The Supreme court last week ruled that amusement parks within limits of Greater Bombay would be entitled to only one benefit i.e. either under Section 3(2) or under Section 3(5)(a) of the Bombay Entertainment Duty Act.
The appellants Pan India Prayatan Ltd. owns and runs an amusement park within limits of Greater Bombay which was opened to the public for admission on 25th December 1989. They charged a lumpsum amount for admission and entertainment to the amusement park. In terms of the Act, the writ petitioners were required to pay entertainment duty.
In a writ petition before the High Court, it sought confirmation that entertainment tax to be levied would be 3.75% of the value of a consolidated ticket. Such stand was accepted by The Collector of Bombay Suburban District. Later, they were informed that they would be required to pay duty @7.5% and not @3.75%. They challenged such demand by way of a writ petition. The said writ petition was withdrawn with liberty to file a fresh petition. The State sought to recover the entertainment duty @7.5% in respect of entry to the amusement park for the period from 16th September 1994 to 24th December 1994 and @15% from 25th December 1994. The appellants paid the duty under protest. In a writ petition challenging the provisions of the Act, the writ petitioners sought a refund of the duty paid.
The High Court held that entertainment duty to be levied for the amusement park is 50% of 15% i.e. 7.5% under Section 3(2) of the Act, therefore, in terms of Section 3(5)(a) and (b) of the Act, the entertainment duty is 50% of 7.5% i.e. 3.75%. The High Court held that such interpretation is on the basis of a cumulative reading of the provisions of the Act.
Justice Deepak Gupta and Justice Hemant Gupta allowed the appeal against the High Court decision and held, “All amusement parks for all entertainment are not entitled to concessional duty in terms of Section 3(2) of the Act. Therefore, the writ petitioners cannot claim benefit under Section 3(2) of the Act. The argument is preposterous as the writ petitioners are firstly claiming the benefit under Section 3(2) of the Act and then under Section 3(5)(a) of the Act. The amusement parks would be entitled to only one benefit either under Section 3(2) or under Section 3(5)(a) of the Act. Since Section 3(2) is not applicable to all amusement parks duty act for all other activities, therefore, the entertainment duty in terms of Section 3(5)(a) of the Act alone would be leviable. The duty under Section 3(2) of the Act would be leviable only in respect of specified categories mentioned therein. Thus, we are unable to agree with the judgment of the High Court that in terms of Section 3(5)(a) of the Act, the entertainment duty is 50% of the duty payable under Section 3(2) of the Act. Consequently, the order passed by the High Court is set aside”.
Subscribe Taxscan Premium to view the JudgmentThe Gujarat High Court has ordered the GST Department to release goods and consignments which is detained for not carrying E-Way Bill is a result of the wrong interpretation of section 130 of the GST Act.
The Court was of the opinion that to issue a notice of confiscation u/s 130 of the Act, mere suspicion may not be sufficient to invoke Section 130 of the Act straightway. The Court issued such. Ruling in two different issues with the same appeal.
The appellants’ trucks with goods were stopped by the authorities on the GST department absence of an e-way bill in respect of the goods and notices were served on the transporter and a penalty was served on them under section 130.
The issues before the Court in both cases were:
The Court relied on its own judgment in the case of Synergy Fertichem Pvt.Ltd V/s. State of Gujarat wherein the Bench constituting of Justices J.B. Pardiwala and A.C. Rao held, “On the interpretation of Sections 129 and 130, the Court held that both the sections start with a non-obstante clause, yet, the harmonious reading of the two sections, keeping in mind the object and purpose behind the enactment thereof, would indicate that they are independent of each other.” Taxscan had reported earlier the observations of the court in the matter where the court shared the opinion that the Legislature should look into both the provisions, i.e. Sections 129 and 130 of the Act and amend the Sections accordingly to remove certain inconsistencies in the two provisions.
Subscribe Taxscan Premium to view the JudgmentThe Central Excise and Service Tax Appellate Tribunal (CESTAT), Mumbai held that cenvat credit is not admissible on Goods Transport Agency services used for transportation of goods from the place of removal to the buyer’s premises.
