenance charges cannot be basis of not crediting income - CIT(A) deleted addition - HELD THAT:- Revenue has not brought any evidence suggesting that the maintenance charges were actually received by the assessee. Therefore, in the absence of such material we do not see any infirmity into the order of learned CIT(Appeals). Revenue has not brought any material pointing any change into facts and circumstances in this year. AO has been allowing the claim of the assessee regarding maintenance charges in earlier years holding that such income was not received by the assessee. It is not brought before us that any suit for recovery of maintenance charges in this regard was pending before any court for adjudication. Thus, this ground of Revenue lacks any merit. Late deposit of ESI funds - HELD THAT:- Assessee fairly conceded that the issue is well settled by the judgment of Checkmate Services P. Ltd [ 2022 (10) TMI 617 - SUPREME COURT] holding that employees contribution, not paid within the due date specified under the relevant Act, is not allowable u/s 36(1)(va) of the Act. Accordingly, order of learned CIT(A) on the issue in question is set aside and that of Assessing Officer is restored. Ground is allowed. Disallowance u/s 14A - Addition to the extent of exempt income - CIT(A) restricted addition - HELD THAT:- As decided in the case of Joint Investment Pvt. Ltd. [ 2015 (3) TMI 155 - DELHI HIGH COURT] has categorically held that disallowance of expenditure u/s 14A of the Act is restricted only in relation to tax exempt income. We find that the learned CIT(A) in restricting the disallowance has correctly followed the judgment (supra). Therefore, no infirmity into the order of learned CIT(A) on the issue in question. The same is hereby affirmed. Ground is rejected. Addition made on account of income from house property - assessee argued Revenue has not made such addition in the subsequent years and in preceding year - CIT(A) deleted addition as relying on M/S CHENNAI PROPERTIES INVESTMENTS LTD [ 2015 (5) TMI 46 - SUPREME COURT] and M/S ANSAL HOUSING FINANCE AND LEASING CO LTD OTHERS [ 2012 (11) TMI 323 - DELHI HIGH COURT] - HELD THAT:- DR has not been able to controvert the aforesaid factual position. In the absence of any contrary material, rebutting the contention that part of area was being used for self and rest of the area being incomplete could not have been let out, we do not find any infirmity. The order of learned CIT(A) on the issue in question is affirmed. Ground taken by the Revenue is dismissed.

  ---

• 2024 (8) TMI 919
  Addition u/s 69A - unexplained cash deposits during demonetization period - HELD THAT:- The cash has been deposited in the said three financial years from 87, 92 to 91.20% of cash sales, it is 15% to 28% of the total sales. Cash is being deposited as per trends practice of business. Cash deposited during the FY 2016-17 is less 87.92% of the cash sales as compared to earlier years of 91.2%. It means that during the period in question, the cash deposits of the assessee is not at variance with the other years. On going through the entire factual information available on record and not disputed by the revenue, it can be held that the assessee had sufficient cash balance as per the accepted books of accounts and hence, the cash deposits cannot be treated as undisclosed income. Decided in favour of assessee.

  ---

• 2024 (8) TMI 918
  Disallowance u/s 40(a)(ia) for late filling of Form 15G 15H is justified - HELD THAT:- It is a matter on record that Forms no.15G and 15H, were furnished by the assessee before the AO during the course of assessment proceedings. Under section 197A of the Act, there is no requirement of deducting tax at source once the declaration Form is furnished before the AO under sub section (2) of section 197A of the Act. It is the requirement of the assessee to deliver these forms before the Commissioner before the 7th day of the month next following the month in which the declaration furnished before the AO - We do not find any representation from the side of the assessee. However, we have gone through the records. DR submitted before us that the assessment order need not be disturbed, but he failed to point out any specific provisions under which the disallowance due to non deduction of tax can be justified once the declaration forms are submitted before the AO. Consequently, we are of the view that even if the assessee fails to furnish the declaration forms before the concerned authority, he cannot be penalised for non deduction of tax. Addition made u/s 40(a)(ia) cannot be made when there was no requirement of deducting tax at source. Department did not verify whether the payees have declared the interest in the return of income. The direction of the learned CIT(A) is superfluous and does not rest on valid legal foundation. Appeal filed by the assessee is allowed.

