TMI Tax Updates - e-Newsletter
September 11, 2018

Case Laws in this Newsletter:

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

Articles

1. FILING OF ANNUAL RETURN UNDER GST

   By: DR.MARIAPPAN GOVINDARAJAN

News

1. Extension of Due Dates for filing of FORM GSTR-1 and FORM GSTR-3B in certain cases

Notifications

GST - States

1. 34/2018 –State Tax - dated 31-8-2018 - Delhi SGST

Extend the furnishing return in FORM GSTR-3B of the said rules for each of the months from July, 2018 to March, 2019

Circulars / Instructions / Orders

GST - States

1. Trade Notice No. 12/2018-19 - dated 21-8-2018

Migration of Taxpayers.

2. Trade Notice No. 11/2018-19 - dated 18-7-2018

Functioning of the office of the Superintendent Range - Narsinghpur- I and Narsinghpur - II.

3. Trade Notice No. 10/2018-19 - dated 17-7-2018

Refund Disposal Fortnight to handhold trade & Industry in clearing pending GST refund claims from 16th July 2018 to 31st July 2018

4. Trade Notice No. 09/2018-19 - dated 6-7-2018

Special Drive “ITC Refund Week” beginning from 09th July 2018 to 14th July 2018-reg.

5. Trade Notice No. 08/2018-19 - dated 5-7-2018

Clarification of certain issues under GST.

6. Trade Notice No. 07/2018-19 - dated 26-6-2018

Modification to the procedure for interception of conveyances for inspection of goods in movement, and detention, release and confiscation of such goods and conveyances, as clarified in Circular No. 41/15/2018-GST dated 13.04.2018.

Highlights / Catch Notes

Income Tax

• Penalty Confirmed u/s 272A(1)(c) for Non-Compliance with Section 131(1); Assessee's Conduct Not Bona Fide.

  Case-Laws - AT : Penalty u/section 272A(1)(c) - non-compliance to provisions of section 131(1) - failure to submit information - The conduct of the assessee in the instant case is not at all bona-fide - levy of penalty confirmed.
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• Penalty u/s 271(1)(c) Dismissed: Business Promotion Expenses Consistently Incurred Not Subject to Penalty.

  Case-Laws - AT : Levy of penalty u/s 271(1)(c) - disallowance of expenditure under the Head “Business Promotion” - It is a case of disallowance of part of the expenses which have been incurred consistently by assessee-company in earlier years as well. Therefore, it is not a fit case for levy of the penalty.
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• Ad hoc disclosure justifies appellant's claim; offsets undisclosed income during block assessment under specified conditions.

  Case-Laws - AT : Since the Adhoc disclosure of a sum was made with a rider that any undisclosed income/transaction/entry found during the course of the block assessment proceedings shall be set off against this disclosure, the appellant is entitled for the legitimate claim.
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• Section 54 Exemption Allows LTCG Benefit for Unregistered Agreements in New Home Purchases, Specific Performance Possible.

  Case-Laws - AT : LTCG - exemption u/s. 54 - purchase of new residential property - though the agreement to sell is not registered, the vendee can seek decree of specific performance on the basis of unregistered agreement to sell - benefit of exemption allowed.
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• ITAT's Remand Order Overturned Due to Lack of Justification in Non-Compete Fee Case; CIT(A)'s Relief Stands.

  Case-Laws - HC : Nature of non compete fee received by the assessee - CIT(A) has allowed relief to the assessee - Validity of ITAT order in remanding back the matter to CIT(A) - there was no sufficient material before the Tribunal to remand the case for a fresh consideration at the first instance. - The order of remand set aside.
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Customs

• Petitioner Permitted to Use Bank Account During Directorate of Revenue Intelligence Investigation into Drawback Claim Recovery.

  Case-Laws - HC : Recovery of Drawback Claim granted earlier - attachment of bank accounts - while permitting the Directorate of Revenue Intelligence to continue investigation, the petitioner should be permitted to operate their bank account by simultaneously protecting the interests of the Revenue.
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• Confiscation of Indian Currency Outside India Deemed Valid by Third Respondent Under Legal Framework.

  Case-Laws - HC : Confiscation - taking Indian Currency outside India - prohibited goods or not? - the currencies, which were seized from the petitioner and confiscated by the order passed by the third respondent are undoubtedly prohibited goods, and the power exercised by the third respondent is valid and proper
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Corporate Law

• CBDT Clarifies STT on Future Transactions, Allowing Association Members to Recover Correct Amounts in Derivative Deals.

  Case-Laws - HC : STT - anomaly with regard to STT payable on future transactions - Once CBDT has clarified the position, all stake holders are now aware as to what is the amount of STT payable on the transactions - In that view of the matter, it will not be difficult for the members of the Association to recover the amount of STT from the parties who were engaged in the derivative transactions.
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Central Excise

• Appellant Penalized u/r 26 for Possession of Undutied Fans, Violating Central Excise Rules on Duty Liability.

  Case-Laws - AT : Penalty u/r 26 of CER - Rule 26 would apply directly in the case in hand, as appellant is the person who acquired the possession of goods and were concerned with depositing or keeping the fans on which admittedly duty liability was not discharged.
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• Debate Over Proper Classification of Printed Heat Transfers: Should They Fall Under 49011020, 49089000, or 491191000?

  Case-Laws - AT : Classification of manufactured goods - Printed Heat Transfers - whether the ‘Heat Transfers’ manufactured by the appellants merit classification under 49011020 or 49089000 or under 491191000 - the impugned goods are not anywhere similar or closer to the grouping intended under 4911.
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• Tribunal's Decision on Clandestine Removal Deemed Flawed Due to Lack of Evidence and Unsupported Assumptions.

  Case-Laws - HC : Clandestine removal - The Tribunal proceeded merely on assumptions and presumptions and ignored the basic requirement of clinching material to prove the clandestine removal. In the instant case, there is not even enough material to presume the clandestine removal. Thus, the finding of the Tribunal is perverse.
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Case Laws:

• GST

• 2018 (9) TMI 479
  Withdrawal of Advance Ruling application - Classification of goods. Held that:- The request of the applicant to withdraw the application voluntarily and unconditionally is hereby allowed without going into the merits or detailed facts of this advance ruling application - application disposed off as withdrawn.

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• 2018 (9) TMI 478
  Maintainability of application for Advance Ruling - Section 98 of the Central Goods and Services Tax Act, 2017 - issue of classification of the subject goods. Held that:- The application has been made with reference to classification dispute in respect of the subject goods and the similar issue of applicant is a matter of dispute in the various forums of the department under the earlier Central Excise and Customs regime as per details given by the jurisdictional officer in his submissions - the applicant himself, also, during the course of hearing before this authority has admitted and confirmed that their import consignments are being provisionally assessed under the Customs Act after coming into effect of GST for classification of subject goods which is the same issue that has been raised by them in this application before us. In view of admission by the applicant at the time of Personal Hearing that in the present GST regime also, their import consignments have been provisionally assessed for classification and accordingly, applicability Of Customs duty and IGST on the same, their application is liable for rejection as per proviso to section 98 (2) of the CGST Act and therefore cannot be entertained by this authority and is accordingly rejected. The subject application for advance ruling made by the applicant is rejected under the provisions of sub-section 2 of Section 98 of the CGST Act, 2017.

