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Newsletter: Where Service Meets Reader Approval. TMI Tax Updates - e-Newsletter August 5, 2022 Case Laws in this Newsletter: GST Income Tax Customs Corporate Laws Insolvency & Bankruptcy FEMA PMLA Service Tax Central Excise CST, VAT & Sales Tax Wealth tax Indian Laws Articles Critical study of provisions of CENTRAL GOODS AND SERVICES TAX ACT, 2017–( in short CGST) Section 10 which is part of CHAPTER III -LEVY AND COLLECTION OF TAX. –8 th article in the series. INSPECTION UNDER GST (SECTION 67) Bail granted to Chartered Accountant not being a beneficiary of illegal availment of ITC TAXATION (GST) ON EDUCATIONAL INSTITUTIONS – PART I News CGST Delhi West officials arrest one for fraudulently availing ITC of more than Rs 50 crore Applications invited for National Intellectual Property (IP) Awards 2021 & 2022 and WIPO Awards Initiatives taken to create a conducive business environment ODOP INITIATIVE Infrastructure Finance Secretariat, DEA organises workshop to sensitise empaneled Transaction Advisers (TAs) for Public Private Partnership (PPP) Projects Notifications Customs 24/2022 - dated 3-8-2022 - ADD Seeks to impose anti-dumping duty on Opal Glassware from UAE & China PR for a period of 5 years. 66/2022 - dated 4-8-2022 - Cus (NT) Rate of exchange of one unit of foreign currency equivalent to Indian rupees - Supersession Notification No. 64/2022-Customs(N.T.), dated 21st July, 2022 DGFT 24/2015-2020 - dated 4-8-2022 - FTP Amendment in Import Policy Condition of HS code 29021100 under Chapter 29 of ITC (HS) 2022, Schedule - I (Import Policy) GST - States G.O. Ms. No. 124 - dated 22-7-2022 - Tamil Nadu SGST Seeks to amend Notification No. II(2)/CTR/212(g-4)/2019 dated 7th March, 2019 G.O. Ms. No. 123 - dated 22-7-2022 - Tamil Nadu SGST Seeks to amend Notification No. II(2)/CTR/212(g-2)/2019 dated 7th March, 2019 G.O. Ms. No. 122 - dated 22-7-2022 - Tamil Nadu SGST Seeks to rescinds the Notification No. II(2)/CTR/917(e-5)/2017 dated 14th November, 2017 G.O. Ms. No. 121 - dated 22-7-2022 - Tamil Nadu SGST Seeks to amend Notification No. II(2)/CTR/205(h-2)/2022 dated 1st April, 2022 G.O. Ms. No. 120 - dated 22-7-2022 - Tamil Nadu SGST Seeks to amend Notification No.II(2)/CTR/532(d-8)/2017 dated 29th June, 2017 G.O. Ms. No. 119 - dated 22-7-2022 - Tamil Nadu SGST Seeks to amend Notification No. II(2)/CTR/532(d-6)/2017 dated 29th June,2017 Income Tax 89/2022 - dated 3-8-2022 - IT Capital Gain - Transactions not regarded as transfer - Bullion Depository Receipt - Scope of list of securities expanded - Seeks to amend Notification No. 16/2020, dated the 5th March, 2020 SEBI SEBI/LAD-NRO/GN/2022/92 - dated 3-8-2022 - SEBI Securities and Exchange Board of India (Mutual Funds) (Second Amendment) Regulations, 2022 Circulars / Instructions / Orders GST 177/09/2022-TRU - dated 3-8-2022 Clarifications regarding applicable GST rates & exemptions on certain services 178/10/2022 - dated 3-8-2022 GST applicability on liquidated damages, compensation and penalty arising out of breach of contract or other provisions of law 179/11/2022 - dated 3-8-2022 Clarification regarding GST rates & classification (goods) based on the recommendations of the GST Council in its 47th meeting held on 28th – 29th June, 2022 at Chandigarh Highlights / Catch Notes GST Document Identification Number (DIN) - the present writ petition is disposed off by directing the Union of India / GST Council to issue advisory / instructions / recommendations to the respective States regarding implementation of the system of electronic (digital) generation of a DIN in the indirect tax administration, which is already being implemented by the States of Karnataka and Kerala. - SC Visit to Get Source Constitutional validity of Section 16(2) (c) of the CGST Act, 2017/SGST Act, 2017 - allowability of claim of Input Tax Credit (ITC) subject to discharge of GST liability by the supplier - Pendency of this writ petition will not prevent the petitioner from making any representation against the audit report appearing at page 53 of the writ petition before the respondent concerned which shall be considered by the authority concerned in accordance with law. - HC Visit to Get Source Claim of interest on delayed Refund - the only reason the respondents/revenue have denied grant of statutory interest to the petitioner, is because Covid-19 was raging and there was delay in processing the petitioner’s refund - The statutory rate of interest is pegged at 6%. The said interest gets triggered after the expiry of 60 days from the date of receipt of application for refund. - HC Visit to Get Source Harrasement or not - petitioner submitted that under the production of summons, the petitioner is forced to give an undertaking to pay the tax - The term harassment is so subjective which cannot be encapsulated in objective criterion. The petitioner having received summons from the respondent, is bound to cooperate for enquiry. Admittedly, the enquiry is pending. Without cooperating with the respondent, they cannot seek such a blanket direction. - HC Visit to Get Source Profiteering - construction services - The registration and approval of the projects and receipt of the payments had taken place in the post-GST regime and hence, there was no pre-GST tax rate or ITC which could be compared with the post-GST tax rate and ITC. On this basis, the DGAP has reported that the Respondent had neither benefited from additional ITC nor had there been a reduction in the tax rate in the post-GST period and therefore it did not qualify to be a case of profiteering - The instant case does not fall under the ambit of the Anti-Profiteering provisions of Section 171 of the CGST Act, 2017. - NAPA Visit to Get Source Income Tax Addition u/s 68 - ITAT deleted the addition - the assessee was bound to co-operate in the assessment proceedings. In spite of several notices the assessee did not even care to reply to the said notices nor respond to the notices. Therefore, we are required to examine the correctness of the order passed by the Tribunal on merits. It will be rewarding a person who does not require such an indulgence - Tribunal fell in error by stating that the facts are not in dispute. Then the enquiry could not be completed by the AO on account of supine interference on the part of the assessee in not co-operating with the assessment proceedings. Therefore, we are of the clear view that the matter has to be remanded back to the AO for fresh consideration. Revenue appeal is allowed. - HC Visit to Get Source Capital gain computation - sale of shares - full value of consideration - deduction of expenses u/s 48 - The appellant had agreed to pay the tax component as per Clause 7(1) of the share purchase agreement. - A careful perusal of the agreement shows that intention of the parties is clear to the effect that the value of the shares shall be the amount agreed between the parties excluding the tax component. However, the contention urged by Shri Aravind that tax component should be distributed among both sellers merits consideration. Therefore, appellant shall be entitled for deduction of only 50% of the tax component proportionate to her share holding. - HC Visit to Get Source Rectification application u/s 154 - exemption u/s 10(23)(C)(iiiad) - The scope of Section 154 is very narrow and restricted to only correcting mistakes apparent from record, and in case if the claim of the assessee requires long drawn deliberations and reasoning , it cannot be covered u/s 154. Thus, in our considered view , setting up of a new claim of exemption u/s 10(23C)(iiiad) for the first time through a rectification application u/s 154 of the 1961 Act is itself not permissible keeping in view the limited and narrow mandate of Section 154. Also that now withdrawing the exemption claim u/s 11 and 12 by filing rectification application u/s 154 , will falsify the accountants report u/s 12A(b) filed along with the return of income. - AT Visit to Get Source Taxability of the remuneration received from the partnership firm and interest on capital contribution made by the partner of the firm in the absence of any business income in the hands of the firm - The reasoning of the CIT(A) that there was no disallowance made by the Assessing Officer u/s.40B and, therefore, the question of applicability of proviso does not arise, in our considered opinion, is unreasonable. The question of disallowance by the Assessing Officer arises only in the event of claim for allowance by the firm. When there was no claim made by the assessee firm u/s. 40B, the question of disallowance does not arise. - AT Visit to Get Source Validity of reassessment u/s. 147 - non-issuance of notice u/s. 143(2) - Onus of filing of ROI on the assessee is a responsibility which is cast upon him to be fulfilled by him, if he fails to take benefit of any of the provisions of law, the assessee cannot plea that the notice u/s. 143(2) should have been issued. In the present case, the assessee filed a letter dated 18-01-2014 requesting to treat the original return of income as in response to notice u/s. 148 of the Act. Since, the same is beyond specified time the AO cannot take cognizance of the same and proceeded with the assessment considering the notices issued u/sec. 143(2) & 142(1) of the Act on 07-08-2012. Therefore, the contention of Ld. AR that no notice u/s. 143(2) issued subsequent to the letter dated 18-01-2014 is not acceptable and rejected. - AT Visit to Get Source Disallowance of depreciation on motor car - ownership - Merely disclosing an asset as its asset in its books of account will not be sufficient to prove the ownership. Hence, in the instant case, it is imperative for the assessee to prove that, it is in fact the owner of the vehicles, though they are standing in the name of some remotely connected persons. We notice that the assessee has not furnished enough details to prove ownership except stating that it is shown as its own asset in the books of accounts, which is not sufficient. - AT Visit to Get Source Receipt of contractual amount - undisclosed business receipts - Until, it is brought on record that the assessee was subject to the provisions of section 194C we are of the view that no disallowance can be made of the expenses claimed by the assessee under the provisions of section 194C read with section 40(a)(ia) of the Act on account of non-deduction of TDS. - AT Visit to Get Source Customs Requirement of Import Export Code (IEC) number - Non-consideration of the benefits under the Services Export from India Scheme - The proviso does not lay down that the IEC number is essential at the time of rending services of said specified kind. The requirement of IEC number is only for taking benefits under the scheme. Therefore, it is abundant clear that the eligibility criteria of Clause 3.08(f) of the FTP has imposed additional restriction of having IEC number at the time of rendering services which was not intent or purport of the statute - the said condition is against the principal legislation and therefore, it cannot be termed as of mandatory nature for availing benefits under the scheme. - HC Visit to Get Source Levy of penalty u/s 112(a) and u/s 114AA of the Customs Act, 1962 - alleged involvement in forged /fake VKGUY /DEPPB license and imports there under - cross-examination of witnesses not allowed - The impugned order-in-original does not record a finding that, any of the conditions specified under Sections 138B(1) of the Act of 1962 stands satisfied thereby such statements without cross-examination of such witness became absolutely irrelevant. In such circumstances, the adjudication proceedings conducted by the adjudicating authority and resultant the impugned order-in-original stands vitiated by breach of principles of natural justice. - AT Visit to Get Source Valuation of export goods - rejection of declared value - claim of duty drawback wrongfully - the said concealment was nothing but an afterthought to cover up the mistake which the appellant had already committed i.e. of mis-declaration of the goods and overvaluing them with the sole intention of availing a higher duty drawback. The duty drawback is otherwise not available with respect to the export of old and used goods. These observations are sufficient to hold that the above observed concealment was with the intention to mis-declare and overvalue the goods to claim ineligible duty drawback. - AT Visit to Get Source Revocation of Customs Broker License - once verification of the address is complete, if the client moves to a new premises and does not inform the authorities or does not get his documents amended, such act or omission of the client cannot be held against the Customs Broker - the Customs Broker has not failed in discharging his responsibilities under Regulation 10(n). - AT Visit to Get Source Indian Laws Applicability of rent act - seeking recovery of Municipal Tax ( including surcharge and water tax/fees) from the tenant - As the monthly rent due and payable would be Rs. 10,000/- per month which cannot be said to be more than ten thousand rupees as monthly rent, the High Court has rightly observed and held that the Act 1997 shall be applicable and therefore the civil suit filed by invoking Section 106 of the TP Act is impliedly barred - SC Visit to Get Source Anti-competition - Appellant has alleged the anti-competitive conduct of WhatsApp - What the Appellant has failed to prove that the Opposite party/Respondent is abusing its dominant position in the relevant market by introducing privacy policy which compels its users to share their account details and other information with Facebook as the Respondent has provided the users opt out of sharing user accounts information with Facebook within 30 days of agreeing to the updated of service and privacy policy. It also reveals that they have updated the policy for improving infrastructure and delivery system alongwith tools for securing systems and fighting with spam, abuse or such negative activities. - AT Visit to Get Source Bail application - The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails. - The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar - SC Visit to Get Source IBC Initiation of CIRP proceedings - minimum requirement of threshold limit - It has been brought out that two invoices have been issued without any seal and signature. Admittedly, these two invoices dated 1st April, 2020 & 4th April, 2020 have been issued after 25th March, 2020. Hence, these two invoices will be barred by Section 10A of IBC. - these two invoices cannot be considered for threshold limit of Rs. 1 Crore - AT Visit to Get Source Service Tax Levy of Service Tax - Composite Works Contracts prior to the introduction of the Finance Act, 2007, by which the Finance Act, 1994 came to be amended to introduce Section 65(105)(zzzza) pertaining to Works Contracts - The judgment in Larsen and Toubro Ltd. [2013 (9) TMI 853 - SUPREME COURT] has been correctly decided and does not call for a reconsideration insofar as the period prior to 1st June, 2007 is concerned - SC Visit to Get Source Refund claim - time limitation - excess payment of service tax - rejection of refund claim as barred by limitation of time on the ground of delay in filing such application by one day beyond the period of one year from the relevant date - The period of limitation should be calculated as per the General Clauses Act - the refund application has been filed within time and rejection of refund is incorrect and needs to be set aside. - AT Visit to Get Source Short payment of service tax - Site Formation Services or not - the services are not aligned to the above definition but includes set up of various other units such as WTP, CETP etc which is a composite works contract and hence the same would also merit classification under the service of works contract. Thus, the demand under site formation services cannot survive. - AT Visit to Get Source Central Excise Process amounting to manufacture or not - conversion of waste oil/used oil/sludge obtained from various sources into reclaimed fuel oil / re-refining used oil amounts - From Circular dated 11-4-2016, it can be held that the process of cleaning of waste oil to yield reclaimed fuel oil does not amount to manufacture as defined under Section 2(f) of the Central Excise Act, 1944. - AT Visit to Get Source VAT Classification of goods - Chuni, by-product of Dal - Entry Tax - ‘Chuni’ is one of the 16 ingredients into the making of ‘cattle feed’ and it is not the same thing as ‘cattle feed’ as occurring in Entry 66 of the Schedule to the OET Act. - The Court is of the view that ‘Chuni’ which is the by-product of ‘Dal’ is not ‘cattle feed’ and is therefore not amenable to entry tax - HC Visit to Get Source Case Laws: GST 2022 (8) TMI 216 Document Identification Number (DIN) - Seeking Direction to take all necessary steps to implement a system for electronic (digital) generation of a DIN for all communications sent by the state tax officers to taxpayers and other concerned persons - direction to the GST Council to consider and take a policy decision in respect of implementation of DIN system by all the states - direction to the Central Government/CBIC to introduce centralised DIN for the entire country - HELD THAT:- It cannot be disputed that implementing the system for electronic (digital) generation of a Document Identification Number (DIN) for all communications sent by the State Tax Officers to taxpayers and other concerned persons would be in the larger public interest and enhance good governance. It will bring in transparency and accountability in the indirect tax administration, which are so vital to efficient governance. In view of the implementation of the GST and as per Article 279A of the Constitution of India, the GST Council is empowered to make recommendations to the States on any matter relating to GST. The GST Council can also issue advisories to the respective States for implementation of the DIN system, which shall be in the larger public interest and which may bring in transparency and accountability in the indirect tax administration - the present writ petition is disposed off by directing the Union of India / GST Council to issue advisory / instructions / recommendations to the respective States regarding implementation of the system of electronic (digital) generation of a DIN in the indirect tax administration, which is already being implemented by the States of Karnataka and Kerala. Petition disposed off. 2022 (8) TMI 215 Maintainability of petition - availability of alternative reedy of appeal - Violation of principles of natural justice - fair opportunity of hearing not provided - ex-parte order passed - HELD THAT:- This Court, notwithstanding the statutory remedy, is not precluded from interfering where, ex facie, we form an opinion that the order is bad in law. This is for two reasons- (a) violation of principles of natural justice, i.e. Fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case; (b) order passed ex parte in nature, does not assign any sufficient reasons even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences; (c) It is also found the authorities not to have adjudicated the matter on the attending facts and circumstances. All issues of fact and law ought to have been dealt with, even if the proceedings were ex parte in nature. Petition disposed off. 2022 (8) TMI 214 Constitutional validity of Section 16(2) (c) of the CGST Act, 2017/SGST Act, 2017 - allowability of claim of Input Tax Credit (ITC) subject to discharge of GST liability by the supplier - interim order awaited - HELD THAT:- Since constitutionality of the provision of State GST Act also has been challenged, let the State of West Bengal be added as a party respondent and also State GST authority concerned be impleaded as an added respondent and the copy of this writ petition be served upon the learned Advocate General and State GST authority concerned. Pendency of this writ petition will not prevent the petitioner from making any representation against the audit report appearing at page 53 of the writ petition before the respondent concerned which shall be considered by the authority concerned in accordance with law. List this matter for final hearing after seven weeks. 