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TMI Tax Updates - e-Newsletter September 13, 2017 Case Laws in this Newsletter: Income Tax Customs Corporate Laws Insolvency & Bankruptcy Service Tax Central Excise Indian Laws Articles ROLE OF RESOLUTION PROFESSIONAL IN CORPORATE INSOLVENCY RESOLUTION PROCESS Due dates for filing GSTR-1, 2 & 3 extended till October; GSTR-3B to be filed for August-December months Longer limitation means a substantive right which cannot be curtailed by amendment- amendment reducing limitation to file petitions or appeals should be considered prospective only News Govt notifies GST cess hike on mid & large cars, SUVs Ministry of Corporate Affairs (MOCA) identifies more than one lakh directors of shell companies for disqualification Cabinet approves release of additional 1% Dearness Allowance to Central Government employees and Dearness Relief to pensioners w.e.f. 01.07.2017 RBI Reference Rate for US $ Second State Start Up Conference in New Delhi Secretary, DEA inaugurates the Workshop on the involvement of Multilateral Agencies in developing the capacity of Finance Departments of the States and Union Territories (UTs) Direct Tax Collections up-to August, 2017 in the current Financial Year 2017-18 show Growth of 17.5% Notifications GST 31/2017 - dated 11-9-2017 - CGST Seeks to extend the time limit for filing of GSTR-6 30/2017 - dated 11-9-2017 - CGST Seeks to extend the time limit for filing of GSTR-1, GSTR-2 and GSTR-3 5/2017 - dated 11-9-2017 - GST CESS Rate Amends the rates of compensation cess on various motor vehicles GST - States 23/2017-State Tax (Rate) - dated 6-9-2017 - Delhi SGST Amendment in Notification No. 17/2017- State Tax (Rate), dated the 30th June, 2017 22/2017-State Tax (Rate) - dated 6-9-2017 - Delhi SGST Amendment in Notification No. 13/2017- State Tax (Rate), dated the 30th June, 2017 21/2017-State Tax (Rate) - dated 6-9-2017 - Delhi SGST Amendment in Notification No. 12/2017- State Tax (Rate), dated the 30th June, 2017 20/2017-State Tax (Rate) - dated 6-9-2017 - Delhi SGST Amendment in Notification No. 11/2017- State Tax (Rate), dated the 30thJune, 2017 19/2017-State Tax (Rate) - dated 6-9-2017 - Delhi SGST Amendment in Notification No. 1/2017-State Tax, dated the 30th June, 2017 06/2017 - dated 24-8-2017 - Nagaland SGST Time limit for filing details in FORM GSTR-3B-Amendment in Notification NO.CT/LEG/GST-NT/12/17 dated 17th Aug,2017. FIN/REV-3/GST/1/08/(Pt-1)/428 - dated 22-8-2017 - Nagaland SGST Amendment in Notification No F.NO.FIN/REV-3/GST/I/08 (Pt-I) “O” dated 30th June,2017 related to Exemptions on supply of service. FIN/REV-3/GST/1/08 (Pt-1)/427 - dated 22-8-2017 - Nagaland SGST Amendment in Notification No F.NO.FIN/REV-3/GST/I/08 (Pt-I) “T” dated 30th June,2017. FIN/REV-3/GST/1/08 (Pt-1)/426 - dated 22-8-2017 - Nagaland SGST Amendment in Notification No F.NO.FIN/REV-3/GST/I/08 (Pt-I) “N” dated 30th June,2017 related to rate of service. FIN/REV-3/GST/1/08 (Pt-1)/425 - dated 22-8-2017 - Nagaland SGST Amendment in Notification No F.NO.FIN/REV-3/GST/I/08 (Pt-I) “P” dated 30th June,2017. FIN/REV-3/GST/1/08 (Pt-1)/423 - dated 17-8-2017 - Nagaland SGST The Nagaland Goods and Services Tax (Fifth Amendment) Rules, 2017. S.R.O. No. 378/2017 - dated 30-8-2017 - Orissa SGST The Odisha Goods and Services Tax (Fifth Amendment) Rules, 2017. S.R.O. No. 370/2017 - dated 22-8-2017 - Orissa SGST Amendments in the Notification S.R.O. No. 307/2017, dated the 29th June, 2017. S.R.O. No. 369/2017 - dated 22-8-2017 - Orissa SGST Amendments in the notification of the Government of Odisha, in the Finance Department No.19869-FIN-CT1-TAX-0022-2017, dated the 29th June, 2017 bearing S.R.O. No. 305/2017". S.R.O. No. 368/2017 - dated 22-8-2017 - Orissa SGST Amendments in the notification of the Government of Odisha in the Finance Department No. 19873-FIN-CT1-TAX-0022-2017, dated the 29th June, 2017 bearing S.R.O. No. 306/2017. S.R.O. No. 367/2017 - dated 22-8-2017 - Orissa SGST Amendment in the Notification No. SRO. No. 311/2017. dated the 29th June, 2017 - regarding on e- commerce operator bearing. 24256/FIN-TAX-CT1-0043-2017 - dated 18-8-2017 - Orissa SGST Amendment in the Notification No. S.R.O. No 295/2017, dated the 29th June, 2017 - Notification on the rate of tax applicable to tractors and its spare parts under the OGST Act, 2017. S.R.O. No. 367/2017 - dated 17-8-2017 - Orissa SGST The Odisha Goods and Services Tax (Fourth Amendment) Rules, 2017 S.R.O. No. 366/2017 - dated 17-8-2017 - Orissa SGST Category to be registered persons who shall not be eligible for refund of ninety per cent of the total amount claimed as refund. CT/12520/POL-41/1/12017 - dated 17-8-2017 - Orissa SGST Last date for furnishing of return in FORM GSTR-3B S.R.O. No. 348/2017 - dated 3-8-2017 - Orissa SGST Documents to be carried during movement or transit of Goods inside Odisha. Highlights / Catch Notes GST Compensation cess on various motor vehicles - Amendment Notification Visit to Get Source Income Tax Withdrawing the approval granted u/s 10(23c)(VI) - investment in the non-specified assets - assessee urged that withdrawal of exemption is very harsh step as the assessee has been enjoying the benefit of exemption, for several years. - Matter restored before the CIT(E) to reconsider the submissions of the assessee Visit to Get Source TDS on the bank guarantee commission - section 194H is not applicable to the payments made to bank since it is not in the nature of “commission”, as it is understood in common business parlance and in the context of provisions of section 194H Visit to Get Source Deduction u/s 80IB - denial of claim on account of genuine delay due to error on the website for filing of the return of income - As assessee has filed screen shot of error in E-filing registration with the Centralized Processing Centre, Bangalore - Deduction allowed Visit to Get Source Selection of case of scrutiny assessment u/s 143(3) - failure to record any reasons - The Circular does not require recording reasons for giving approval - Circular cannot be equated with Section 151(1) Visit to Get Source TDS - activity / job of Municipal Solid Waste Management - the assessee is acting only at the behest of the State Government and accordingly could be safely concluded that it is only an agent of the Government - No TDS liability of the assessee Visit to Get Source On failure of assessee to discharge onus of proving that expenditure was incurred for the purpose of business, it amounts to application of income voluntarily towards charity which cannot be allowed as deduction Visit to Get Source Power to the CBDT - Instructions to subordinate authorities u/s 119 - amendment to the Rule 68B - legislative provisions cannot be amended by CBDT in exercise of its power u/s 119 - SC Visit to Get Source Customs Classification of Sterile Absorbable Haemostatic Material - The wound management is primary purpose of the impugned goods - They may not fall under the general category of Life Saving Drug or Medicine or Diagnostic Test Kit as specified in List 4 of N/N. 21/2002-Cus. Visit to Get Source Valuation - imported PVC Sheets - The importer admitted that the value of imported goods were not correct and the correct value is much higher than what is declared - demand confirmed with penalty - The penalty should be equal to duty only and cannot include interest portion of such duty Visit to Get Source Indian Laws Direct Tax Collections up-to August, 2017 in the current Financial Year 2017-18 show Growth of 17.5% Visit to Get Source Service Tax Valuation - includibility - marketing margin - any services or activity prior to actual sale of gas has no two persons identifiable as service provider and service recipient. The activities and services by the appellants prior to actual sale, are for self - Service Tax liability on the marketing margin set aside Visit to Get Source BAS - the appellant/assessee had entered into an agreement with BSNL company to provide printing services of the telephone bills in their premises - such activity cannot be considered as business auxiliary service Visit to Get Source Case Laws: Income Tax 2017 (9) TMI 589 Power to the CBDT - Instructions to subordinate authorities u/s 119 - amendment to the Rule 68B - sale was effected beyond time - deeming provision in rule 68B(3) amended by Notification No. 9995 by which the period of three years mentioned in rule 68B of the Act has been extended to four years - Held that:- The Central Board of Direct Taxes (CBDT) issued a Circular under Section 119 of the Income Tax Act,1961. In fact, it amended the provisions contained in Rule 68B of the IInd Schedule to the Income Tax Act, 1961, which otherwise have statutory force. Such legislative provisions cannot be amended by CBDT in exercise of its power under Section 119 of the Act. The High Court has, therefore, rightly held the circular ultra virus and quashed the same. We do not find any infirmity in the order of the High Court [2004 (8) TMI 96 - ANDHRA PRADESH High Court] wherein held failure to understand what difficulty was removed by the Board by amending a provision which had been enacted by Parliament. Even otherwise, we have not seen any power under section 119 of the Act, which gives any power to the Board to issue such notifications. Therefore, in our view, rule 68B(1) of the Act as on today lays down the period of three years alone and the notification referred to by the respondents has no effect at all. Therefore, clearly the sale was carried out beyond time and as such is set aside. 2017 (9) TMI 588 Reopening of assessment - reasons to believe - Held that:- Revenue has no answer to the submission that the entire exercise undertaken by the ITO (Inv.) was without jurisdiction. Which is why in the counter affidavit filed in the present writ petition, the stand taken by the Revenue is that it is not the only reason for re-opening the assessment. The fact remains that it could not form tangible material for re-opening the assessment. The fact remains that the power under Section 131 (1A) can be exercised only by officers named therein and they are all officers in the Department superior to the ITO. If the ITO had to exercise the powers under that provision, he had to be duly authorized to do so. He clearly was not and, therefore, the reports submitted by him could not have formed the valid basis for re-opening the assessment. The third material referred to in the reasons for reopening the assessment, is the investigation undertaken by the DGIT (Vigilance) into the conduct of the erstwhile AO of the Petitioner. A perusal of the letter dated 2nd November 2011 written by the Director (Vigilance) to the DGIT (Vigilance) does not throw any light on any material relevant to AY 2009- 10. In fact, the concluding paragraph of the said letter a request is made for reopening of the assessment for the AY 2007-08 by invoking Section 263 of the Act. This explains why that route was resorted to for AY 2007-08. This Court is therefore satisfied that the jurisdictional requirement for reopening of the assessment for AY 2009-10 has not been fulfilled in the present case. Consequently, the notice dated 29th March 2016 issued by the AO under Section 148 of the Act as well as the consequent order dated 4th July 2016 of the AO rejecting the Petitioner’s objections, are hereby quashed. 