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Home e-Newsletters Index Year 2024 September Day 21 - Saturday

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TMI Tax Updates - e-Newsletter
September 21, 2024

Case Laws in this Newsletter:

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



Highlights / Catch Notes

    GST

  • Taxpayer's liberty to raise submissions on IGST refund before appellate authority upheld.

    The High Court dismissed the petition, holding that it would not be appropriate to interfere in the matter during the pendency of the appeal before the appellate authority. The petitioner was granted the liberty to raise all submissions before the appellate authority, which would undoubtedly consider and pass appropriate orders. The Division Bench had protected the petitioner from recovery proceedings on the ground that the entire IGST amount had already been paid. According to Section 77 of the GST Act, if a registered person has paid Central or State Tax and is subsequently held liable for Inter-State GST, the wrongly deposited amount would be refunded, allowing payment as per the authorities' determination. This aspect can be duly verified by the first appellate authority.

  • Father's nil returns for 2017-18 led to GST tax demand on purchases assuming sales within 18 months. Court set aside order, remanded for reconsideration.

    Petitioner challenged assessment order u/s 74 of GST enactments. Father had filed nil returns for outward supply in 2017-18. Show cause notice treated total purchase value as suppressed sales. Impugned order assumed processed turmeric must be sold within 18 months, deeming sale in February 2019 to compute tax liability. No discernible basis for such assumptions in impugned order. Impugned order set aside, matter remanded for reconsideration. Petitioner permitted to place additional documents within four weeks. Petition disposed of.

  • Firm lost case for late bond&tax payment for seized goods; buyer non-existent. Court declined writ over factual disputes.

    Writ petition dismissed due to petitioner-Firm's failure to avail interim order for release of confiscated goods by furnishing bond and taxes within reasonable time. Disputed questions of fact regarding purchase and sale of goods, and finding of statutory authority about recipient being non-existent firm. High Court exercised discretionary powers under Article 226, considering all relevant facts, and declined to entertain writ petition in furtherance of public good. Serious disputed factual issues precluded High Court from exercising writ jurisdiction.

  • Income Tax

  • Company not liable for TDS on managerial services to subsidiaries under IP license agreement.

    The assessee provided managerial services to its subsidiaries, ancillary to the enjoyment of intellectual property as per the license agreement. The CIT(A) rightly held that such services did not constitute 'technical services', and the assessee was not liable to deduct TDS for managerial services rendered during the assessment years 2010-11 to 2015-16. Regarding short credit of TDS, the Tribunal remanded the issue to the Assessing Officer for verification and granting TDS credit in accordance with law, subject to the assessee complying with the proceedings and furnishing supporting documents.

  • Expenses lacked link to income; subcontractors' payments disallowed for lack of details.

    Expenditure claimed by assessee lacked nexus with income, unable to prove sub-contractors' expenses debited represented contract receipts or work-in-progress. CIT(A) deleted addition without examining details like sub-contractors' identities or services rendered, granting relief based on comparative financial performance. ITAT found CIT(A)'s order cryptic and unsustainable, failing to address glaring irregularities. Nature of services not examined threadbare. Assessing Officer's commendable job upheld, disallowing sub-contracting charges. Revenue's ground allowed, overturning CIT(A)'s order.

  • Disputed Tax Liability - Court Upholds Relief Under Vivad Se Vishwas Act.

    The High Court held that the respondents took an excessively narrow view by refusing relief to the petitioner under the Direct Tax Vivad Se Vishwas Act, 2020 (VSV Act). The VSV Act aims to resolve disputes pending at various appellate stages on the prescribed date, concerning challenges instituted by the assessee against adverse findings or decisions in the original assessment order. The statute defines "disputed tax liability" and "tax arrears," indicating that the settlement should be confined to the contested part of the assessment. Imposing a liability exceeding the disputed matter would be unjust. Once the Assessing Officer granted carry forward and set off of losses and unabsorbed depreciation, denying the same to the declarant would be improper. The Designated Authority erred by not rectifying the mistake in Form 3, which would deprive the petitioner of asserting the claim. The High Court quashed the impugned order, allowing the writ petition.

  • Valuation under tax law: Estimation vs Actual - High Court upholds ITAT's view, remits case for fresh valuation.

