Case Law Details
Lehman Brothers Securities Pvt. Ltd. Vs Commissioner of Central Tax, Central Excise & Service Tax (CESTAT Mumbai)
Merely because the appellant is still registered under the Companies Act and has not get the said registration cancelled does not mean that they are carrying out business activity. It is nowhere the case of the Revenue that the appellant is indulged into any activity relating to its business after the year 2008. The learned Commissioner has specifically recorded in the impugned order that there is no dispute that the appellant have stopped their business activity and are in the process of winding up. But Still an apprehension has been recorded by the learned Commissioner that the appellant ‘can’ carry out activity related to their business as they have not surrendered their registration under the Companies Act, 1956 and therefore they fall under the preview of definition of ‘business entity’. In my view the said apprehension of the learned Commissioner is totally unfounded as neither any document has been placed on record to show that the appellant indulged in any business activity during last so many years nor it is mentioned in the Show Cause Notice or in any of the case records that the appellant had earned any profit from their business activity during these years. The appellant cannot be saddled with any tax liability only on the basis of apprehension. It is the case of the appellant, which has not been denied anywhere by revenue, that they have discharged their employees also at the time of closure of business. Profit or motive for profit is a pre-condition for application of section 65B(17) ibid, which I am unable to gather from the facts of this case. So far as the submission of learned Authorised Representative that after so many years of winding up or/ closure of business the appellant are availing legal consultancy services which raises suspicion, is concerned the same is also without any basis as no evidence has been placed on record by the department to substantiate it nor it is the case of the department anywhere in the show cause notice or before the authorities below. The decisions cited by learned Counsel also supports the case of the appellant.
In view of the discussions made herein above, I am of the considered view that the impugned order is liable to be set aside.
FULL TEXT OF THE CESTAT MUMBAI ORDER
This appeal has been filed impugning the Order-in-Appeal No. MKK/11/RGDAPP/2018-19 dated 06/07/2018 passed by the Commissioner of Central Tax, Raigad(Appeals) by which learned Commissioner rejected the appeal filed by the appellant and upheld order of the Adjudicating Authority.
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