2017 (9) TMI 587 Reference to DVO - permitted u/s. 50C (Clause2) OR u/s. 55A - capital gain computation - sale was not got registered before Stamp Valuing Authority for valuation - Held that:- Section 50C of the Act provides for special provision for full value of consideration in certain cases. Subsection (1) of section 50C provides for the adoption of the value taken by the Stamp Valuation Authority for the purpose of stamp duty as the full value of consideration of the transferred asset for the purpose of section 48 of the Act. Learned counsel for the Revenue however contended that in the present case the transfer of the land took place under a Banakhat which was not registered and that therefore there was no occasion for the Stamp Valuation Authority to assess the value of the land for the purpose of payment of stamp duty upon its transfer. This contention however, ignores the plain language used in subsection (1) of section 50C which provides for the adoption of the valuation of the Stamp Valuation Authority for the purpose of payment of stamp duty not only when it is adopted or assessed but where it is assessable by such authority. The expressions 'adopted' or 'assessed' or 'assessable' would include even a case where the document evidencing transfer of the capital asset has not been presented for registration. The expression 'assessable' would permit the Revenue authorities to apply what is popularly referred to as Jantri rates with respect to the land in question for the purpose of section 48 of the Act with aid of deeming fiction contained in subsection (1) of section 50C of the Act. - Decided against revenue 2017 (9) TMI 586 Additions u/s 41(1) - cessation of liability - Whether the ITAT erred in confirming the order of Commissioner of Income Tax (Appeals) deleting the additions made by the AO on the ground that the Assessee cannot choose to postpone the year in which the amount in respect of a liability ceases to exist is to be offered for taxation in terms of Section 41(1) of the Income Tax Act, 1961? Held that:- What has weighed with the ITAT in confirming the order of the CIT (A) is that some of these very creditors were reflected during the AY 2007-08. The Revenue had failed before the ITAT in challenging the order of the CIT (A) deleting the additions made by the AO for the said AY 2007-08. That order had become final - The assessment order for the said AY 2012-13 showed that the AO had discussed the writing off of such creditors against certain debit balances. The AO had disallowed the amount relating to debit balances against credit balances and by that action, the AO had taxed the sundry creditors indirectly - appeal dismissed - decided against appellant. 2017 (9) TMI 585 Revision u/s 153C - no incriminating material found during the course of search - Held that:- In the present case, the two seized documents referred to in the Satisfaction Note in the case of each Assessee are the trial balance and balance sheet for a period of five months in 2010. In the first place, they do not relate to the AYs for which the assessments were reopened in the case of both assessee's. Secondly, they cannot be said to be incriminating. Even for the AY to which they related, i.e. AY 2011-12, the AO finalised the assessment at the returned income qua each Assessee without making any additions on the basis of those documents. Consequently even the second essential requirement for assumption of jurisdiction under Section 153 C of the Act was not met in the case of the two Assessee. This Court does not consider it necessary to examine the merits of the case as far as the deletions by the CIT (A) of the additions made by the AO under Section 153C of the Act are concerned. In any event, a detailed analysis has been undertaken by the CIT (A) of the materials produced by the Assessee which justified the deletion of such additions. Even on this score, no interference is warranted with the impugned order of the CIT (A). 2017 (9) TMI 584 Revision petition u/s 264 - no business activity relatable to the expenses/income claimed - Held that:- The Revisional Authority considering the scope of his power under Section 264 of the Act went a step ahead to examine as to the bonafides of the stand taken by the petitioner alleging that it was an inadvertent keying error. On a comparative analysis of the returns filed for the assessment year 2011-12, with that of the returns filed for the assessment year 2012-13, the first respondent noted that for repairs to machinery, telephone expenses, salary and other expenses, depreciation have been incurred and debited to P&L account, which is a clear indicator that business activity is being carried out by the assessee. When that being the factual position, the assessee would not have debited the expenses in its P&L account. Thus, on facts, the first respondent found that a company, which is claiming no business activity with no other income other than rental income and interest income claiming expenditure on repairs to plant and machinery that too in an increasing in manner, clearly indicates a position otherwise. Further, on facts, the first respondent found that the assessee has not been able to prove with evidence that there has been no business activity during the impugned assessment year. Thus, the first respondent having done a factual exercise, in exercise of his power under Section 264 and on facts, found that the theory as propounded by the petitioner as a keying error to be not proved conclusively. In such fact situation, the order passed by the first respondent calls for no interference. 2017 (9) TMI 583 Disallowance u/s 14A - Held that:- If the jurisdictional High Court Judgment in the case of Reliance Utilities and Power Ltd. (2009 (1) TMI 4 - BOMBAY HIGH COURT ) was held to be binding on the Tribunal, why the Tribunal had to fall back on alternative disallowance computed by the assessee and that too without prejudice has not been clarified at all. In the initial order as well as in the order on the Miscellaneous Application for rectification the Tribunal has assigned the same reasons. We do not think that a without prejudice submission and made strictly in the alternative should have influenced the tribunal to such an extent. It is was for the Tribunal to have extensively carried out the exercise and scrutinise the order of the Assessing Officer, whether the order deserved to be upheld on the issue. That having not been done, we set aside both the initial orders of the Tribunal as also orders on the Miscellaneous Application dated 12th June, 2013 and 7th March, 2014 respectively. We restore Income Tax Appeal to the file of the Tribunal and direct the Tribunal that the same shall be decided on its own merits and in accordance with law. While deciding the appeal afresh Tribunal should allow the assessee to contend that the disallowance worked by the Assessing Officer, particularly the assessee's without prejudice and alternative submission should not influence its final decision. Equally all contentions of the Revenue should also be considered while disposing of the appeal afresh pursuant to our decision. 2017 (9) TMI 582 Reopening of assessment - reasons supplied by IT department for invocation of Sec.147 r.w.s. 148 by IT Department - Held That:- Written objection has not decided by the Department till date. However, the Department has issued the impugned notice dated July 27, 2017. The Income Tax Authorities will afford a reasonable opportunity of hearing to the petitioners prior to disposal of the written objection of the petitioners. Accordingly it would be appropriate to set aside the impugned writing dated July 27, 2017 Authorities will pass a reasoned order, which will be communicated to the petitioners forthwith thereafter-Writ Petition is disposed off. 2017 (9) TMI 581 Selection of case of scrutiny assessment u/s 143(3) - failure to record any reasons - Ld. CIT granted approval for selection of case for scrutiny by the AO without application of mind - contravention of the guidelines laid down by the CBDT Circular - Held That:- The Circular does not require recording reasons for giving approval - The Circular does not require recording reasons for giving approval. In any event, these are internal guidelines issued for effective functioning of the Department. The requirement of obtaining approval of CIT/CCIT, as required in this Departmental communication cannot be equated with the requirements specified under the statute in Section 151(1) of the Act When the CIT is satisfied with the reasons given by the AO, he in not once again give separate reasons or repeat the reasons recorded by the AO and then give his approval for the same.Therefore we reject these grounds of the assessee and hold that selection of assessee’s case for scrutiny is in accordance with law. - Decided against assessee. 2017 (9) TMI 580 Penalty u/s 271(1)(c) - providing accommodation entries to tax evaders - Estimated Commission Income - Concealment of Income - CIT(A) confirmed penalty restricted to tax sought to be evaded - Held that:- There is no ambiguity in the mind of the Assessing Officer as to whether he intends to impose the penalty for concealment of income or for furnishing inaccurate particulars. The conclusions are firm that the assessee has concealed particulars of income. - Levy of penalty confirmed. Also the appeal of the Revenue is not maintainable on account of low tax effect in view of CBDT Circular No.21 of 2015 dated 10.12.2015. Higher rate of penalty should not be imposed upon the assessee merely on account of assessee’s non-appearance in the penalty proceedings. There should be some other strong logic. No merit in the appeal of the Revenue. 