The appellant is a Government-owned corporation in the Central Public Sector Enterprise under the Ministry of Mines (India), Government of India.
During the period from October 2007 to October 2010, they availed Cenvat Credit on GTA Services for their depot transfers and sale on FOR basis, which according to them, was available as per CBEC Circular.
Accordingly, a show-cause notice dated 8.6.2011 was issued to the Appellant, proposing denial of Cenvat Credit of Rs.82,52,201/- on the aforesaid Goods Transport Agency services, since as per department it was not covered under the scope of input services as prescribed under Rule 2(l) of Cenvat Credit Rules, 2004.
Initially, the demand was Rs.82,52,201/- for the period from October 2007 to October 2010 but by the earlier Order-in-Original dated 23.8.2012 it was reduced to Rs.5,26,089/- and later on upon remand by this Tribunal, in the subsequent O-I-O which is the impugned order.
Herein, it was further reduced to Rs.2,61,459/- for the period April 2008 to October 2010 along with equal amount of penalty which it was laid down that Cenvat Credit on Goods Transport Agency (GTA) service for transport of goods from the place of removal to buyer’s premises is not admissible in view of the amendment carried out in Rule 2(l) of Cenvat Credit Rules, 2004 in the year 2008. So now the period of the dispute is from April 2008 to October 2010 and the amount of Cenvat Credit involved is Rs. 2,61,459/- only.
The appellate tribunal comprising of Judicial Member, Ajay Sharma pronounced the order based on an appeal filed by M/s Hindustan Copper Ltd.
While relying upon the decision of the Hon’ble Supreme Court in the matter of C.C.E. & S.T. vs. Ultratech Cement Ltd in which it was laid down that Cenvat Credit on Goods Transport Agency (GTA) service for transport of goods from the place of removal to buyer’s premises is not admissible in view of the amendment carried out in Rule 2(l) of Cenvat Credit Rules, 2004 in the year 2008.
Subscribe Taxscan Premium to view the JudgmentThe Customs Excise and Service Tax Appellate Tribunal (CESTAT), Chennai held that the refund of input Cenvat credit cannot be denied for the reasons of premises being unregistered.
The assessee-appellant(M/s. MSYS Tech India Private Limited) is challenging the denial of refund of unutilized input Cenvat Credit under Rule 5 of the Cenvat Credit Rules, 2004. The appellant, a provider of ‘Information Technology Services’ to its foreign clients, filed a refund claim of service tax paid on input services, of an amount of Rs. 8,07,955/- for the period of April 2017 to June 2017.
A Show Cause Notice was issued proposing to restrict the refund claim to Rs. 1,36,458/- on the allegations that the appellant had claimed certain ineligible input Cenvat credit. The adjudicating authority after considering the explanation filed by the assessee.
Firstly considered certain services as ineligible since those services were rendered at an unregistered premises, then re-determined the export turnover and total turnover but finally, proceeded to reject the entire refund claim of the assessee, on the ground that the amount claimed as refund was not debited from the appellant’s Cenvat Credit Account at the time of filing the claim.
The appellant having failed in its endeavor to convince the First Appellate Authority, has filed the present appeal before this forum.
In the light of the judgment in Commissioner of GST & Central Excise, Chennai Vs. BNP Paribas Sundaram Global Securities, in CMA No. 57 of 2018 the bench came into the conclusion that denial of refund for the reasons of premises being unregistered cannot sustain.
Judicial Member, P. Dinesha observed that the availability of input credit as regards the services rendered at un-registered premises, is fairly settled and even the High Court of Judicature at Madras has held that the refund of input Cenvat credit cannot be denied just because premises was unregistered,
The Tribunal further observed that there is also no denial by the Revenue as to the claim of the appellant that subsequent to the filing of TRAN-1 Return, the refund amount was debited in its GSTR-3B/Electronic Credit Ledger.