    Validity of valuation u/s 56(2)(viib) was questioned. The Assessing Officer rejected the assessee's valuation report and framed the order based on actual figures, which was criticized by the CIT(A) and ITAT. The High Court observed that an estimation would be based on approximate evaluation and should not be questioned based on actual facts or figures. The correctness of an estimation should be tested on legitimate and valid assessment. While upholding the ITAT's view, the High Court remitted the matter to the Assessing Officer to undertake valuation afresh considering Section 56(2)(viib), adhering to the DCF Method. If the assessee's data warrants examination, the Assessing Officer can enlist an appropriate valuer's services.

  • Reimbursements to foreign principals not taxable if not for technical services.

    The High Court examined whether the nature of functions performed by foreign principals in favor of the assessee would constitute "fees for technical services" u/s 9(1)(vii), thereby requiring tax deduction at source (TDS) u/s 195 and leading to disallowance u/s 40(a)(i) for non-deduction. The Court held that the obligation to deduct TDS u/s 195 arises only if the reimbursement of remittances falls within the scope of Section 9, which introduces legal fictions for income accrued in India. The Court found that the appellants failed to establish that the remitted amounts fell within the ambit of technical, managerial, or consultative services rendered. Consequently, no substantial question of law arose, and the addition u/s 40(a)(i) was not sustainable.

  • Foreign companies face tax uncertainty as court strikes down 4% withholding rate for income attribution.

    Writ petitions challenged the 4% withholding tax rate u/s 195 on receipts asserted as business income u/s 9(1)(i), despite the petitioner having withheld tax at 1.5%. The Court noted the profit attribution rate of 26% was not disputed and that a 1.04% withholding rate would correspond to this rate. As the withholding rate exceeding 1.04% was not seriously questioned, the Court found itself unable to sustain the 4% rate. The withholding tax rate for other years would be decided independently. Since the orders were limited to adjudication u/s 197, all rights and contentions on merits are kept open for regular assessment proceedings.

  • Quashed Income Tax Demand Without Notice/Order; Inquiry Ordered on Erring Officer.

    The High Court quashed and set aside the demand raised u/s 154 for the Assessment Year 2013-2014 appearing on the petitioner's portal and the computation sheet dated 31st March 2021. The respondent's counsel informed the Court that the demand was uploaded by the erstwhile Deputy Commissioner of Income Tax on the portal, but the Department does not have any file or document to show that any notice was issued u/s 154 or an order was passed. The Court directed the respondents to remove the pending demand from the Income Tax Portal pertaining to the petitioner within two weeks. Additionally, the Principal Chief Commissioner of Income Tax, Mumbai was directed to conduct an inquiry by an officer not below the rank of Additional Commissioner to ascertain how such a demand was uploaded and take necessary action against any erring officer if negligence or lapse is found.

  • Trust denied tax exemption due to questionable fund transfers, charitable purpose doubted.

    The appellant Trust's application for registration u/s 12A was rejected by the Commissioner of Income Tax (Exemptions) on the grounds that its activities were not aligned with the objects mentioned in its Memorandum of Association, and the genuineness of its activities could not be conclusively proven. The Trust was directed to provide desired details to establish the charitable nature of its objectives and the genuineness of its activities as per the Memorandum of Association. The Commissioner of Income Tax (Exemptions) observed that the Trust's source of funds involved a transfer entry on the same day, which was transferred back in the same manner to the same party, raising concerns about the genuineness of its activities for charitable purposes. In the interest of natural justice, the Income Tax Appellate Tribunal set aside the Commissioner of Income Tax (Exemptions)'s order and remanded the matter back, directing the Commissioner to pass a de novo order after providing a reasonable opportunity to the assessee to prove its claim. The appeal was allowed for statistical purposes.

  • Royalty income of foreign entity taxable at 10% rate; amount quantified via APA with CBDT, no PE in India.

    The assessee did not have a Permanent Establishment (PE) in India, and the royalty income received during the year was taxable at 10% plus applicable surcharge and cess on a gross basis u/s 9(1)(vi). The matter regarding the quantification of royalty was restored to the Assessing Officer with directions to adopt the royalty amount as per the Advance Pricing Agreement (APA) pending execution between GIA India Lab and the Central Board of Direct Taxes (CBDT). Regarding the levy of interest u/s 234A, the Assessing Officer was directed to verify the due date extension for filing the return and allow relief accordingly. The Appellate Tribunal's order in the immediately preceding year was followed for holding that the assessee did not have a PE in India.