2017 (9) TMI 579 TDS - activity / job of Municipal Solid Waste Management - The assessee (ADDA) explained that it was merely associated as a Nodal Agency which only released the contribution of ₹ 9,60,00,000/- to GEPIL out of the total cost involved for implementation of Municipal Solid Waste Management Project under the designated areas of 5 ULBs on a Build, Own, Operate & Transfer (BOOT) basis and the same was in no way related to any payment for any professional service. Held That:- The assessee is merely a disbursing authority and is required to oversee the proper utilization of the funds given for and on behalf of the ULBs of the State Government. We also find that the State Government also directs the assessee to make use of the funds collected such as land premium , ground rent, etc on behalf of the Government and according permission for the same to be invested in bank for onward utilization of its earmarked purposes. This is enclosed in page 4 of the second paper book. All these documents clearly prove that the assessee is acting only at the behest of the State Government and accordingly could be safely concluded that it is only an agent of the Government. The grant paid under the JNNURM scheme by the State Government in the instant case to GEPIL, disbursed through the assessee in a self financing project under the Concessionaire Agreement, and the primary requirement of section 194C or 194J of the Act squarely fails in the instant case, therefore the assessee is not the person responsible for payment within the meaning of provisions of Chapter XVIIB of the Act. Hence we hold that the assessee is not obligated to deduct tax at source on the subject mentioned payments and hence consequentially the assessee could not be invited with liability u/s 201 and 201(1A) of the Act in respect of payments made to GEPIL. 2017 (9) TMI 578 Revised return rejected - return filed by the assessee processed u/s 143(1) - Held that:- In this case, processing u/s 143(1) of the Act was completed on 10.2.2012, therefore, the revised return filed by the assessee is invalid and not considered. We find that the assessing officer is of the view that once the return filed by the assessee is processed u/s 143(1) of the Act, therefore, the assessment is completed and the revised return filed by the assessee is rejected. However, the A.O. has completed the assessment in the assessee’s case u/s 143(3) of the Act dated 13.3.2014, therefore, the return filed by the assessee and processed u/s 143(1) of the Act is not amounting to assessment, it is a mere process. In view of the above, the A.O. is not correct in rejecting the revised return filed by the assessee. We also find that the Ld. CIT(A) deleted the addition made by the A.O. without considering that the A.O. failed to consider the revised return and addition made by the A.O. is on the basis of original return. Under these facts and circumstances of the case, we are of the opinion that the order passed by the Ld. CIT(A) has to be set aside and we direct the A.O. to consider the revised return filed by the assessee dated 28.3.2013 and pass the assessment order de-novo in accordance with law. This appeal filed by the revenue is allowed for statistical purposes. 2017 (9) TMI 577 Addition u/s. 14A - application of provisions of Section 14A in the absence of exempt income - Held that:- This issue is no longer res integra as the several High Courts have held that for the purpose of invoking the provisions of Section 14A, it is sine qua non that there should be an exempt income. See Cheminvest Ltd., Vs. CIT [2015 (9) TMI 238 - DELHI HIGH COURT] We hold that in the absence of exempt income, the provisions of Section 14A cannot be applied. - Decided in favour of assessee. 2017 (9) TMI 576 Revised computation of total income - AO ignoring the revised computation of total income submitted during the course of assessment proceedings on the ground that no revised return of income was filed - Held that:- Now, the law is quite settled to the extent that a claim made before the AO by way of a letter even it did not form part of original return of income can be entertained by the AO. It is trite law that income tax proceedings are not adversial proceedings. The decision of the Hon'ble Supreme Court in the case of Goetze (India) Ltd. (2006 (3) TMI 75 - SUPREME Court) held to be inapplicable to the proceedings before the CIT(A) and Tribunal and it is also well settled that the AO can always entertain a claim made before him by way of letter and in this context. AO as well as the CIT(A) ought not to have rejected the revised computation filed during the course of assessment proceedings and we therefore, remit the matter back to the file of the AO to consider the revised computation in accordance with the provisions of law. 2017 (9) TMI 575 Apportionment of sale consideration among the owners on property jointly sold - Capital gain computation - Adoption of value of sale consideration for the purpose of computing the capital gains in respect of property sold jointly - Held that:- There can be several reasons as to why some of the owners had agreed for the lesser amount of consideration depending upon location of physical shape of the land held by them or the proximity to the main road etc. But, in our considered opinion, this fact has no relevance. Therefore, once the sale consideration stated in the registered Conveyance Deed, it is held to be conclusive proof of the amount of the consideration received in the absence of contrary evidence on the record suggesting higher consideration was received by the assessee. In the light of the decision of the Hon'ble Supreme Court in the case of CIT Vs. Shivakami Co. (P) Ltd., (1986 (3) TMI 2 - SUPREME Court) wherein it was held that in the absence of evidence suggesting that more consideration that what was stated in deed was received, no higher consideration can be adopted for the purpose of capital gains. Further onus always lies on the Revenue to prove the existence of the material from which inference can be drawn that higher consideration was in fact received. In the present case, there was no material to draw interference that higher consideration was received than what was stated in the sale deed. It is not even the case of AO that the provisions of Section 50C are applicable to the facts of the present case. Therefore, the AO was not justified in adopting consideration of ₹ 28,12,500/- as against ₹ 8,33,000/- declared by assessee. Therefore, the Grounds of Appeal raised by assessee are allowed. 2017 (9) TMI 574 Levy of penalty u/s 271(1)(c) - trading additions applying G.P rate of 15% - proof of mensrea - Held that:- The Coordinate Bench in the quantum proceedings has upheld the rejection of books of accounts on account of certain discrepancies and the trading additions have been sustained by applying G.P rate of 15%, as against G.P rate of 30% applied by the AO and G.P rate of 11.60% offered by the assessee in its return of income, holding that the same will meet the ends of justice. It is a situation where one estimate is replaced by another estimate. The same can form the basis for addition in the quantum proceedings but the same cannot form the sole basis for levy of penalty. There is no positive act or finding recorded by the authorities which proves the act of concealment of income or furnishing inaccurate particulars of income on part of the assessee. Further, there is no finding that bogus purchases have been detected during the course of search operations and even the additions of ₹ 15,903/- made by the AO on this account has also been deleted by the Coordinate Bench in the quantum proceedings. Even looking at the quantum of bogus purchases of ₹ 15,703 vis-à-vis trading addition of ₹ 6,96,990 so sustained, there is a fundamental fallacy in the very basis for levy of penalty by the AO where he says that penalty has been levied on account of unverifiable purchases whereby the assessee has failed to prove the genuineness thereof. It is thus a case for levy of penalty purely on trading addition on an estimate basis which cannot be sustained. Appeal of the assessee is allowed. 2017 (9) TMI 573 Allowable business expenditure - demurrages on shipment for which NMDC is liable to pay as per understanding between NMDC & MMTC - Held that:- Allowability of the expenditure of port charges as well as the demurrage charges have to be determined having regard to the above two clauses of the agreement. On plain reading of the above two clauses, it is manifest that the appellant has to bear the expenditure of port charges relating to export of cargo and the demurrage charges and therefore, we hold that the AO as well as the CIT(A) mis-construed the provisions of clauses governing the port charges and demurrage charges and erroneously held that expenditure was reimbursable to the appellant. In these circumstances, we direct the AO to allow this expenditure. - Decided in favour of assessee. Disallowance of expenditure incurred on Corporate Social Responsibility expenditure - Allowable business expenditure - whether this expenditure was incurred voluntarily there was no business expediency? - Held that:- the entire expenditure incurred on corporate responsibility cannot be allowed as deduction. While coming to this conclusion, we also draw our support from the decision of the Co-ordinate Bench of Bangalore in the case of Kanhaiyalal Dudheria Vs. JCIT, Bellary [2017 (6) TMI 779 - ITAT BANGALORE ], wherein one of us (Accountant Member) is the Author and in that case, involving identical fact situation and it was held that on failure of assessee to discharge onus of proving that expenditure was incurred for the purpose of business, it amounts to application of income voluntarily towards charity which cannot be allowed as deduction. - Decided against assessee Disallowance of commission expenditure on account of non-deduction of tax at source - appellant had not deducted tax at source on the commission paid @ 2.8% of the FOB price paid to the MMTC - Held that:- No doubt, there is no direct payment in the form of commission payment to the MMTC by the appellant. But the mode of payment and the treatment in the Books of Account has no relevance to determine the nature of transaction. It is a case of the AO that the appellant had paid commission @2.8% of FOB value of the exports for acting as canalising agent to the MMTC. This commission was paid in the form of reduction from the value of the invoices. The AO also referred to the discussion note between the appellant and MMTC on 31-03-2007 and also examined the Director (Marketing) and had come to the conclusion that commission payment was made without deducting tax at source. The appellant had not filed any evidence either before the lower authorities or before us controverting the findings of the AO. He merely placed reliance on the orders of the Co- ordinate Bench for the earlier years. Needless to mention that this issue requires to be adjudicated having regards to the facts of the case. Therefore, placing reliance on the orders of the Co-ordinate Bench in earlier years is totally misplaced and in fact absence of any evidence brought on record indicating that no commission paid to the MMTC, we uphold the action of the AO, holding that the assessee is liable to deduct tax at source on commission payment. Accordingly, the AO was justified in disallowing the same in invoking the provision of section 40(a)(ia). - Decided against assessee. 