While setting aside the appeal the tribunal also said that the introduction of GST there was a change in the scenario, there was also no provision in the ACES system to debit the refund amount and that subsequent reversal by the appellant in its GSTR-3B file is a sufficient compliance with condition and it has been clarified by CBIC.
Subscribe Taxscan Premium to view the JudgmentThe Goa State Government has proposed to re-introduce quarterly payment of tax for owners of tippers and trucks which are involved in the transportation mineral ore.
The state government has decided this move due to the closure of mining activities in the State of Goa because of which, the owners of the tippers and trucks involved in the business of transportation of mineral ore are in financial crisis. These tippers/trucks were barely in operation for 2 quarters of the year 2018.
Hence, it is proposed to permit them to pay the tax on a quarterly basis as was the practise followed in the past to have relief from payment of bulk tax on a yearly basis at a time.
The proposed amendment to the Goa Motor Vehicles Tax goes by,
“Amendment of section 4 –
In the Goa, Daman and Diu Motor Vehicles Tax Act, 1974 (Act No. 8 of 1974), in section 4, after the second proviso, the following proviso and explanation shall be inserted, namely:
-Provided that the Goa tax payable on tipper/trucks used for transportation of mineral ore, and registered with Department of Mines, may be paid in advance either quarterly or yearly, for obtaining tax license for such period.
Explanation:-The tax for the quarterly license shall be one-fourth of the tax for a yearly license and the period less than a quarter shall be treated as a full quarter for levying tax”.
The Goa Chief Minister Pramod Sawant, who also holds the charge of the finance ministry, on February 6th presented the budget for the financial year 2020 in the Goa state assembly. The Total budget size for 2020-21 is projected at Rs21,056 crore. The changes proposed to the Goa budget 2020 Goods and Service Tax (GST) Act are as follows:
The Gujarat High Court has held that the interest paid in respect of borrowings for the acquisition of capital assets is an allowable deduction under S.36(1)(iii) of the Income Tax Act.
The assessee-company is engaged in providing outsourcing services for finance, accounts, human resources and supply chain management and data centre to Vodafone India Limited and its Indian subsidiaries.
In the course of the assessment, the Assessing Officer (AO) inter alia noticed that the assessee-company (VSSL) has shown a total addition to computers on account of computer software amounting to Rs.15,54,31,008/-.
The Assessing Officer (AO) noticed that the assessee has claimed depreciation @ 60% on such computer software. It was observed by the Assessing Officer(AO) that the aforesaid purchases were made mainly on SAP product which is a customized product having software just a minor component of it.
This product was stated to be delivered to the assessee along with loads of other technical services and know-how to operate and utilize such specialized product for enduring benefits to its business.
The Assessing Officer(AO) thus disputed the eligibility of claim of higher depreciation @ 60% eligible to computer or computer software and opined that the aforesaid software of Rs.15.54 crores should be dealt with as ‘licence’ in the nature of intangible assets under the provisions of s.32(1)(ii) of the Act where the depreciation allowance is set out @ 25%.
The Assessing Officer (AO) accordingly recomputed the depreciation on expenses incurred towards the purchase of SAP products amounting to Rs.15,54,31,008/- @ 25% in place of 60% claimed by the assessee applicable to block ‘computer and computer software.
The assessed income of the assessee was accordingly increased by an amount of Rs.5,44,00,853/- owing to the reversal of alleged excess claim of depreciation.
The division bench comprising of Justices J.B.Pardiwala and Bhargav D Karia pronounced the judgment based on an appeal against Vodafone Shared Services Limited.
Section 36(1)(iii) allows the deduction of the amount of interest paid in respect of capital borrowed for the purposes of business. The deduction is granted under the section, once it is established that the borrowing is for the purposes of business and that the interest is paid on such borrowings.
The High Court observed that the Capital borrowed resulted in the acquisition of asset without resulting in the extension of existing business per se, the deterrence embodied in proviso was not applicable and consequently the claim was governed by the main provision of section 36(1)(iii) of the Act.
While relying upon the judgement in Vardhman Polytex Ltd. vs. CIT wherein the Supreme Court also referred to another decision of Supreme Court in the case of Care Healthcare Ltd. and answered the issue in favour of assessee.