2022 (8) TMI 213 Claim of interest on delayed Refund - the only reason the respondents/revenue have denied grant of statutory interest to the petitioner, is because Covid-19 was raging and there was delay in processing the petitioner s refund - Section 56 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- What has emerged from the record, and something which is not disputed, is that the petitioner did file an application for refund on 20.07.2021, the principal amount towards refund was released in two tranches; first one amounting to Rs.14,22,482/- was released in and about 04.01.2022, and the second tranche amounting Rs.11,07,462/- was released in and about 22.03.2022. The statutory rate of interest is pegged at 6%. The said interest gets triggered after the expiry of 60 days from the date of receipt of application for refund. The interest is payable to the petitioner. The respondents/revenue are directed to pay to the petitioner at the statutory rate as prescribed in Section 56 of the Act - the statutory rate of interest provided under Section 56 of the Act is a compensation for use of money. The writ petition is disposed of. 2022 (8) TMI 212 Harrasement or not - petitioner submitted that under the production of summons, the petitioner is forced to give an undertaking to pay the tax of a sum of Rs.29 lakhs, whereas the learned Special Public Prosecutor submitted that despite several opportunities were given, the petitioner has not produced any document to substantiate his case - HELD THAT:- The term harassment is so subjective which cannot be encapsulated in objective criterion. The petitioner having received summons from the respondent, is bound to cooperate for enquiry. Admittedly, the enquiry is pending. Without cooperating with the respondent, they cannot seek such a blanket direction. This Criminal Original Petition is dismissed. 2022 (8) TMI 211 Profiteering - construction services - benefit of ITC had not been passed on to the buyers by way of commensurate reduction in prices - contravention of of Section 171 of the CGST Act, 2017 - Penalty - HELD THAT:- In terms of the provisions of the RERA Act, bookings in the project could not happen till the registration was obtained. Since the registration was obtained for the subject projects post the introduction of Goods and Services Tax only, the provisions of Section 171 dealing with Anti-profiteering could not be made applicable to the said projects in the view of the fact that there was no additional ITC that had been made available to the Respondent, which was relevant for establishing any allegation of profiteering. It is clear from the DGAP's Report that the Respondent had launched the subject projects in the post-GST regime and there were no demands raised by the Respondent with respect to these projects in the pre-GST regime. The registration and approval of the projects and receipt of the payments had taken place in the post-GST regime and hence, there was no pre-GST tax rate or ITC which could be compared with the post-GST tax rate and ITC. On this basis, the DGAP has reported that the Respondent had neither benefited from additional ITC nor had there been a reduction in the tax rate in the post-GST period and therefore it did not qualify to be a case of profiteering - The instant case does not fall under the ambit of the Anti-Profiteering provisions of Section 171 of the CGST Act, 2017. This Order having been passed today falls within the limitation prescribed under Rule 133 (1) of the CGST Rules, 2017. 2022 (8) TMI 210 Profiteering - construction service - Respondent had not passed on the benefit of Input Tax Credit (ITC) to him by way of commensurate reduction in the prices - contravention of section 171 of CGST Act - Penalty - HELD THAT:- It is clear From the plain reading of Section 171 (1) mentioned above that it deals with two situations One relating to the passing on the benefit of reduction in the rate of tax and the second pertaining to the passing on the benefit of the ITC. On the issue of reduction in the tax rate, it is apparent from the DGAP's Report that there has been no reduction in the rate of tax in the post GST period. Hence, the only issue to be examined is as to whether there was any net benefit of ITC with the introduction of GST. The Authority finds that. the ITC, as a percentage of the turnover, that was available to the Respondent during the pre-GST period (April-2016 to June-2017) was 2.80%, whereas, during the post-GST period (July-2017 to September, 2019), it was 2.83%. This confirms that in the post-GST period. the Respondent has been benefited from additional ITC to the tune or 0.03% (2.83%-2.80%) of his turnover and the same is required to be passed on by him to the recipients of supply, including, the Applicant No. 1. The Authority finds that the computation of the amount of ITC benefit to be passed on by the Respondent to the eligible recipients works out to Rs. 4,44,563/-. The DGAP has calculated the amount of ITC benefit to be passed on to all the eligible recipients as Rs.4,44,563/- on the basis of the information supplied by the Respondent. The Respondent has not disputed the methodology adopted by the DGAP or the amount of profiteering worked out by the DGAP. The names of such homebuyers along with unit number and the benefit already passed on is enclosed with this order as Annexure-A. The Authority concur with the DGAP report dated 31.12.2020. The Authority determines that the Respondent have profiteered by an amount of Rs. 4,44,563/- for the project 'Tower F' in the project Anmol Fortune-II during the period of investigation i.e, 01.07.2017 to 30.09.2019. The Authority has also taken note of DGAP verification report dated 10.03.2021 regarding claim of the Respondent that they have passed on Rs. 58,65,423/-. As per the said report, only 23 home buyers out of 117 home buyers have confirmed receipt of the ITC benefit and 2 home buyers have denied receipt of any benefit from the Respondent, the remaining home buyers did not respond to the communication made by the DGAP. This Order having been passed today falls within the limitation prescribed under Rule 133 (1) of the CGST Rules, 2017. 2022 (8) TMI 153 Direction for implementation of system for electronic (digital) generation of a Document Identification Number(DIN) for all communications sent by the state tax officers to taxpayers and other concerned persons - direction to the GST Council to consider and take a policy decision in respect of implementation of DIN system by all the states - direction to the Central Government/CBIC to introduce centralised DIN for the entire country - HELD THAT:- From the averments in the petition, it appears that the State of Karnataka and the State of Kerala have implemented the system for the electronic (Digital) generation of a Document Identification Number (DIN) for all communications sent by the State Tax Officers to the taxpayers and other concerned persons. Put up the matter on 18.07.2022. Income Tax 2022 (8) TMI 209 Addition u/s 68 - unexplained share subscription transaction - assessee failed to establish the creditworthiness, identity and genuineness of transaction for which credit in the books of accounts - ITAT deleted the addition - HELD THAT:- Tribunal has stated that the facts of the case are not in dispute. It is not clear on what basis the Tribunal came to such a conclusion. Tribunal has not recorded that the revenue has conceded to the documents details produced by the assessee for the first time before the Tribunal. According to the Tribunal, those documents were available in the assessment file. Be that as it may, the assessee was bound to co-operate in the assessment proceedings. In spite of several notices the assessee did not even care to reply to the said notices nor respond to the notices. Therefore, we are required to examine the correctness of the order passed by the Tribunal on merits. It will be rewarding a person who does not require such an indulgence - Tribunal fell in error by stating that the facts are not in dispute. Then the enquiry could not be completed by the AO on account of supine interference on the part of the assessee in not co-operating with the assessment proceedings. Therefore, we are of the clear view that the matter has to be remanded back to the AO for fresh consideration. Revenue appeal is allowed. 2022 (8) TMI 208 Reopening of assessment u/s 148 - notice under Section 148A(b) of the Act had been issued in the present instance as the Petitioner s ITR and GST Data did not reconcile - HELD THAT:- This Court is of the view that the impugned show cause notice as well as the impugned order u/s 148A(d) of the Act are based on distinct and separate grounds. The show cause notice primarily states that it is seen that the Petitioner has made purchases from certain non-filers . However no details or any information of these entities was provided to the Petitioner. It is not understood as to how the Petitioner was to know which of the entities it dealt with were filers or non-filers. The impugned order states that a report was prepared against the Petitioner-company which concludes that the assessee had shown bogus purchases from bogus entities to suppress the profit of the company and reduce the tax liability during the years 2015-16 to 2020-21. However, no such report which forms the basis for the information on which the assessment was proposed to be reopened had been provided to the Petitioner. In fact, there are no specific allegations in the show cause notice to which the Petitioner could file a reply. Keeping in view the aforesaid, the impugned order dated 30th March, 2022 passed u/s 148A(d) and notice dated 31st March, 2022 issued u/s 148 of the Act are quashed and the Respondents are given liberty to furnish additional materials in support of the allegations made in the show cause notice dated 16th March, 2022 within three weeks including reports, if any. 2022 (8) TMI 207 Revision u/s 263 - Reopening of assessment u/s 147 - HELD THAT:- AO is directed to take up the assessment from the stage of issuance of show cause notice giving opportunity to the petitioner to make his objections and to produce documents enable him to make his reply, to access to the portal and thereafter, following the procedure by giving personal hearing or video conferencing and thereafter to conclude the assessment. Since the petitioner only prays for a remand, the assessment is set aside and remanded to the file of concerned respondent. The petitioner is granted four weeks time from date of issuance of this order, to file his reply to the proposals contained in the show cause notice, as well as the points raised in the impugned order, that shall also be read as a show cause notice and nothing more. The petitioner shall be heard thereafter and an order passed by the Assessing Authority taking note of the submissions of the assessee both written and oral as well as any supportive documents filed. 2022 (8) TMI 206 Suppressed profits from the unaccounted transactions - Estimation of Profit element on unaccounted sales - Addition as difference as unexplained investment and adjusted the same in the closing stock - HELD THAT:- According to ITAT, CIT(A) had taken profit element on unaccounted sales at 1% of unaccounted sales and considered the balance amount of difference as unexplained investment and adjusted the same in the closing stock. Shri. Chandrasekar is right in his submission that this finding is not found in the order passed by CIT(A). ITAT has recorded a further finding that assessee had adjusted the closing stock in re-cast accounts. If this finding is accepted, the question of adjusting the difference as 'unexplained investment' does not arise. Appellant has raised this specific ground in Memorandum of appeal. Thus, we are of the considered view that the findings recorded by the ITAT in para 11.5.6 is not sustainable and therefore, this appeal merits consideration. 2022 (8) TMI 205 Capital gain computation - sale of shares - full value of consideration - deduction of expenses u/s 48 - The appellant had agreed to pay the tax component as per Clause 7(1) of the share purchase agreement. - whether the tax component does not fall within the definition of expenditure - HELD THAT:- Section 48 of the Income Tax Act provides for mode of computation in terms of which the income chargeable under the head 'Capital Gains' shall be computed by deducting full value of the consideration received. The expenditure incurred and cost of acquisition are deductible. The Revenue's case is, payment of tax does not fall in these two categories. But in the facts of this case, the total amount realised or in other words, which the appellant got in her hand, is Rs.1.80 Crores. The deduction is claimed based on the agreement between the parties. A careful perusal of the agreement shows that intention of the parties is clear to the effect that the value of the shares shall be the amount agreed between the parties excluding the tax component. However, the contention urged by Shri Aravind that tax component should be distributed among both sellers merits consideration. Therefore, appellant shall be entitled for deduction of only 50% of the tax component proportionate to her share holding. This appeal is allowed in part. The questions are answered partly in favour of the assessee and against the Revenue, holding that assessee shall be entitled for deduction of only 50% of the tax component. 2022 (8) TMI 204 Addition u/s 68 - addition under share application money and declaring the same as unsecured loan - addition made as the assessee has not discharged the onus - CIT-A deleted the addition - HELD THAT:- The assessee has produced details of notarized confirmation, ITRs and also the bank statement evidencing the payment to assessee company in respect of Mr. Hardeep Singh Nagra, Hrbinder Singh Athwal, Sh. Anil Shama, Sh. S. P. Dham, Syed Arshad. As also seen that the above named share holders, were holding the shares in assesses company even before the year under consideration and such shareholding forms part of opening balance of the Assessee as found by the CIT (A), which has not been disputed by the DR. Further, the identity of above assets, genuineness and creditworthiness had also been accepted in those years. Therefore in our opinion, the assessee has produced enough supporting evidence to substantiate the genuineness of the creditors and has successfully discharge its onus. In so far as, Mr. Syed Arshad is concerned, the said transaction is between the shareholders inter-se, such transfer has not resulted any increase in the share capital nor resulted in any fresh infusion of funds and the transaction has got no relation to the assessee company and such transaction does not resulting in any amount being credited in the Assessment Year 2008-09 in the books of accounts of the Company. AO has committed an error in disallowing the share application money in the name of Mr. Syed Arshad, which has been rightly deleted by the CIT (A). - Decided in favour of assessee. 2022 (8) TMI 203 TDS credit - CPC did not give credit of TDS though the same was appearing in Form 26AS - HELD THAT:- We find that ld. CIT (A) has confirmed the order of CPC by ignoring the mandate of law contained in section 143(1)(a) that before making such adjustment, assessee should be put to notice. Since this has not been done the jurisdiction of CPC in doing such adjustment sans any notice is vitiated. Consequently, the adjustment done by CPC is not sustainable in law. Even on merits, assessee has duly narrated the facts and reasons as to where the said income is reflected but ld. CIT (A) has not applied his mind in this regard and confirmed the AO s order As already noted by us, the above adjustment was not liable to be done by CPC without issuing notice in this regard. On merits, the order of ld. CIT(A) exhibits non-application of mind. Hence we set aside the order of authorities below and decide the issue in favour of the assessee. 