2017 (9) TMI 572 Nature of income - rent received from mobile towers - income from house property OR income from other sources - AO disallowed 30% deduction - Held that:- As in the case of M/s. Bajaj Bhavan Owners Premises Co-op Society Ltd. [2012 (10) TMI 179 - Bombay High Court] held that rent received from mobile towers had to be treated as income from house property, that in the contract there was no obligation on part of the owner with regard to repairs and maintenance of the terrace, that on terrace there were no rooms/structure, that only a portion of terrace had been rented out, that the assessee was entitled for deduction of 30%. FAA has correctly allowed the appeal of the assessee Rent credited to the capital account of the assessee in his proprietary concern - amount over and above the rental income offered to tax - addition to total income after granting deduction of 30% u/s. 24(a) - Held that:- We find that the assessee had shown rental income from Mobile Towers of ₹ 4. 51 lakhs, that it included the disputed amount of ₹ 1. 85 lakhs. If the amount in question was already offered for taxation, then there was no justification for taxing it again. We agree with the FAA that AO had not properly understood the entries in the books of account. Confirming the his order, we decide second ground of appeal against the AO. Addition under the head income from house property - computation to taxable rent - Held that:- As gone through the registered leave and license agreement. We find that assessee owned several properties, residential as well as commercial in Kalyan, that the AO had estimated the ALV of all the properties by adopting the highest rent(Rs. 238/-per sq. ft. ), that no comparable instance of property located in same building /area and having higher rent than the rent received by the assessee was brought on record. It is also a fact that the actual rent received by the assessee is substantially higher than the rateable value as per the local authority i. e. Kalyan-Dombivili Municipal Corporation (KDMC). The AO had not alleged that the assessee had received any amount over and above the rent received in pursuance of the leave and license agreement. - The AO has estimated the house property income without any basis and ignoring the principles enumerated in Tip Top Typography (2014 (8) TMI 356 - BOMBAY HIGH COURT) and Akshay Textiles and Trading Agencies (P. ) Ltd. (2007 (10) TMI 251 - BOMBAY HIGH COURT ) - Decided against revenue 2017 (9) TMI 571 Disallowance of interest expenses u/s 40A(2)(b) - amount received being unsecured loan - Held that:- As both the authorities below have not commented upon as to how Sh. Udai Kant Mishra would be covered under the provisions of sec.40A(2)(b). However, having seen the pattern of shareholding, and after taking into consideration the totality of facts and judicial pronouncements, we are of the considered view that the reasonable rate of interest ought to have been adopted at 14% against 12.5% as adopted by the AO in view of the fact that the amount so received being unsecured loan. Moreover, the AO has not given any finding with regard to the market value of the interest which is sine qua non for making disallowance under sec.40A(2)(b). In view of the above observation, the AO is hereby directed to re-compute the disallowance. The ground of the assessee’s appeal is partly allowed for statistical purposes 2017 (9) TMI 570 Disallowance u/s.40A(3) - whether the payment was genuine or whether it was out of the income from undisclosed sources - CIT-A allowed claim - violating Rule 46A, as fresh evidence was introduced and no remand report was called for - AO was not afforded an opportunity on the additional evidence filed by the Assessee - Held that:- We are of the view that Sec.250(4) and Rule 46A of the Rules operate on totally different fields. While Sec.250(4) of the Act deals with power of the CIT(A) to make enquiries on his own before deciding an appeal, Rule 46A of the Rules lays down the manner in which or the restrictions subject to which the CIT(A) can exercise his power. We are of the view that while exercising such power u/s.250(4) of the Act, the CIT(A) would be subject to the restriction laid down in Rule 46A of the Act. In other words Sec.250(4) of the Act does not override the duty cast on the part of the CIT(A) to afford opportunity to the AO to have his say on the additional evidence produced by an Assessee before the CIT(A). We are therefore of the view that the issue should be remanded to the CIT(A) for the limited purpose to enable the CIT(A) to afford opportunity to the AO for verifying the veracity of the Certificate filed by the Assessee as additional evidence before the CIT(A). The question whether the CBDT Circular No.8 of 2006 will apply to the facts of the case should also be left open for comments by the AO in his remand report. The said CBDT Circular talks of payment by purchaser of meat from a producer of livestock and meat. If applied to the facts of the present case, it might apply to the Military/Defence establishments making payment in cash to the Assessee. As to whether it will apply to payments made by a producer of meat or livestock for purchase of livestock and chicken is also an issue which needs to be decided. The scope of remand by the Tribunal includes all aspects of the disallowance u/s.40A(3) of the Act and since the AO was not afforded an opportunity on the additional evidence filed by the Assessee, this aspect also should be left open and cannot be construed as enlarging the scope of the proceedings before CIT(A) than what was contemplated by the Tribunal while remanding the issue vide its order dated 9.3.2011. The CIT(A) after taking into consideration the remand report of the AO and after affording opportunity of being heard to the Assessee is directed to decide the issue in accordance with law. The appeals of the revenue are thus treated as allowed for statistical purpose. 2017 (9) TMI 569 TPA u/s 92CA - software development services - selection of appropriate comparable - selection criteria - Held:- Assessee company is engaged in the business of providing software development services to its AE thus companies functionally dissimilar with that of assessee need to be deselected from final list of comparables. We deem it fit and proper to remand the issue to the file of the TPO for further verification for few comparables and for rest order for exclusion from list of comparable as found not functionally comparable to assessee - Appeal of assessee is partly allowed. 2017 (9) TMI 568 Disallowance of unexplained expenses/ bogus purchases @ 30% - N.P. determination - Held that:- As we have already noticed that neither the AO nor the ld. CIT(A) examined the G.P. ratio or N.P. ratio of assessee for earlier year and in subsequent year. Thus, after considering the facts of the present case, rival submissions of ld. representative of the parties, we are of the opinion that in order to fill up the gap of revenue leakage, the disallowance of 12.5% of impugned purchases would meet the end of justice. Thus, the AO is directed to restrict the disallowance @ 12.5% of total purchases impugned/bogus/disputed purchases from these two parties. Hence, this ground of appeal is partly allowed. In the result, appeal of the assessee is partly allowed. 2017 (9) TMI 567 TDS u/s 194H - Addition u/s 40(a)(ia) - liability to deduct tax at source on the bank guarantee commission payable - transaction between ‘principal and agent’ - Held that:- On the same issue the CBDT has issued Notification which exempts from deduction of tax. Though the Notification speaks of applicability of the clarification from 4.1.2013 the fact remains that there are number of decisions of various Benches of ITAT in favour of the assessee, even prior to the Notification and thus the Notification merely clarifies the issue and thus applicable retrospectively. At any rate, in the light of the following decisions, the only view possible in this matter is the provisions of section 194H is not applicable to the payments made to bank since it is not in the nature of “commission”, as it is understood in common business parlance and in the context of provisions of section 194H of the Act. In other words, it is not a transaction between ‘principal and agent’ so as to invoke the provisions of section 194H of the Act. A.O. as well as the Ld. CIT(A) were not justified in invoking the provisions of section 194H of the Act in the instant case in order to hold that the assessee is a defaulter. In other words, the assessee is not liable to deduct tax at source and consequently the disallowance in the instant case is not warranted. - Decided in favour of assessee. 2017 (9) TMI 566 Rectification of order u/'s 254 - Allowability of expenditure as business expenditure u/s 37 - Sales Promotion and advertisement expenses- Order beyond scope of section 254 - Held That:- Since merely because the assessee is in the business of Pharmaceuticals and various payments are to be made to the Doctors is not sufficient to treat such expenditure as business expenditure. Therefore the issue was restored to the file of the assessee for verifying the claim whether this expenditure was for the purpose of business of the assessee. - Miscellaneous Application of the Assessee is dismissed. 2017 (9) TMI 565 Denial of approval u/s 80G(5)(vi) - as per revenue no charitable activities has been started by the assessee as per its objects - Held that:- Given the fact that the assessee trust has started carrying out activities in terms of contribution to sports activities and books distribution which is claimed to be in consonance with its objectives, which is a principle contention raised by the Revenue while denying the approval u/s 80G, we are setting aside the matter to the file of the ld CIT(E) to examine the same afresh in accordance with law. Appeal of the assessee is allowed for statistical purposes. 