While dismissing the appeal by Revenue the Court also said that the interest paid in respect of borrowings for the acquisition of capital assets is an allowable deduction under S.36(1)(iii) of the Income Tax Act.
Subscribe Taxscan Premium to view the JudgmentThe Gujarat High Court has allowed the Refund of Integrated Goods and Services Tax ( IGST ) paid on the Import of Goods under Export Promotion Capital Goods (EPCG) Scheme.
In the case of M/s Prince Spintex Pvt. Ltd. vs. Union of India, the High Court of Gujarat granted the exemption under Notification No. 16/2015-cus dated April 1, 2015, for the purpose of implementing the incentive scheme for import of goods under Export Promotion Capital Goods (EPCG) Scheme.
The petitioner named M/s Prince Spintex Pvt. Ltd. was engaged in the business of manufacturing of cotton yarn through the spinning process, after processing the finished goods are supplied to India as well as exported outside India. As per the Export Promotion Capital Goods (EPCG) Scheme import of capital goods for pre-production, production and post-production are allowed at zero customs duty subject to a specified condition. The petitioner as per the Export Promotion Capital Goods (EPCG) Scheme entered into a contract with the M/s Itema, Italy. However, the machine for which the contact was made is taxable @5%, which is the basic tax rate under the Customs Tariff Act. The petitioner was authorized and on the basis of this, he claimed the exemption of Integrated Goods and Service Tax (IGST) on which the exemption was not granted.
The issue raised in this case was whether the petitioner is liable for the exemption or not?
The division bench comprising of Justice Harsha Devani and Justice Sangeeta K. Vishen granted the petitioner exemption under Notification No. 16/2015-cus dated April 1, 2015, for the purpose of implementing the incentive scheme for import of goods under Export Promotion Capital Goods (EPCG) Scheme.
The Court also held that the petitioner is entitled to refund of the amount, which was paid by the petitioner under Integrated Goods and Service Tax (IGST) with the interest at the statutory rates. Hereby, the bench quashed and set aside the impugned order.
Subscribe Taxscan Premium to view the JudgmentThe Finance Ministry of Egypt has an amended VAT Act to remove baked snacks and shower gel from the list of VAT-exempt goods says the local press reports. The current rate of 5% will be raised to the standard rate of 14%. Other goods in the list of Egypt VAT-exempt goods include tea, sugar, milk, utilities, banking services, medicines, and some health services. ‘Scheduled tax’ is levied on the selected goods among them.
Any person or corporation that sells goods or renders service with gross sales which equals or exceeds EGP500,000 is required to register for VAT. A taxpayer is mandatorily required to issue a tax invoice on the sale of goods or rendering of service subject to VAT. Tax returns can be filed and payments are made electronically via the portal of Egyptian Tax Authority.
More information regarding the amendment is yet to be revealed.
The Jammu and Kashmir High Court has denied bail to two persons who allegedly ran a money chain in Jammu and Kashmir and fled scamming many people of their money.
The accused Zafar Iqbal and Zaheer Abass were running a private company in the name and style of Hablas Pvt. Ltd. where they have collected money from the people with the motive to double the money within a month. The complainants also alleged that the alleged accused doubled the money of various people in the area. The accused were running this fraudulent company from near about 08 months and thereafter have disappeared from Tehsil Mendhar and did not double their money. It was also alleged that the alleged accused persons cheated the complainants and are wandering in Jammu, Delhi and at various places in India.
It was stated by the learned counsel for the applicant in the Bail Application that the name of Zafar Iqbal never figured in the FIR and that it was only after the investigation that the applicant has been falsely implicated by the respondent without any cogent proof.
The main grounds in the application was that no criminal offense was made out from the bare perusal of the Preliminary Charge Sheet against the applicant, but still, the applicant has been put behind the bars by the respondent based on a false and frivolous complaint, in which nothing has been said against the applicant. The applicant moved an application for grant of bail before the Court of Judicial Magistrate 1st Class Mendhar which came to be dismissed without considering the merits of the application.