  ---

• 2024 (8) TMI 917
  Penalty imposed u/s 270A - difference between the assessed income and the returned income - difference in opening written down value (WDV) in the ITR for AY 2017-18 and closing written down value for AY 2016-17 - HELD THAT:- Assessee s stand in the case in hand is that the difference between the assessed income and the returned income was on account of depreciation, where inadvertently the opening written down value (WDV) of the assets was taken at book value in the audited annual accounts prepared under the Companies Act instead of written down value (WDV) under the Income-tax Act by the auditors in their tax audit report u/s 44AB of the Act. Both the accounts and the said report were submitted with the return of income. The learned First Appellate Authority in the impugned order has discussed the issue elaborately and in deleting the penalty levied u/s 270A of the Act has relied on the ratio of decision of Prem Brothers Infrastructure LLP[ 2022 (6) TMI 130 - DELHI HIGH COURT] - DR has not been able to prove the case of assessee on different footing. Thus, no infirmity. It is well said to error is human a bona fide error cannot be basis of imposition of penalty - Thus, impugned action of the CIT(Appeals) is justified in deleting the impugned penalty, same is hereby affirmed - Decided against revenue.

  ---

• Customs

• 2024 (8) TMI 916
  Benefit of exemption notification 01/2011-CE or 02/2011-CE for the fertilizer viz., Muriate of Potash - it was held by CESTAT that the appellant is entitled to the benefit of the exemption notifications 01/2011 02/2011- CE in respect of their imports. - HELD THAT:- There are no reason to interfere with the judgment(s) and order(s) under challenge in these appeals. The civil appeals are dismissed.

  ---

• 2024 (8) TMI 915
  Seeking provisional release of seized vehicle - fulfilment of policy condition (II)(iii) of Chapter 87, i.e., on arrival of vehicle at the Indian Port but before clearance for home consumption - HELD THAT:- It is true that separate policy conditions have been notified for new vehicles and for used vehicles. The condition, which is subject matter of the appeal, came up for consideration before the CESTAT in ANKINEEDU MAGANTI VERSUS COMMISSIONER OF CUSTOMS, COCHIN [ 2009 (10) TMI 792 - CESTAT BANGALORE ] which was subsequently upheld by the Hon ble Kerala High Court in COMMISSIONER OF CUSTOMS VERSUS ANKINEEDU MANGANTI [ 2010 (5) TMI 654 - KERALA HIGH COURT ]. The Court held that the type of approval certificate mentioned in the policy condition of Chapter 87 to be issued by the Vehicle Research and Development Establishment (VRDE), Ahmednagar under the Ministry of Defence or at the Automotive Research Association of India (ARAI), Pune was only to ensure that the import of any goods, post clearance, would not be in breach of the essential requirements of law subject to which motor vehicles will be registered for operation on roads. In the case at hand, the CESTAT not only followed the judgment of the Hon ble Kerala High Court but also noted the factual aspect that the vehicle has already been registered with the competent authority under the Motor Vehicles Act, 1988. If the vehicle did not comply with the stipulations for operation and running on Indian roads, certainly the vehicle would not have been registered under the Motor Vehicles Act, 1988. Thus, no substantial question of law arises - appeal dismissed.