2017 (9) TMI 564 Disallowance of claim of deduction of interest on deposits with co-operative banks (co-operative society) u/s 80P(2)(d) - primary objects of society - Held that:- The primary objects of any society are prescribed in the bye laws. In order to become a bank, the principal business of the co-operative society should be transaction of banking business. A perusal of the audited accounts would indicate the same. The first and foremost requirement in India to do business of banking is to obtain a licence from the Reserve Bank of India (RBI). Without a valid licence from RBI, nobody can do business of banking. Also Urban Co-operative Bank is known as Primary Co-operative Bank. It is a bigger entity and fall under the ‘Banking Regulation Act’. It is also regulated by State Government and RBI. Primary Co-operative Banks, popularly called Urban Co-operative Banks, whose net worth is ₹ 1,00,000/- and above, who are recognized as banks, are members of payment system and also enjoy deposit insurance. Also some Urban Co-operative Banks are conferred with ‘Scheduled’ status by the RBI. The above factual aspects have not been examined either by the AO or the Ld. CIT(A). Therefore, we deem it proper to set aside the order of the Ld. CIT(A) and restore the matter to the file of the AO to make a fresh assessment after examining the facts mentioned at para 7.1 here-in-above. Needless to say, the AO would give a reasonable opportunity of being heard to the assessee before finalizing the assessment order. The assessee is directed to file the required details before the AO. 2017 (9) TMI 563 Withdrawing the approval granted u/s 10(23c)(VI) - violation of provisions of investment contained in Sec. 13(1) (d)/11(5) - whether the Ld. CIT(E) was justified in withdrawing the notification and benefit u/s 10(23C)(vi) of the Act, on the basis that the assessee has not made investment in the specified assets? - Held that:- There is no dispute with regard to the fact that the assesee kept this investment as it is without converting into the same in the mode specified under the Act despite elapse of several years, the proviso of Section 10(23C)(vi) empowers the prescribed authority under the Act to withdraw the approval granted u/s 10(23C)(vi). It is borne out of records that the Revenue chose not to rescind the approval in earlier years. The Ld. Counsel for the assessee urged that withdrawal of exemption is very harsh step as the assessee has been enjoying the benefit of exemption, for several years. We deem it proper to restore this issue to the file of the CIT(E) to reconsider the submissions of the assessee, and give last opportunity to convert the shares into specified assets within a specified period, and meantime withdraw exemption u/s 11 & 12 in respect of income earned from the investment made in non-specified assets. This ground of assessee’s appeal is allowed for statistical purpose. 2017 (9) TMI 562 Disallowing u/s 14A r.w.r. 8D - expenditure incurred to earn exempt Dividend income u/s. 10(34) - Held that:- We do not find any merits in the arguments of the assessee for the reason that the assessee fails to substantiate its claim of shares held as stock in trade with any evidence. We observe that the assessee has filed its financial statements for the assessment year 2008-09. On perusal of the financial statement we find that the assessee’s main activity is to manufacture and trading in chemicals. We further observe that the assessee has made substantial investments in mutual funds. We further notice that the total dividend income earned during the year is out of mutual funds. Therefore, we are of the view that there is no merit in the claim of the assessee that it has earned dividend income from the shares held as stock in trade. We further notice that the assessee has made a turnover of ₹ 1.75 crores from share trading; however, there is no corresponding purchases appeared in the schedule of purchases. We further observe that the assessee has disclosed inventory of closing stock held at the end of the financial year which mainly consists of stock held from its manufacturing activity, but there is no stock of shares and securities, therefore, we are of the view that the assessee has failed to prove that it is involved in the activity of purchase and sale of shares and accordingly, the claim of the assessee that the provisions of section 14A r.w.r. 8D cannot be applied, is rejected. Though assessee claims to have used interest free funds, it failed to file necessary information to justify its claim. We further observe that the CIT(A) has already considered the claim of the assessee and set aside the issue to the file of the AO for further verification to ascertain whether the assessee is having interest free funds as on the date of investment. Therefore, we uphold the finding of the CIT(A) and restore the issue to the file of the AO and direct the AO to examine the availability of interest free funds, if any, as on the date of investment. Appeal filed by the assessee is dismissed. 2017 (9) TMI 561 Rectification of mistake - assessee filled the rental income twice, in the respective column ‘income from house property’ and also in the column ‘income from other sources’ - by the time the assessee realized this mistake, the time for filing of revised return income was over - Held that:- Since the CPC directed the assessee to approach respective AO, the assessee filed an application u/s 154 before AO to rectify the mistake committed by it in the return of income. AO should have entertained the rectification application of the assessee since the details in the balance sheet and P&L A/c filed by the assessee are not matching with the details filled in the return of income. Therefore, the mistake committed by the assessee is very much apparent on record, if the AO took little time to compare the balance sheet and return of income. It is the duty of the AO to assess the correct income of the assessee and collect the due tax. It is a settled law that revenue cannot collect any tax on any fictitious income. In the given case, assessee has by oversight filled the rental income twice in the respective column ‘income from house property’ and also in the column ‘income from other sources’ in the return of income, due to which, the income was doubled, which is fictitious income. As the mistake was apparent on record, we find it appropriate to remand back the file to the AO to rectify the above mistake and complete the assessment u/s 143(3) in accordance with law. We order accordingly. Appeal of the assessee is treated as allowed for statistical purposes 2017 (9) TMI 560 Disallowance of claim towards the payment of Custom Duty - explain the nature of payment - Held that:- AO disallowed ₹ 93,12,159/- holding that Custom duty paid was in the name of other party and the assessee failed to produce evidence that the amount was related to the assessee. The ld. CIT(A) also observed that assessee carried the matter before Settlement Commission, and the order of Settlement Commission mentions that the amount of ₹ 93,12,159/- relates to other parties and confirmed the disallowance. Even before us, the assessee had not filed any documentary evidence or given any explanation to substantiate the contention that the said amount of Custom Duty was paid by assessee. Hence, we do not find any illegality or infirmity in the order passed by AO and sustained by ld. CIT (A). Thus, the Ground of appeal raised by assessee is dismissed. Not allowing claim of interest paid on import duty - Held that:- As we have already confirmed the disallowance of Import duty of ₹ 93,12,159/-, thus, the disallowance of interest expenses which is related to the same amount is also sustained, as the same pertains to the other parties. We order accordingly. Set off of carried forward loss against the income of current year - Held that:- We direct the AO allow the set off of loss to the assessee in accordance with law, in case any loss is brought forward from earlier year in giving effect of this order as this ground of appeal is consequential in nature. Hence, the appeal of the assessee is partly allowed. 2017 (9) TMI 559 Revision order u/s 263 - exemption of LTCG u/s 54F - sale of rights in tenanted property - AO allowed exemption - assessment revised by ld.CIT u/s 263 - assessee was dormant investor - Building looked after by assessee's wife - Lump sum consideration to treated as ‘Income from other Sources’ instead of ‘Capital Gain’ - Held That:- As per our view, the AO raised all necessary queries regarding the claim of LTCG. We have further observed that the ld CIT after considering the facts of the case not disputed the receipt of amount of compensation and the claim of LTCG, what is disputed is that the excess of % received be treated as ‘income from other source’. Hence, the order passed by assessing officer is neither erroneous prejudicial nor prejudicial to the interest of the revenue. we allow the ground of appeal raised by assessee. 2017 (9) TMI 558 Deduction u/s 80IB - denial of claim on account of genuine delay due to error on the website for filing of the return of income - due to error on website, return could be filed next day - Held that:- As assessee has filed screen shot of error in E-filing registration with the Centralized Processing Centre, Bangalore wherein the return of income was refused acceptance for the reason ‘your Date of Birth does not match with the data you entered” it means that assessee genuinely tried to file the return of income within the due date of filing u/s 139(1) of the Act i.e. by 15-10-2010 but could not file. Genuinely, the assessee filed the return of income with Centralized Processing Centre, Bangalore only on 16-10-2010 by 11AM. Accordingly, I allow the claim of the assessee and this issue of the assessee’s appeal is allowed. 2017 (9) TMI 557 Validity of proceeding u/s. 153C - Unexplained cash credit u/s 68 - claimed deduction u/s 54 as making investment in Marvel Group - purchase of flat - whether the proceeding is bad-in-law without jurisdiction - Held that:- DCIT – CC(1)(1) has rightly followed the procedure for informing the A.O. for initiating the proceedings u/s. 153C of the Act. We agree with the finding of the Ld. CIT(A) and dismiss the cross objection filed by the assessee. Regarding additions - Held that:- A.O. failed to make any enquiry to know the identity of the people mentioned in the ledger account. No details were called by him from the Marvel Group. There is no statement indicating that the assessee had given any cash amount. There is no finding in the case of Marvel Group about the destination of these amounts. The A.O. failed to consider that the assessee purchased the property in Marvel Enigma whereas the ledger account mentions the project at “Mystique at Honavar” and “Abnave at Hadapsar”. - CIT(A) has rightly deleted the additions - Decided against the revenue. 