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• 2018 (9) TMI 477
  Correction in migration Form - TRAN 1 Form - Input Tax Credit - migration to GST Regime - Held that:- Despite best efforts from the petitioner, the correction in the migration form did not materialize before the said date. Subsequently however, the correction has been carried out. Since such correction did not take place before 27.12.2017, the Tran1 form did not recognize the petitioner s unused CENVAT credit as on 01.06.2017 - NOTICE, returnable on 05.10.2018.

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• 2018 (9) TMI 447
  Withdrawal of Advance Ruling application - Whether Electrically wired trolley controlled by wired remote control is a non-motorized conveyance? - Whether the applicant is required to issue E-way Bill in such a case? Held that:- The request of the applicant to withdraw the application voluntarily and unconditionally is hereby allowed without going into the merits or detailed facts of this advance ruling application - application disposed off as withdrawn.

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• 2018 (9) TMI 446
  Withdrawal of Advance Ruling application - Classification of goods - applicability of Circular No.44/18/2D18-CGST - Levy of GST - Input Tax Credit - deemed export - refund of accumulated CENVAT Credit. Held that:- The request of the applicant to withdraw the application voluntarily and unconditionally is hereby allowed without going into the merits or detailed facts of this advance ruling application - application disposed off as withdrawn.

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• 2018 (9) TMI 445
  Withdrawal of Advance Ruling application - ITC on motor vehicles commonly used for Cash-in-transit business - transport of currency notes; cash Replenishment Services business - transport of currency notes; Brink s Global Support Service business - transport of currency notes, precious metals like gold, silver etc. Held that:- The request of the applicant to withdraw the application voluntarily and unconditionally is hereby allowed without going into the merits or detailed facts of this advance ruling application - application disposed off as withdrawn.

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• 2018 (9) TMI 444
  Withdrawal of Advance Ruling application - supply of services undertaken by the Applicant by way of secured transportation of specified goods entirely through road (including temporary storage of such goods) - transportation of specified goods involves movement through air also which is supplementary/ incidental to the transportation by road - eligibility for exemption under N/N. 12/2017-Central Tax(Rate) dated 28 June, 2017. Held that:- The request of the applicant to withdraw the application voluntarily and unconditionally is hereby allowed without going into the merits or detailed facts of this advance ruling application - application disposed off as withdrawn.

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• 2018 (9) TMI 443
  Withdrawal of Advance Ruling application - supply of services undertaken by the Applicant by way of secured transportation of specified goods entirely through road (including temporary storage of such goods) - transportation of specified goods involves movement through air also which is supplementary/ incidental to the transportation by road - eligibility for exemption under N/N. 12/2017-Central Tax(Rate) dated 28 June, 2017. Held that:- The request of the applicant to withdraw the application voluntarily and unconditionally is hereby allowed without going into the merits or detailed facts of this advance ruling application - application disposed off as withdrawn.

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• 2018 (9) TMI 442
  Withdrawal of Advance Ruling application - Does service involving nurturing, nursing and maintenance of flowers, fruits including coconut trees, greeneries, lawns etc agreed to be supplied by a contractor to the Applicant Trust, having its ashram establishment for yoga studies and spiritual practices in village Ganeshpuri, District Thane give rise to any incidence of tax under the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017? Held that:- The request of the applicant to withdraw the application voluntarily and unconditionally is hereby allowed without going into the merits or detailed facts of this advance ruling application - application disposed off as withdrawn.

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• 2018 (9) TMI 441
  Withdrawal of Advance Ruling application - supply to SEZ units or not? - Can the supply of food services in the restaurant by the applicant within its premises to the employees and guests of SEZ? - Can supply of services in the hotel accommodation provided by hotel to the employees and guests of SEZ units can be treated as supply to SEZ units or not? - Whether the supply of food for consumption by hotel, eating house or restaurant away from restaurant eating house premises in the designated area of another company, for the employees and guests of the another company be treated as outdoor catering or canteen service? Held that:- The request of the applicant to withdraw the application voluntarily and unconditionally is hereby allowed without going into the merits or detailed facts of this advance ruling application - application disposed off as withdrawn.

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• 2018 (9) TMI 440
  Withdrawal of Advance Ruling application - Whether catering services which involve operating and managing the canteens/cafeteria of the customers, provided to corporate customers qualify as services provided by a restaurant, eating joint including mess, canteen with a GST rate of 5% as per entry 7(i) of the Schedule under N/N. 11/2017 (as amended vide Notification 46/2017)? Whether retail services of cooking and serving food and beverages by canteens, cafeteria etc, provided by the canteen/cafeteria to the employees or visitors (belonging to the customer) qualify as services provided by a restaurant, eating joint including mess, canteen with a GST rate of 5% as per entry 7(i) of the Schedule under N/N. 11/2017 (as amended vide N/N. 46/2017)? Held that:- The request of the applicant to withdraw the application voluntarily and unconditionally is hereby allowed without going into the merits or detailed facts of this advance ruling application - application disposed off as withdrawn.

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• 2018 (9) TMI 439
  Withdrawal of Advance Ruling application - Classification of services - supply of services by M/s. Sampada Caterers to the members of VCA Recreation Club - whether the services would fall under Restaurant service or under Outdoor Catering Service? Held that:- The request of the applicant to withdraw the application voluntarily and unconditionally is hereby allowed without going into the merits or detailed facts of this advance ruling application - application disposed off as withdrawn.

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• 2018 (9) TMI 438
  Withdrawal of Advance Ruling application - Whether it is admissible to carry forward in GST Transition the un-availed CENVAT credit duties paid on capital goods received in the factory prior to 01 July 2017 and which are to be used in manufacturing activities? Held that:- The request of the applicant to withdraw the application voluntarily and unconditionally is hereby allowed without going into the merits or detailed facts of this advance ruling application - application disposed off as withdrawn.

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• 2018 (9) TMI 437
  Withdrawal of Advance Ruling application - Since the amount collected by individual Lions clubs and Lions District is for convenience of Lion members and pooled together only for paying Meeting expenses communication expenses and the same is deposited in single bank account. As there is no furtherance of business in this activity and neither any services are rendered nor any goods are being traded. Whether registration is required? Held that:- The request of the applicant to withdraw the application voluntarily and unconditionally is hereby allowed without going into the merits or detailed facts of this advance ruling application - application disposed off as withdrawn.