2022 (8) TMI 202 Revision u/s 263 - Disallowance of interest u/s 36(1)(iii) in respect of loans and advances made to sister concerns - HELD THAT:- There is no gainsaying that the power of revision can be exercised by the ld. PCIT based on the opinion formed by himself. The revision based on the subjective opinion of PCIT cannot be sustained in the eyes of law. As observed by us, there was no existence of facts and circumstances on the base of which the PCIT had formed an opinion that an enquiry is warranted into the item appearing under the head Advance for properties . The opinion formed by the PCIT that assessment order is erroneous for the fact that the Assessing Officer had not caused any enquiry into items advance for purchase of properties is based on no evidence. In such circumstances, it can be said that the ld. PCIT had not applied his mind or did not honestly form his opinion. Thus, the order of revision passed on this item by the ld. PCIT is unreasonable and not based on any material. As regards to the issue of average rate of interest to be adopted for the purpose of computing amount of disallowance u/s 36(1)(iii) on the loans and advances made to the sister concern, it is an admitted position that the question of disallowance u/s 36(1)(iii) is not subject matter of revision, but the rate to be adopted for the purpose of computing the amount of disallowance u/s 36(1)(iii). During the course of assessment proceedings, the appellant had categorically stated that the average rate of interest is only 14% as the appellant had borrowed the funds at the rate of interest ranging from 8% to 20%. The appellant had also filed the details such as name of the lenders and rate of interest etc. Therefore, it cannot be said that the Assessing Officer had adopted rate of interest @ 14% without making any enquiry as to the average rate of interest at which the loans were borrowed by the appellant company. As things stand today, the question of disallowance u/s 36(iii) does not arise for the reason that the addition made by the Assessing Officer came to be deleted by the CIT(A) on appeal. Therefore, the issue as to what is the correct rate of interest to be adopted had become academic. In the circumstances, the order of revision passed by the ld. PCIT cannot be sustained in the eyes of law. Since, we held that the order of revision cannot be sustained in the eyes of law, we need not delve into the issue of doctrine of merger and the applicability in the case of Smt. Renuka Philip [ 2018 (12) TMI 129 - MADRAS HIGH COURT ] and in the case CIT vs. Vam Resorts Hotels (P.) Ltd. [ 2019 (8) TMI 1418 - ALLAHABAD HIGH COURT ] - In the circumstances, the issue raised by the assessee-company in the present appeal stands allowed. 2022 (8) TMI 201 Rectification application u/s 154 - exemption u/s 10(23)(C)(iiiad) - claim for the first time by filing rectification application u/s 154 - CIT(A) observed that the assessee has incurred expenses towards Tree Plantation Programme and Women Welfare Programme which are not for educational purposes and society is not existing solely for educational purposes as is required u/s 10(23C)(iiiad) - HELD THAT:- As observed that the recognition granted Dr Ram Manohar Lohia Avadh University , Faizabad is effective from 01.07.2012 for next three years to Dayashankar Jagdish Bahadur Mahila University , Lohangi, Pratapgarh, U.P. , and presently we are concerned with ay: 2011-12(previous year 2010-11), thus for the year under consideration , the assessee was not holding any recognition from Dr Ram Manohar Lohia Avadh University , Faizabad and wrong contentions were raised by assessee. As pertinent to mention that the assessee never claimed exemption u/s 10(23C)(iiiad) in its return of income filed with the Department, rather it claimed exemption 11 and 12 of the 1961 Act, despite the fact that it never held registration u/s 12A at the relevant point of time. The assessee did not file revised return of income to claim exemption u/s 10(23C)(iiiad) , rather originally the assessee filed belated return of income which infact could not have been revised u/s 139(5). The assessee set up claim for the first time for grant of exemption u/s 10(23C)(iiiad) by filing rectification application u/s 154 of the 1961 Act. As held in Pr. CIT v. Wipro [ 2022 (7) TMI 560 - SUPREME COURT] that scope in filing revised return is to only correct omissions and errors , rather than bringing an altogether new claim in revised return of income. In the instant case before us, the assessee has not even filed revised return of income claiming exemption u/s 10(23C)(iiiad) which infact the assessee could not have filed as originally the assessee filed belated return of income, rather this new claim of exemption u/s 10(23C)(iiiad) was set up for the first time by assessee through rectification application u/s 154. The scope of Section 154 is very narrow and restricted to only correcting mistakes apparent from record, and in case if the claim of the assessee requires long drawn deliberations and reasoning , it cannot be covered u/s 154. Thus, in our considered view , setting up of a new claim of exemption u/s 10(23C)(iiiad) for the first time through a rectification application u/s 154 of the 1961 Act is itself not permissible keeping in view the limited and narrow mandate of Section 154. Also that now withdrawing the exemption claim u/s 11 and 12 by filing rectification application u/s 154 , will falsify the accountants report u/s 12A(b) filed along with the return of income. Thus an altogether new claim cannot be set up even by filing revised return of income, as the scope in filing revised return of income is to correct omissions and errors, rather than bringing altogether new claim in revised return of income. - Decided against assessee. 2022 (8) TMI 200 Deemed dividend u/s. 2(22)(e) - loan out of accrued profits of MEPL - as per DR assessee being a shareholder in M/s. Sanghvi Erectors Pvt. Ltd. withdrawn funds and kept the same as fixed deposit in his own name in the Kotal Mahindra Bank and asseSsee transferred the said amount to his personal account and had disowned by stating that the said deposit actually belongs to MEPL - HELD THAT:- Fixed deposit was never kept as security against any kind of loan, mortgage, etc. nor any lien in respect of its tenure. Further, it is also stated that the assessee transferred sum from his savings account to MEPL on 22-08-2015 which clearly shows as argued by the ld. AR that assessee s family members might appropriate the funds for themselves under various legal proceedings. On perusal of certificate issued by the Kotak Mahindra Bank, we note that the assessee made term deposit on 01-02-2013 for a period upto 31-07-2013 @ 8.50% interest. Further, the same has been renewed from time to time up to 22-08-2015. The assessee transferred the total realized amount to the account of MEPL. Therefore, which clearly shows the conduct of assessee in refunding the entire amount with interest to MEPL on its maturity with realized total value supports the arguments of ld. AR that the amount was withdrawn and kept in fixed deposit only to protect the interest of the MEPL. If that is the situation, we find the AO terming the same as loan out of accrued profits of MEPL attracting the provisions u/s. 2(22)(e) of the Act is not justified - Decided against revenue. Disallowance u/s 14A r.w.r 8D - CIT-A deleted the addition - HELD THAT:- We note that the assessee earned dividend income from his personal investments but not from business assets. DR did not bring on record any contrary evidence to this effect. Therefore, we find no infirmity in the order of CIT(A) - Decided against revenue. Addition made on account of interest on fixed deposit - HELD THAT:- We have taken a view in confirming the order of CIT(A) in deleting the said addition u/s. 2(22)(e) while adjudicating ground Nos. 1 and 2 Above. Therefore, we find no infirmity in the order of CIT(A) and it is justified. Thus, ground raised by the Revenue is dismissed. 2022 (8) TMI 199 Unexplained cash credit u/s 68 - Disallowance of interest being non-genuine - main contention before us advanced by the ld. AR is about nongranting opportunity of cross-examination of Mr. Rangnath Dattatraya Gadekar - HELD THAT:- As in the present case we held the loan itself is not genuine as the loan creditor himself stated in the cross-examination and through affidavit he did not give any loan to assessee - we find no infirmity in the order of CIT(A) in holding that there is no loan advanced by Mr. Rangnath Dattatraya Gadekar to assessee and consequently, disallowance of interest is not justified. We concur with the findings of CIT(A) in toto. Addition on account of claim of excess payment - HELD THAT:- We find the cross-examination which was reproduced by the CIT(A) of the impugned order and on perusal of the cross-examination of the above said three persons, we note that they clearly stated that they wanted to receive entire amount of money which was deposited in their account against the acquisition of their land. They also stated they did not receive any amount from the assessee as claimed by him except Rs.20 lakhs, Rs.14 lakhs and Rs.20 lakhs, respectively. On perusal of the impugned order and also written submissions as filed by the ld. AR vide letter dated 30-05-2022 before us, we note that admittedly there is no proof to show that the assessee paid Rs.92,00,000/- except, payment to the above said three persons. Therefore, we find no infirmity in the order of CIT(A) in confirming addition. Addition on account of payable to three parties - addition made as liability is not crystallized - HELD THAT:- There is no proof to show that the liability is crystallized before us, therefore, we find no infirmity in the order of CIT(A) and it is justified. Thus, ground raised by the assessee is dismissed. 2022 (8) TMI 198 TP Adjustment - Comparable selection - Revenue is aggrieved by the inclusion of Gorani Industries Limited (GIL) in the list of comparable - HELD THAT:- In view of the fact that the Trading revenue in the case of GIL is more than double of the assessee and only the consolidated figures are meant to be compared, we hold that Gorani Industries Limited cannot be considered as comparable. The obvious reason is that the profit margin widely varies in a Manufacturing model of activity vis- -vis the Trading model. In view of such an extensive fluctuation in the Trading and Manufacturing revenue streams of the two companies, we hold that GIL cannot be considered as comparable. The impugned order is overturned to this extent and this company is directed to be excluded from the list of comparables. Inclusion of Butterfly Gandhimathi Appliances Limited (BGAL) in the list of comparables - It can be seen from the above that GAL merged with BGAL and the transactions of assets and liabilities etc. of GIL have been incorporated in the books of BGAL as on 31-03-2012, which is relevant to the assessment year under consideration. In view of the fact that the figures of this company for the year are influenced by the merger taking place, we hold that the extraordinary financial event makes it incomparable. We, therefore, order to exclude this company from the list of comparables. Proportionate adjustment - restricting the transfer pricing adjustment to the extent of international transactions rather than the entity level is no more res integra in view of several judgments rendered by various higher forums including the Hon ble jurisdictional High Court in CIT Vs. Phoenix Mecano (India) Pvt. Ltd. [ 2017 (6) TMI 1240 - BOMBAY HIGH COURT] holding that the transfer pricing adjustment should be restricted only to the international transactions and not the entity level transactions. The Hon ble High Court in has held that the transfer pricing adjustment made at entity level should be restricted to the international transactions only. Here, it is pertinent to mention that the Department s SLP against the judgment in the case of Phoenix Mecano (India) Pvt. Ltd. has since been dismissed by the Hon ble Supreme Court in CIT Vs. Phoenix Mecano (India) Pvt. Ltd. [ 2018 (7) TMI 798 - SC ORDER] Also see CIT Vs. Thyssen Krupp Industries Pvt. Ltd. [ 2015 (12) TMI 1076 - BOMBAY HIGH COURT] and CIT Vs. Tara Jewels Exports (P). Ltd. [ 2015 (12) TMI 1130 - BOMBAY HIGH COURT] . We, therefore, set aside the impugned order on this score and direct that the transfer pricing adjustment should be restricted only to the extent of the international transactions. The impugned order on the issue of transfer pricing adjustment of the international transactions of Purchase of Raw Material, Purchase of traded goods and Sale of finished goods is set aside and the matter is remitted to the file of the AO/TPO for a fresh determination in the terms indicated above. Needless to say, the assessee will be allowed reasonable opportunity of hearing in such fresh proceedings. 2022 (8) TMI 197 Computation of the capital gain on the basis of the JDA - whether the date of development agreement or the date of delivery of the flats are to be considered for the purpose of computation of capital gain? - bifurcation of the composite value of the land and building - HELD THAT:- We find the assessee in the instant case has entered into a Joint Development Agreement cum-GPA for development of 791 sq.yards - As per the agreement, she got 8 Flats of 1100 sq.ft. each. The total market value of the project as per the document (SRO) is Rs.2,70,50,000/- (land value Rs.79,10,000/- and market value of constructed area is Rs. 1,91,40,000/-. Since the assessee had not disclosed the land transfer transaction in her return of income, the Assessing Officer after considering the share of the assessee in the project at 40% determined the consideration and transfer of the property at Rs. 1,08,20,000/-. After deducting the indexed cost of acquisition of Rs. 11,717/- he determined the LTCG at Rs. 1,08,08,283/-. We find in appeal, the learned CIT (A) following the decision of the Coordinate Bench of the Tribunal in the case of K. Vijaya Lakshmi [ 2018 (3) TMI 138 - ITAT HYDERABAD] held that the provisions of section 45(5A) cannot be applied retrospectively. Similarly, following the decision of the Hon'ble A.P High Court in the case of Potla Nageswar Rao [ 2014 (8) TMI 636 - ANDHRA PRADESH HIGH COURT] where it has been held that the transfer is complete on the execution of the JDA, he held that the assessee is liable to capital gain tax in the impugned A.Y i.e. A.Y 2016-17 when the Jt.Development Agreement was entered into between the assessee and M/s. Dhanush Builders developers for development of the property. We do not find any infirmity in the order of the learned CIT (A) on this issue. Since the learned CIT (A) in his detailed order has decided the issue regarding the year of taxation of the capital gain and also the manner in which the capital gain should be computed which is based on the decision of the jurisdictional High Court and the Coordinate Bench of the Tribunal. Therefore, we do not find any infirmity in the order of the learned CIT (A) in dismissing the grounds raised before him. Accordingly, the grounds raised by the assessee are dismissed. 2022 (8) TMI 196 Addition on account of interest - excessive interest on the borrowings - CIT-A deleted the addition - HELD THAT:- AO on the basis of working given in the assessment order had concluded that assessee had charged lower interest on the amount advanced as compared to the higher interest paid on the amount borrowed. AO thereafter, worked out the interest that should have been charged by the assessee. When the matter was carried before CIT(A), CIT(A) after considering the submissions of the assessee had given a finding that the average rate of interest paid by the assessee was less than the average rate of interest earned by the assessee and thus assessee had not paid excessive interest on the borrowings. He has further given a finding that the addition made by AO was based on erroneous working. Before us, Revenue has not pointed any fallacy in the findings of CIT(A). In such a situation, we find no reason to interfere with the order of CIT(A). Thus the ground of Revenue is dismissed. Disallowance u/s 14A - grievance of the assessee in this ground is that AO had considered the investment in mutual funds while working out the disallowance under Rule 8D - HELD THAT:- On perusal of the investments schedule placed in the audited Balance Sheet reveals that assessee has stated investment in mutual funds and also stated the investment in equity shares of ICICI Advantages - In view of the aforesaid facts, we do not find any merit in the submissions of the Learned AR that the investments are in mutual funds and therefore, needs to be excluded. We, thus, dismiss the Ground of the cross objection of the assessee. 2022 (8) TMI 195 Payment of interest on capital contribution made by the appellant to the firm - Taxability of the remuneration received from the partnership firm and interest on capital contribution made by the partner of the firm in the absence of any business income in the hands of the firm - contention of the appellant is that in the absence of any business income in the hands of the firm, the question of allowance of any deduction under the provisions of section 40(b) does not arise - HELD THAT:- The reasoning of the CIT(A) that there was no disallowance made by the Assessing Officer u/s.40(b) and, therefore, the question of applicability of proviso does not arise, in our considered opinion, is unreasonable. The question of disallowance by the Assessing Officer arises only in the event of claim for allowance by the firm. When there was no claim made by the assessee firm u/s. 40B, the question of disallowance does not arise. Therefore we are of the considered opinion that the matter requires a remission to the file of the Assessing Officer to decide the issue on hand with reference to the assessment record of the assessee firm in accordance with law as enunciated by us after affording a reasonable opportunity of being heard to the assessee firm. Thus, the grounds raised by the assessee stand partly allowed for statistical purposes. 2022 (8) TMI 194 Penalty u/s 271(1)(c) - disallowance u/s. 14A - HELD THAT:- It can be appreciated from the order of Ld. CIT(A) that it had concluded that disallowance u/s. 14A does not fall within the ambit of being categorized as inaccurate particulars for the purpose of Section 271(1)(c) of the Act and for which reliance was rightly placed on the Hon'ble Supreme Court judgment in the case of CIT vs. Reliance Petro Products (P) Ltd. [ 2010 (3) TMI 80 - SUPREME COURT] . Ld. Sr. DR was unable to cite any proposition of law to the contrary as relied by Ld. CIT(A). Appeal dismissed. 