  • Software co. faces AMP expenses & marketing reimbursement adjustments; Tribunal rules on transfer pricing benchmarking methods.

    This summary discusses various transfer pricing and tax issues. It analyzes whether Advertisement, Marketing and Promotion (AMP) expenses incurred by the assessee were for the sole benefit of its associated enterprise, thus constituting an international transaction u/s 92B. The Tribunal held that separate AMP adjustment is not required when the distribution business is already benchmarked. Regarding benchmarking of reimbursement of marketing expenses, the Tribunal directed a 20% markup adjustment to resolve the long-pending issue. It also covers the deselection of certain companies for benchmarking the software division's arm's length price, depreciation on the Dharuhera unit, dividend distribution tax u/s 115-O, and depreciation on software license fees. The Tribunal remitted the software license fee issue to the Assessing Officer for verification and recomputation as per the Income Tax Rules.

  • TP: Forex gains/losses treated as non-operative for assessee & comparables due to risk mitigation by associated enterprises.

    Foreign exchange gain/loss treated as non-operative for assessee and comparables due to risk mitigation by associated enterprises. Safe Harbor Rules not applicable as assessee not determined eligible. Inconsistent approach by TPO in treating forex gain/loss as operating for comparables rejected. Case laws distinguishable due to risk borne by assessee. Zenith Computers excluded as persistent loss-making company. Whirlpool and Penguin excluded as functionally dissimilar from mobile phone manufacturing. For CSD segment, Infobeans Technologies, Persistent Systems, L&T Infotech, and Mindtree excluded due to functional dissimilarity or lack of segmental data. Dividend distribution tax payable at rate u/s 115O, not DTAA rate, unless DTAA expressly extends benefit to domestic company. Appeal partly allowed.

  • Granite firm's stock valuation, dispatch discrepancies resolved; damaged stock allowed 40% deduction.

    Undervaluation of closing stock at Karimnagar unit vis-`a-vis TADA premises rejected by CIT(A) based on quality differences. Variation in dispatched and invoiced quantum of raw blocks from Karimnagar accepted by CIT(A) as natural in business. AO directed to recompute addition allowing 40% as damaged/unsaleable granite after examining books. CIT(A) empowered to admit additional evidence during appeal by giving AO opportunity. No violation of natural justice as AO considered assessee's submissions filed before CIT(A). Revenue's appeal against CIT(A)'s order dismissed by ITAT.

  • Reassessment not prejudicial to Revenue's interest as queries addressed in original assessment.

    Issue of reassessment u/s 263, where the Commissioner of Income Tax (CIT) upheld the reassessment as erroneous and prejudicial to the Revenue's interest for verification of transactions related to NSEL commodities and provision for bad debt claimed by the assessee. The Tribunal relied on the Bombay High Court's decisions in Marico Ltd. and GKN Sinter Metals Ltd., which held that if a query was raised by the Assessing Officer (AO) during the assessment proceedings and the assessee responded, it implies the AO accepted the assessee's submission. If the assessment order does not reflect consideration of the issue, it means no opinion was formed by the AO. In this case, the issues of NSEL transactions and bad debt provision were considered by the AO during the original and reassessment proceedings. The AO verified the complete facts and framed the assessment u/s 147 read with Section 144B after examining the details provided by the assessee. The Tribunal found no error in the reassessment order prejudicial to the Revenue's interest and quashed the CIT's revision order, allowing the assessee's appeal.

  • Should management service fees paid to Singapore company be taxable in India?

    The Income Tax Appellate Tribunal (ITAT) examined the taxability of income in India regarding management service fees. For quality development and training services, the assessee offered the income to tax, conceding transfer of know-how and technology. Regarding information technology services, the CIT(Appeals) concluded that the fee was not taxable in India as the 'make available' criteria under the India-Singapore tax treaty was not satisfied. For other services like planning analysis/corporate development, human resources, and finance, the CIT(Appeals) upheld the addition solely on the ground that the assessee did not furnish complete details to determine the exact nature of services. The assessee contended that relevant documents were furnished but not examined. The ITAT restored this issue to the CIT(Appeals) to re-examine the documents furnished by the assessee and pass a speaking order regarding the taxability of planning & analysis/corporate development services, human resources & finance services, in accordance with law.