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• 2018 (9) TMI 436
  Withdrawal of Advance Ruling application - Whether products containing Amino acid (Protein Hydroslyate/FuIvic acid/ Seaweed/ Humic Acid/ Potassium Humate which are generated from vegetable/animal origin required to be classified under Chapter 3101 of HSN? - Whether Plant Growth Regulators are different than that of plant growth promoters? - Whether Micronutrients will fall under Chapter Heading 38 or 28/29? - Whether the products containing elements of Nitrogen, Phosphorous or Potassium, shall be classified under any of the heading of Chapter 3102, 3103,3104 respectively ? Held that:- The request of the applicant to withdraw the application voluntarily and unconditionally is hereby allowed without going into the merits or detailed facts of this advance ruling application - application disposed off as withdrawn.

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• 2018 (9) TMI 435
  Withdrawal of Advance Ruling application - Whether the food and beverages served at the time of parties within the premises of the club is liable to tax at CGST 2.50/0 + SGST 2.5%. If not what is the rate of tax? Held that:- The request of the applicant to withdraw the application voluntarily and unconditionally is hereby allowed without going into the merits or detailed facts of this advance ruling application - application disposed off as withdrawn.

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• 2018 (9) TMI 434
  Withdrawal of Advance Ruling application - Whether the product Sting - Caffeinated Beverage (Energy Drink) containing 72 mg per serve (250 ml) of caffeine is classifiable under Tariff Item 2202 91 00 (SI No, 24A of Schedule-III) as Other Non-Alcoholic Beverage or under Sub-heading 220210 as All goods [including aerated waters], containing added sugar or other sweetening matter or flavoured of the rate schedule of N/N. 01/2017 - integrated Tax (Rate) dated 28.06.2017, read with the Corrigendum dated 27.07.2017? Held that:- The request of the applicant to withdraw the application voluntarily and unconditionally is hereby allowed without going into the merits or detailed facts of this advance ruling application - application disposed off as withdrawn.

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• Income Tax

• 2018 (9) TMI 476
  Reopening the assessment u/s 147 - proposal for sanction to issue notice u/s 147 as received by the ACIT and vide Order dated 21.03.2014 the proposal was approved is ante dated - as pointed out that in this letter dated 21.03.2014 it was not possible at all inasmuch as reasons for issue of notice under Section 148 of the Income Tax Act for reopening the assessment are dated 21.03.2014, therefore, it could not have been forwarded to the Additional Commissioner or received in the Office of the Additional Commissioner on 20.03.2014. Held that:- Issue notice, returnable in four weeks. There shall be stay of further proceedings, in the meantime.

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• 2018 (9) TMI 475
  Nature of non compete fee received by the assessee - capital receipt or a revenue receipt - taxable as salary or not - distinction between the non compete fee and the good will - CIT(A) has allowed relief to the assessee - Validity of ITAT order in remanding back the matter to CIT(A) - Held that:- From the details furnished therein, it is clear that the assessee was never an employee in the new company and therefore, the assessee had a scope to compete. Further, there was no employer employee relationship between the payer company and the assessee and therefore, the payment could not be assessed under the head 'salary'. Further, the CIT (A) held that the legal representative of the deceased assessee had not raised any new point at first appellate stage for deciding the issues. Thus, in our considered view, there was no sufficient material before the Tribunal to remand the case for a fresh consideration at the first instance. The Tribunal does not dispute the covenants contained in the said agreement nor can it dispute the same in the absence of any evidence produced by the Department. In the said agreement, the non compete fee clause is clear by the assessee agreeing not to enter into any trade or start a similar production or enter into any competition with another party and the payment of non compete fee is for an action by the payee on a future date. The said payment of non compete fee is bound by a contractual requirement and it is a contractual right conferred on the assessee and in the event any violation, it was well open to the assessee to enforce the terms of the contract. The order of remand passed by the Tribunal is wholly unjustified and the facts as brought out by the CIT (A) after the first remand vide order dated 28.10.2016 are just and proper and in the absence of any new material produced by the assessee, the question of remanding the matter does not arise. Decided in favour of assessee

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• 2018 (9) TMI 474
  Disallowing the claim of exemption u/s. 54 - LTCG - purchase of new residential property - agreement to sell is an unregistered documents - Whether vendee can seek decree of specific performance on the basis of unregistered agreement to sell? - Held that:- It is not the case of the AO/Ld. CIT(A) that the vendee as per agreement to sale is not the vendee when the registration of conveyance deed was executed on 26.12.2011 and, therefore, as per the ratio laid in Sanjeev Lal (2014 (7) TMI 99 - SUPREME COURT), we find force in the claim made by the assessee to claim exemption u/s. 54 of the Act and we hold that once an agreement to sale is executed in favour of vendee, the said vendee gets a right to get the property transferred in his favour by filing a suit under Specific Performance Act and, therefore, some right in respect of the said property (old residential property) belonging to the assessee had extinguished and some rights have been created in favour of the vendee/transferee when the agreement to sale has been executed. Thus, a right in respect of the capital asset (old residential property in question) has been transferred by the assessee in favour of the vendee/transferee on 16.09.2011 and, therefore, since purchase of the new property on 04.10.2010 which fact has been disputed by the AO/Ld. CIT(A) the purchase of the property is well within one year from the date of transfer as per sec. 2(47) of the Act, therefore, we allow the appeal of the assessee. CIT(A) erred in understanding the ratio decidendi laid by the Hon’ble Supreme Court in Sanjeev Lal, supra and, therefore, he erred in passing the impugned order, so we set aside the order of the Ld. CIT(A) and we allow the appeal of the assessee and direct AO to grant exemption u/s. 54 of the Act in accordance to law. We are of the opinion that though the agreement to sell is not registered, the vendee can seek decree of specific performance on the basis of unregistered agreement to sell - Decided in favour of assessee