2022 (8) TMI 193 Validity of reassessment u/s. 147 - non-issuance of notice u/s. 143(2) - assessee filed letter beyond 30 days from the receipt of service of notice u/s. 148 - HELD THAT:- Admittedly, there is no dispute with Ld. AR that the assessee filed letter which is beyond 30 days from the receipt of service of notice u/s. 148 of the Act, therefore, according to Ld. DR, no notice u/s. 143(2) is required to be issued in response to such letter, the AO treating the original return as on record, rightly issued notice u/s. 143(2) and 142(1) both dated 07-08-2012. Onus of filing of ROI on the assessee is a responsibility which is cast upon him to be fulfilled by him, if he fails to take benefit of any of the provisions of law, the assessee cannot plea that the notice u/s. 143(2) should have been issued. In the present case, the assessee filed a letter dated 18-01-2014 requesting to treat the original return of income as in response to notice u/s. 148 of the Act. Since, the same is beyond specified time the AO cannot take cognizance of the same and proceeded with the assessment considering the notices issued u/sec. 143(2) 142(1) of the Act on 07-08-2012. Therefore, the contention of Ld. AR that no notice u/s. 143(2) issued subsequent to the letter dated 18-01-2014 is not acceptable and rejected. Thus, the additional ground No. 1 raised by the assessee is dismissed. Addition on account of alleged cash receipts on sale of land - addition based on loose papers - HELD THAT:- There had been no corroborative evidence and no adverse inference could be drawn against the assessee in terms of alleged entries of loose papers. Unless it is established on record that as a matter of fact the cash payment as alleged by the respondent-revenue did pass to the assessee from M/s. Krupa Land Pvt. Ltd. it cannot be said respondent-revenue had any right to make any addition. On perusal of the statement of Dilip Dherai no conclusion can be drawn that the entries in loose papers belongs to assessee representing cash payment. Even the CIT(A) clearly held in the impugned order AO squarely failed to carry out necessary investigation/enquiries from the buyer M/s. Krupa Land, meaning thereby, the CIT(A) also discredited the entries alleged to have been found in the seized loose papers of annexure 1-4, as dumb documents. When the seized loose papers Annexure 1 to 4 by itself, in our opinion, did not indicate receipt of alleged cash payment and no relevancy to the year under consideration, therefore, addition confirmed by the CIT-A to the extent of Rs. 3,33,06,667/- is not justified. Thus, ground raised by the assessee are allowed. CIT-A in applying ratio of 40 : 60 (cash : cheque) without considering notings in the seized loose papers - HELD THAT:- As no date and indication of nature of transaction with reference to figures mentioned therein is reflected. Further, the AO in his order observed that the assessee received payment on 15.10.2008 and 20.10.2008 which supports the view taken by us that the Annexure 4 is not relevant to the year under consideration. Further AO refers to Annexure 4 and held the last six figures of Rs. 9,28,72,500/- is matching with the amount of Rs. 78,72,500/- basing on which the CIT-A in the impugned order held that the assessee admitted to have been received 40% of cash amount amounting to Rs. 3,33,06,667/- which is very close to the figures of Rs. 20 lac plus Rs. 78,72,500/-, in our opinion, have no basis in view of his further observation that the AO squarely failed to carry out necessary investigation/enquiry from the buyer. Therefore, with the detailed discussion in assessee's appeal and the reasons above, we find the order of CIT-A is not justified and is set aside. Decided against revenue. 2022 (8) TMI 192 Estimation of income - bogus purchases - HELD THAT: - We note that in the case of beneficiaries of the accommodation entry providers being Shri Rajender Jain, Shri Pravin Jain and Shri Bhawarlal Jain, this bench has taken the view to sustain addition @6% of bogus purchases. The ld Counsel submitted before us that only two parties belong to Rajendra Jain group cases, therefore in case of remaining five parties the addition should not sustain @6% of bogus purchases. We do not agree with ld Counsel`s stand, because all remaining five parties are also engaged in bogus purchases/sales, hence the issue under consideration is squarely covered by the decision of Co-ordinate Bench of this Tribunal in the case of ITO Ward3(1)(5), Surat vs. Pankaj K. Choudhary Otrs. [ 2021 (10) TMI 653 - ITAT SURAT] We find no reason to interfere in the said order of Co-ordinate Bench, therefore respectfully following the binding order of Co-ordinate Bench we allow Revenue s appeal partly with same direction. Addition u/s 68 on account of unverifiable purchases - mistake of quoting wrong Section - HELD THAT:- The matter discussed by the AO in the assessment order was related to bogus purchases therefore ld CIT(A) corrected unintentional mistake committed by AO that is, corrected the mistake of quoting wrong section. We note that just to quote wrong section while making an assessment order does not vitiate the findings of the entire assessment order. CIT(A) has co-terminus power as that of assessing officer and to correct the mistake of section as per the substance discussed in the assessment order does not mean enhancement of assessment without giving notice to the assessee. That is, when the substance of the transactions, as discussed in the assessment order by the assessing officer are in the nature of bogus purchases, then it would not mean enhancement of assessment, and just because ld CIT(A) made correction in the section in accordance with the substance discussed in the assessment order does not vitiate the appellate order. As relying on case of Navinchandra Mafatlal [ 1961 (1) TMI 9 - SUPREME COURT] we dismiss the ground no.2 and 3 raised by the assessee. Revision u/s 263 - applicability of section 2(22)(e) - long term loans were given by the assessee to various persons appear to be related to the assessee-company and also no interest receipt in respect of these long term loans given was shown - HELD THAT:- As no interest receipt in respect of these long term loans given has been shown. It is also noticed that the assesseecompany during the year under consideration has given loans to various persons/entities the assessee had not received any interest. AO concerned should had to examine the following points to invoke the applicability of Section 2(22)(e) of the Act. We note that during assessment stage, the AO has not issued any notice under section 142(1) to conduct inquiry on the above issues raised by ld PCIT nor assessee has replied. We have gone through the assessment order passed under section 143(3) and noted that there is no any discussion or adjudication on the issue raised by the ld PCIT, hence order passed by the assessing officer is erroneous and prejudicial to the interest of revenue. PCIT noted that it was required to be examined during the course of assessment proceedings as to whether or not Long term loans given by the assessee-company to various persons as per note 9 to the balance sheet which stands at Rs.81.49 crores as on 31.03.2015 qualify for deemed dividend u/s 2(22)(e) - AO concerned had not carried out any investigation during the course of assessment proceedings regarding these facts; therefore these issues required examination. Further, it was not clear whether the parties to whom loans and advances given, were shareholder or creditor, therefore AO failed to conduct necessary inquiry. As noticed that sales against H Form i.e. export sales during the year of Rs.30.47 crores. Rest of the sales is local sales. H form is the certificate issued by Sales tax/VAT department as proof of export. Only register dealer who exports the goods outside Indian can get H form. Against these export sales, profit on account of fluctuation in exchange rates is shown at Rs.64.80 lakhs import of cut polished diamonds during the year of Rs.33.71 crores. As against this import, loss in account of fluctuation in exchange rates is claimed at Rs.3.92 crores. In view of the above gross disproportions between the figures of foreign exchange rate fluctuation loss and fluctuation gain vis-a-vis the corresponding export and import, the correctness of this account was required to be verified for thoroughly which was not done during the course of assessment proceedings therefore order passed by the assessing officer is erroneous and prejudicial to the interest of revenue. It is also to be noted that ld Counsel, during the course of hearing stated that assessee is not exporter, however, on examination of Balance Sheet of the assessee, the ld PCIT noticed that assessee has shown foreign exchange gain/loss in its Balance Sheet therefore if the assessee is not exporter then wherefrom these foreign exchange gain and loss arised in the Balance Sheet. Hence, we are of the view that assessing officer failed to conduct inquiry. - Decided against assessee. 2022 (8) TMI 191 Penalty u/s 271(1)(c) - no reasonable cause within the meaning of section 273B for non deduction of TDS on EDC - AR submitted that the payments made to HUDA were only for the purpose of facilitating the payments due on account of EDC charges towards Town and Country Planning, Government of Haryana - HELD THAT:- As the Co-ordinate Bench orders in M/s. Perfect Constech P. Ltd. [ 2020 (12) TMI 1158 - ITAT DELHI] and in RPS Infrastructure Ltd.[ 2019 (9) TMI 39 - ITAT DELHI] which is also relied in M/s Santur Infrastructure Pvt Ltd [ 2019 (12) TMI 1106 - ITAT DELHI] cast sufficient light on the controversy where in it is held that assessee builder or developers or colonizers are not required to deduct tax at source at the time of payment of EDC to the HUDA. In case of TDI Infrastructure Ltd [ 2022 (7) TMI 388 - ITAT DELHI] the Bench, to which one of us was in quorum, had taken into consideration a clarification memo no DTCP/ACCFTS/AO(AQ) /CAO/2894/2018 dated 19.06.18 issued by the Directorate of Town and Country Planning, Haryana which made it very obvious that receipts on account of EDC are being deposited in the Consolidated Fund of the State, accordingly directions were issued to colonizer like present assessee, to not deduct TDS. Once the fact of receipt of amounts received by HUDA being deposited in Consolidated Fund of State is established, there can be no second opinion that Assessee was rightly directed by DTCP, Haryana to not deduct the TDS. Even otherwise no intentional default is attributed to assessee and the default, if any, was on account of ambiguity which had arisen out of a direction contained in a statutory document, so no penalty can be justified u/s 271C of the Act, which is meant to address contumacious conduct. Levy of penalty u/s 271C of the Act cannot be sustained. - Decided in favour of assessee. 2022 (8) TMI 190 Validity of assessment u/s.144C - Assessment barred by limitation - AO shall forward a draft order of assessment if he proposes to make any variation in the income or loss return by the assessee on or after October 01, 2009 - HELD THAT:- Before us, in the present case, the assessment year involved is assessment year 2007-08 and draft assessment order u/s.144C(1) of the Act was framed on 24.12.2010 and served on the assessee on 31.12.2010. The assessee has accepted the draft assessment order and assessee vide letter dated 18.02.2011 requested the AO that they are not filing objection before DRP and they are preferring appeal before CIT(A). ITO, Ward 10(4), New Delhi framed final assessment order u/s.143(3) r.w.s. 144C of the Act dated 22.02.2011. We have reproduced the extract of the provisions of section 153 of the Act as applicable to assessment year 2007-08 in above para 8.2 and the details of particular for assessment year 2007-08 . Thus we are of the view that in term of section 153 of the Act, a final assessment order u/s.143(3) of the Act, in the absence of provisions of section 144C of the Act being held as prospective in term of decision of Hon ble Madras High Court in the case of Vedanta Limited, supra, the assessment should have been framed on or before 31.12.2010 but actually this was framed only on 22.02.2011, which is barred by limitation. Appeal of assessee allowed. 2022 (8) TMI 189 Disallowance u/s 14A - CIT(A) has restricted the disallowance to the amount of exempt income - HELD THAT:- We notice that the decision so rendered by learned CIT(A) is supported by the decision rendered in the case of M/s Marg Ltd [ 2020 (10) TMI 102 - MADRAS HIGH COURT] . Accordingly, we confirm the order passed by learned CIT(A) on this issue. Disallowance of yatch expenses - As assessee could not prove that these expenses are related to business carried on by it, hence, the Assessing Officer disallowed it - HELD THAT:- The only connection between the assessee and yatch expenses is the MOU claimed to have been entered by assessee with VPPL. However, it appears that the assessee has not furnished copy of MOU before the tax authorities. We are unable to understand as to how the assessee could share profit and loss through MOU. In any case, there should not be any doubt that it is the responsibility of the assessee, to prove that the MOU has created binding legal liability upon the assessee. Accordingly, in the interest of natural justice, we are of the view that the assessee may be provided with one more opportunity to present copy of MOU and explain its claim before learned CIT(A). Accordingly, we set aside the order passed by learned CIT(A) on this issue and restore the same to this file for adjudicating them afresh. Disallowance of travelling and car expenses - AO examined these expenses and came to the conclusion that certain expenses are not related to the business and further details relating to certain items were not furnished thus disallowed 10% of travelling expenses - HELD THAT:- Before us also, no detail was furnished by the assessee to contradict the findings given by the AO on the deficiencies discussed above. Accordingly, we have no other option, but to confirm the disallowance made by the AO on this issue. Addition of deemed rental income on unsold properties - AO noticed that the assessee is in possession of certain unsold finished flats accordingly, he assessed deemed rental income from those unsold flats - HELD THAT:- We notice that the assessee has relied upon a decision rendered in the case of C.R Developments (P) Ltd [ 2015 (5) TMI 1161 - ITAT MUMBAI] and also case of CIT vs. Neha Builders [ 2006 (8) TMI 105 - GUJARAT HIGH COURT] However, we notice that the Ld CIT(A) has confirmed the addition without discussing anything on the above said case laws. In our view, the Ld CIT(A) should have dealt with the above said case laws relied upon by the assessee before confirming the addition. Accordingly, we are of the view that this issue requires fresh examination at the end of Ld CIT(A). Accordingly, we set aside the order passed by Ld CIT(A) on this issue and restore the same to his file for examining it afresh in accordance with law. Disallowance of depreciation on motor car - AO noticed that the assessee has shown three cars as its assets, but they stood in the name of three persons, who are employees of a sister concern - HELD THAT:- There should not be any doubt that for claiming depreciation on an asset, it has to be proved that the assessee is the owner of the asset. Merely disclosing an asset as its asset in its books of account will not be sufficient to prove the ownership. Hence, in the instant case, it is imperative for the assessee to prove that, it is in fact the owner of the vehicles, though they are standing in the name of some remotely connected persons. We notice that the assessee has not furnished enough details to prove ownership except stating that it is shown as its own asset in the books of accounts, which is not sufficient. Accordingly, we are of the view that the assessee may be provided with one more opportunity to prove ownership. Accordingly, we set aside the order passed by Ld CIT(A) on this issue and restore the same to the file of Ld CIT(A) for examining it afresh. 2022 (8) TMI 188 Receipt of contractual amount - undisclosed business receipts - part amount claimed as an expense by the assessee - CIT- treated it as Unexplained expenditure as documentary evidence in support of such expenses and therefore the same cannot be allowed as deduction under the provisions of section 37 - assessee has not deducted the TDS on such expenses under the provisions of section 40(a)(ia) thus, the learned CIT-A confirmed the addition - HELD THAT:- As the entire amount cannot be added to the total income of the assessee. In our considered view only a percentage of profit embedded in such amount of contractual receipts can be brought to tax. In this regard we find support and guidance from the order of the Hon ble Gujarat High Court in the case of CIT vs. President Industries [ 1999 (4) TMI 8 - GUJARAT HIGH COURT] where it was directed to make the addition only to the extent of gross profit of undisclosed business receipts. We note that the assessee has already offered an income of Rs.8,90,000 against such contract receipt of Rs.20,91,760 which constitute 42% approximately. Accordingly, we are of the view that no further addition can be made under the provisions of section 37 of the Act despite the fact that the assessee failed to furnish the supporting evidences. Before reaching to the conclusion that the assessee failed to deduct the TDS under the provisions of section 194C of the Actr.w.s. 40(a)(ia) it is pertinent to see whether the provisions of TDS are applicable to the assessee being an individual. In other words the provisions of TDS shall be applicable in case of an individual if its books of accounts are subject to audit in pursuance to the provisions of section 44AB - But there is no such finding qua to this provision of law. Until, it is brought on record that the assessee was subject to the provisions of section 194C we are of the view that no disallowance can be made of the expenses claimed by the assessee under the provisions of section 194C read with section 40(a)(ia) of the Act on account of non-deduction of TDS. In view of the above, we disagree with the finding of the learned CIT-A and direct the AO to delete the addition made by him. Receipt of commission from the Bajaj Allianz life insurance company Ltd - AO is of the view that the assessee has already claimed expenses on account of maintaining his office at Wankaner - there cannot be allowed any other deduction against such income in the name of the expenses. Accordingly the AO was pleased to confirm the addition . We note that the learned counsel for the assessee has not advanced any argument in the written submission filed by him. In the absence of any written submission on this issue from the side of the assessee, we do not want to disturb the finding of the authorities below. Hence, we confirm the addition made by the authorities below. Decided partly in favour of assessee. 2022 (8) TMI 187 Reopening of assessment u/s 147 - Eligibility of reasons to believe - HELD THAT:- The reasons recorded must speak for itself. The mandatory jurisdictional requirement in terms of 1st proviso to Section 147 will not be deemed to have been fulfilled if the reasons did not themselves clearly indicate that there was, in fact, a failure by the assessee to make full and true disclosure of all material facts. The reasons have to explain what material was not disclosed by the assessee which the assessee ought to have disclosed in the instant case. This should be apparent from the reading of the reasons itself. Similar view has been expressed in BPTP Ltd. vs. Principal Commissioner of Income Tax [ 2020 (1) TMI 56 - DELHI HIGH COURT] - SLP filed against which was dismissed by the Hon'ble Supreme Court [ 2021 (3) TMI 702 - SC ORDER] - The Hon'ble Delhi High Court in Oracle India Pvt. Ltd.