Justice Sanjay Kumar Gupta while denying the bail relied upon the judgments Central Bureau of Investigation (CBI) Vs Versus Ramendu Chattopadhyay and Republic of India (C.B.I.) vs Ashis Chatterjee and held, “Having regard to the material on record and since large amounts of money belonging to innocent investors have been siphoned off, as well as for the aforesaid reasons, the High Court, in our considered opinion, should not have released the Respondent on bail.
Consequently, the impugned order granting interim bail to the Respondent stands set aside. His bail money chain bonds are canceled.
Subscribe Taxscan Premium to view the JudgmentThe Lucknow Bench of the Income Tax Appellate Tribunal (ITAT) has stayed the income tax demand of Rs. 398 crores on the Lucknow Development Authority by observing that the authority has a prima facie case in its favour. The stay was granted on the condition of payment of 20 crore rupees in two equal instalments.
The stay is granted for a period of six months or till the disposal of the appeals, whichever is earlier, the order said.
Lucknow Development Authority was slapped with a tax demand of around 398 Crores on the ground that it had given benefit to its employees by giving them priority in allotments as well as concessions in the prices of plots. The authorities, therefore, invoked tax demand according to the provisions of section 13(3) of the Income Tax Act.
It was contended on behalf of the assessee that the employees of the assessee Pradikaran are not Managers of the Pradikaran, as they are doing routine work assigned to them and they are not involved in the management of the assessee Pradikaran. He further submitted that they are also not entrusted with taking managerial/strategic decisions. Moreover, the benefit to the employees has been given as a declared policy as notified in the Pradikaran Rules.
While granting a stay to the tax demand, the Tribunal observed that the assessee has a prima facie case in its favour.
“It is the Department’s own case that the allotments purportedly in violation of section 13(3) of the Act have been made to the employees of the assessee Pradikaran. There is no rebuttal, however, to the assertion on behalf of the assessee that these employees are not acting in any Managerial capacity, so far as regards the discharge of their duties under the Pradikaran; and that the specific requirement of the section is concerning Managers and not employees. Therefore, the assessee has a prima facie case in its favour and as such the balance of convenience is also in its favour,” the Tribunal said.
The Tribunal further directed the assessee to deposit an amount of Rs.20 crores, out of total outstanding demand of Rs.3,98,15,62,042/-, in two installments of Rs.10 crores each and the first instalment is to be paid latest by 29th February 2020 and the second instalment is to be paid latest by 15th March 2020.
Subscribe Taxscan Premium to view the JudgmentThe Bombay High Court has disallowed an interim relief to directors who were disqualified under section 164(2) of the Companies Act 2013 for not filing Financial Statements and Annual Returns which is to be considered as Ministerial Acts of Directors.
The arguments advanced by the writ Petitioners was that Gujrat, Karnataka and Madras High Courts have held that provisions of Section 164(2) cannot be applied with retrospective effect.
Under section 164(2) Directors of a company which has defaulted in the filing of financial statements and annual returns can continue as directors in the defaulting company till their term expires and they cannot be appointed as directors in any other company. The intention of the law is further clarified as under section 167(1) of the Companies Act 2013. A disqualified director under section 164 will continue in the defaulting company but he will vacate his office as director in all other Companies.
Justice R.I. Chagla and Justice S.C. Dharmadikar held that “filing of financial statements and Annual Returns are ministerial or administrative acts and directors are disqualified for a period of 5 years if above documents are not filed for a continuous period blanket stay or a relief having far-reaching legal consequences as sought cannot be granted. However, the Section shall operate consistent with the observations by this Court in the foregoing paragraphs. The application for interim reliefs is disposed of in these terms.”
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The Allahabad High Court has rejected anticipatory bail to a proprietor running a bogus firm for alleged GST evading offences.