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• 2018 (9) TMI 473
  Allowability of foreign tour expenses - Held that:- Mrs. Zhu Xintian, the research manager having visited foreign countries wholly and exclusively for business purposes of the assessee company and therefore is entitled to claim the expenditure and we do not want to interfere in the order of the Ld. CIT(A), which is hereby upheld. TDS u/s 194C - Disallowance under the head “Publicity Expenses” - according to AO assessee violated the principal norm of business and claimed expenditure for the business as a manufacturer cum trader (seller) and not as a consignor - Held that:- As decided in assessee's own case for AY 2011-12 [2018 (4) TMI 709 - ITAT KOLKATA] due to restriction of production of liquids in the factory premises by the land lord of the assessee, due to effluent water problem, the production of SORBILINE was shifted to backward area as ancillary costs for manufacturing the said product are low. In this regard, the assessee entered into an agreement with M/s.STP Pharmaceuticals Pvt. Ltd. according to which M/s. STP will manufacture the pharmaceutical products in the brand name "Sorbiline" by using materials from its own source and sell the same to the assessee on "principal to principal" basis. Therefore, undoubtedly the provisions of clause (e) of Explanation (iv) of sec. 194C gets attracted in the instant case and as such, the entire expenditure of Rs. 58,77,566/- being paid to M/s.STP Pharmaceuticals Pvt. Ltd for purchase of "Sorbiline" does not come under the ambit of sec. 194C, therefore, the AO erred on this issue. - Decided in favour of assessee Allowability of repairing expenses incurred on factory building - Held that:- The expenditure incurred in this connection has not brought into existence any new advantage or any new asset and the expenditure was incurred only in the process of earning profit in the course of its business activities. Even after incurring expenditure on repair, the assessee continued to be lessee of the factory premise and continued to carry on the same business. Therefore, the business of the assessee remained the same even after the expenditure and the asset continued to be one of the lease holding assets. Hence, the claim of the assessee has to be allowed u/s 30(a) (i) of the Act. When the nature of work undertaken by the assessee is to carry on the business and not to obtain any capital asset, the expenditure incurred in this connection is to be treated as revenue expenditure. And it should be kept in mind that even though the advantage that accrues to the assessee on the incurring of the expenditure may endure for an "indefinite future," still since the advantage consisted merely in facilitating the assessee' s business to be carried on more efficiently or profitably while leaving the fixed capital untouched, the advantage would be of revenue nature. - Decided against revenue

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• 2018 (9) TMI 472
  Penalty u/s 271(1)(c) - enhancement u/s 40(a)(ia) - Held that:- It is undisputed that in both the years under consideration the quantum addition on account of enhancement by the Ld. CIT (A) with respect to disallowance u/s 40 (a)(ia) has been deleted by the Tribunal [2018 (8) TMI 53 - ITAT DELHI] and, therefore, since the impugned quantum additions have been deleted by the ITAT, the penalties u/s 271(1)(c) imposed on such enhancements also do not survive. Accordingly, the penalties with respect to enhancement u/s 40(a)(ia) in both the years under consideration stand deleted and the grounds raised by the assessee in this regard stand allowed. For enhancement on account of Advertisement, Marketing and Promotion expenses, it is seen that the ITAT Delhi Bench has restored this issue to the file of the AO/ TPO for both the years under consideration for the purpose of readjudicating the issue in light of the order of the Special Bench of the Tribunal in assessee’s own case for assessment year 2007-08. Although, AR has argued vehemently for deleting the penalties on the ground that the very basis of levy of penalties has been modified by the order we are of the considered opinion that interest of justice would be served if the penalties for both the years on the quantum enhancement pertaining to Advertising, Marketing and Promotion expenses is also restored to the file of the AO/TPO. It is directed accordingly. Thus, the grounds raised in this regard are allowed for statistical purposes.

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• 2018 (9) TMI 471
  Suppressed Income on sale of plots - sum quantified by the AD on the basis of seized material as "Suppressed Turnover" - Held that:- AO has adopted the value declared in the agreement of sale for registration purpose and not accepted the turnover declared by the assessee in the return of income. Assessee has filed return of income declaring total turnover of sale and contract receipts to the extent of Rs. 3.77 crores and paid the due tax. The turnover already declared by the assessee as per the return of income should be taken as declared turnover. Therefore, we are in agreement with the submissions of AR that the suppressed turnover should be the difference between the turnover found in the document seized and the turnover declared in the return of income i.e. to the extent of Rs. 5,11,00,000/-. Hence, ground raised by the assessee in this regard is allowed. Estimation of income in this line of business - CIT-A restricting the income at 40% of the undisclosed receipts without giving any factual basis which could justify the deduction of 60% allowed against such suppressed receipts - Held that:- We are in agreement with the CIT(A) that only income should be estimated and not the whole suppressed turnover as income - income estimation should be realistic and based on the trend in the industry - the income has to be realistic and appropriate to the kind of business of assessee. As noted, assessee has declared only 5.12% of the declared turnover as profit. The coordinate bench has opined that in the general scenario income is estimated at 12.5% in the case of big contracts. In the interest of justice and fairness to both the parties, in our considered view, 10% is reasonable and in line with the Villa Projects in the real estate industry. Accordingly, we direct the AO to estimate income @ 10% of the undisclosed turnover. Accordingly, ground raised by the assessee is partly allowed. Addition made on account of unexplained investment in land - addition in an assessment u/s 143(3) rws 153C without reference to any seized material - Held that:- Since no incriminating material was unearthed during the search regarding the purchase of the above land, no addition could have been made to the income already assessed u/s 143(3) of the Act, as held by the Hon’ble Delhi High Court in the case of CIT Vs. Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT]. Even the CIT(A) held that when the land is reflected in the balance sheet, which forms a part of the return of income filed by the assessee, the sources are self-evident. He further held that neither does the assessment record show that this issue was even raised and confronted to the assessee during the assessment proceedings. We, therefore, uphold the order of CIT(A) on this issue and dismiss the grounds raised by the revenue in this regard.

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• 2018 (9) TMI 470
  Disclosure of additional income made with a rider - undisclosed income/transaction/entry found during the course of the block assessment proceedings shall be set off against this disclosure - Held that:- It is important to note that while arriving total disclosure of Rs. 40 Crores in the hands of the appellant as well as in the hands of the various group concerns of the Madhav Group, the appellant and the Madhav Group concern could worked out the total disclosure to the extent of Rs. 32.45 Crores only on the basis of incriminating material. The balance of Rs. 7.55 crores was offered as Adhoc in equal sharing of 3 brothers i.e. the appellant, his brothers Shri Motibhai Prajapati and Bhagwanbhai Prajapati. The Adhoc disclosure shown in the return of income for A.Y. 2012-13 with a rider that any undisclosed entry/income/transaction worked during the course of the block assessment proceedings will be set off against this Adhoc disclosure of Rs: 2.52 Crores. The appellant has claimed this entry of Rs. 1.99 croresas set-off against the Adhoc disclosure of Rs. 2.52 Crores but the Ld. A.O. has not given the same because he has opined that the adhoc disclosure of Rs. 2.52 . crores was made in the A.Y. 2012-13 and Rs. 1.99 crores is pertaining to A.Y. 2006-07. It is pertinent to mention here that the said seized paper does not contain any date. Respectfully following the case of Rajasthan High Court [1972 (11) TMI 20 - RAJASTHAN HIGH COURT] since the Adhoc disclosure of Rs. 2.52 crores was made with a rider that any undisclosed income/transaction/entry found during the course of the block assessment proceedings shall be set off against this disclosure, the appellant is entitled for the legitimate claim. - Decided in favour of assessee