  • Tax exemption for pre-1961 charitable trust upheld, matter remanded for re-examination.

    The trust was denied registration u/s 12A/12AB by the Commissioner of Income Tax (Exemptions) on the ground that it was established for the benefit of a particular community and not the general public, invoking Section 13(1)(b). The Appellate Tribunal held that Section 13(1)(b) is not applicable to charitable trusts created before the Income Tax Act, 1961 came into force. Since the assessee trust existed prior to the Act, the bar u/s 13(1)(b) does not apply, and its entire income is eligible for exemption u/s 11. The matter was remanded to the CIT(E) to reconsider the application on merits after examining the trust's activities and granting a reasonable opportunity of hearing to the assessee. The assessee was directed to be vigilant and comply with CIT(E)'s requirements.

  • IBC

  • Lease cancellation by NOIDA: Corporate Debtor not a "tenant holding over", plot rightly excluded from CIRP.

    Cancellation of lease deed by NOIDA did not confer the Corporate Debtor the status of a tenant holding over within Section 116 of the Transfer of Property Act, 1882. NOIDA never assented to the Corporate Debtor's continued possession after cancellation. The Supreme Court's judgment in Nand Ram case clarified that after lease expiry, the lessee's status is a tenant at sufferance, not a tenant holding over, unless the landlord assents to continued possession, creating a new tenancy. NOIDA's mere acceptance of the Corporate Debtor's request for lease restoration did not revive the terminated lease or confer any rights u/s 116. The plot was rightly excluded from the Corporate Insolvency Resolution Process. As a development authority, NOIDA is obligated to monitor project implementation, take proactive steps, and protect homebuyers' interests as unsecured financial creditors under statutory provisions. NOIDA can cancel leases, resume sites, and forfeit payments for breaches by lessees. The NCLAT upheld the adjudicating authority's order excluding the plot from CIRP and rejected the resolution plan approval application.

  • IRP's biased conduct favoring unsecured creditor over operational creditor faces probe, cost imposed.

    The Appellate Tribunal upheld the Adjudicating Authority's order and dismissed the appeal filed by the Resolution Professional (RP) against the Operational Creditor. The key points are: The RP acted in a biased manner by rejecting the Operational Creditor's claims and accepting an Unsecured Financial Creditor's claim of a paltry sum, making the latter the sole member of the Committee of Creditors (CoC). The Adjudicating Authority rightly observed that the RP's conduct needs thorough investigation. The IBBI is directed to investigate the RP's role and take necessary action. The RP is imposed a cost of Rs. 10 lakhs. The Unsecured Financial Creditor's claim of Rs. 1,05,877/- was filed after CIRP initiation, raising suspicions of backdating and unstamped documents. The Operational Creditor's claims were crystallized and admitted during CIRP initiation, and their rejection by the RP is questionable.

  • Manpower supply dues can't trigger IBC if pre-existing dispute, bonafide objection over services existed.

    Maintainability of application u/s 9 of IBC, 2016 for non-payment of dues arising from supply of manpower services hinges on existence of pre-existing dispute between parties. Emails prior to demand notice evidenced Corporate Debtor's concerns regarding adequacy of services, manpower shortages and security lapses, constituting pre-existing dispute. As per Mobilox case, if notice of dispute received by Operational Creditor or record of dispute exists, application must be rejected u/s 9(5)(2)(d). Corporate Debtor raised plausible contention of pre-existing dispute, not a feeble legal argument. Given bonafide dispute's existence, Adjudicating Authority correctly rejected Section 9 application. Appeal against impugned order dismissed.

  • PMLA

  • Crypto Crime Proceeds Transfer: Court Grants Bail to Accused due to Lack of Prima Facie Evidence.