  ---

• 2024 (8) TMI 914
  100% EOU - Benefit under Merchandise Export from India Scheme (MEIS) - failure to fill the declaration of intent column - inadvertent and bona fide error - HELD THAT:- Since the Petitioner has satisfied all the requirements to claim benefits under MEIS which were due to them, the same ought not to be denied on hyper-technical grounds, purely on account of an inadvertent and bona fide error of not declaring the intent to claim MEIS benefits on shipping bills. This, in the opinion of the Court, was a procedural lapse which has thereafter been duly rectified under Section 149 of the Customs Act, with Respondent No. 3 having issued amendments certificates in respect of the deficient shipping bills. Further, the Court also notes that the Petitioner s request was rejected on account of a system error which was beyond the Petitioner s control. The Petitioner could not reapply for MEIS benefit as the online request on the DGFT portal for re-validation of shipping bills has not been resolved. Although the system has generated a report indicating that the issue has been resolved, as depicted in the screenshots placed on record by the Petitioner, however, in reality, that is not the case as a result the shipping bills in question are still not reflected on the EDI system. In the opinion of the Court, the PRC ought to have considered all the aforenoted facts, and particularly that this was a case of pure inadvertent error on the part of the Petitioner which was subsequently rectified. Therefore, since the Petitioner has already cured the deficiencies and secured amendment certificates, their request should not be rejected on account of amended shipping bills not being reflected on the automates system. Thus, since the Petitioner has fulfilled the pre-requisites to claim the MEIS benefits, in the opinion of the Court, the present petition deserves to be allowed. Respondents are directed to consider the Petitioner s MEIS claims electronically/ manually and process the application in accordance with public notices No. 40/ 2015-2020 dated 9th October, 2015 and 47/ 2015-20 dated 8th December, 2015, in respect of all 17 shipping bills - Petition disposed off.

  ---

• 2024 (8) TMI 913
  Rejection of request for fixation of special rate of brand-rate - applications of the assessee rejected on the grounds of non-fulfilment of basic requirements - time limitation - HELD THAT:- The Appellant has exported 6 consignments vide shipping bills dated 30.01.2006, 05.05.2006, 06.05.2006, 03.08.2006, 13.12.2006 and 21.12.2006 under the claim of drawback at brand-rate. Since the Appellant was not satisfied with the existing rate of drawback, they claimed to have filed an application for fixation of special rate of drawback under Rule 6(1)(a) of the Drawback Rules, 1995. The appellant could not produce any evidence to the effect that they had filed application with the Commissioner of Central Excise within the time-limit stipulated in Rule 6(1)(a) for fixation of special rate - the Appellant could not produce any evidence to the effect that they have filed all the three copies of the applications in the Divisional Office within the stipulated time-limit as claimed by them. It is observed that all the six consignments of exports were made in the year 2006. However, the application for fixation of drawback was filed before the proper authority only in 2012 vide letter dated 28.05.2012. There is no evidence available on record to substantiate the claim of the Appellant that they have filed the applications in the Divisional Office within the time-limit prescribed under Rule 6(1)(a). The timelimit prescribed under Rule 6(1)(a) is a mandatory condition to be fulfilled for consideration of the application for fixation of special rate of drawback. Since the Appellant has not filed the application within the mandatory time-limit stipulated in Rule 6(1)(a) or within the condonable period provided in the proviso to Rule 6(1)(a), we hold that the Appellant has not filed the application for fixation of special rate of drawback within the time-limit as stipulated in Rule 6(1)(a). The ld. adjudicating authority has rightly rejected their application for fixation of special rate of drawback vide the impugned order. The impugned order upheld - the appeal filed by the Appellant dismissed.

  ---

• 2024 (8) TMI 912
  Time Limitation for issuance of SCN u/s 28(1) and Section 124 of the Customs Act, 1962 - tampering the chassis Number of the imported car and mis-declaring the year of manufacture - HELD THAT:- Section 124 does not provide any limitation for issuance of SCN for the purpose of confiscation or imposition of penalty. In view of the mis-declaration and the fact that there is no time limit envisaged in the above Sections 111(m) or 124 for issuance of the notice, the plea of the appellant that the notice is time barred cannot be accepted. The reliance placed on by the counsel in the case of COMMISSIONER OF CUSTOMS VERSUS MMK JEWELLERS ANOTHER [ 2008 (3) TMI 5 - SUPREME COURT ] is not applicable as it was a notice issued under Section 28 and penalty imposed under Section 114(A) of the Customs Act, 1962. Based on the report received from the Mumbai Police, it is evident and beyond doubt that the car imported was mis-declared by tampering the chassis number and the value was also determined based on the mis-declared year of manufacture. The authorities below were right in redetermining the value at Rs.10,86,735/- in terms of Rule 5 of the Customs Valuation Rules, 1988. Appeal is partly allowed.