[ 2017 (7) TMI 967 - DELHI HIGH COURT] also echoed the same view earlier. Assessee appeal allowed. AO has plainly overlooked the jurisdictional requirement in terms of 1st proviso to Section 147 of the Act. The jurisdiction assumed under Section 147 in this backdrop is ex facie vitiated and thus requires to be struck down at the threshold. The sanction granted by the CIT. also cannot be said to be in accord with Section 151 of the Act and thus vitiates the assumption of jurisdiction. The impugned consequential assessment framed under Section 147 r.w. Section 143(3) is clearly bad in law in the absence of any valid jurisdiction. As a corollary, the impugned assessment order dated 30.12.2016 framed in pursuance of non est jurisdiction stands quashed. - Decided in favour of assessee. Customs 2022 (8) TMI 186 Non-consideration of the benefits under the Services Export from India Scheme - non-holding of valid Import Export Code (IEC) number, at the time of rendition of services exported from India - HELD THAT:- In case at hand, admittedly, when the petitioner- Company has rendered the services, it did not have a valid IEC number, however while applying for the reward/benefit under the scheme, it has obtained an IEC number and applied accordingly. Undoubtedly, in terms of eligibility Clause 3.08(f) of the FTP, the condition is of having an active IEC number at the time of rendering services for claiming reward. It is to be examined whether the said condition is inconsistent or casts an additional obligation on the exporter which was not intended or led under the principal statute. The learned counsel for the petitioner would submit that the FTP has been framed in pursuance of powers delegated under Section 5 of the FTDR Act. It is the prime submission that FTP being delegated legislation, it should be in conformity with the principal statute. Reverting to the Section 7 of the FTDR Act, it pertains to the mandatory requirement of IEC number for making import or export of general goods. However, exception has been carved out by the proviso particularly in cases of import or export of services or technology. In the said eventuality, IEC number shall be necessary only when the service provider is taking the benefits under the FTP. The proviso does not lay down that the IEC number is essential at the time of rending services of said specified kind. The requirement of IEC number is only for taking benefits under the scheme. Therefore, it is abundant clear that the eligibility criteria of Clause 3.08(f) of the FTP has imposed additional restriction of having IEC number at the time of rendering services which was not intent or purport of the statute - the said condition is against the principal legislation and therefore, it cannot be termed as of mandatory nature for availing benefits under the scheme. The respondents are directed to consider the petitioner s application without insisting for an active IEC number at the time of rendering services - petition allowed. 2022 (8) TMI 185 Cancellation of petitioner s license - no notice or hearing of cancellation issued - HELD THAT:- The order dated 19.07.2022 was passed despite the fact that in a connected matter in ACME HEERGARH POWERTECH PRIVATE LIMITED VERSUS CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS ANR. [ 2022 (7) TMI 726 - DELHI HIGH COURT] we had issued an order dated 13.07.2022, whereby we had inter alia indicated that no coercive measures should be taken against the petitioner in the backdrop of the challenge laid to the instruction dated 09.07.2022. The action taken via the order dated 19.07.2022, in a sense, also appears to be predicated on the instruction dated 09.07.2022 - Issue notice. 2022 (8) TMI 184 Levy of penalty u/s 112(a) and u/s 114AA of the Customs Act, 1962 - alleged involvement in forged /fake VKGUY /DEPPB license and imports there under - cross-examination of witnesses not allowed, upon which the whole case is based on - HELD THAT:- The entire case of the Revenue against the Appellant is based upon the statements of Shri Kalpesh Daftary co-noticee without there being any further evidence. In the impugned order for confirmation of penalty against the Appellant Ld. Commissioner relied upon the statements of Shri Kalpesh Daftary. In fact in this case when Appellant asked for cross-examination of Shri Kalpesh Daftary and other persons, whose statement was relied upon to implicate the appellant, the request of the appellant was denied by the Ld. Commissioner, therefore, the said statements cannot be admitted as piece of evidence as per Section138B of the Customs Act, 1962 - In fact of the present case, when the statements of Shri Kalpesh Daftary were heavily relied upon to penalise the appellant, the said statements being third party evidence and when the appellant seriously disputed the same, it was bounden duty on the part of the Ld. Commissioner to cross examine the witnesses and only thereafter such statements could have been relied as a piece of evidence, which Ld. Commissioner has gravely failed to do his duty. In this circumstances the statements lost it s evidentiary value. Therefore due to non compliance of Section 138B of the Customs Act, 1962 on the part of Ld. Commissiomer, the statements of Shri Kalpesh Daftary relied upon to fasten the penalties upon the appellant are not admissible as evidence. In the facts of the present case, it is on record that Ld. Commissioner has disallowed the request of cross-examination of persons and relied upon such statements as evidence. The impugned order-in-original does not record a finding that, any of the conditions specified under Sections 138B(1) of the Act of 1962 stands satisfied thereby such statements without cross-examination of such witness became absolutely irrelevant. In such circumstances, the adjudication proceedings conducted by the adjudicating authority and resultant the impugned order-in-original stands vitiated by breach of principles of natural justice. The impugned order imposing penalties on appellant is unsustainable and liable to be set aside - Appeal allowed. 2022 (8) TMI 183 Valuation of export goods - rejection of declared value - claim of duty drawback wrongfully - value was liable to be rejected as the export goods were found of inferior quality as per examination conducted by the officials - redetermination of value under Rule 6 of the CVR 2007 as rule 4 5 could not be applied as goods of like kind and quality were not available in the market - Seizure of the goods was on a reasonable belief or not - penalty in terms of the Section 114 (ii) 114 AA of the Customs Act, 1962 - HELD THAT:- It is the settled law that admissions need no proof and are admissible as such if not retracted. Apparently neither appellant nor said Mr. Anit Kumar Jha have retracted their statements. These statements are therefore out of the scope even of Section 138B of Customs Act, 1962. The appellant has strongly impressed upon that alleged mis-declaration and overvaluation was absolutely unintentional and non-deliberate act of the appellant as it was not in the knowledge of the appellant at the time of filing the shipping bills along with the requisite documents that the goods are old used ones - It is apparent on record that the impugned shipment was detained on 17.02.2017, the Commissioner (Appeals) has held the letter dated 31.01.2017 without any acknowledgment for the inferior quality of goods as nothing but an afterthought. Per contra the emphasis of appellant while challenging these findings is that since the shipment was detained on 17.02.2017, there was no occasion with the appellant to mention the observations of Panchnama dated 17.02.2017 in the letter dated 31.01.2017. Praying withdrawal of the shipment/cargo that too on a ground of order being cancelled by the buyer due to the late delivery is a deliberate concealment on the part of the appellant. In such circumstances, the said concealment was nothing but an afterthought to cover up the mistake which the appellant had already committed i.e. of mis-declaration of the goods and overvaluing them with the sole intention of availing a higher duty drawback. The duty drawback is otherwise not available with respect to the export of old and used goods. These observations are sufficient to hold that the above observed concealment was with the intention to mis-declare and overvalue the goods to claim ineligible duty drawback. Commissioner (Appeals) is held to have committed no error while holding that letter dated 31.01.2017 was an afterthought. Hence, there are no infirmity as far as the rejection of declared value of export goods and the order for their confiscation and imposition of redemption fine is concerned that too on the bases of letter dated 31.01.2017 being an afterthought. Penalty under Section 114 (iii) and 114 AA of Customs Act, 1962 - HELD THAT:- The plea of appellant that Section 114 (iii) and Section 114 AA are not applicable on the companies but the same is not acceptable as legislature has never intended to exclude a juristic person like, company, from word persons . Both these section penalizes person. As per Section 3 (42) of General Clause Act person shall include the company or association or body of individuals whether or not incorporated. Similar is the intention of income tax statute under Section 2 (3) thereof. In view of entire above discussion it is held that the first ground of appellant challenging the imposition of penalty upon the appellant company and its Director is therefore not sustainable. The intentional concealment about mis-declaration stands corroborated from the another observe fact that the impugned letter, despite repeated demands, was never produced by the appellant before the original Adjudicating Authority despite that time for producing the same was requested and despite that several opportunities were given to the appellant to produce the said letter - These facts corroborate the alleged act to be intentional act of mis-declaration of goods and overvaluation thereof. These facts also corroborate the intention of the appellant for exporting the inferior quality goods against higher values and intentions to avail higher duty drawbacks against export of such goods for which the said drawback is not available. Accordingly, it is held that the plea of innocence as taken by the appellant that too solely based upon the letter dated 31.01.2017 has rightly been rejected by Commissioner (Appeals). The order imposing penalties upon appellant as well as on its Director under Section 114 (iii) and 114 AA of Customs Act, 1962 is also hereby upheld - Appeal dismissed. 2022 (8) TMI 182 Legality of confirmation of penalty at the reduced rate under Section 114(3) of the Customs Act, 1962 - opportunity of cross examination of some of the officials and witnesses, basing on whose statement penalty was imposed - Violation of principles of natural justice - HELD THAT:- It is needless to mention here that through a series of decisions passed by the Hon'ble Supreme Court and the Hon'ble High Courts of our country it has become a settled principle of law that evidence not tested by the cross examination has no probative value and there should be opportunity provided to the opposite parties to cross examination the witnesses. Reliance can be placed in the case of G. BALAJI, VENKATESWARA RAO VERSUS SARAVANASAMY [ 2020 (7) TMI 810 - MADRAS HIGH COURT] where it was held that the plaintiff in the instant case, who could not appear before the court on the ground that his employer refused to grant leave for months and in fact years together, is not entitled to any equitable treatment and his evidence cannot retained for considering its probative value. Even though it is countered by the respondent/Plaintiff that extensive cross examination has been done, it is relevant to note that the learned judge has not chosen to consider or accept the same and has not observed as such. If it is true that extensive cross examination has already been made, the matter need not have been adjourned for about seven hearings for continuation of cross examination. Thus, placing reliance on the statements of the witnesses recorded by the Departmental Officers without providing an opportunity of cross examination to the Appellant is a clear violation of principle of natural justice, for which the order passed by the Commissioner (Appeals) cannot sustain in law and facts. The appeals are allowed by way of remand to the Adjudicating Authority with direction to provide copies of relied upon documents and opportunity of cross examination of those witnesses, so as to complete a de novo proceeding and pass necessary order placing reliance only on the evidence of those witnesses who could be cross examined by the Appellant. 2022 (8) TMI 181 Revocation of Customs Broker License - forfeiture of security deposit - levy of penalty on Customs Broker - allegation of violation of Regulation 10(n) of CBLR 2018 on the ground that DGARM has reported that some of the exporters whose exports the Customs Broker had handled did not exist at the premises - HELD THAT:- The responsibility of the Customs Broker under Regulation 10(n) does not include keeping a continuous surveillance on the client to ensure that he continues to operate from that address and has not changed his operations. Therefore, once verification of the address is complete, if the client moves to a new premises and does not inform the authorities or does not get his documents amended, such act or omission of the client cannot be held against the Customs Broker - the Customs Broker has not failed in discharging his responsibilities under Regulation 10(n). The impugned order is not correct in concluding that the Customs Broker has violated Regulation 10(n) because the exporters were found to not exist during subsequent verification by the officers. The Commissioner was not correct in holding that the appellant Customs Broker has violated Regulation 10(n) of CBLR, 2018 - Appeal allowed - decided in favor of appellant. 2022 (8) TMI 150 Revocation of licenses issued by respondent no.2 under the Manufacture and Other Operations in Warehouse (no.2) Regulations, 2019 - HELD THAT:- The issue is similar in the case of ACME HEERGARH POWERTECH PRIVATE LIMITED VERSUS CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS ANR. [ 2022 (7) TMI 726 - DELHI HIGH COURT] where it was held that the coercive measures, if any, taken by the respondents, at this juncture, when the petitioner s import consignment is due to arrive in the country, will cause detriment to the petitioner s interest. List the above-captioned matters on 26.08.2022. Corporate Laws 2022 (8) TMI 180 Sale of the combined 42.25% stake in the Company known as IL FS Engineering and Construction Company Limited - validity of advertisement and the invitation document - monetization of assets in a transparent way - HELD THAT:- It appears that the petitioner has not submitted the Expression of Interest. The petitioner could have submitted Expression of Interest without prejudice to its rights. From the record it appears that earlier also the advertisement and invitation document were published. However, the sale could not materialize. This is for the third time the advertisement and the invitation document are published. The sale of the 42.25% stake of respondent no.2 and 3 in the Company known as IL FS Engineering and Construction Company Limited is published pursuant to the Proposed Resolution Framework for IL FS group filed before the NCLT. Under Clause V proposed process for Asset Level Resolution is spelt out. The petitioner has failed to submit Expression of Interest. If the petitioner has any legitimate objection to the sale, then it is for the NCLT to consider it in terms of payment of financial bid amount by the successful applicant to a designated account will be required to be made, and it is for the NCLT to consider whether sale has been conducted in a fair and transparent manner and according to the resolution. Petition disposed off. Insolvency & Bankruptcy 2022 (8) TMI 179 Demand has been foisted on the petitioner, even though a resolution plan has received the approval of the National Company Law Tribunal, Delhi Bench - HELD THAT:- The record shows, that a resolution plan concerning JSW Steel Ltd. was approved by the NCLT under Section 31 of the Code on 05.09.2019. 12.1. It appears that an appeal was carried to the National Company Law Appellate Tribunal [NCLAT], which affirmed the resolution plan via order dated 17.02.2020 with slight modifications. In terms of the approved resolution plan, the creditors of JSW Steel Ltd. were paid on 26.03.2021 - it is clear that if we were to reprise the resolution plan, it would result in burdening the petitioner with unexpected claims, and thus derail it from its path to recovery. Petition allowed. 