    The case pertains to the grant of regular bail to an Indian national accused of committing an offence under foreign law, which is a scheduled offence under the Prevention of Money Laundering Act (PMLA). The key points are: The Enforcement Directorate (ED) initiated proceedings based on a Mutual Legal Assistance (MLA) request from U.S. authorities, alleging that the accused stole cryptocurrencies and transferred the proceeds to India. The court examined the applicability of PMLA in cases where the predicate offence occurred outside India but the proceeds were transferred to India. The court held that for offences under the first category defined in Section 2(1)(ra)(i) of PMLA, where the predicate offence occurred outside India but the proceeds were transferred to India, the corresponding foreign law needs to be proved as a question of fact during the trial by examining experts. Judicial notice cannot be taken of the corresponding foreign law at this stage. The court found that the foundational facts, i.e., the alleged crime committed in the U.S. being a scheduled offence and the amount received by the accused being proceeds of crime, have not been established even prima facie. Therefore, the burden of proof u/s 45 of PMLA does not shift to the accused. The court observed that the delay in commencing the trial, the custody period exceeding.

  • Bail granted in money laundering case tied to excise policy scam.

    The court granted regular bail to the applicant in a money laundering case related to the alleged excise policy scam. The predicate offence was a CBI case registered under the Prevention of Corruption Act, where the applicant was named but not arrested. The applicant, an experienced professional with social work credentials, was held to satisfy the triple test for bail - no risk of tampering evidence, influencing witnesses, or fleeing. Stringent conditions were imposed, including a personal bond and sureties. The court noted the voluminous evidence, multiple accused already on bail, and the applicant's prolonged custody. The bail application was allowed, subject to fulfilment of conditions.

  • Service Tax

  • Petitioner prevails as tax authority's order quashed for lack of due process and improper jurisdiction.

    Writ petition challenging impugned order dated 25.11.2022 for violation of principles of natural justice and lack of territorial jurisdiction. Court held that service of show cause notice was defective as it was not sent to petitioner's proper address, violating Section 37C(1)(a) of the Act. Resorting to Section 37C(1)(b)&(c) without complying with (a) is impermissible. Impugned order passed without affording due opportunity, violating Article 14 and 21. On territorial jurisdiction, petitioner not registered under Finance Act 1994, and registration under CGST Act 2017 irrelevant. Jurisdictional issue to be decided by respondent if fresh show cause notice issued at proper address. Impugned order quashed for violation of natural justice. Petition disposed of.

  • Rebate allowed for service tax paid on services utilized for export despite document deficiencies.

    Claim of rebate for service tax paid on specified services used for export of goods from July 2012 to December 2013. The rebate claims were rejected on grounds of violation of conditions in certain notifications and non-production of documents like invoices, self-certification, and FIRC/BRC copies. The Tribunal held that the appellant fulfilled the conditions stipulated in Notification 41/2012 for availing rebate, as the specified services were utilized in connection with the export of goods. The rejection based on non-fulfillment of conditions of other notifications was legally unsustainable. Regarding non-production of documents, the matter was remanded to the Adjudicating Authority for verification. On the issue of time limitation, the Tribunal held that the rebate claim was originally filed within the prescribed period of one year from the date of export, and the re-submission date should not be considered as the filing date. Therefore, the claim was not hit by the limitation period.

  • Central Excise

  • Duty Exemption for Specialty Vehicles Upheld by Court.

    Classification dispute regarding drilling rigs mounted on truck chassis/crawler - whether under tariff heading 84.30 or 87.05 during 1986-1988. Supreme Court settled classification under 87.05 in appellant's own case. Once classification settled, appellant became eligible for exemption under Notification 242/86-CE applicable to Chapter 87.05 goods, even though initially not claimed. Tribunal followed precedent allowing exemption claim at later stage. Condition of notification requiring duty payment on chassis/equipment used deemed complied as all market goods presumed duty paid. Chassis and equipment for special purpose vehicles considered deemed duty paid. Impugned order set aside, appeal allowed.

  • Taxi operator entitled to duty refund despite delayed PLA credit, as substantive vehicle usage condition was met.

    The appellant complied with the conditions of Notification No. 12/2012-CE dated 17.03.2012, except for taking credit in PLA after six months from duty payment. The vehicles had passenger capacity below 13 and were registered as taxis. The procedural lapse of delayed PLA credit cannot enable rejection of refund claims when the substantive condition of vehicle use as taxi was fulfilled. The refund claims from 01.07.2017 to 27.12.2017 for clearances from January 2017 to June 2017 were filed within six months as required. The show cause notice did not allege untimely filing. The Commissioner's finding on time-bar was incorrect and legally unsustainable. The Tribunal allowed the appeal, holding the refund claims were not time-barred and the appellant was entitled to the duty refund under the notification.