2017 (9) TMI 556 Revision u/s 263 - Calculation of deduction u/s 10A and 10AA - AO passed an order of assessment u/s 143(3) and did not set off the loss of taxable unit against the income of 10A and 10AA unit - order erroneous or prejudicial to the interest of the revenue - Held that:- AO while completing the assessment has called for complete details of calculation of deduction u/s 10A and 10AA of the Act. We have referred to the enquiries made by the AO in this regard in the earlier paragraphs of this order. In the light of the enquiries made by the AO in the course of assessment proceedings, we are of the view that the findings of CIT in para-4 of his order that the AO did not make necessary enquiries regarding the existence of a single account for various units or separate accounts of various units and about the nature of work of separate units, cannot be sustained. We also are of the view that the AO was fully conscious of the issue where provision of section 10A and 10AA of the Act were to be construed as deduction provision or exemption provisions and had in the course of assessment proceedings called for calculation of deduction u/s 10A and 10AA of the Act. In fact perusal of the order of assessment u/s 143(3) of the Act shows that the AO has disallowed the expenses claimed by the assessee by way of provision for leave encashment while arriving at the eligible provision of section 10A and 10AA units. It cannot therefore be said that there was any failure on the part of the AO for proper or adequate enquiries to claim deduction u/s 10A and 10AA before completing the assessment. Hon'ble Supreme Court in the case of CIT vs Yokogawa India Ltd. (2016 (12) TMI 881 - SUPREME COURT ) has taken the view that the provision of section 10A and 10AA of the Act are deduction provisions but the stage of deduction would be while computing gross total income of eligible undertaking under Chapter-IV of the Act and not at the stage of computation of total income under Chapter-VI of the Act. The effect of the aforesaid decision would be that the provision of set off and carry forward as contemplated under Chapter-VI of the Act would not be attracted and therefore intra head set off sought to be done by the CIT by seeking to rely on the provision of section 70(1) of the Act and seeking to restrict the deduction u/s 10A and 10AA of the Act to the extent of gross total income as contemplated u/s 80A(2) of the Act, cannot be sustained. - Decided in favour of assessee. 2017 (9) TMI 533 Levy of penalty under section 271(1)(b) - non compliance with notices issues under section 143(2)/142(1) - eligible reasons for default - Held that:- Smt. Abha Gupta, daughter-in-law of the Principal Officer of the assessee company namely Mr. Satya Prakash Gupta has to be hospitalized on 11th January, 2013. Further, Mr. Satya Prakash Gupta, Principal Officer of the assessee company had to be hospitalized due to heart-attack and therefore, there were noncompliance of the said notices. As assessee has disclosed the reasonable cause for failure to comply with the statutory notice penalty deleted. Appeals of the assessee are allowed. Customs 2017 (9) TMI 541 Order for implementation of order - provisional release of goods - Held that: - As long as the order passed by the first respondent remains intact, the second respondent cannot sit in judgment over the order of the first respondent. However, this Court is conscious of the fact that because of the provisional release, the ongoing investigation should not be hampered - there will be a direction to the first respondent to provisionally release the goods in terms of the order dated 16.06.2017 - petition allowed. 2017 (9) TMI 540 Penalty u/s 112A of the Customs Act, 1962 - smuggling - cigarettes - cigarettes of foreign origin in huge quantities were being smuggled into the country by concealing them in container by mis-declaring them as containing car seat cushions - the sole ground for imposition of penalty on M/s Eminence is that they have given wrong description of the goods in the Bill of Lading - Held that: - Bill of Lading has not been issued by the appellant and they were pure agent of M/s Alpine Shipping who has issued the Bill of Lading - As no role has been explained by the authorities below alleging the appellant for the act of omission and commission which resulted leading to mis-declaration, therefore, the penalty on the appellant is not imposable. As Revenue has failed to produce any evidence on record that the appellant was in collusion for mis-declaration and description of the goods in question, therefore penalty on the appellant is not imposable. Reliance placed in the case of Commissioner of Custom (Import & General) , New Delhi Versus Buhariwal Logistics & Another [2015 (12) TMI 1149 - DELHI HIGH COURT], where it was held that the appellant has taken due diligence while issuing delivery order, therefore, no penalty can be imposed on the appellant - Admittedly, in this case, it was not in the knowledge of the appellant that they were having knowledge of illegal import made by the importer. In that circumstances, relying on the case of Buhariwala Logistics, the penalty on the appellant are not imposable. Appeal allowed - decided in favor of appellant. 2017 (9) TMI 539 Confiscation - Restricted item - import of brass scrap of the grade "Elder" - According to Revenue, the goods shall be restricted goods requiring licence formality. That not being complied, goods were liable to seizure and confiscation - Held that: - when goods are declared to be of "Elder" specification and finding of the test laboratory is something else, unless the importer discards such import stating reason, he does not have say on valuation thereof since such goods are confiscable - Once a declaration is found to be false, the authority should totally confiscate the goods - The licence requirement if any is to be tested in the context of law in that behalf to ascertain whether such goods are restricted or prohibited. That aspect has not been examined - Adjudication order appears to have been passed superfluously without proper application of law. The order having suffered from the above legal infirmities and anomalies, that is remitted back to learned adjudicating authority to re-examine the issue - appeal allowed by way of remand. 2017 (9) TMI 538 Classification of imported item - Sterile Absorbable Haemostatic Material - whether classifiable under CTH 30061020 or otherwise? - N/N. 21/2002-Cus dated 1.3.2002 Sl.No.83 A List-4 - appellant claim that goods are correctly classifiable as “Sterile Absorbable Haemostatic Material-life saving bandage” - Revenue entertained a view that imported products are basically Collagen Preparation and are not “Absorbable Haemostatic material for Control of Surgical Bleeding Vessels”. Held that: - It would appear that the impugned goods are regularly used in the surgical dressing in the Surgery Department. Such usage is claimed to have supported the contention of the appellant for the product to be called as “Absorbable Haemostatic Material for control of Surgical Vessel Bleeding”. The wound management is primary purpose of the impugned goods - They may not fall under the general category of "Life Saving Drug or Medicine or Diagnostic Test Kit" as specified in List 4 of N/N. 21/2002-Cus. - the Original Authority is correct in his conclusion for denying the exemption claimed by the main appellant. Extended period of limitation - Penalty - Held that: - the whole issue is involving interpretation of the application or usage of the products in question - It is not correct or legally sustainable for the Revenue to invoke extended period when revising the assessment based on certain inquiries - the imposition of penalty on the main appellant and the second appellant is also not legally sustainable. Appeal allowed - decided partly in favor of appellant. 2017 (9) TMI 537 Valuation - imported PVC Sheets - The importer admitted that the value of imported goods were not correct and the correct value is much higher than what is declared - inclusion of freight - Held that: - The facts of the case are not in dispute that the goods which are imported were not assessed to proper duty was admitted by the import themselves. Based on the particulars and details given by the managing director of the importing company, the valuation including freight element was considered by the assessing officer before calculating the differential duty - Since the correct value is only in the knowledge of the importer and is not arrived based on certain materials collected by the Revenue from third party sources, we are not finding any force in the submission of the appellants which is against their own submission made before the lower authorities. On merit as well as on imposition of penalties and fine we are in agreement with the impugned order - The penalty should be equal to duty only and cannot include interest portion of such duty - appeal dismissed - decided partly in favor of appellant. Corporate Laws 2017 (9) TMI 536 Acts of oppression and mismanagement - validity of EOGM - Held that:- Petitioner having signed several statutory documents along with respondent No. 2 as Director, after lapse of nearly three years raised the plea that respondent No.2 ceased to be Director with effect from 01.10.2010. This issue was raised by petitioner No. 1 for the first time only after steps were taken by respondent No. 2 to get the plots transferred in the name of respondent No. 3 from respondent No. 10. Moreover, it is for petitioner No. 1 who is a regular Director of the first respondent company to have another Director in order to manage affairs of the first respondent company which is the mandate of provisions of the Companies Act, 1956 as well as the Companies Act, 2013. But, petitioner No. 1 did not take any initiative even after expiry of the term of respondent No. 2. On the other hand, petitioner No. 1 along with respondent No. 2 having signed several documents as Directors, raised the dispute regarding continuation of respondent No. 2 as Director of the first respondent company only with a view to defeat transfer of plots made by respondent No. 10 in favour of respondent No. 3. Therefore, this issue raised by petitioner No. 1 may not help him in any way in a petition under section 397 and 398 of Companies Act, 1956. It is settled law that when there is a plea of forgery of signatures, there is need for taking evidence and decide the issue either by Civil Court or by Criminal Court. Petitioner has already filed Civil Suit before Sr. Civil Judge, Surat wherein also he has raised the issue that his signature was forged on the resolution dated 01.08.2012. Therefore, it is not proper for this Tribunal to decide whether the signature of the petitioner on the resolution dated 01.08.2012 is forged signature or not and it is left to the Civil Court to give a finding on it. Plea of the petitioner that notice of EOGM was not sent to him do not merit acceptance. In order to hold EOGM it is necessary to call for a meeting of the Board of Directors to decide the holding of EOGM. Respondents did not place any material on record to state that Board meeting took place on 11.12.2012 and notice of such Board Meeting was given to petitioner No. 1. Therefore, resolution