2022 (8) TMI 178 Initiation of CIRP proceedings - minimum requirement of threshold limit - Whether the Appellant has locus in the appeal where Section 9 of IBC Petition had been adjudicated by NCLT, New Delhi, Bench-III and Appellant was neither Applicant nor Respondent in that Petition which is been challenged now? - HELD THAT:- As per Appellant, Section 9 of IBC Petition is merely to frustrate Section 7 of IBC Petition. Admittedly the Intervention Application No. 10 of 2021 in IB-883(ND)/2020 was withdrawn only to file Section 7 of IBC Petition which has not been decided so far and if current CIRP proceeding is allowed to continue with IRP, Mr. Yogesh Kumar Gupta, Appellant may be at disadvantage. We observe that in this situation at the best in CoC, Appellant will be represented only by an Authorised representative as also admitted by OC in contrast to Appellant participation as dominant FC in CoC in case their Petition under Section 7 of IBC would have been admitted - the contention of Learned Counsel for the Appellant logical that Appellant is directly affected party and therefore, got right to be heard to protect financial interest of hundreds of homebuyers/ allottees we therefore, consider Appellant has locus in this appeal. Is Section 10A of IBC applicable to the Present Case? - HELD THAT:- Section 10A of IBC was introduced during turbulent times due to pandemic and the intention of Section was to minimise Insolvency and Bankruptcy Proceedings. Time during pandemic was allowed to all corporate entities to strengthen themselves and keep moving as going concern to avoid Insolvency Bankruptcy cases. It helped economy and society at large. In this background any default arising on or after 25th March, 2020 initially for a period of six months which could be extended by notification, barred for initiation CIRP Proceeding upto 1 year under Section 7, 9 10 of IBC - By way of explanation in Section 10A of IBC, it has been clarified that provisions of this Section shall not be applied to any default committed under the said Sections before 25th March, 2020. It has been brought out that two invoices i.e. Invoice No. BZ-109 dated 1st April, 2020 amounting to Rs. 7,02,100/- and Invoice No. BZ-110 dated 4th April, 2020 amounting to Rs. 4,36,600/- have been issued without any seal and signature. Admittedly, these two invoices dated 1st April, 2020 4th April, 2020 have been issued after 25th March, 2020. Hence, these two invoices will be barred by Section 10A of IBC. Whether the application under Section 9 filed by the Operational Creditor met the criteria of minimum threshold limit of Rs. 1 crore in order to initiate CIRP Proceeding under Section 9 of IBC? - HELD THAT:- Respondent mentioned in his submission that the total outstanding amount is Rs. 1,08,12,591/-. He seems to have arrived to have this figure by taking from dues payable and dues paid right from the beginning of contract period in year 2011. The Appellant has locus in the present case - taking into account Section 10 A of IBC amount, two invoices cannot be considered for threshold limit of Rs. 1 Crore - Appeal allowed. 2022 (8) TMI 177 Seeking Liquidation of Corporate Debtor - section 33 of the Insolvency Bankruptcy Code, 2016 - HELD THAT:- The liquidation of the Company with following directions :- a. Upon perusal of the documents, records made available and submissions of the Counsel for the RP in the fifth CoC meeting held on 15.03.2021, the CoC decided to Liquidate the Corporate Debtor and directed the RP to file an application under section 33 (2) of the Code for liquidation of the Corporate Debtor. b. In view of the decision of the CoC, we are inclined to admit the IA 971/2021 in CP 1427/2019 to initiate liquidation process against the Corporate Debtor. Accordingly, the Adjudicating Authority Orders for initiation of Liquidation of the Corporate Debtor. c. In view of the above this Bench hereby appoints Ms. Nishi Jain as Liquidator having [Reg. IBBI/IPA-001/IPP01662/ 2019-20/12664], having its address at A-102, Krishna Tower, Ashok Nagar, Kandivali East, Mumbai - 400101, as Liquidator in terms of section 34(1) of the Code. d. The fees of the liquidator to be paid as approved by the CoC. e. The Liquidator shall initiate the liquidation process as envisaged under Chapter-III of the Code and the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016; f. Whenever the Liquidator issues any publication in the newspapers, the said shall be published in widely circulated newspapers in the State in which the Registered office of the Company is incorporated. g. Public Notice shall be issued in two newspapers, viz., in Times of India/Business Standard (English) and Navshakti (Marathi), stating that the Corporate Debtor is in liquidation, as required in terms of section 33(1) of the Code; h. All the powers of the Board of Directors and key managerial persons of the Corporate Debtor shall cease to exist. All these powers shall henceforth be vest with the Liquidator; k. The personnel of the Corporate Debtor are directed to extend all co-operation to the Liquidator as required by him in managing the liquidation process of the Corporate Debtor; l. On initiation of the liquidation process but subject to section 52 of the Code, no suit or other legal proceeding shall be instituted by or against the Corporate Debtor save and except the liberty to the liquidator to institute suit or other legal proceeding on behalf of the Corporate Debtor with prior approval of this Adjudicating Authority, as provided in section 33(5) of the Code read with its proviso; m. This liquidation order shall be deemed to be a notice of discharge to the officers, employees and workmen of the Corporate Debtor except to the extent of the business of the Corporate Debtor continued during the liquidation process by the Liquidator; n. A copy of this order shall be served by the Applicant/ RP on the Registrar of Companies, Maharashtra, Mumbai, within whose jurisdiction the Corporate Debtor has been registered, for updating the Master Data of the Corporate Debtor. p. IA 971 of 2021 is allowed. File to be consigned to records. 2022 (8) TMI 176 Dissolution of the Corporate Debtor - Section 54 of the Insolvency Bankruptcy Code, 2016 - HELD THAT:- The affairs of the Corporate Debtor have been wound up and its assets have been completely liquidated. It is noted that the erstwhile promoters and Suspended Directors of the Corporate Debtor had absconded and as a consequence of this, the process of liquidation of the Corporate Debtor was inordinately delayed. Hence, the period of 137 days between 19th February 2022 to 5th July 2022 shall be excluded from the period of Liquidation of the Corporate Debtor. It is satisfying from the documents on record that the liquidation is not with intent to defraud any person. The bank account for the purpose of liquidation has been closed. The facts and circumstances indicate that due process of liquidation, as per extant provisions and in the manner indicated in the Code and Regulations, have been followed by the Liquidator to liquidate the assets of Company. The liquidation process has been duly completed as per the provisions of the Code. Thus, it would be just and equitable for this Tribunal to dissolve the Corporate Debtor. No party is going to be adversely affected thereby. The Corporate Debtor deserves to be dissolved - Application allowed. 2022 (8) TMI 175 Seeking release of amount in no-lien account, in the name of members of CoC, with the Financial Creditor - recording of decision of withdrawal of Resolution Plan - HELD THAT:- Respondent Nos. 3 to 6 are the people who are really responsible for failure of CIRP process of M/s Unimetal Castings Ltd and the same Respondents are also part of the present Applicant M/s Globomet Engineering Pvt. Ltd. Therefore, it is very clear from the above conduct of the Applicant that the applicant is trying to take advantage of their own wrong and demanding refund only from COC by exonerating its own people from their personal liability. Therefore, the application is nothing but a collusive application filed by Applicant at the behest of Respondent Nos. 3 to 6. It is also observed that the applicant is altogether a third party who has nothing to do with the CIRP process of either of the Companies and the present Application under Section 60(5) of the Code is not legally maintainable. The argument of the learned counsel appearing for the Petitioners to the effect that arbitration clause is not a bar for filing the Application or instituting proceedings before the NCLT does not apply to the present case both on facts and law. Thus, this tribunal has no jurisdiction to decide the above contractual disputes arising between the parties out of the CIRP process of both the Companies more so under the above MOU and the above IA is liable to be dismissed on that score alone. Application dismissed. 2022 (8) TMI 174 Maintainability of application - initiation of CIRP - Personal Guarantors to Corporate Debtor - HELD THAT:- The present application has been filed in the prescribed proforma. Moreover, the compliance affidavit pursuant to order dated 07.03.2022 has been incorporated vide Diary No. 00487/2 dated 17.03.2022, whereby applicant stating that in terms of provision of Section 94(4) of I B Code, 2016 the applicant is not an undischarged bankrupt or not undergoing a fresh start process or not undergoing an insolvency resolution process or not undergoing a bankruptcy process. Also, in terms of the provisions of 94(5), no application has been admitted against the applicant during the period of 12 months preceding the date of submission of the present application under Section 94(1) of I B Code, 2016. After perusal of the report submitted by Resolution Professional, there does not appear any request of the Resolution Professional for issuance of instruction for the purpose of conducting negotiations between the debtors and the creditors for arriving at the repayment plan. Therefore, based on the reasons recorded in the report submitted by the Resolution Professional, the application i.e. CP(IB) No. 183/Chd/Hry/2021 filed under the provisions of Section 94 of IBC, 2016 is hereby admitted under Section 100 of the IBC, 2016. The Insolvency Resolution Process is initiated against the Applicant/Debtor and the moratorium is declared, which begins with the date of admission of the application and shall cease to have effect at the end of the period of 180 days, as provided under Section 101 of IBC, 2016. Petition allowed. 2022 (8) TMI 173 Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - personal guarantee to financial creditor - existence of debt and dispute or not - HELD THAT:- After perusal of the report submitted by Resolution Professional, there does not appear any request of the Resolution Professional for issuance of instruction for the purpose of conducting negotiations between the debtors and the creditors for arriving at the repayment plan. Therefore, based on the reasons recorded in the report submitted by the Resolution Professional, the application i.e. CP(IB) No. 185/Chd/Hry/2021 filed under the provisions of Section 94 of IBC, 2016 is hereby admitted under Section 100 of the IBC, 2016. The Insolvency Resolution Process is initiated against the Applicant/Debtor and the moratorium is declared, which begins with the date of admission of the application and shall cease to have effect at the end of the period of 180 days, as provided under Section 101 of IBC, 2016. The petition filed under Section 94(1) of the IBC, 2016 is allowed admitted. 2022 (8) TMI 172 Withdrawal of the Resolution Plan approved - Rule 11 of the National Company Law Tribunal Rules, 2016 - HELD THAT:- It is noted that the applicant is a successful resolution applicant whose resolution plan was approved by the CoC and subsequently was approved by the Adjudicating Authority vide order dated 04.06.2020. However, the successful resolution applicant never implemented the said plan and has filed the present application seeking withdrawal of the said resolution plan approved by the Adjudicating Authority. Application rejected. FEMA 2022 (8) TMI 151 Stay of recovery - whether any hearing can take place before the Tribunal qua the subject matters to be listed before the Tribunal even if these four members are appointed in the absence of the Chairman of the Tribunal. Learned ASG seeks some time to obtain instructions? - HELD THAT:- We had earlier also posed a query to learned ASG and pose it again as to why we should not pass an order directing stay of recovery proceedings in all matters before the Tribunal as the judicial remedy is before the Tribunal and if the Tribunal is not being constituted to hear the matter, which is resulting in unnecessary expenses to the litigants to approach the High Court and burden on the High Court to deal with those matters. List on 02.08.2022. PMLA 2022 (8) TMI 171 Rejection of bids submitted by the petitioner - seeking direction to respondents to allow the Petitioner to bid for and compete in the contracts in future and tenders even during the pendency of proceedings under ECIR - pendency of proceedings/enquiry against any Director in his individual capacity - enquiries pending against a company which merely got merged/amalgamated/taken over by a successor company - enquires / proceedings can be the basis of denying the Petitioner company from either participating or being considered and/or award of tenders/contracts or not - HELD THAT:- The present tender was floated by Labs of Respondent No. 2, which are specialised labs engaged in research pertaining to critical defence technologies and systems. It is in this context that the Respondent Nos. 3 and 4 have imposed the Impugned Condition to sift through entities which have criminal proceedings/investigation pending against them. This condition is imperative to maintain the integrity of such projects which deal with maters of national importance, security and are of immense public importance. Considering the nature of the work undertaken by the Respondents, it is evident that the Impugned Condition is not arbitrary, discriminatory, mala fide or actuated by bias. Hence, this Court does not find any infirmity with the Impugned Condition and is disinclined to interfere with it. The material on record shows that there are allegations that the key managerial personnel, nature of work and functioning of the Petitioner Company is the same as ADPL and the Petitioner Company has allegedly benefitted from the proceeds of crime to the tune of Rs. 2,36,25,000/-, received by ADPL as these were transferred to the Petitioner Company. Hence, the Petitioner cannot claim that it has been unfairly excluded the Petitioner from participating in the bid - this Court is not inclined to interfere with the Impugned Condition or the decision of the Respondent Nos. 2-4 from excluding the Petitioner from participating in the said tender process. Petition dismissed. 2022 (8) TMI 170 De-freezing of provisionally attached Bank Accounts of petitioner - freezing of bank accounts of the petitioner without any notice and without any justifiable reason - Section 5 of the PMLA Act - HELD THAT:- It can be seen that provisional attachment can be made only for a period of (180 days) as per Section 5 Sub-Clause (1). As per Section 5 Sub-Clause (5) thereof, the officer who provisionally attaches the property shall file a complaint before the adjudicating authority within a period of (30) days from such attachment. Since the issue of provisional attachment is before the adjudicating authority, it is considered fit to direct the petitioner-Company to raise all the contentions before the adjudicating authority with regard to the validity of the provisional attachment - in the facts and circumstances of the case and in the interest of justice, it is considered appropriate to permit the petitioner to operate the bank accounts with respect to the amounts deposited on or after the date of communication of this order; and the attachment made by the 1st respondent / Directorate of Enforcement with regard to the bank accounts of the petitioner-Company shall be continued subject to passing of further orders by the adjudicating authority. Petition disposed off. 2022 (8) TMI 169 Permission to petitioner to travel abroad - validity of look out circular issued against the petitioner - criminal case registered against one Mr.Sri Krishna, the brother of petitioner under the provisions of PML Act and also for the offences punishable under Sections 120B, 384, 419, 420 and 471 of IPC - allegations against the brother of the petitioner are that he is involved in hacking of crypto exchanges and poker website in India as well as overseas from the year 2013 till this date - HELD THAT:- LOC could be issued wherein the departure of a person from India, if it appears to such authority based on inputs received that departure of such person is detrimental to the sovereignty or security or integrity of India or that the same is detrimental to the bilateral relations with any country or to the stranger and/or economic interests of India and for the reasons stated therein. LOC against the petitioner is issued on the ground that if he is permitted to leave India, it would affect the economic interest of India. The e-mails of the petitioner which is reproduced in the statement of objections of the respondents reveals that petitioner is intending to take permanent Dutch residence and Dutch citizenship. Therefore, respondents are right in apprehending that petitioner may not be available for further investigation of crime registered against brother of the petitioner. The apprehension of the respondents that the petitioner being brother of Mr.Sri Krishna might have involved in acquiring the proceeds of crime at this stage is to be respected, since the investigation is still under progress - In the instant case, investigation of money laundering against brother of the petitioner is in progress and also investigation with regard to role of petitioner along with his brother in money laundering is also being investigated. Further, the apprehension of respondents that petitioner may settle down at Netherlands and he may not be available for further investigation has to be respected in view of extract of e-mails reproduced in their statement of objections. There are no merits in the petition - petition dismissed. Service Tax 2022 (8) TMI 168 Levy of Service Tax - Composite Works Contracts prior to the introduction of the Finance Act, 2007, by which the Finance Act, 1994 came to be amended to introduce Section 65(105)(zzzza) pertaining to Works Contracts - whether for the period prior to introduction of the Finance Act, 2007, the service tax would be leviable on the Composite Works Contracts? As per M.R. SHAH, J. HELD THAT:- It is observed and held in the decision of [ 2020 (3) TMI 1324 - SUPREME COURT ] that even the rule of overruling the judgments should be applied with great caution, and only when the previous decision is manifestly wrong, as, for instance, if it proceeded upon a mistaken assumption of the continuance of a repealed or expired Statute, or is contrary to a decision of another court which the court is bound to follow; not, upon a mere suggestion, that some or all of the members of the court might later arrive at a different conclusion if the matter was res integra. It is further observed that otherwise there would be great danger of want of continuity in the interpretation of law. It is further observed and held that the decisions rendered by a coordinate Bench is binding on the subsequent Benches of equal or lesser strength and a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench unless it is shown to be per incuriam. In Saurashtra Cement Chemical Industries Ltd. and another Vs. Union of India and others, [ 2000 (10) TMI 954 - SUPREME COURT ] this Court refused to indulge on the question of delegated legislation in taxing statute since the authority of the legislature in introducing the statute in question, i.e., Mines and Minerals (Regulation and Development) Act, 1957 could not be doubted and in any event, was a settled proposition of law for more than a decade. Applying the doctrine of stare decisis, the