Articles


Notifications


Circulars / Instructions / Orders


News


Case Laws:

  • GST

  • 2024 (9) TMI 1163
  • 2024 (9) TMI 1162
  • 2024 (9) TMI 1161
  • 2024 (9) TMI 1160
  • 2024 (9) TMI 1159
  • 2024 (9) TMI 1158
  • 2024 (9) TMI 1157
  • 2024 (9) TMI 1156
  • 2024 (9) TMI 1155
  • 2024 (9) TMI 1154
  • 2024 (9) TMI 1153
  • 2024 (9) TMI 1152
  • 2024 (9) TMI 1151
  • 2024 (9) TMI 1150
  • 2024 (9) TMI 1149
  • 2024 (9) TMI 1148
  • 2024 (9) TMI 1147
  • 2024 (9) TMI 1146
  • 2024 (9) TMI 1145
  • 2024 (9) TMI 1144
  • 2024 (9) TMI 1143
  • 2024 (9) TMI 1142
  • 2024 (9) TMI 1141
  • 2024 (9) TMI 1140
  • 2024 (9) TMI 1139
  • Income Tax

  • 2024 (9) TMI 1138
  • 2024 (9) TMI 1137
  • 2024 (9) TMI 1136
  • 2024 (9) TMI 1135
  • 2024 (9) TMI 1134
  • 2024 (9) TMI 1133
  • 2024 (9) TMI 1132
  • 2024 (9) TMI 1131
  • 2024 (9) TMI 1130
  • 2024 (9) TMI 1129
  • 2024 (9) TMI 1128
  • 2024 (9) TMI 1127
  • 2024 (9) TMI 1126
  • 2024 (9) TMI 1125
  • 2024 (9) TMI 1124
  • 2024 (9) TMI 1123
  • 2024 (9) TMI 1122
  • 2024 (9) TMI 1121
  • 2024 (9) TMI 1120
  • 2024 (9) TMI 1119
  • 2024 (9) TMI 1118
  • 2024 (9) TMI 1117
  • 2024 (9) TMI 1116
  • 2024 (9) TMI 1115
  • 2024 (9) TMI 1114
  • 2024 (9) TMI 1113
  • 2024 (9) TMI 1112
  • 2024 (9) TMI 1111
  • 2024 (9) TMI 1110
  • 2024 (9) TMI 1109
  • 2024 (9) TMI 1108
  • 2024 (9) TMI 1107
  • 2024 (9) TMI 1106
  • 2024 (9) TMI 1105
  • 2024 (9) TMI 1104
  • 2024 (9) TMI 1103
  • 2024 (9) TMI 1102
  • 2024 (9) TMI 1101
  • 2024 (9) TMI 1100
  • 2024 (9) TMI 1099
  • 2024 (9) TMI 1098
  • 2024 (9) TMI 1097
  • 2024 (9) TMI 1096
  • 2024 (9) TMI 1095
  • Customs

  • 2024 (9) TMI 1094
  • Insolvency & Bankruptcy

  • 2024 (9) TMI 1093
  • 2024 (9) TMI 1092
  • 2024 (9) TMI 1091
  • PMLA

  • 2024 (9) TMI 1090
  • 2024 (9) TMI 1089
  • 2024 (9) TMI 1088
  • 2024 (9) TMI 1087
  • Service Tax

  • 2024 (9) TMI 1086
  • 2024 (9) TMI 1085
  • 2024 (9) TMI 1084
  • 2024 (9) TMI 1083
  • 2024 (9) TMI 1082
  • 2024 (9) TMI 1081
  • 2024 (9) TMI 1080
  • 2024 (9) TMI 1079
  • 2024 (9) TMI 1078
  • 2024 (9) TMI 1077
  • 2024 (9) TMI 1076
  • 2024 (9) TMI 1075
  • Central Excise

  • 2024 (9) TMI 1074
  • 2024 (9) TMI 1073
  • 2024 (9) TMI 1072
  • 2024 (9) TMI 1071
  • 2024 (9) TMI 1070
  • 2024 (9) TMI 1069
  • CST, VAT & Sales Tax

  • 2024 (9) TMI 1068
 

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