passed in the EOGM dated 17.12.2012 cannot be held to be legal. Petitioners failed to place material on record to establish the alleged acts of oppression and mismanagement. The allegation of syphoning of funds by respondent No. 2 has also not been established. Moreover, respondent No. 2 gave explanation stating that Income Tax refund amount of ₹ 15 Lakhs has been credited to the loan account of Benani Polychem Ltd. Further, petitioner No. 1 at more than one place reiterated that plot Nos. 263 to 266 are the only property of the first respondent company after the machinery etc. was sold by the first respondent company. The said plots were also transferred to respondent No. 3. The first respondent company ceased to operate. In these circumstances there is no point in appointing Managing Committee to manage affairs of the first respondent company. There is also no need to order for auditing the accounts of the first respondent company. In view of the above discussions it is held that EOGM of the first respondent company conducted on 17.12.2012 is not a valid EOGM. The issues relating to resolutions dated 01.08.2012 and 15.10.2013 and MOU dated 15.02.2012 and the final order passed by respondent No. 10 on 25/28th March, 2013 can only be decided in the civil suit. In view of the finding that there are no acts of oppression or mismanagement and the only property of company i.e. plots No. 263 to 266 are subjudice in Civil Court, no relief need be granted in this petition. Insolvency & Bankruptcy 2017 (9) TMI 535 Proceedings under Insolvency and Bankruptcy Code, 2016 - default of operational debtor - Held that:- We find it safe to conclude that there has been default within the meaning of Section 3(12) read with Sections 4 and 6 of the Code. The judgment and decree of the Civil Court in a suit filed under Order XXXVII CPC clearly shows that the operational debtor is in default when the amount has not been paid on the demand raised by issuing a demand notice under Section 8 of the Code. The provisions of Section 123(1)(2) of the Insolvency Act, 1986 of England is relevant in this regard. Section 123(1) of the English Act talks of inability to pay debts if in execution or other process issued on a judgment, decree or order of any Court in favour of a Creditor of the Company is retuned unsatisfied in whole or part then a Company is deemed unable to pay its debts. A seemingly similar expression has been used in Section 3(12) of the Code describing it as default which can be read with Section 6 of the Code. Once there is a default then according to Section 123(1) of the English Act in cases of such like default a Company is deemed unable to pay its debts. The expression default is wider than inability to pay. Therefore, it takes into its sweep the cases where default has occurred irrespective of anything else. Therefore, we find that it is a fit case for triggering the Insolvency Resolution Process. As a sequel to the above discussion, this petition is admitted. We direct that Interim Insolvency Resolution Professional shall immediately make public announcement with regard to admission of this application under Section 7 of the Code Service Tax 2017 (9) TMI 555 CENVAT credit - various input services - Held that: - reliance placed in the decision in the case of CCE, Nagpur Versus Ultratech Cement Ltd. [2010 (10) TMI 13 - BOMBAY HIGH COURT], where it was held that all the services used in relation to the business of manufacturing the final products are covered under the definition of "input service" - credit allowed - appeal dismissed - decided against Revenue. 2017 (9) TMI 554 Valuation - includibility - marketing margin charged by the appellant for the services of transportation of gas through pipeline in terms of Section 65(105) (zzz) - Held that: - The marketing margin is considered as part of sales transaction value and subject to VAT. After the change of ownership of gas, there is no consideration attributable to any service from the seller to the buyer - any services or activity prior to actual sale of gas has no two persons identifiable as service provider and service recipient. The activities and services by the appellants prior to actual sale, are for self - Service Tax liability on the marketing margin set aside - appeal allowed - decided in favor of appellant. 2017 (9) TMI 553 Business Auxiliary Services - the appellant/assessee had entered into an agreement with BSNL company to provide printing services of the telephone bills in their premises - whether Business Auxiliary Services or not? - Held that: - the identical issue has come up before the Tribunal in the assessee’s own case CCE, Delhi Versus M/s Ricoh India Limited And Vice-Versa [2017 (3) TMI 1159 - CESTAT NEW DELHI], where it was held that the appellant/assessee is not responsible for any details in the bill or authenticity of the same. They are simply printings in a preformatted design the telephone bills based on the data provided by the telecom company and give the printed bills in envelops, after bunching in convenient groups, for further follow up by the telecom companies, such activity cannot be considered as business auxiliary service - appeal allowed - decided in favor of appellant. 2017 (9) TMI 552 N/N. 1/2006-ST - denial on the ground CENVAT credit in respect of various inputs and input services were availed by the appellant - Held that: - The fact is not under dispute that the credit so availed was reversed by the appellant suo moto and no proceedings were initiated for recovery of such credit. Thus, upon reversal of CENVAT credit on the input service, it has to be construed that no credit has at all been taken by the appellant. The Hon’ble Supreme Court in the case of Chanderpur Magnet Wires Pvt. Ltd. [1995 (12) TMI 72 - SUPREME COURT OF INDIA] have held that on reversal of modvat credit, the appellant is entitled to avail exemption - In this case, since the credit was reversed the benefit of N/N. 1/2006-ST should be available to the appellant for claim of abatement. In view of CBEC vide Circular dated 10.05.2011, since the appellant has not provided the services mentioned therein, service tax demand on the restaurant service cannot be confirmed against the appellant. Appeal allowed - decided in favor of appellant. 2017 (9) TMI 551 Refund claim - time limitation - whether the refund claim has been filed by the appellant, within time limit of one year as per provisions of Section 11B of the Central Excise Act, 1944 read with Rule 5 of CCR, 2004? - Held that: - computation of time limit of one year in this case, where the appellant can file the claim on quarterly basis only, is to be taken from the date of the end of the quarter, during which export of services took place. If it is so, the appellant has filed the claim within time limit of one year, which is the prescribed time limit - refund allowed - appeal allowed - decided in favor of appellant. 2017 (9) TMI 550 Cleaning services undertaken on mines - taxability - Held that: - the appellant has provided the said services within the mines area, which cannot be considered as “Commercial or Industrial Buildings and premises thereof; or factory, etc”, for the purpose of categorization under the cleaning services. Further, the activities undertaken by the appellant do not constitute cleaning service, but the same are basically for removing of spillage for re-use in the conveyer bells installed in the mines. Thus, the service tax demand on the first category of service will not fall under the purview of “cleaning service”. Erection and commissioning of pipe lines - Held that: - the work order was issued by M/s. RSWML for carrying out the activities by the appellants during the period 24.02.2004 to 8.4.2004. “Installation service” was brought into the statute book w.e.f. 10.09.2004 by Section 90 of the Finance (No.2) of the ACT, 2004. Since the period involved in this case is prior to the effective date i.e. 10.09.2004, the services provided by the appellant for erection and commissioning of pipe lines will not be subjected to levy of service tax under the category of “erection, commissioning or installation service”. Man power and supply services - Held that: - Since the primary conditions in the work order is for operation and installation of the pumps and not for supply of man power, we are of the view that service tax demand confirmed by the authorities below under the category of “manpower supply services” will not stand for judicial scrutiny. Commercial or industrial service - barbed wire fencing for plantation - Held that: - the facts are not under dispute that the said activities are not related to the “commercial plantation or industrial services”. Rather, for the purpose of beautification or prevention from pollution, the barbed fencing were erected by the appellant. Since the activities are not in relation to the “commercial or industrial service”, the service tax demand confirmed under that category of service will also not be sustainable. Appeal allowed - decided in favor of appellant. Central Excise 2017 (9) TMI 590 Refund claim - Whether the Hon'ble CESTAT was correct in allowing the CENVAT credit of the services used at unregistered premises and refund thereof? - Held that: - the refund could not be denied to the assessee merely on the basis of non-registration of the premises - appeal dismissed - decided against appellant. 2017 (9) TMI 549 CENVAT credit - GTA service for outward transportation service - Held that: - the goods in question cleared from the factory of the appellants to their packing plant, the appellant remained the owner of the said goods. And it is a fact that the cost of goods transportation agent services has been included in the assessable value of the goods, therefore, in the light of CBEC Circular No.97/8/07 dated 23.8.07, the appellant is entitled to avail cenvat credit - reliance placed in the case of COMMISSIONER OF C. EX. & CUSTOMS Versus PARTH POLY WOOVEN PVT. LTD. [2011 (4) TMI 975 - GUJARAT HIGH COURT], where it was held that By no stretch of imagination can it be stated that outward transportation service would not be a service used by the manufacturer for clearance of final products from the place of removal - appeal allowed - decided in favor of appellant. 2017 (9) TMI 548 Penalty u/r 26 of the CEA, 2002 in the capacity of Authorized Signatory of main noticee - case of appellant is that once the appellant has paid the entire Central Excise duty along with interest and 25% penalty of the said duty within 30 days receipt of the SCN, under proviso to sub Section 2 of Section 11A of the CEA, all proceedings stand concluded - Held that: - The case of the appellant is squarely covered by the decision of Hon'ble High Court of Punjab & Haryana in the case of COMMISSIONER OF C. EX., CHANDIGARH-I Versus VIKAS GARG [2011 (10) TMI 554 - Punjab and Haryana High Court], where it was held that Once the proceedings against the firm stand concluded, penalty proceedings against partners of the firm cannot continue as Rule 26 of the Rules is not an independent provision but has to be read with Section 11A of the Act - appeal allowed - decided in favor of appellant. 