  ---

• 2024 (8) TMI 911
  Classification of imported goods - Re-testing of samples - hazardous waste in terms of legal provisions under the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 and the C.B.I. C. Circular No. 33/2001-Customs, dated 4-6-2001 or not - confiscation - imposition of consequential penalty - HELD THAT:- In the sample test results for all 12 disputed consignments Acidity is NIL; Ash content is less than 0.10; Sediment is less than 0.25% and Water content is NIL. However, it is reported in the Test report that further testing is being done. The further test reports also indicate that the parameters are within the limits prescribed; and there is no presence of heavy metals such as Polychlorinated Biphenyls (PCB), Poly Aromatic Hydro carbon (PAH); Lead, Chromium, Cadmium, Nickel; Arsenic as the results state that these have not been detected. Thus, we are of the considered opinion that the facts in terms of test results of these 12 samples taken from the imported goods in 12 containers cannot be treated as hazardous goods . In fact, these products fall appropriately under the category of used oil suitable for recycling. It is found that the authorities below did not examine the various parameters for determination of the issue of classifying the imported goods as off-specification furnace oil/waste oil or hazardous waste in a systematic and detailed manner. Rather they simply went by the wordings mentioned in the test reports, without referring to the specific factors. The appellants on coming to know about the test results had applied for re-testing of samples vide their letter dated 11-7-2022 addressed to the Joint Commissioner, JNCH. However, it is found that the Customs authorities and both the authorities below during adjudication of the case, without even recording the date of communication of the first test results by the department to the appellants importer; then the date of receipt of the request letter from the appellants by the Customs authorities, should have taken a reasoned view on allowing the facility of second test or retesting as per procedure. However, in complete disregard to the above provisions, the authorities below have simply dismissed the request for re-testing sought by the appellants. Thus, by not following the principles of natural justice and in complete disregard to the CBI C instructions, the impugned order has been passed by the Learned Commissioner of Customs (Appeals). Thus, it is made clear that none of the evidences relied upon by the department, to allege the mis-classification as fuel oil and for resorting to classification of the goods as hazardous waste , stand the scrutiny of law - the department had failed to substantiate the grounds for confiscation of the imported goods and for imposition of redemption fine and penalty. Hence, there are no hesitation in setting aside the impugned order and allowing the appeals in favour of the appellants. The impugned order passed by the Learned Commissioner of Customs (Appeals), Jawaharlal Nehru Customs House (JNCH), Nhava Sheva, Taluka Uran, District Raigad, is set aside and the appeals filed by the appellants are allowed.

  ---

• Insolvency & Bankruptcy

• 2024 (8) TMI 910
  Oppression and mismanagement - wrongful infusion of money - Corporate Debtor along with other family owned business entities were in nature of quasi-partnership or not - equal representation in the BoD - casting vote is privilege of the Chairman of the BoD or can be done away by the Adjudicating Authority as done in the Impugned Order. HELD THAT:- The lack of probity or equity would be more relevant factors in the cases of oppressions . This will further imply that intention behind of the action taken by the Corporate Debtor or person in charge of the company would also be relevant factor to look into such allegations of oppression of mismanagement - the oppressive actions are taken by the majority of shareholders which are pre-judicial to the minority members of the company. In the present case, it is already noted that both the Appellants and the Respondents are holding equal shareholding of 50:50 as such there is no majority shareholders. It is primarily the issue of control of the management of the Corporate Debtor. Whether such appointment or non appointment of the Director on BoD can be cause of oppression and mismanagement ? - HELD THAT:- It is already noted that the act of oppression and mismanagement should be pre-judicial to a member of the company and not against the director of the BoD. Technically and legally speaking the appointment and removal of directors cannot be treated as act of oppression and mismanagement . The principles of quasi-partnership is not foreign to the concept of the Companies Act, 2013. For the purpose of grant of relief, the principles of quasi- partnership had been applied even in a public limited company. It is held that the true character of the Company and other relevant factors should be considered to decide the true factor of quasi-partnership - the reasoning given by the Appellant No. 2 that he was getting old to run the affairs of the company are contradicted by himself after assuming the charge of Chief Operating Officer of the company. It clearly reflects that the intent was to oust (Respondent No. 1) and his family from the management and to have full control of the company by his family members. The casting vote were invoked only 2015 onwards when dispute arose between the parties and subsequently majority of such casting votes were used for benefits of the Appellants rather than for the company. It is appreciated that the disqualification of both the directors of company i.e., Appellant No. 2 and Respondent No. 1 would have rendered company without any director which is not permissible - the Adjudicating Authority took decision to remove the casting vote in these extraordinary circumstances which created company imbalance by one set of 50% shareholders taking all decisions for their own benefits and denying any right to other 50% shareholders. Based on the strength of the shareholding one can legitimately expect to have representation and say in the BoD of the company if otherwise eligible under Companies Act, 2013. Appeal dismissed.