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• 2018 (9) TMI 469
  Business being taxable at special rate of 12.5% as per Section 44 - Income from SHA account was on account of carrying on ‘business activity, other than Life insurance’ - addition of incremental negative reserves as per actuarial report - Held that:- As decided in assessee's on case issue decided in favour of assessee

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• 2018 (9) TMI 468
  Levy of penalty u/s 271(1)(c) - disallowance of expenditure under the Head “Business Promotion” - Held that:- CIT(A), on verification of the bills and vouchers found there are some occasional gifts to the Doctors and staff of the hospitals and that some laptop is purchased and that ledger shows approximately Rs. 45,300/- have been spent for followup of tender in Armed Forces medical material supply Depot. It is not pointed out or any specific finding have been given that while incurring these expenses as to what offence is committed by the assessee-company and what is the prohibition by any Law which may not allow the assessee-company to incur these expenditure. Therefore, Explanation-1 to Section 37 may not apply in the case of the assessee-company. It is a case of disallowance of part of the expenses which have been incurred consistently by assessee-company in earlier years as well. Therefore, it is not a fit case for levy of the penalty. - Decided in favour of assessee

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• 2018 (9) TMI 467
  Addition u/s 68 - submission for sources of creditors for capital introduction - Held that:- CIT(A) has considered the submissions, as envisaged in the grounds and the addition was confirmed for want of evidence. The assessee has submitted the information which was not to the satisfaction of CIT(A). Therefore, in the interest of substantial justice, we provide one more opportunity to the assessee to substantiate its claim properly along with documentary evidence before the CIT(A) - Decided in favour of assessee for statistical purposes.

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• 2018 (9) TMI 466
  Reopening of assessment - non service of notice - Held that:- As case of R.K. Upadhyaya (1987 (4) TMI 5 - SUPREME COURT] has held in no uncertain terms that service of notice under Section 148 of the IT Act for the purpose of initiating proceedings for reassessment is not a mere procedural requirement but it is a condition precedent for initiation of proceedings for reassessment under Section 147. However, service of notice under Section 148 of the IT Act is an integral part of the cause of action arising out of initiation of proceeding under Section 147 - thus we cancel the reassessment order passed u/s.147/144 - decided in favour of assessee.

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• 2018 (9) TMI 465
  Estimation of the annual value of the property - Addition under the head income from house property - assessment of rent - Held that:- The actual rent is not above the rent of municipal valuation. There is no reason to deny the rent assessed by assessee. The Hon’ble ITAT [2018 (8) TMI 1620 - ITAT MUMBAI] has decided the matter of controversy on the basis of the decision of CIT Vs. Tip Top Typography, [2014 (8) TMI 356 - BOMBAY HIGH COURT]. No distinguishable material has been produced. Since the present case is squarely covered by the decision of the ITAT in the assessee’s own case mentioned above. Therefore, by honoring the said decision, we set aside the finding of the CIT(A) on this issue and restored the matter back to the file of the AO who shall re-compute the income assessable under the head income from house property in terms of the direction of the above said case.

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• 2018 (9) TMI 464
  Penalty u/section 272A(1)(c) - non-compliance to provisions of section 131(1) - Disclosure of information u/s 138 - reasonable cause on the part of the assessee in not submitting the details as called for by the ADIT (Investigation) - Held that:- So far as argument of the assessee that provisions of section 131(1) and 131(1A) are different, there is no dispute to the same. However, as per the provisions of section 131(1A) for the purpose of making any enquiry or investigation relating thereto it shall be competent for the officer to exercise the powers conferred under sub-section (1) on the Income Tax Authorities referred to in that sub-section. Provisions of section 131(1A) has to be read along with the provisions of section 131(1) of the I.T. Act. Therefore, the consequences for failure to furnish the requisite details will be the same as prescribed u/s 272A(1)(c). As find from the record that there was a deliberate defiance on the part of the assessee for non-submission of the same under the pretext that some of the details are available in the records of the Income Tax Department or some of the details are available in the Website of the Ministry of Corporate Affairs. In our opinion, no prejudice would have been caused to the assessee by submitting the details as called for by the ADIT (Investigation), as per the summons u/s 131(1A) if those details are already available in the records of the I.T. Department or in the website of the Ministry of Corporate Affairs. The conduct of the assessee in the instant case, in our opinion, is not at all bona-fide. Order of the ld. CIT(A) in confirming the penalty of Rs. 10,000/- levied u/s 272A(1)(c) is upheld. - Decided against assessee

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• Customs

• 2018 (9) TMI 461
  Condonation of delay in filing appeal - Rule 10 of the Customs and Central Excise Settlement Commission Procedure, 2007 - Held that:- This Court is not inclined to keep this writ petition pending for this purpose and therefore, without issuing notice to the respondents, it is directed that the application for condonation of delay filed by the petitioner may be placed before the Bench of the Settlement Commission, Chennai and the Settlement Commission may provide an opportunity of hearing to the petitioner and then pass appropriate orders in this regard - The petitioner shall appear before the Settlement Commission in the first instance on 19-2-2018 and a period of three weeks is allowed to the Settlement Commission thereafter to pass an order in the matter. Petition disposed off.

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• 2018 (9) TMI 460
  Recovery of Drawback Claim granted earlier - attachment of bank accounts - respondent bank has been requested to hold all outward transactions (debit in any form) in respect of the current account maintained by the petitioner. - Held that:- This Court finds that though, as on date, the petitioner is not eligible to avail the drawback claim, which had been availed in the year 2013, the same is in the stage of investigation as regards quantum of drawback eligible apart from the fact of non-remittance of foreign exchange within the time permitted. In any event, there should have been a demand raised to the petitioner, which appears to have been not issued till date - while permitting the Directorate of Revenue Intelligence to continue investigation, the petitioner should be permitted to operate their bank account by simultaneously protecting the interests of the Revenue. The amount of drawback claim availed by the petitioner is Rs. 80 lakhs approximately. The writ petition is disposed of with a direction to the petitioner to furnish bank guarantee for 25% of the drawback claim availed by the petitioner (25% of Rs. 80 lakhs) to the satisfaction of the third respondent or any other appropriate authority of the Customs Department and execute a bond in the proper format for the differential amount to the satisfaction of the appropriate officer.

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• 2018 (9) TMI 459
  Confiscation - Indian Currency - prohibited goods or not? - contention of the petitioner is that, the first respondent, in the impugned order has accepted that, there is no prohibition to take Indian currency outside the country, but, it is only a restrain - Held that:- It is settled legal principle that the term “prohibition” shall include “restrain”. Section 2(33) of the Act defines the term “prohibited goods” to mean any goods, which is not only prohibited under the Act, or prohibition under any other law, which is in force - Admittedly, there is a prohibition for taking Indian currency outside the country, as per the Regulations framed under the FEMA. Therefore, a person intending to take currency outside the India beyond the threshold limit of Rs. 5,000/- is required to obtain prior permission. Admittedly, the petitioner did not obtain such prior permission before carrying Indian currency to the tune of Rs. 14,00,000/-. Thus, the currencies, which were seized from the petitioner and confiscated by the order passed by the third respondent are undoubtedly prohibited goods, and the power exercised by the third respondent is valid and proper - petition dismissed - decided against petitioner.