2017 (9) TMI 547 CENVAT credit - process amounting to manufacture or not? - manufacture of profiles, shapes and sections of various machines /machineries - Revenue was of the view that the process undertaken in the factory by the appellant simply changes the form or size of the inputs–plates, sheets etc. The finished product as well as inputs remain classified under the same CEH and accordingly, they were of the view that the processes do not amount to manufacture and consequently, the cenvat credit availed by the appellant on the inputs were improper - Held that: - It is evident on perusal of some of the photographs of these products that processes undertaken in the factory do result in new and distinct products and such process can be considered as process of manufacture, even if the inputs as well as final products are classifiable in the same CTH - Once it is held that process amounts to manufacture, there can be no justification to deny cenvat credit on the inputs. In any case, it is settled position of law that even if the activity undertaken does not amount to manufacture, when duty is levied, the credit cannot be denied by upholding that there is no manufacture. Credit allowed - appeal allowed - decided in favor of appellant. 2017 (9) TMI 546 Clandestine manufacture and removal - melting scrap and M.S. Ingots used in the manufacture of M.S. Steel ingots, rolled bars and rods, falling under Chapter 72 of the Central Excise Tariff Act, 1985 - Though, pursuant to the direction of the Tribunal, the original authority had called the witnesses for cross-examination, but they did not tender themselves for the same - principles of Natural Justice - Held that: - the Department has not made any serious efforts to ensure the presence of the witnesses. Since the witnesses did not appear for cross-examination, the original authority should have given a clear finding regarding application of provisions of Section 9 D (1) in the present proceedings. In this context, the law is well settled that admissibility of evidence is required to be followed in the adjudication proceedings, wherein the adjudicating authority is required to examine the witnesses and thereafter, to form the opinion about the admissibility of statements tender by them - In the present case, since the Adjudicating Authority did not observe the mandates of Section 9 D of the Central Excise Act, 1944, which is mandatory in nature, in our considered view, reliance cannot be placed on the statements of various witnesses alone, to frame the charges against the appellant for confirmation of the adjudged demand. The evidences available in the present case are not sufficient enough to establish a case of clandestine manufacture and clearance on the part of the main appellant company - appeal allowed - decided in favor of appellant. 2017 (9) TMI 545 Jurisdiction - power of Commissioner (Appeals) to re-adjudicate - Valuation - freight charges - inspection charges - includibility - Held that: - the grounds raised by Revenue before this Tribunal are that the Commissioner (Appeals) does not have power to adjudicate. It means that the relief sought by them before Learned Commissioner in their opinion was in contravention of the provisions of law. There are contradictions in the grounds raised by Revenue before Learned Commissioner (Appeals) and before this Tribunal. If the grounds of appeal by Revenue before this Tribunal are accepted then the appeal filed before Learned Commissioner (Appeals) become infructuous - the relief sought by them before Learned Commissioner in their opinion was in contravention of the provisions of law. There are contradictions in the grounds raised by Revenue before Learned Commissioner (Appeals) and before this Tribunal - order dated 03/11/2005 passed by original authority will become operational - appeal disposed off. 2017 (9) TMI 544 Benefit of N/N. 65/95 C.E. - case of Revenue is that certificate in case of certain invoices was not issued by the competent authority. It was issued by the officer in the Rank of the Captain of the Indian Navy, who was also the controller of the procurement - Held that: - identical issue has come up before the Tribunal in the case of CCE, Raigad V/s Wartsila (l) Pvt Ltd. [2016 (3) TMI 662 - CESTAT MUMBAI], where it was held that there is no dispute that the goods supplied to Mazgaon Dock for manufacture of Indian Navy warship, therefore in our considered view there is no need that the goods should be supplied to Indian Navy only - In the present case, supplies were admittedly made to M/s Mazgaon Dock and not to Indian Navy - the appellant will be entitled to the benefit of exemption as per the N/N. 64/95. As regard demand under Rule 6(3)(b), the assessee have admittedly reversed the cenvat credit in respect of inputs used in exempted goods at the time of clearance of such exempted goods which tantamount to non-availment of credit. Appeal allowed - decided in favor of appellant. 2017 (9) TMI 543 Penalty u/r 26 - Clandestine removal - Shortage of goods - penalty imposed on mere belief and not on corroborative evidences - Held that: - the adjudicating authority in the denovo adjudication confirmed demand of ₹ 42 lacs but since the appeal of M/s. Sunrise Zinc Ltd stand dismissed as on date, demand of Rs, 42 Lacs stands upheld. As regard the role of Shri. Pankaj Jaju, he was actively involved in the entire operation being Executive Director of M/s. Sunrise Zinc Ltd. - It is also found that though the Ld. Counsel has submitted that while imposing penalty charge of belief of confiscation of the goods is not made by the adjudicating authority. However in the findings given in para 51.4, it is clearly held that Shri. Pankaj Jaju knows and had reason to believe that goods were liable to confiscation therefore he was liable for penalty under Rule 26. As regard the penalties on the other persons i.e. Victor Industries, Crown Indystries Unique Trading Corporation and Suman Bardia, they are not related to the company who has indulged in the clandestine removal i.e. M/s. Sunrise Zink Ltd. However they were involved in dealing with the goods which were cleared clandestinely therefore their involvement in not direct but indirect involvement was very much established. The penalty imposed on the appellants are excessive which deserve to be reduced considering the nature of the case and their role. Since the duty should not have been confirmed to the tune of ₹ 42 Lacs, the penalty commensurate to the said amount is also not proper. The penalty on Shri Pankaj Jaju reduced from ₹ 25 lacs to ₹ 4 Lacs and on other appellants i.e. Unique Trading Corporation penalty of ₹ 2 lacs to ₹ 25,000/- In respect of Victor Industries, Crown Industries and Suman Bardia, penalty of ₹ 15,000/- reduced to ₹ 10,000/-. Appeal allowed - decided partly in favor of appellant. 2017 (9) TMI 542 Option of reduced Penalty - First proviso to Section 11AC - whether the option of reduced penalty of 25% as provided under First proviso to Section 11AC can be extended to the appellant when adjudicating authority has not given option in writing in the adjudication? - Held that: - The issue is no longer res-integra as Hon'ble Supreme Court in case of R.A. Shaikh paper Mill Pvt Ltd [2016 (4) TMI 1076 - SUPREME COURT], held that option of 25% penalty provided under first proviso to Section 11AC should be given in writing by the adjudicating authority, particularly following board circular No. 208/07/2008-CX-6 dated 22-5-2008 - since the adjudicating authority has not granted option of reduced penalty of 25%, the same can be extended at this stage, the option of reduced penalty of 25% is allowed subject to condition that appellant make dues of payment of duty, interest and 25% penalty within one month from date of this order - appeal allowed - decided partly in favor of appellant. Indian Laws 2017 (9) TMI 534 Sanction of financial assistance to the respondent under the "Partial Funding of Foreign Study Scheme" - Held that:- It clearly emerges that despite the Respondent, having no reason to believe, that he would most certainly get financial support, he chose to proceed abroad for undertaking the LLB (Senior Status) Course, in the University of Leicester, immediately upon sanction of his study leave. Obviously, the Respondent did so with open eyes, and while remaining fully conscious that in case his application is rejected, he would have to foot the bill on his own. The next undisputed fact which emerges from the record, is that when the Respondent’s application for grant of financial support was considered by the Petitioner, the modified Scheme introduced vide OM dated 06.05.2011 was already enforced, and the Respondent’s case was not covered by the said Scheme. Therefore, we find force in the arguments raised by Mr.Narula, that on the crucial date when the Respondent’s application was considered, his case was admittedly not covered by the then prevalent Scheme. The Petitioner was, therefore, fully justified in not granting financial support to the Respondent, as by the said date, the guidelines which had come into force clearly stated that to be eligible for financial support, the Officer had to secure admission for a study programme in foreign university/institution which figures in the list of top 100 universities. That being the position, the Respondent cannot claim that his case ought to have been considered in terms of the earlier policy dated 17.03.2008, merely because he had submitted an application before 06.05.2011 i.e. before the new policy came into force. We also find from the record that the Respondent, much after having already left for undertaking the course in October, 2011, had, vide his letter dated 30.08.2012, asked for information regarding the status of his application for partial funding of his course made in 2011. This letter clearly shows that as late as in August 2012, there was nothing to assure the Respondent that his case for financial support/partial funding had been considered, or was being considered favourably. We are of the view that the Tribunal has clearly erred in coming to a conclusion that upon sanction of a study leave, the Respondent had reason to believe that his application for Partial Funding assistance was being considered favourably. We are unable to find any basis for this presumption by the Tribunal.
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