Court rejected the plea to reconsider the decision in State of Madhya Pradesh v. Mahalaxmi Fabric Mills Ltd., [ 1995 (2) TMI 435 - SUPREME COURT ] holding that The Central Legislature introduced the legislation (MMRD Act) in the year 1957 and several hundreds and thousands of cases have already been dealt with on the basis thereof and the effect of a declaration of a contra law would be totally disastrous affecting the very basics of the revenue jurisprudence. It is true that the doctrine has no statutory sanction but it is a rule of convenience, expediency, prudence and above all the public policy. It is to be observed in its observance rather than in its breach to serve the people and subserve the ends of justice. In view of the binding decision of this Court in the case of Larsen and Toubro Limited [ 2013 (9) TMI 853 - SUPREME COURT ], the assessee is not liable to pay the service tax till the date of amendment of the provision on the indivisible/composite works contracts and therefore, the said appeals also deserve to be allowed and the assessment orders levying the service tax are to be set aside. Appeal dismissed. As per J. [B.V. NAGARATHNA] Speaking about the mutually exclusive taxation and powers of the Centre and the State, the dichotomy between the sales tax leviable by the State and service tax leviable by the Centre was emphasised by this Court in the aforesaid judgment. In the context of composite indivisible works contract, only Parliament can tax the service element contained in these contracts and State only can tax the transfer of property in goods element contained in these contracts. Thus, it is important to segregate the two elements completely for the purpose of taxation. Hence, it was held that works contract is a separate species of contract distinct from contracts for service simpliciter recognised in the world of commerce and law as such and has to be taxed separately as such. Referring to the decision of works contract in Gannon Dunkerley I [ 1992 (11) TMI 254 - SUPREME COURT ] Kone Elevator India (P) Limited [ 2014 (5) TMI 265 - SUPREME COURT ], Larsen Toubro Ltd. and others vs. State of Karnataka [ 2013 (9) TMI 853 - SUPREME COURT ] all arising under the Sales Tax law, it was emphasised that there was no charging section to tax works contract in the Finance Act, 1994 i.e. until the amendment made with the insertion of subclause (zzzza) to clause 105 of Section 65 of the Finance Act, 1994. Further, in Larsen Toubro Ltd. [ 1992 (11) TMI 254 - SUPREME COURT ] the correctness of the judgment in G.D. Builders vs. Union of India [ 2013 (11) TMI 1004 - DELHI HIGH COURT ] was also considered. In the said case, it was held by the Delhi High Court that Section 65(105)(g), (zzd), (zzh), (zzq) and (zzzh) were good enough to tax indivisible composite works contract and that even when rules are yet to be framed for computation of taxes, taxes would be leviable. This proposition was based on the judgment in Mahim Patram (P) Ltd. vs. Union of India [ 2007 (2) TMI 73 - SUPREME COURT ]. It was observed that in G.D. Builders [ 2013 (11) TMI 1004 - DELHI HIGH COURT ] there was a misreading of Mahim Patram which was a case related to tax under the Central Sales Tax Act; that in Mahim Patra, it was observed that under Section 9(2) of the Central Sales Tax Act power is conferred on officers of various States to utilise the machinery provided under the provisions of the States sales tax statutes for the purposes of levy and assessment of Central Sales Tax under the Central Act. That Rules could also be made in exercise of power under Section 13(3) of the Central Sales Tax Act as a result of which the necessary machinery for the assessment of Central Sales Tax was found to be there. Therefore, even in the absence of Rules made under the Central Sale Tax Act the machinery provided under the State Sales Tax statute for the purpose of levy and assessment Central Sales tax under the Central Act could be utilized and the same is different from saying that no Rules being framed at all under the Central Sale Tax Act. The definition of Works contract inserted for the first time by virtue of Section 65(105)(zzzza) under the Finance Act, 2007 assumes significance and has to be applied w.e.f. 1st June, 2007. Thus, on and from the enforcement of the amendment in the Financial Year 2007, i.e. 1st June, 2007 the tax on the service component of works contract became leviable. Therefore, till then it was not so leviable as there was no concept of works contract under the said Act. The judgment in Larsen and Toubro Ltd. has been correctly decided and does not call for a reconsideration insofar as the period prior to 1st June, 2007 is concerned - appeal dismissed. 2022 (8) TMI 167 Levy of Service Tax - affiliation fee collected by the petitioner - whether affiliation fee collected by the petitioner University can be considered as a consideration for providing educational services or not - HELD THAT:- The act of University in granting affiliation to a private college has to be considered as a service in furtherance of providing education and the decision of the respondents to consider otherwise is erroneous. Whether the petitioner is entitled to approach this Court merely on the issuance of show cause notice? - HELD THAT:- Normally, a person is bound to reply to the show cause notice issued by the Authority and it is not appropriate for him to approach the Court without doing the same. However, in the instant case, the dispute does not pertain to quantification of service tax, but whether the respondents Authorities have jurisdiction to demand service tax for the activity of petitioner University in providing education. Further, it is the clear stand of the respondents Authorities before this Court that the activity of the petitioner Institution in granting affiliation to Colleges and consideration received towards it is taxable under the Service Tax. Under the circumstances, it is not appropriate to relegate the petitioner before the adjudicating Authority - Petition disposed off. 2022 (8) TMI 166 Refund claim - time limitation - excess payment of service tax - rejection of refund claim as barred by limitation of time on the ground of delay in filing such application by one day beyond the period of one year from the relevant date - Appellant s claim is that for the purpose of Section 11B of the Central Excise Act, 1944, one year from the relevant date is excluding the date of payment of duty and hence it is their submission that there is no delay in filing of the refund application - Section 11B of the Central Excise Act, 1944 - HELD THAT:- Hon ble Supreme Court in the case of TARUN PRASAD CHATTERJEE VERSUS DINANATH SHARMA [ 2000 (10) TMI 930 - SUPREME COURT] has held that Section 9 of the General Clauses Act, 1897 gives statutory recognition to the well-established principle applicable to the construction of statutes that ordinarily in computing the period of time preserved, the rule observed is to exclude the first and include the last day. Further the Tribunal in the case of COLLECTOR OF CENTRAL EXCISE VERSUS S. AIL, ROURKELA STEEL PLANT [ 1991 (9) TMI 212 - CEGAT, CALCUTTA] have decided that the provisions of Limitation Act and the General Clauses Act are to be applied for interpreting certain general situations like the period of limitation prescribed under any Act and it was held that t he point raised in the appeal before us that the date of computation can never be by excluding 29-2-1988, has got no legal basis. Similarly, nothing much turns on the argument that since the Act specifically provides the relevant date which in the present case is the date of payment of duty, i.e. date of debit in the P.L.A., the Limitation Act cannot be made applicable. The fact that the relevant date has been defined in the Central Excises and Salt Act does not affect a general principle as to how to compute the period of limitation. The provisions of the Limitation Act and the General Clauses Act are to be applied for interpreting certain general situations like the period of limitation prescribed under any act. Further the judgment of the Hon ble Calcutta high Court in the case of UNION OF INDIA (COMMISSIONER OF CUSTOMS, EXPORT) VERSUS BENGAL RUBY MICA SUPPLY CO. [ 2006 (8) TMI 686 - CALCUTTA HIGH COURT] as relied upon by the Respondents was a case of incorrect assessment by the Customs Authorities and the jurisdiction of the department to make assessment was challenged wherein the High Court held that the department was in rights to do the assessment and mere mistake in arriving at the value of the goods, cannot make the entire assessment invalid and thus the consequential refund was also disallowed. The period of limitation should be calculated as per the General Clauses Act - the refund application has been filed within time and rejection of refund is incorrect and needs to be set aside. Appeal allowed - decided in favor of appellant. 2022 (8) TMI 165 Short payment of service tax - Commercial or Industrial construction service - Erection Commissioning and Installation services - Site Formation Services - contract awarded to the Appellant was a turnkey contract or not - whether the work orders issued for the various works are indivisible to form a works contract or are individual services as demanded in the SCN and confirmed by the Ld. Adjudicating authority? HELD THAT:- As regards the demand confirmed under the categories of Commercial or Industrial construction, Erection Commissioning and Installation services both prior to 01.06.2007 and post 01.06.2007, the same cannot be sustained and hence the demand to the extent of Rs. 19,71,44,488/- and Rs. 2,11,55,639/- under categories of Commercial or Industrial construction, Erection Commissioning and Installation services respectively is set aside. Site Formation Services - HELD THAT:- The work order therein relates to land development, electrical distribution system, street lighting, Commercial hub, UGSR, OHT, WTP, Waster Conveyance system and CETP works at Vizag site. The scope of work cannot be classified under site formation services - In the case at hand, the services are not aligned to the above definition but includes set up of various other units such as WTP, CETP etc which is a composite works contract and hence the same would also merit classification under the service of works contract. Thus, the demand under site formation services cannot survive. Since the issue is already decided on merits, opinion on the point of limitation is not expressed. Appeal allowed - decided in favor of appellant. Central Excise 2022 (8) TMI 164 Mode of refund - Rebate / refund to be made in Cash or to be re-credited into Cenvat Credit account - petitioner paid lesser duty on the domestic product and higher duty on the export product which was admittedly not payable - HELD THAT:- the case involves the factual aspects. - Section 140 and Section 142 of the Central Goods and Services Tax Act, 2017 are not examined and no comment have been made whether or not the appellant(s) assessees would be entitled to benefit under the said Sections. No question of law arises for consideration, and hence, the appeals are dismissed. 2022 (8) TMI 163 Process amounting to manufacture or not - conversion of waste oil/used oil/sludge obtained from various sources into reclaimed fuel oil / re-refining used oil amounts - classifiable under Central Excise Tariff Sub-heading No. 27101990 or classifiable under Chapter heading 27109900 as claimed by the Appellant? - Time Limitation - suppression of facts or not - HELD THAT:- The basic fact that is not disputed is that the Appellant purchasing waste/ sludge oil from vessels and other sources. This is sold as waste oil/sludge oil and is purchased by the appellant also as waste oil /sludge oil. For removing impurities from said waste oil Appellant undertake various processes. The processing undertaken by the appellant is inform of filtering distillation, dehydration, centrifuging etc. The entire tenor of the Adjudicating Authority while confirming the demands is only on the ground that the used oil which was unfit for use as fuel Oil were made fit for use by the appellant by refining or reprocessing the same and hence, characteristic and the use has changed. Due to which Chapter Note No. 4 of Chapter 27 gets attracted and the said activity becomes manufacture. It is observed that the purifying of the sludge/used oil would not amount to manufacture. Manufacture implies a change, but every change is not manufacture. The Apex Court in the landmark decision in the case of UNION OF INDIA VERSUS DELHI CLOTH AND GENERAL MILLS CO. LTD. [ 1962 (10) TMI 1 - SUPREME COURT] , held that The word manufacture used as a verb is generally understood to mean as bringing into existence a new substance, however, minor in consequence the change may be. The true test for determining whether manufacture can be said to have taken place is whether the commodity which is subjected to the process of manufacture can no longer be regarded as the original commodity but is recognized in trade as a new and distinct commodity. In the present case, the appellant bring used waste oil /sludge oil and by removing impurities, it is made again useable as oil. Both before and after the processing, the product remains as only oil. That being so, it cannot be said that a new and distinct commodity has come into existence consequent to the process undertaken by the appellant. From Circular dated 11-4-2016, it can be held that the process of cleaning of waste oil to yield reclaimed fuel oil does not amount to manufacture as defined under Section 2(f) of the Central Excise Act, 1944. Once it is held that the activity is not manufacture all he demands including duty, interest, penalties and personal penalty in the impugned shall not sustain on merit. Extended period of Limitation - suppression of facts or not - HELD THAT:- The department was aware of the Appellant s activity in respect of Waste Oil/ Sludge/Used Oil. The Appellant have not suppressed anything from the department. It is also noticed that CBEC vide circular No. 1024/12/2006-CX dated 11.04.2006 also instructed that the issue is interpretational in nature and therefore where a demand is raised pursuant to this circular, it should be raised for normal period of limitation only. SSI benefit, where admissible, should be extended . Therefore, in this fact the demand confirmed by the Ld. Commissioner invoking the extended period legally not sustainable and the same is set aside on limitation too. Appeal allowed - decided in favor of appellant. 2022 (8) TMI 162 SSI Exemption - use of brand name/trade name of others, or not - allegation is that the Appellant during the period July 2009 to April 2010, cleared the Printed and Plain Paper Labels/Tags/Stickers, Folders and Diaries falling under Chapter 48 of Central Excise Tariff Act, 1985, bearing brand name/trade name of others - benefit of N/N. 8/2003-CE, dt.01.03.2003 - HELD THAT:- The coordinate bench in M/S J.S. CREATION VERSUS CCE MUMBAI-V [ 2019 (5) TMI 323 - CESTAT MUMBAI] has already decided the issue in the appellants own case for the period April 2006 to June 2009. We are concern with the period of demands made on the same issue for the period July 2009 to April 2010. The value of aggregate clearance of diaries be included in computing the exemption limit prescribed under Notification No.8/2003-CE, dt.01.03.2003 for the period in question - the matter is remanded to the Adjudicating authority to determine the aggregate value of clearance and re-compute the demand with interest and penalty. Appeal allowed in part by way of remand. 2022 (8) TMI 161 Territorial Jurisdiction - proper officer to pass adjudication order - it is pointed out that the adjudication order was passed by Principal Additional Director General (Adjudication) Directorate General of GST Intelligence New Delhi, the appeal lies before the Delhi Bench of this Tribunal - HELD THAT:- The identical issue of jurisdiction came before this tribunal in the case of SAVITHA NISAR VERSUS ADJUDICATION DRI MUMBAI [ 2021 (12) TMI 1373 - CESTAT AHMEDABAD] , where it was held that the impugned order was passed by the ADG (Adjudication),DRI, Mumbai. Accordingly, the appeal lies in the Mumbai bench and this Ahmedabad bench has no jurisdiction to entertain this appeal. Accordingly, the appeal is dismissed as non maintainable. In the present case, similar to the given judgment the impugned order was passed by the Principal Additional Director General (Adjudication) DGGI- Delhi. Therefore, the appeal lies before the Delhi Bench accordingly, the appeals are dismissed as non- maintainable. CST, VAT & Sales Tax 2022 (8) TMI 160 Classification of goods - Chuni, by-product of Dal - schedule goods within the meaning of Sl. No.66 of Para-I of the Schedule attached to the Orissa Entry Tax Act, 1999 or not - HELD THAT:- It is one thing to say that a certain product was exempted for the purposes of taxation by virtue of interpretation of an exemption notification, it is another to say that it is amenable to tax by bringing it within the ambit of another product shown in the Schedule to the OET Act and, therefore, bringing it within the fold of taxation. The approach to both cannot be the same. What perhaps is determinative is Section 26 of the OET Act, which clearly states that it is only a finished product which would be amenable to entry tax. Conscious of this, the Single Member Chairman tries to bring Chuni within the ambit of a finished and a separate commercial product. However, the fact remains that chuni or chokad is only a by-product and not a complete finished product in itself. The finished product as far as the present case is concerned is cattle feed which is what is mentioned in Entry 66 of the Schedule to the OET Act. So, the question to be asked is can in the context of Section 26 of the OET Act read with Entry 66 Chuni to be considered in itself to be a finished product and, therefore, not different from cattle feed ? The answer to this has to be in the negative since Chuni is one of the 16 ingredients into the making of cattle feed and it is not the same thing as cattle feed as occurring in Entry 66 of the Schedule to the OET Act. The Court is of the view that Chuni which is the by-product of Dal is not cattle feed and is therefore not amenable to entry tax - Revision petition dismissed. 