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• 2018 (9) TMI 458
  Exemption from Additional duty of Customs - Sub Section (1) of section 116 of Finance Act, 1999 - Whether additional duty of customs levied under Section 166 of the Finance Act, 1999 can be demanded in respect of goods which are eligible for Exemption N/N. 94/96-Customs dated 06.12.1996? Held that:- Sub Section (3) thereof extents the benefit of Exemptions under Customs Act also to the additional duty of customs levied under the Section 116 of Finance Act, 1999 - so long as the exemption Notification 94/96-Customs is extended to the goods, the benefit of exemption has to be allowed in respect of additional duty of customs levied under sub Section (1) of Section 116 of Finance Act, 1999. Reliance was placed in the case of TOYOTA KIRLOSKAR MOTOR PVT. LTD. VERSUS COMMR. OF C. EX., BANGALORE [2007 (5) TMI 464 - CESTAT, BANGALORE], where it was held that From the Section 129 of the Finance Act, 2001 and also from the Circular 60/01/06-CX dated 13-1-2006 issued by the CBEC, it is very clear that Exemption Notification 108/1995 is applicable also to NCCD. The benefit of Exemption from additional duty of customs levied under Sub Section (1) of section 116 of Finance Act, 1999 has to be extended to the goods which are entitled to exemption under Notification 94/96-Customs - appeal allowed.

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• Corporate Laws

• 2018 (9) TMI 463
  Levy and Collection of Securities Transaction Tax (STT) - anomaly with regard to STT payable on future transactions - Scope of Clarification issued by the CBDT in the Circular - Held that:- CBDT has clarified that where a derivative contract is being settled by physical delivery of shares, the transaction would not be any different from transaction in equity share where the contract is settled by actual delivery or transfer of shares. The rates of STT as applicable to such delivery based equity transactions shall also be applicable to such derivative transaction. The position is clarified by CBDT that it does not differentiate between present transactions which are delivery based and derivative transactions. It has been clarified that the rate of both the transactions would be the same. We find that the clarification from CBDT takes care of the situation. Once CBDT has clarified the position, all stake holders including Respondent No.2 and the members of the Petitioner – Association are now aware as to what is the amount of STT payable on the transactions which are subject matter of the present Petition. In that view of the matter, it will not be difficult for the members of the Association to recover the amount of STT from the parties who were engaged in the derivative transactions. The said communication dated 27th August, 2018 sufficiently takes care of the concern of the stakeholders who are aware of the said communication and they are bound by the directions issued by the CBDT. Petition is therefore disposed of with the aforesaid clarification.

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• 2018 (9) TMI 462
  Oppression and mismanagement - company mismanaged by illegal increase and distribution of capital - winding up petition - NCLT while rejecting other claims of the Appellant regarding oppression and mismanagement, on the basis that she had been attending the concerned meetings, did not find fault even with the decision taken by Respondents to remove the Appellant from the post of Director and observed that the Company was free to take appropriate decision according to law. Held that:- We find Respondents 2 and 3 to have acted in an oppressive manner with the Appellant, when such Board Meetings dated 31.10.2016 and 26.11.2016 and EOGM dated 25.11.2016 were conducted. Acting on the basis of their majority shareholding, Respondents 2 and 3 went ahead with the EOGM against the provisions of law and made preferential allotment of shares to Respondent No.2 and private placement of shares was made to Respondent No.4, an outsider. Having gained in numbers in such manner and having brought in Respondent No.4 with token shares, Respondents 2 and 3 appear to have then proceeded to get rid of directorship of Appellant. Thus, calculatively, Appellant was oppressed. In the process, Company was mismanaged by illegal increase and distribution of capital. Winding up of the Company would unfairly prejudice the Appellant who is a member, but otherwise the facts justify the making of a winding up order on the ground that it is just and equitable that the Company should be wound up. We pass the following order:- A. We hold that the Board Meeting Resolutions dated 31.10.2016 and 26.11.2016 and the Resolution of EOGM dated 25.11.2016 cannot be maintained regarding increase of share capital and the allotments made. These Resolutions are quashed. The increase of share capital from Rs. 15 lakhs to Rs. 40 lakhs and the subsequent allotment of shares to Respondent Nos.2 and 4 are quashed and set aside. B. Consequent to the above directions, further steps taken by Respondents 2 and 3 to induct Respondent No.4 as Director and the Resolution taken pending litigation to remove the Appellant from the post of Director, are also quashed and set aside. C. Respondents 2 and 3 are directed to refrain from indulging in oppressive acts and mismanagement as mentioned in this Judgement. D. The appeal is thus partly allowed as above. Respondents 2 and 3 shall each pay costs of Rs. 1 lakh, from their own funds, to the Appellant.

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• Insolvency & Bankruptcy

• 2018 (9) TMI 480
  Initiation of Corporate Insolvency Resolution Process - Held that:- As per the records the applicant has attempted to serve the copy of the application on the Corporate Debtor on 23.05.2018 in compliance of the order dated 15.05.2018 as dasti but the acceptance of the application was refused by the staff/security personnel of the Corporate Debtor and also refused to give anything in writing. An affidavit has been filed by the Applicant on 25.05.2018 to that effect. Hence service is deemed to be complete. None appeared for the ‘Corporate Debtor’. The amount of debt claimed is Rs. 31,85,862/- which is above 1 lakh. The default occurred on 22.11.2016, hence the debt is not time barred and the application is filed within the period of limitation. The registered office of the Corporate Debtor is situated at Delhi and is within the territorial jurisdiction of this Tribunal. In the circumstances mentioned above Corporate Debtor despite repeated service has not appeared before this Tribunal and existence of a default of debt due to the Applicant is established. The Tribunal is of the considered view that this application requires to be admitted and that CIRP process is required to be initiated against the Corporate Debtor.