  ---

• Service Tax

• 2024 (8) TMI 909
  Jurisdiction to issue SCN - Invocation of Article 226 of the Constitution of India - Reverse Charge - Double taxation - Tax liability was discharged on forward charge basis - scheme of arrangement under Section 391 read with Section 394 of Companies Act, 1956 - allegation is that Petitioner-LTHE, as a legal entity had not paid service tax for the financial year 2013-14 - HELD THAT:- The whole basis of issuing show cause notice is that High Court has approved the scheme of arrangement without considering that the scheme is in contravention to the provisions of the Finance Act, 1954 and the Rules made thereunder. In our view, if Respondents were aggrieved by order dated 20th December 2013 approving the scheme of arrangement then they ought to have challenged the same. However, it is undisputed that the order sanctioning the scheme has not been challenged by any authority and has attained finality. Therefore on this basis itself the show cause notice falls to ground. This very issue had come up for consideration under the excise law before the Gujarat High Court in the case of this very Petitioner in Special Civil Application No. 11308 of 2019 [ 2022 (4) TMI 70 - GUJARAT HIGH COURT] and the Gujarat High Court by order and judgment dated 3rd February 2022 (said judgment) entertained the writ and quashed the show cause notice under the excise law. The basis of show cause notice before Gujarat High Court is similar to that which is impugned in the present petition. The Gujarat High Court after considering the scheme approved by this Court under the Companies Act quashed the show cause notice. Since show cause notice has been issued without jurisdiction discretion under Article 226 of the Constitution of India is exercised and further respectfully agreeing with the decision of the Gujarat High Court in case of this very Petitioners, the impugned show cause notice dated 23rd October 2018 is quashed and set aside.

  ---

• 2024 (8) TMI 908
  Liability to pay service tax under Reverse Charge mechansim - commission paid to foreign commission agents - case of the department is that appellant have made the payment of commission to foreign buyer against service of Commission Agent of foreign based service provider - HELD THAT:- As per the documentary evidence such as invoice, it is clear that appellant has not made any payment directly to any commission agent whereas deduction was provided from the total value of the bill raised to foreign buyer of the goods. In these facts, it is nothing but discount extended by the appellant to the buyer of the goods. Even though some service provider is involved there is no relationship between the appellant and any foreign based service provider as there is no direct transaction made by the appellant with any of the commission agent. It is also a fact that there is no contract between the appellant and the foreign based service provider even if any arrangement of payment is there between the buyer of the goods and so called commission agent in the foreign country. For this reason, the demand of service tax on the commission shown in the invoice raised to the buyer cannot be made. Reliance placed in the case of Laxmi Exports vs. CCE ST [ 2020 (9) TMI 838 - CESTAT AHMEDABAD ] where it was held that since no service exists, the entire demand would not stand. Accordingly, the impugned orders are set-aside and the appeals are allowed with consequential relief, if any, in accordance with law. Reliance placed in the case of Aquamarine Exports [ 2022 (2) TMI 361 - CESTAT AHMEDABAD ], where it was held that the commission deducted by the appellant in the present case in the invoice is nothing but a trade discount and same is not subjected to service tax. Thus, the issue is no longer res-integra and settled in favour of the assessee. Accordingly the demand of service tax on the commission deducted in the sale invoice of the appellant to their foreign buyer is not chargeable to service tax. Accordingly, the impugned order is set-aside. Appeal allowed.