2022 (8) TMI 159 Penalty proceedings initiated under Section 10A of the Act - correctly utilization of Form-C for purchase of said goods can be answered once, the provisions contained in Section 10 of the Act, are perused or not - HELD THAT:- As per Sub Clause (b) of section 10 of the Act, penalty can be imposed upon registered dealer who falsely purchase any class of goods that goods are covered by certificate of registration. Thus, Section 10(b) of the Act clearly indicates that in case any dealer has not obtained registration certificate for purchase of any product or any class of goods or the same are not covered by the certificate of registration then penalty can be levied upon the dealer in case he purchases the said goods utilizing Form-C. In the present case, admittedly, the revisionist did not have Certificate of Registration for purchase of Railway Siding, Locomotives and Transmitters and hence he could not have utilized Form-C for purchase of said goods and his case is covered under Section 10(b) of the Act and therefore penalty proceedings were initiated by the Assessing Authority. It is also noticed that railway siding, locomotives and transmitters are not such goods as can be included in any other class of goods for which certificate of registration had already been obtained by the revisionist and hence neither it has been argued nor it is established that railway siding, locomotives and transmitters are such goods which can be included in any other class or category of goods for which registration certificate has already been granted to the revisionist. In the present case, the revisionist had never applied for registration of Railway Siding, Locomotives and Transmitters and in absence of registration of such goods Form-C was issued to him for purchase of the said items and it could not be demonstrated by the revisionist that he had done this under any bona fide belief or under mistake of fact. Apart from the above, clearly Railway Siding, Locomotives and Transmitters cannot be related to any other goods or class of goods for which registration had already been obtained by the revisionist, so as to show that he was under some bona fide belief that the said goods are included in the class of goods for which Registration Certificate had already been issued - In absence of any such bona fide belief, or any other circumstance indicating that revisionist could have validly purchased the said goods against Form-C, it cannot be said that the same had been obtained in a bona fide manner and hence leads to inevitable conclusion that Form-C had been utilized malafidely and unauthorizedly only with intention to evade tax. It cannot be demonstrated that purchase of goods against Form-C was done in bona fide manner nor had the revisionist moved any application for inclusion of said goods for registration under Section 7 of the Act - it cannot be said that there is any infirmity in imposition of penalty by the revenue under Section 10 of the Act - The revisionist is dismissed. Wealth tax 2022 (8) TMI 158 Reopening of Wealth tax assessment - Treating lands at Vastrapur and Rancharda as urban lands - assessee had not included the urban land cost and cash in hand after exemption for wealth chargeable to Wealth Tax - HELD THAT:- It is pertinent to note that the said land and the details given by the assessee before us were only related to Talati Certificate which is undated. The other documents which were before us and before the CIT(A), as contended by the assessee, are not showing that the said land were not coming under the urban land definition. AR further contended that the reasons were not supplied to the assessee by reopening the case but since the very basis of reopening was related to the urban land, the assessee was very much aware about the reasons upon which the reopening was made by the Revenue Authorities. Thus, the reopening is valid which is also reiterated by the CIT(A) in paragraph of the order of the CIT(A). Hence ground are dismissed. Lands at Vastrapur and Rancharda were coming under the definition of urban land under section 2(ea)(v) of the Wealth Tax Act as the documents which were produced before the Revenue Authorities and before us clearly does not state that this are agricultural land. The assessee contended that these are agricultural land as per the records of the Government but only document which was on record is related to Talati Certificate which is undated and is not specifying the period of agricultural activity or not specifying the agricultural produce on the said land. Whether any land comes under the urban land or agricultural land, the certificate from Collector should have been placed by the assessee but since the assessee failed to do so it is clear that the said land is urban land and, therefore, the AO rightly made wealth tax addition towards both of these lands. Assessee appeal dismissed. Indian Laws 2022 (8) TMI 157 Applicability of rent act - seeking recovery of Municipal Tax ( including surcharge and water tax/fees) from the tenant - Whether share of municipal tax due and payable by the tenant under Section 230 of the Act 1980 and Section 5(8) of the Act 1997 shall be included within the expression rent or in other words, the share of municipal tax due and payable by the tenant can be said to be a part of the rent of the premises let out? HELD THAT:- As per Section 230 of the Act 1980, a person primarily liable to pay the property tax (lessor) in respect of any land or building may recover half of the amount of the property tax from the occupier (lessee/tenant) of the property. Section 231 of the Act 1980 provides that the person primarily liable to pay any property tax is entitled to recover the consolidated rate including surcharge from the occupier of the property and for that purpose the person primarily liable shall have the same rights and remedies as if such sum were rent payable to him by the person from whom he is entitled to recover such sum. Section 5(8) of the Act 1997 casts an obligation on the tenant to pay his share of municipal tax as an occupier of the premises in accordance with the provisions of the Act 1980. As observed and held by this Court in the case of Calcutta Gujarati Education Society [ 2003 (8) TMI 476 - SUPREME COURT] , the amount of tax due and payable by the tenant under Section 230 of the Act 1980 r/w Section 5(8) of the Act 1997 can be recovered as arrears of rent (Section 231 of the Act 1980) and for that purpose, namely, for the purpose of recovery the tax apportioned on the tenant would be treated as rent and would be recoverable as such. So far as reliance being placed upon Section 18 of the Act 1997 and the submission that under Section 18 of the Act 1997 the rent shall be automatically increased by revision of 5% every three years and therefore by giving the increase by revision of 5% every three years, the rent payable would be more than rupees ten thousand per month is concerned, the aforesaid contention has no substance. Section 18 of the Act 1997 shall be applicable in a case where the fair rent is determined and fixed by the Controller under Section 17 of the Act 1997. That is not the case here. Therefore, Section 18 of the Act 1997 is not applicable at all to the facts and circumstances of the case. As the monthly rent due and payable would be Rs. 10,000/- per month which cannot be said to be more than ten thousand rupees as monthly rent, the High Court has rightly observed and held that the Act 1997 shall be applicable and therefore the civil suit filed by invoking Section 106 of the TP Act is impliedly barred - Appeal dismissed. 2022 (8) TMI 156 Dishonor of cheque - burden of proof - presumption and estoppels - admissibility of evidences - cross-examination of witnesses - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- The Evidence Act also sets out the manner in which the evidence is to be recorded. Chapter-VII relates to the burden of proof and presumption and estoppels . But these aspects are not discussed here, as the question in the present petition relates to the right to cross-examine the witnesses. Chapter-X comes into the picture as it relates to the examination of witnesses . Section 135 provides for the order of production and examination of witnesses . Section 136 relates to the admissibility of evidence which the Judge is to determine. Section 137 defines examination-in-chief, cross-examination and re-examination while Section 138 prescribes the order of examinations , i.e., the witnesses are to be examined-in-chief then cross-examined and thereafter, re-examined. It underlines that the examination and cross-examination must relate to the relevant facts. The cross-examination need not be confined to the facts to which the witness testified in his examination-in-chief. Thus, it is clear that both examination and cross-examination must relate to relevant facts. The reason why cross-examination is not confined to the facts to which the witnesses testified is obvious. The witness who is examined-in-chief is from the side of the party who has called him. Therefore, his testimony would be, in-chief relating to the case of that party. But since the opposite side is also required to prove their case, the right has been given to such adverse party to put questions that would be beyond the examination-in-chief - The cross-examination cannot encompass questions that are scandalous or intended to cause humiliation to the witness, on the plea that the questions can go beyond the examination-in-chief. While there is a right to ask questions of a witness to impeach his creditworthiness, it cannot descend to harassment and humiliation of the witness. The learned Trial Court disallowed the questions being vague and having no relevancy to the transaction in question. In the petition, an attempt has been made to explain why the questions were relevant at page 21. In para 4(q) it is pleaded that since DW-2 had appeared for the respondent, it was necessary to put all transactions which had been done by her being the mother of DW-2 or his other family members to prove the case of the complainant - turning to the question of whether two questions have been rightly or wrongly disallowed, it may be seen that the very case of the petitioner is that it was the respondent who had borrowed from him and the cheque in question has been issued by her towards repayment. Whatever be the defence taken by the respondent, the petitioner would have to prove his case. This Court is of the considered view that there is no perversity in the order of the learned Metropolitan Magistrate disallowing these two questions. Neither has it resulted in any miscarriage of justice - Petition dismissed. 2022 (8) TMI 155 Dishonor of Cheque - insufficiency of funds - rebuttal of presumption - burden to prove - Section 118 ad 139 of the Negotiable Instruments Act - HELD THAT:- It is not in dispute that an initial burden is cast upon the complainant to prove the transaction led to execution of the cheque, in order to canvass the benefit of presumption under Section 118 ad 139 of the Negotiable Instruments Act. In such cases, how far the evidence of power of attorney holder is reliable is a relevant question. The law is settled on the point that a complaint alleging commission of offence under Section 138 of the Negotiable Instruments Act can be presented through the power of attorney holder and the power of attorney holder can depose and verify on oath before the court in order to prove the contents of the complaint. However, the power of attorney holder must have witnessed the transaction as an agent of the payee or holder in due course or possess due knowledge regarding the said transaction. It is required by the complainant to make specific assertion as to the knowledge of the power of attorney holder in the said transaction explicitly in the complaint and the power of attorney holder who had no knowledge regarding the transactions cannot be examined as a witness in the case. When PW1 was examined after remand of the matter, he had given evidence supporting the transaction and execution of the cheque, but during further cross examination, he reiterated his earlier stand stating that he had only hearsay knowledge about the transaction. Now comes the significant question as to whether the appellant succeeded in proving the transaction and execution of the cheque. The evidence of PW1 discussed in detail would indicate that PW1 repeatedly given evidence during cross-examination that he had no direct knowledge about the transaction. Therefore, no credence can be given to the evidence of PW1, in the matter of transaction and execution of the cheque. Thus, in the case on hand, the complainant miserably failed to adduce convincing evidence to prove the transaction led to execution of Ext.P2 cheque in this case. Therefore, the trial court rightly recorded acquittal and the same need not be revisited. The appeal fails and is dismissed. 2022 (8) TMI 154 Anti-competition - Appellant has alleged the anti-competitive conduct of WhatsApp for which he has submitted certain information, particularly, relating to the privacy policy of WhatsApp - changes in privacy policy resulting into the social network join to keep enjoying the services of WhatsApp - abuse of dominant position enjoyed by the group in the matter and such changes are thus in violation of Section 4(2) of the Act or not - cross border economic terrorism - HELD THAT:- It is also very much clear that the 2012 Privacy Policy of WhatsApp, allowed WhatsApp to amend its privacy policy and share user s information with a third-party service provider to the extent it is reasonably necessary to maintain or improve the WhatsApp service and to protect the security or integrity of the WhatsApp site or servers. WhatsApp has not also washed off its hands for keeping the users unaware in case of data breach, if it comes to their notice as was confirmed by the Ld. Sr. counsel for R2. WhatsApp has ensured that all users received clear and prominent notice of the 2016 update including the revised privacy policy and an opportunity to consent to the 2016 update by accepting the same within 30 days by clicking agree for existing users and agree and continue for new users - WhatsApp has also implemented a use control that has helped the existing users the additional choice not to allow their account information to be used by Meta to improve their Meta advertisements and products experiences without their consent. This is over and above the 2012 WhatsApp Privacy Policy. What the Appellant has failed to prove that the Opposite party/Respondent is abusing its dominant position in the relevant market by introducing privacy policy which compels its users to share their account details and other information with Facebook as the Respondent has provided the users opt out of sharing user accounts information with Facebook within 30 days of agreeing to the updated of service and privacy policy. It also reveals that they have updated the policy for improving infrastructure and delivery system alongwith tools for securing systems and fighting with spam, abuse or such negative activities. This Tribunal is to do the judicial scrutiny of the orders passed by R1. While examining the issue, the citations available within Indian jurisdiction are primarily to be relied and if, no reference, is there then only, we can opt for the judgment in foreign jurisdiction. Each countries statute has its own nuances. We have already seen that Italian Competition Authority looks at consumer protection as well as Competition Law whereas Indian Competition Act is primarily concerned with preventing practices having adverse effect on Competition, to promote and sustain competition in market etc. The facts brought out in foreign jurisdiction may be different from the facts what has been brought for Indian jurisdiction so all these reliance on foreign proceedings is misplaced and needs to be disregarded as they have no relevance insofar as the present case is concerned. There are no inconformity in the findings of Competition Commission of India and hence, the Appeal deserves to be dismissed and accordingly is dismissed. 2022 (8) TMI 152 Seeking bail after filing of the final report on a wrong interpretation of Section 170 of the Code of Criminal Procedure - Presumption of innocence - HELD THAT:- Certain directions are issued. These directions are meant for the investigating agencies and also for the courts. Accordingly, it is deemed appropriate to issue the following directions, which may be subject to State amendments.: a) The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails. b) The investigating agencies and their officers are duty-bound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar [ 2014 (7) TMI 1143 - SUPREME COURT ]. Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action. c) The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any non-compliance would entitle the accused for grant of bail. d) All the State Governments and the Union Territories are directed to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code while taking note of the order of the High Court of Delhi in AMANDEEP SINGH JOHAR VERSUS STATE OF NCT OF DELHI ANR. [ 2018 (2) TMI 2078 - DELHI HIGH COURT] and the standing order issued by the Delhi Police i.e. Standing Order No. 109 of 2020, to comply with the mandate of Section 41A of the Code. e) There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code. f) There needs to be a strict compliance of the mandate laid down in the judgment of this court in Siddharth [ 2021 (8) TMI 977 - SUPREME COURT ]. g) The State and Central Governments will have to comply with the directions issued by this Court from time to time with respect to constitution of special courts. The High Court in consultation with the State Governments will have to undertake an exercise on the need for the special courts. The vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously. h) The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release. i) While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind. j) An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district judiciary level and the High Court as earlier directed by this Court in Bhim Singh [ 2014 (9) TMI 1214 - SUPREME COURT ], followed by appropriate orders. k) Bail applications ought to be disposed of within a period of two weeks except if the provisions mandate otherwise, with the exception being an intervening application. Applications for anticipatory bail are expected to be disposed of within a period of six weeks with the exception of any intervening application. l) All State Governments, Union Territories and High Courts are directed to file affidavits/ status reports within a period of four months. The Registry is directed to send copy of this judgment to the Government of India and all the State Governments/Union Territories.
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