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• PMLA

• 2018 (9) TMI 457
  Offence under PMLA - material showing existence of any mens rea or culpable knowledge - Held that:- It becomes clear that by the impugned order dated 18-7-2014, the Special Court for PMLA mechanically took cognizance of the alleged offence punishable under Section 4 of PMLA qua each of the accused applicants, without even prima-facie material showing existence of any mens rea or culpable knowledge with all or any of them, or of any proceeds of crime emanating from the said scheduled offences. Neither there is any tangible evidence, nor even any circumstantial material to impute culpable knowledge to the applicants and to even primafacie conclude that they were either aware of the commission of the Scheduled Offence or the generation of the alleged proceeds of crime by or out of such Scheduled Offence by main or other accused. As per the material produced, it cannot be even prima facie held that the applicants had any reason or even have any reasonable doubt regarding commission of alleged scheduled offence and generation of any proceeds of crime in relation thereto. The same is also fortified by the fact that none of the applicants were made an accused in the scheduled offence. Even though the accused applicants received in their bank accounts certain amounts at the instance of or from Shri Afroz Hasanfatta, the statements if taken on their face value, do not satisfy even on prima facie basis the prerequisite for trying any person on allegation of money laundering i.e. mens rea or culpable knowledge of the Scheduled Offence and Proceeds of Crime derived therefrom, and projection of such proceeds of crime as untainted. Even on prima facie basis no offence is made out against any of the accused applicants. No hesitation in holding that the impugned Order was passed mechanically and deserves to be set aside. The instant Revision Petition is accordingly allowed and the impugned Order dated 18-7-2014 is set aside qua each of the applicants with consequential reliefs.

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• 2018 (9) TMI 456
  Complaint under Section 5(5) of Prevention of Money Laundering Act, 2002 - Held that:- After affording an opportunity to the petitioners under Section 50 and being satisfied that prima-facie material against them and reason to believe that the petitioners are in possession of proceeds of crime, the complaint has been registered and it is under investigation besides adjudication for attachment. Under these circumstances, it cannot be construed that the Authorities have no power under Section 3 or 5 to proceed against the petitioners or the complaint itself is bereft of material and liable to be quashed. It is for the petitioners to participate in the enquiry/investigation. On completion of investigation, it is always open to the petitioner to approach the appropriate Court under the appropriate provision of law, for redressal of his grievance, if any. Therefore, both on merits as well as on the facts of the case, these petitions are not maintainable and liable to be dismissed. Accordingly dismissed.

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• Central Excise

• 2018 (9) TMI 454
  Clandestine removal - it was alleged that the assessee had failed to inform the Department about the shortage with a clear intention to evade payment of excise duty - extended period of limitation - Whether larger period under Proviso to Section 11A(1) of the Central Excise Act, 1944, could be invoked alleging suppression of facts when stock discrepancy is explicitly disclosed in the annual report? - Held that:- Based on the material available in the annual report, the said show cause notice came to be issued and there was no material placed in the said show cause notice to support the allegation of either willful mis-statement or clandestine removal or suppression of fact or fraud or collusion with an intention to evade payment of duty. Thus, in the absence of such material, the extended period of limitation is not invocable. Whether excise duty can be demanded on the ground of clandestine removal when the Department did not allege clandestine removal at the stage of show cause notice, Order-in-Original and Order-in-Appeal? - Held that:- There was no such material with the Original Authority, when the show cause notice dated 20.6.2007 was issued. The well considered order passed by the Commissioner (Appeals) stood reversed by the Tribunal, which, in our considered view, by a cryptic order, without discussing the facts and circumstances of the case, had not properly appreciated as to what was the allegation against the assessee - Tribunal reversed the order of the First Appellate Authority based on a presumption that if there was a shortage, it would amount to a case of clandestine removal. We do not subscribe to the view taken by the Tribunal. The Tribunal has not recorded any finding of fact. In fact, it has not even given proper reasons as to why the order of the Commissioner (Appeals) requires to be reversed, when the same is a very reasoned order. The Tribunal proceeded merely on assumptions and presumptions and ignored the basic requirement of clinching material to prove the clandestine removal. In the instant case, there is not even enough material to presume the clandestine removal. Thus, the finding of the Tribunal is perverse. Appeal allowed - decided in favor of assessee.

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• 2018 (9) TMI 453
  Classification of manufactured goods - Printed Heat Transfers - whether the Heat Transfers manufactured by the appellants merit classification under 49011020 or 49089000 or under 491191000 claimed by the appellants during the adjudication proceedings? - time limitation. Held that:- Heading no. 49011020 of Central Excise Tariff Act refers to pamphlets, booklets, brochures, leaflets and similar printed matter. Apparently the impugned goods are Printed Heat Transfers and do not fall under above heading by any stretch of imagination. It is found that the appellants have conceded that point during the proceedings with the lower authorities. On perusal of the HSN notes for the heading 4911, it is seen that it refers to only printed matter (including printed pictures and photographs) neither the heading nor the HSN notes thereof refer anything closer to the Heat Transfers that is the impugned goods manufactured by the appellants. Therefore, the contention of the appellants is not acceptable that the same is classifiable under 49119100 - the impugned goods are not anywhere similar or closer to the grouping intended under 4911. Headings of 4908 refer to decalcomania. The appellants attempted to differentiate this heading by saying that Decalcomania refers to Heat Transfers to glass pottery, wood, metal, stone or paper whereas the impugned goods are used for transferring the printed pictures etc., to textile materials; moreover, the heading 4908 essentially refers to use of pigments whereas they are using printing ink; however, among the classification available, heading 4908 appears to be most closer to the grouping. The impugned goods rightly classifiable under 4908.90 as the type of material envisaged in the HSN notes is similar to the impugned goods. Time limitation - Held that:- The appellants declared that they are manufacturing Heat Transfers ; they have in regularly filing ER-1 returns only because the Department has verified/scrutinized the records at later date cannot be a conclusive reason for alleging suppression, fraud etc. - Extended period cannot be invoked - demand restricted to normal period. Appeal allowed in part.

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• 2018 (9) TMI 452
  CENVAT Credit - service tax paid on input services at its Unit-I which is received and utilized in their additional premises (Unit No. II) - Extended period of limitation - Held that:- When the Revenue was within the knowledge as early as in 2006 as to the existence of the additional unit along with request for registration/permission, the registration/permission for which having not been refused in writing, the Revenue cannot claim ignorance of such request and declaration. The Revenue has not made out a case for invoking extended period of limitation, since primarily it was within the Revenue’s knowledge, right from 11.12.2006, as to the request/permission for use of the additional unit and there has also been a declaration purportedly in terms of N/N. 214/1986 which is also on record with the Revenue and issuing a show-cause notice on 20.12.2013 i.e. nearly after 7 years therefore could not be viewed as an act of suppression - also apart from alleging mere suppression the authorities have not pointed out any positive action/inaction, conscious or otherwise, on the part of the appellant. The appeal is therefore allowed on the limitation/technical ground alone.