The Revenue Department submitted that there was sufficient basis to conclude that the applicant, Govind Agarwal, was either working in collusion with some unknown firm/person or was working as an agent and in collusion with some person as thus has given effect to tax evasion. As per the FIR, the accused had obtained GST Registration through GST Portal for the business of packing material. At the time of obtaining the registration by the applicant, he had shown his address as the main business place as the first floor, N.H. in front of Anaj Mandi Gate No.1, Kosi Kalan. When an inquiry was conducted by this fact came to light that on the given address no board of the firm was affixed and the said place had a room on the first floor measuring 18 ft. x 20 ft. only.
The owner of the house Mahavir Singh disclosed that he had given the said accommodation to the applicant on rent and its registration was also got done by him by the name of Govind Enterprise and that he was an advocate also in the firm. In the said room, no documents/books related to the firm were found except one computer and a laptop and printer were kept in which Sri Mahavir Singh disclosed that they did not have any data relating to Govind Enterprise and also stated that there were several forms related to his advocacy. At the time of the raid, two persons were found working on the computer who disclosed that they were working in respect of the accountancy of the said advocate and that there was no place/go-down to keep stock. The entire work of Govind Enterprise used to be done from its Kanpur located branch/go- down and that all the related books of account were kept at the branch located at Kanpur.
The counsel for the applicant contended that because no proper notice has been served upon the applicant demanding an outstanding amount of GST, therefore, there was no necessity of the accused being arrested. A legal notice was required to be served upon the applicant to pay the outstanding amount of GST but instead of that FIR has been lodged based on which the applicant is apprehending imminent arrest which had necessitated him to move this anticipatory bail in the bogus firm application seeking protection from this Court.
Justice Dinesh Kumar Singh while denying the anticipatory bail observed, “Looking to the aforesaid fact, taking into consideration the gravity of accusation, and there being possibility of his fleeing from justice, without expressing any opinion on the merits of the case, this Court does not find good ground for enlarging the applicant, Govind Agarwalon anticipatory bail in this case.”
Subscribe Taxscan Premium to view the JudgmentThe Delhi High Court has recalled the Look Out Circular against a Chartered Accountant (CA), however, the court imposed certain conditions and the petitioner was directed to co-operate in the investigation and join the investigation as and when called by the investigating authority.
The petitioner was a qualified Chartered Accountant (CA) and he migrated to Dubai for the purpose of work and joined the company named Jaleel Group in 2008 and has been there since then.
The petitioner came to Hyderabad for some meeting and he was stopped at the International Airport for some business meeting and while the petitioner was returning, he was approached by some of the officers of the department of Income Tax and they served the petitioner with the copy of summons and as a consequence, the petitioner has to cancel his tickets. The investigation pertained to the Punj Lloyd Group. Further, the Look Out Circular (LOC) was issued against the petitioner. However, the petitioner requested the court to revoke Look Out Circular.
A Single Bench of Justice Rajnish Bhatnagar has revoked the Look Out Circular on the grounds that the petitioner had the time and again co-operated in the investigation.
The court also imposed certain conditions that, Whenever, the 7-day prior notice for the investigation is served to him, he shall join the investigation. If any case, if the petitioner travels out of Dubai to nay other nation he will have to furnish with all the details.
Subscribe Taxscan Premium to view the JudgmentIn the case of Nathalal Maganlal Chauhan vs. State of Gujarat, the Gujarat High Court laid down the dictum that delegated authority can exercise the power to send the notice when he has the ‘reason to believe’ for the purpose of exercising the power under Section 69 of the Gujarat Goods and Service Tax (GST) Act, 2017.
The applicant’s son is a proprietor at Lancer Enterprise. The applicant’s son has rented the factory premises including the machines of the Lancer Enterprise to Mr. Nipun Patel for the purpose of manufacturing articles of plastics on a job work basis. Further, the officers of the Commissioner of State Tax visited the residential premises and continuously enquired about the whereabouts of his son. This as a consequence disturbed his peace and harassed them. Hence the petitioner filed a writ of mandamus against those officials.
The issue raised was whether the writ of mandamus can be issued by the High Court of Gujarat or not?