  ---

• Central Excise

• 2024 (8) TMI 907
  Determination of assessable value of goods at the factory gate being not sold but transferred to depots - Failure to apply Rule 7 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 properly by adopting the correct sales price prevailing at the depots at or about the same time or nearest time of its clearance from the factory to depots - HELD THAT:- No example/evidence has been stated in the grounds of appeal in support of the said ground to demonstrate as to how the report is incorrect. The short payment alleged in the demand notice has been mostly due to incorrect application of depot sale invoice in terms of its time of sale from depots to the time of clearance from the factory; also applying the sales invoice of a particular depot to the clearance meant for another depot from the factory, for example, when the clearances is made to Chandigarh depot from the factory instead of applying the sale price of the said depot, the sale price prevailing at Delhi depot has been applied. There are no reason to interfere with the order of the adjudicating authority as the same is based on correct verification of the data submitted during the course of adjudication; also no contrary data has been placed by the Revenue to establish that the learned Commissioner has not applied the data correctly in arriving at the assessable value of the goods as per Rule 7 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000. The impugned order is upheld and the Revenue s appeal is dismissed.

  ---

• 2024 (8) TMI 906
  Denial of exemption under N/N. 30/2004 -CE dated 09.07.2004 as amended - availing input credit on all the inputs under CCR and reversing 5% of the invoice value of the goods under Rule 6 (3) of CCR when the benefit of Notification was availed - HELD THAT:- The co-ordinate Bench has relied on the decision of Apex court in COMMISSIONER OF CENTRAL EXCISE, MUMBAI- I VERSUS M/S BOMBAY DYEING MFG. CO. LTD [ 2007 (8) TMI 2 - SUPREME COURT] and held In the present case, the fact is not under dispute that the appellant availed the credit at the time of receipt of the inputs which was partially used in the exempted goods but at the time of clearance of the exempted goods, they have reversed the credit. Therefore following the above Hon ble Supreme Court decision as well as the in terms of Board circular dated 8-11-2007, the appellants have complied with the condition of Notification No. 30/2004-C.E. The denial of exemption by the first appellate authority vide impugned order is not in accordance with law. Hence, the same cannot sustain - the impugned order set aside - appeal allowed.

  ---

• CST, VAT & Sales Tax

• 2024 (8) TMI 905
  Levy of penalty u/s 51 (7) (b) of the Punjab VAT Act - Non-disclosure of necessary information in consignment - appellant submits that the Tribunal has failed to take note of the fact that the appellant himself had surrendered at the barriers - HELD THAT:- This Court while examining the similar case titled as M/S. PUNJAB WOOL SYNDICATE VERSUS THE STATE OF PUNJAB AND ANOTHER [ 2023 (2) TMI 96 - PUNJAB AND HARYANA HIGH COURT] noted that the invoices reflected the inter-state sale. In the present case also, the sales were inter- State but the driver did not possess the Goods Receipt (GR) and no explanation for the same has been mentioned. In the present case, 1000 pieces of LPG valves at the rate of Rs. 1500/- per piece valuing Rs.15 lacs were being sent. As per Section 51 (2) of the Punjab VAT Act, the driver Incharge of the vehicle has to carry invoice and GR which were admittedly not available with him, nor any tax has been charged. In the circumstances, judgment passed in M/s Punjab Wool Syndicate s case has no application in the present case as in that case, this Court had found that the driver had produced the invoices and the Court observed that once, he had produced the invoices, he is not expected to give further details relating to the invoices - In the present case as noticed above, the facts are altogether different. In the absence of GR, the authorities have taken a correct course of action and the Tribunal has rightly rejected the appeal of the appellant. There are no reason to interfere with the order passed by the VAT Tribunal as no substantial question of law arises for consideration - the present VAT appeal stands dismissed.

  ---