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• 2018 (9) TMI 451
  Penalty u/r 26 of CER - Clandestine manufacture and removal - goods were removed without documents and without payment of duty - case of appellant is that they are not the manufacturers and the details of the manufacturers are given, whose statements were recorded by the authorities but no further investigation was taken up, that they are not liable to pay any duty nor penalized under rule 26 of Central Excise Rules, 2002. Held that:- There is no dispute as to the fact that fully manufactured fans packed in cartons were found in the godown premises of the appellant, consignment notes were issued for the consignments loaded in the trucks mentioning the name and the destination, appellant could not produce any invoice, way bills issued by the consignors or the manufacturers covering the material. Despite given an opportunity to produce the documents which would indicate that appropriate central excise duty has been paid on these fans, appellant could not do so - The show cause notice itself directed the appellant to produce any documents while defending the case, as made in the show cause notice for imposition of penalty under rule 26. Appellant could not do so. Rule 26 would apply directly in the case in hand, as appellant is the person who acquired the possession of goods and were concerned with depositing or keeping the fans on which admittedly duty liability was not discharged - appellant has no case for praying for setting aside the penalties imposed under rule 26. However, the penalty imposed on the appellant seems to be excessive, and thus the quantum is reduced. Appeal disposed off.

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• 2018 (9) TMI 450
  Penalty u/r 25 and 26 of CER - Clandestine removal - Department’s case is built on the information which was disclosed to the Income Tax Authorities and no further investigation to corroborate clandestine removal or any suppression of production was done at any stage except for seeking clarification from the appellants - time limitation - Held that:- It is evident that the demand in this case is badly time barred, whichever of the tow dates is taken i.e. 01.09.2006, the date of the Income Tax survey or the date 31.03.2007, the ending of the relevant financial year - Since the show cause notice has been issued more than five years after the detection, the same is completely time barred and no penalty is imposable in such circumstances in the absence of demand. On merit too, the Department has not done any investigation to corroborate its charge of clandestine removal and has proposed the penalties without any corroborative evidence of clandestine removal. The entire demand is based on assumptions and presumptions bereft of any evidence. The show cause notice for the penalties solely on the basis of declaration of cash and stock six and half years back without furnishing any corroborative evidence of clandestine removal is clearly not sustainable. The impugned order is liable to be set aside on limitation as well as on merit - appeal allowed.

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• 2018 (9) TMI 449
  Reversal of Input tax credit - Byproduct - Hydro Carbon Ferro Chrome Slag - exempt goods or not? - Rule 6 of the CENVAT Credit Rules, 2004 - N/N.4/2006-CE - CBEC Circular No. 904/24/2009-CX dated 28/10/2009 - Held that:- The issue is no more res-entigra in view of the Circular No. 1027/15/2016-CX dated 25/04/2016 issued by the Central Board of Excise and Customs, New Delhi - It is seen that the earlier Circular No. 904/24/2009-CX (supra) stands withdrawn by the Circular No. 1027/15/2016-CX. In the Circular No. 1027/15/2016-CX, Board has concluded that dross and skimming of non-ferrous metal or any such by-product or waste, which are non-excisable goods are cleared for a consideration from the factory need to be treated as exempted goods for the purpose of reversal of credit of input and input services, in terms of Rule 6 of the CENVAT Credit Rules, 2004. Appeal dismissed - decided against appellant.

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• CST, VAT & Sales Tax

• 2018 (9) TMI 448
  Rate of tax - sale of LPG - Whether under the facts and circumstances the learned Tribunal has not erred in deciding that the LPG sold by the respondent is taxable at the rate of 4% instead of 12.5%? - Held that:- In absence of any primafacie basis for the Assessing Authority to doubt such certification, it would not be possible to shift the burden on the assessee to establish that such certificates bore correct facts. Needless to state that if the Assessing Authority had any material at its command, primafacie, suggesting that the facts stated in the certificates were not quite correct, the issue would require entirely different treatment. No question of law therefore arises in this respect. Input Tax Credit - Whether under the facts and circumstances the learned Tribunal has not erred in allowing the claim of ITC on the purchase of gas used in transportation of the gas? - Held that:- The period of limitation prescribed under the Gujarat Value Added Tax Act for seeking rectification of an order of Tribunal is two years. Such period is of course lapsed. There is no specific provision for condonation of delay or extension of such period in the Act. However, since the Government was in appeal before the High Court, and thus bonafide spent time in pursuing remedy before this Court, with the aid of section 14 of the Limitation Act, 1963, we permit the Government to file such a rectification application before the Tribunal. If so done, latest by 31.10.2018, the same shall be examined on merits. Deduction of discount - Whether under the facts and circumstances the learned Tribunal has not erred in considering the claim of respondent for deduction of discount granted to OMC on turnover sales? - Held that:- The question is covered by the judgment of this Court in case of ONGC Ltd v. State of Gujarat [2014 (12) TMI 1073 - GUJARAT HIGH COURT] and was decided in favor of the assessee. Tax appeal disposed off.

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• Indian Laws

• 2018 (9) TMI 455
  Tenure of Presiding Officers Officers of Debt Recovery Tribunal (DRT) - Whether the petitioners are entitled to complete the term of five years taking advantage of the amended provision which gives such Presiding Officers to continue until attaining the age of 65 years or to continue till they reach the age of 65 years, whichever is earlier? Whether the petitioners would be governed by Section 6 as amended or this provision is to be applied prospectively i.e., w.e.f. September 1, 2016 i.e. in respect of appointments which are made on or after September 1, 2016? Held that:- The amended provisions of Section 6 shall apply in their cases as well and, therefore, if they have not completed five years of tenure as Presiding Officers of the Debt Recovery Tribunal they are entitled to continue to work as Presiding Officers till they attain the age of 65 years or complete five years term before attaining the age of 65 years. In the first instance, it is to be borne in mind the language/terminology which the Legislature used while inserting new Section 6 with effect from September 01, 2016. This section stands substituted with the old section. The word substituted has its own significance. Wherever the word substitute or substitution is used by the legislature, it has the effect of deleting the old provision and make the new provision operative. The process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all - the aforesaid general meaning is to be given effect to, unless it is found that legislature intended otherwise. Insofar as present case is concerned, the legislative intent was also to give effect to the amended provision even in respect of those incumbents who were in service as on September 01, 2016 - The effect, thus, would be to replace Section 6 as amended with the intention as if this is the only provision which exist from the date of introduction and the earlier provision was not there at all. The effect of this would be that all those incumbents who are holding the post of Presiding Officer on September 01, 2016 would be governed by this provision. Whether Section 6, as amended, is to be given retrospective effect or not? - Held that:- The petitioners are right in submitting that persons who demitted the office prior to the amendment are not sought to be covered by the amendment. Had the provision been retrospective then it would have benefited those persons as well. No such case is set up by any of the petitioners or any other person, it is only the incumbents who are serving as on the date of the amendment are sought to be covered - The purpose of amending Section 6 was to reduce the burden of pendency by enhancement of age of the Judges concerned. While carrying out the aforesaid amendment with the intention to substitute the amended provision with that of unamended, the Parliament desired that the benefit of this provision extended even to those who are serving as Presiding Officers on the date when the amendment became enforceable. This seems to be just, reasonable and sensible outcome. Petition allowed.

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