The Division Bench comprising of Justice J.B. Pardiwala and Justice Bhargav D. Karia held that delegated authority can exercise the power to send the notice when he has the ‘reason to believe’ for the purpose of exercising the power under Section 69 of the Gujarat Goods and Service Tax(GST) Act, 2017.
The Court also of the view that the power under Section 69 of the Gujarat Goods and Service Tax (GST) Act, 2017can be exercised by the authority upon whom the power is delegated provided the delegatee has ‘reason to believe’ that the assessee has committed the offence under Section 132 of the Act.
Subscribe Taxscan Premium to view the JudgmentThe Income Tax Appellate Tribunal (ITAT), Ahmedabad bench has held that the developer is not eligible for claiming deduction in respect of the expenses incurred on the land if the bills were raised after the transfer of such land.
The assessee is an individual engaged in the business of Construction and Real Estate Development. While filing the income tax return for the relevant year, he claimed to have incurred certain expenses towards the land leveling /Mati Puran amounting to Rs. 33,42,400/-. However, the Assessing Officer (AO) rejected the claim in the absence of sufficient documentary evidence and held that such expenditure was not incurred by the assessee for its alleged business activities.
On the first appeal, the Commissioner of Income Tax (Appeals) confirmed the above view.
Concurring with the findings of the departmental authorities, the Tribunal noted that there was an expenditure incurred by the assessee after the transfer of the property to M/s Shukun Corporation dated 18th April 2013.
“In our considered view once the property has been transferred, then there was no reason for the assessee to incur any expenditure thereon. As such the assessee before us has not justified, based on any documentary evidence, that he was under the obligation to incur the expense after the date of the transfer of the property. Accordingly, the bills raised upon the assessee after the date of 18th April 2013 are not eligible for deduction land. The total of these bills comes to Rs. 15,69,400/-. The same is disallowed. Hence the ground of appeal of the assessee is partly allowed,” the Tribunal said.
Subscribe Taxscan Premium to view the JudgmentThe Gujarat High Court has granted Bail to two dealers who wrongly availed input tax credit (ITC) and also passed it on to the concerned buyer which is an offence punishable under Section 132(1)(b) of the Central Goods & Service Tax (CGST) Act.
The Court considered the submissions of the appellants, Akshay Dinesh Patel and Darshan Dinesh Patel that they were in jail since 23.12.2019 and that for the alleged transaction, it was always open for the respondent department to take departmental action for recovery of penalty against the applicant. The applicants also expressed that they were ready and willing to deposit Rs.25 lakh before the respondent within a period of 8 weeks from the date of his actual release. Furthermore, It was also submitted that the applicant will cooperate with the respondent department during the course of further investigation.
Justice Vipul M. Pancholi, while granting bail held, “ The applicant is ordered to be released on regular bail input tax credit on executing a personal bond of Rs.10,000/ (Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions.“
Subscribe Taxscan Premium to view the JudgmentWhile elaborating the Income Tax Appellate Tribunal’s (ITAT) powers under section 254(2) of the Income Tax Act, 1961, the Mumbai bench of the Tribunal has held that such powers cannot be invoked in cases where the decision was rendered on a debatable issue.
According to the two-judge bench, the Tribunal cannot re-adjudicate such matters for the reason that a decision on a debatable issue does not form a “mistake apparent from the record” for the purpose of the said provision.
While passing an order against the assessee, the AO brought the undisclosed income under the category of concealment of income since the assessee did not disclose the same in the return of income. However, the penalty was levied for furnishing of inaccurate particulars of income and therefore, penalty was liable to be quashed since the same was levied on an inappropriate charge.
The Assessee, during the appellate proceedings, contended that AO did not strike down the inappropriate portion in the penalty notice issued by him and therefore, the penalty was liable to be quashed in terms of binding judicial pronouncements.
On the second appeal, the Tribunal accepted the assesses contentions and deleted the penalty order.
Against the above Tribunal order, the department approached the Tribunal for rectification of its own Order wherein the bench observed that the review of the order is outside the ambit of Section 254(2) and the bench has passed a reasonable order which does not contain any mistake apparent from the record.
“It is well settled that a statutory authority cannot exercise the power of review unless such power is expressly conferred. There is no express power of review conferred on the Tribunal. Lastly, Hon’ble High Court of Calcutta in CIT V/s Bhagwati Developers P. Ltd. (261 ITR 658) observed that a mistake apparent from the record must be an obvious and patent mistake and not something which could be established by a long-drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point is not mistaken apparently from the record. A mistake apparent from the record is one for which no elaborate argument is required. It must be a glaring, obvious or self-evidenced mistake. If it is a mistake that requires to be established by the complicated process of investigation, argument or proof, it cannot be held to be mistake apparent from the record. A debatable issue does not come with the scope of provisions of Sec. 254(2). Respectfully following the ratio of these decisions, we are of the considered opinion that the pleas urged by the revenue are beyond the scope of Sec. 254(2) and therefore, we are not inclined to accept the same. Resultantly, the application stand rejected,” the Tribunal said.
Subscribe Taxscan Premium to view the JudgmentThe Customs Excise and Service Tax Appellate Tribunal (CESTAT), Bangalore has held that Service Tax Refund paid are not applicable to subsequent invoices issued as per the request of clients.
The appellant M/s TPI Advisory Services India is registered for providing Business Management & Consultancy Services. They had filed a refunds application on 28.03.2018 for the refund of Service Tax of Rs.17,84,952/- under Section 11B of Central Excise Act, 1944. In their refund claim, they informed that their clients did not accept the Service Tax invoices and as per the client’s request, the appellant had raised the Credit Notes and had paid the GST with fresh invoices raised subsequently and hence they filed this refund application. After verification and scrutiny of the refund claim, the Assistant Commissioner of Central of Tax, Bangalore rejected the refund claim of Rs.17,84,952/- for the reasons that the raising subsequent invoices under GST as per the request of the clients and claiming for the refund of Service Tax already paid under erstwhile Finance Act, 1994 is not under the purview of the law to consider for refund of Service Tax paid.
Aggrieved by the said order, the appellant filed an appeal before the Commissioner (A) who dismissed the appeal in favor of the department.
On appeal, the regional bench of Judicial Member S.S Garg upheld the order of the revenue and held, “. . . The fact of the case makes it clear that the appellant has issued subsequent invoices without any supplies under the GST regime which in itself is violation warranting rejection of the refund. The appellant has violated the provisions of the GST law by issuing an invoice without a supply of goods. . . . In view of my discussion above, I am of the considered view that there is no infirmity in the impugned order which is upheld by dismissing the appeal of the appellant. ”
Subscribe Taxscan Premium to view the JudgmentThe Union Cabinet, chaired by the Prime Minister, Shri Narendra Modi has approved the 22nd Law Commission of India for a period of three years from the date of publication of the Order of Constitution in the Official Gazette.
Benefits
The Government will have the benefit of recommendations from a specialized body on different aspects of law which are entrusted to the Commission for its study and recommendations, as per its terms of reference.
The Law Commission shall, on a reference made to it by the Central Government or suo-motu, undertake research in law and review of existing laws in India for making reforms therein and enacting new legislations. It shall also undertake studies and research for bringing reforms in the justice delivery systems for elimination of delay in procedures, speedy disposal of cases, reduction in the cost of litigation, etc.
The Law Commission of India shall, inter-alia: –
Before finalizing its recommendations, the Commission will consult the nodal Ministry/ Department (s) and such other stakeholders as the Commission may deem necessary for the purpose.
Background
The Law Commission of India is a non-statutory body constituted by the Government of India from time to time. The Commission was originally constituted in 1955 and is re-constituted every three years. The tenure of the twenty-first Law Commission of India was up to 31st August 2018.
The various Law Commission have been able to make an important contribution towards the progressive development and codification of Law of the country. The Law Commission has so far submitted 277 reports.
The 22nd Law Commission will be constituted for a period of three years from the date of publication of its Order in the Official Gazette. It will consist of:
