|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1386 Records
-
2024 (2) TMI 1386 - ITAT SURAT
Levy of penalty u/s 271(1)(c) - Estimation of income on bogus purchases - whether the penalty is proposed to be levied for 'Concealment of income' or 'Furnishing inaccurate particulars of income'? - HELD THAT:- It is admitted position that ultimately disallowance of restricted on estimation basis. It is settled law under the income tax proceedings that no penalty is leviable on the addition restricted on estimation basis. Similar view was taken by this combination in Yogendra Raj U Sanghvi . [2023 (10) TMI 1395 - ITAT SURAT] and in Nazar Impex [2022 (7) TMI 119 - ITAT SURAT].Thus, following the similar principle, the penalty levied u/s 271(1)(c) of the Act will not survive. Decided in favour of assessee.
-
2024 (2) TMI 1385 - KERALA HIGH COURT
Territorial jurisdiction of the court in a Writ Petition - lack of territorial jurisdiction of Kerela high Court - seeking direction to lift the attachment of his its Bank Account - HELD THAT:- The petitioner is an assessee within the jurisdiction of the 3rd respondent –AO, Ward No.I, Ootty. The petitioner is a resident of Nilgiris District in Tamilnadu. The petitioner has filed this writ petition invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India on the ground that the petitioner has Bank Account in Wayanad and, therefore, this Court has jurisdiction.
This Court would not have territorial jurisdiction on the basis of the fact that the petitioner's Bank account is in Wayanad, Kerala. The cause of action, if any, has arisen as a result of the assessment order in Ext.P1, against which the petitioner has filed appeal and stay petition.
Therefore, this writ petition is dismissed on the ground of lack of territorial jurisdiction of this Court.
-
2024 (2) TMI 1384 - ITAT MUMBAI
TDS u/s 195 - commission paid to foreign agent - assessee, after receiving export orders from the agents stationed outside the territory of India, exports its products outside India, for which services of agents, the assessee paid commission - assessee paid commission to those parties, who were the residents of country where the India had entered into DTAA - HELD THAT:- We note that there is no dispute that the services for which commission has given by assessee were rendered by non-resident agents outside India [i.e. for procuring export orders from customer outside India]. The payment to such non-resident agents are made outside India on account of sale percentage and that the non-resident does not have any geographical or Permanent Establishment in India.
As noted that Tax Treaty exists with the country of residents of nonresident, i.e, residents of non-resident, residents of Italy, France, Greece & Lebanon.
AR has drawn our attention to the order of this Tribunal in assessee’s own case for AY. 2010-11 and AY. 2012- 13 [2019 (5) TMI 2010 - ITAT MUMBAI] and brought to our notice that in those years, the Ld. CIT(A) had examined the agreements with the non-resident agents which disclosed that the foreign agents procured export order from foreign customers based on the price agreed by the assessee; and based on the export orders procured by the Agents, assessee fixed percentage of commission to the agent at the FOB value of the invoice and foreign currency after the fully payment has been received from the foreign customers.
Thus as noted that nature of services rendered by non-residents agent was for procuring export order of products of assessee and the payments made by assessee to them are in the nature of commission which was specifically mentioned in the agreement. In the light of the aforesaid facts/agreement between assessee and foreign agents for earlier years in assessee’s own case, on this issue Tribunal upheld the action of Ld. CIT(A) as held that commission earned by non-resident agent who carried on the business of selling Indian goods outside India cannot be said to have deemed to be income which has accrued or arise in India. Decided against revenue.
-
2024 (2) TMI 1383 - ITAT MUMBAI
TDS u/s 194LBC - payments made to the ‘Originator’ as Excess Interest Spread (EIS) - Appellant was established as a securitization trust/special purpose distinct entity engaged, inter alia, in acquisition of loan portfolio from the financial institutions (‘Originator’) - HELD THAT:- On perusal of the MRR Guidelines, we are of the view that in cases where the MRR commitment is met via any other permissible alternative, the originator cannot be regarded as an ‘Investor’ since the Originator does not hold any investment in the special purpose distinct vehicle/securitization trust.
In our view, an originator can also be ‘Investor’ provided such originator makes investment in the special purpose distinct vehicle/securitization Trust by subscribing to PTC or other securities/instruments. However, it is admitted that in the present case the Originator has neither subscribed to PTCs nor had made any other investment. MRR has been maintained via cash collateral and in the form of collateralising of excess receivables. Therefore, the decision of Vivriti Cibus [2023 (12) TMI 806 - ITAT MUMBAI] wherein Tribunal had deleted the demand raised upon the assessee u/s 201(1A) of the Act for non-compliance with the provision of Section 194LBC and held that Appellant was not under obligation to withhold tax from payment of EIS to the Originator. Assessee appeal allowed.
-
2024 (2) TMI 1382 - DELHI HIGH COURT
Validity of Assessment u/s 144C as exceeded the statutory limitation period - order passed evidently beyond the 30 day period as prescribed - HELD THAT:- As decided in LOUIS DREYFUS COMPANY INDIA PRIVATE LIMITED [2024 (3) TMI 62 - DELHI HIGH COURT] in terms of sub-section (13) of Section 144C of the Act, the AO is mandated to complete the assessment “in conformity with the directions” as framed by the DRP. That very provision commands the AO to complete the assessment within one month from the end of the month in which such a direction is received.
Undisputedly, the DRP had framed its directions in terms of the order dated 16 December 2021. A final order of assessment ultimately came to be framed on 26 March 2022 and thus evidently beyond the 30 day period as prescribed.
-
2024 (2) TMI 1381 - RAJASTHAN HIGH COURT
Validity of Revision proceedings u/s 263 - period of limitation - whether the period of limitation for passing u/s 263 has to be reckoned from the date of original assessment order or from the date of reassessment order? - HELD THAT:- As decided in Industrial Development Bank of India Ltd. [2023 (6) TMI 1047 - SUPREME COURT] once an Order of Assessment is re-opened, the previous order of assessment will be held to be set aside and the whole proceedings would start afresh but the same would not mean that even when the subject matter of re-assessment is distinct and different, the entire proceedings of assessment would be deemed to have been re-opened.
Meaning thereby, only in a case where the issues before the Commissioner at the time of exercising powers u/s 263 of the Act relate to the subject matter of re-assessment, the limitation would start from the date of Re-assessment Order. However, if the subject matter of the re-assessment is distinct and different, in that case the relevant date for the purpose of determination of period of limitation for exercising powers u/s 263 of the Act would be the date of the original Assessment Order.”
Thus for the purposes of exercising powers u/s 263 the period of limitation for passing the order has to be reckoned from the date of original assessment order and not from the date of reassessment order. Decided in favour of assessee.
-
2024 (2) TMI 1380 - KERALA HIGH COURT
Seeking grant of bail - Money Laundering - proceeds of crime - bail sought on medical grounds - Compliance with Section 45 of the Prevention of Money-Laundering Act, 2002 - the petitioner with deliberate intention tactfully layered the proceeds of crime to the third party entities as well as his educational trust, hiding the illicit origin without any economic rationale at the books of accounts of HCCPL - HELD THAT:- A careful perusal of the materials, including the statement of witnesses recorded under Section 50 of the Act and the other materials collected in the form of documents, prima facie shows complicity of the petitioner in the alleged offences. The conditions specified under Section 45 of the Act are mandatory while considering, the bail plea of the petitioner. This Court is required to be satisfied that there are reasonable grounds for believing that the petitioner is not guilty of such offence and he is not likely to commit any offence while on bail. As per Section 24 of the Act, in the case of a person charged with the offence of money-laundering under Section 3, the Authority/Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in moneylaundering.
The conditions enumerated in Section 45 of the Act are to be complied with even in respect of an application for bail under Section 439 Cr.PC in view of the overriding effect given to the Act over the other loss for the time being in force, under Section 71 of the Act.
The Bail Application stands dismissed.
-
2024 (2) TMI 1379 - DELHI HIGH COURT
Demand of bribe - Dismissal of application of the petitioner to summon relevant documents under Section 91 of Cr.P.C. - Relevance and necessity of documents for cross-examination - Stage of trial for invoking Section 91 Cr.P.C. - HELD THAT:- This Court notes that in the instant case, the petitioner herein had first moved an application under Section 91 of the Cr.P.C and vide order dated 17.12.2018 the application was allowed and relevant documents were to be supplied to the petitioner. After that vide order dated 15.04.2019, learned Trial Court had directed the CBI to accompany the petitioner to the concerned Court and mark the relevant documents required by the petitioner and to supply the same to him after applying for the certified copies of the same. Thereafter, again petitioner preferred a second application under Section 91 Cr.P.C seeking summoning of relevant documents to cross examine the complainant.
This court observes that establishing the necessity of presenting documents is sin qua non for the petitioners to facilitate the further adjudication of the case. In the instant case, the petitioner does not contend that specific documents, crucial for the prosecution's assertion of its case beyond reasonable doubt, have not been disclosed. Instead, the petitioner seeks reference to another case purportedly filed against the complainant. In the court's assessment, at this juncture when the Trial is at the stage of prosecution evidence, the petitioner has not successfully demonstrated to the satisfaction of this court why these documents are pertinent for examination at this stage.
This Court is of the opinion that right of the petitioner to move an appropriate application before the competent court to summon documents be reserved and the documents which the petitioner wishes to rely upon can be summoned at the stage of defence evidence in accordance with law. At this stage, this Court finds no ground to interfere with the impugned order dated 16.11.2019 passed by learned Special Judge, Rouse Avenue Court, New Delhi.
Petition dismissed.
-
2024 (2) TMI 1378 - ITAT BANGALORE
Deduction u/s 80P - interest income earned from Scheduled Banks and Co-operative Banks - HELD THAT:- On identical facts, the Bangalore Bench of the Tribunal in the case of Canara Bank Staff Credit Co-operative Societies Ltd [2023 (10) TMI 1350 - ITAT BANGALORE] had restored the matter to the AO to examine whether the amounts invested with the Co-operative Banks are out of compulsion under the Karnataka Co-operative Societies Act and the relevant Rules. It was further held by the Tribunal that if the investments are out of compulsion under the Act and the relevant Rules, the interest income received out of the investment made under such compulsion would be liable to be taxed as ‘income from business’ which would entail the benefit of deduction under section 80P(2)(a)(i) of the Act.
In the event it is found that assessee is not entitled to get the benefit under section 80P(2)(a)(i) of the Act, the AO shall also examine whether it is entitled to deduction u/s 80P(2)(d) of the Act in light of the recent judgment of Kerala State Co-operative Agricultural Rural Development [2023 (9) TMI 761 - SUPREME COURT] - Appeal filed by the assessee is allowed for statistical purposes.
-
2024 (2) TMI 1377 - ITAT MUMBAI
TP adjustment on account of payment of fees for time and billing software - TPO held the payment made by the Assessee to its AE is unwarranted and treated the arm's length price (ALP) of the captioned international transaction at NIL - HE;D THAT:- Similar issue was considered by the coordinate bench in the case of assessee’s own case in the AY 2008-09 [2020 (8) TMI 172 - ITAT MUMBAI] as held TPO/AO has arrived at the ALP by not adopting any of the methods prescribed u/s 92C of the Act in respect of (i) payment of license fees for time and billing software, (ii) payment of regional administration and regional co-ordination cost allocation and (iii) payment of information technology cost allocation - we are of the considered view that the ratio laid down in Lever India Exports Ltd [2017 (2) TMI 120 - BOMBAY HIGH COURT], Merck Ltd. [2016 (8) TMI 561 - BOMBAY HIGH COURT] Johnson & Johnson Ltd.[2017 (3) TMI 1520 - BOMBAY HIGH COURT] and Kodak India Pvt .Ltd [2016 (7) TMI 677 - BOMBAY HIGH COURT] mentioned hereinabove is squarely applicable to the facts of the case. Therefore, following the same we are inclined to allow the grounds Nos. 1 and 3 raised by the assessee.
Provisions of regional coordination services - Comparability - assessee has benchmarked this transaction selecting Nine (9) comparables out of which Transfer Pricing Officer has selected four (4) comparables and rejected other comparables in particular Vatika Marketing Limited as this comparable has earned Income from reality Commission which is like broking income. Assessees do not have any such activity - HELD THAT:- As at the time of proceedings before Ld. DRP the assessee has filed annual reports of this comparable substantiating the reasons for selecting this comparable in their study. Since Ld. DRP has not considered the above submissions and not given a clear finding in this regard. In our considered view, this issue may be analysed afresh by the TPO - we remit this issue back to the file of TPO to consider the additional submissions/documents made by the assessee - Ground No. 2 is allowed for statistical purpose.
Short granting interest u/s 244A - HELD THAT:- We observe from the record that identical issue has been considered by the coordinate bench of this Tribunal in the case of M/s. Small Industries [2017 (9) TMI 1971 - ITAT MUMBAI] the issue raised by the assessee is allowed with the direction that the Assessing Officer may consider extending the benefit to the assessee upto the date of actual receipt of refund. Accordingly, Ground No. 5 raised by the assessee is allowed.
-
2024 (2) TMI 1376 - RAJASTHAN HIGH COURT
Prayer for stay against demand - second round of petition - order of demand has been stayed subject to depositing 10% of the demand - In the second round of writ petition, petitioner now submits that the authorities have again committed patent illegality and perversity and acted with arbitrariness in deciding the petitioner’s application.
HELD THAT:- When the petitioner approached this Court by filing a writ petition earlier, this Court found that there was no proper application of mind and the authority, treating itself to be bound by administrative instructions, abdicated its judicial functions while deciding the matter. That prompted this Court to direct the authorities to re-consider the matter. We have gone through the order which has been passed by the authority while considering and disposing off the prayer for stay. The order refers to the material on record, the case of the petitioner, submissions followed by the order with regard to stay of recovery of demand, subject to payment of 10% of the demand.
In our view, the authority having jurisdiction, has passed a brief order, keeping in view that it is only deciding the stay application and not the merits of the case. The argument of learned counsel for the petitioner that various figures and details which were given by him have not received consideration, does not merit acceptance. At this stage of consideration of stay application, the authority is not expected to go deep into the matter as if it is deciding the appeal finally. We find that the authority has not restricted the relief of 20% but has granted stay subject to deposit of only 10% of the demand. The demand is based on order of assessment. The matter is in appeal. It is a tax matter and a party cannot, as a right, claim that merely because he files an appeal, the demand should be stayed.
It is well settled legal position that while entertaining a writ petition, the writ Court would not reassess the material on record and record its own findings of fact in substitution of what has been recorded. Further, if it is a case arising out of an order on stay application, the scope of judicial review is further restricted. It is not a case where the stay application has been decided without hearing the petitioner.
In the absence of there being any procedural impropriety affecting the order on stay application, we are not inclined to interfere with the order. The grievance that in some other case absolute stay was granted, cannot be accepted. No parity could be claimed in the matter of stay. Every case has its own facts and circumstances.
The petitioner’s claim that even before deciding the stay application, the case ought to be mandatorily referred to High Pitched Scrutiny Assessment Committee, does not impress us. It is always open for the appellate authority to take recourse to the procedure as embodied in circular dated 23.04.2022 and at appropriate stage the step of referring the matter to the High Pitched Scrutiny Assessment Committee could be taken by the appellate authority. We would not say any further on this aspect as the authority is yet to take decision on the merits of the appeal.
-
2024 (2) TMI 1375 - CESTAT HYDERABAD
GST regime - Goods for manufacture and export - export obligation - Whether vide impugned Order-in-Appeal the Commissioner (Appeals) have rightly rejected the refund of CVD + SAD paid for regularisation of Advance License (Import License), which have been deposited after 01.07.2017 in relation to imports prior to 01.07.2017 - HELD THAT:- We find that the payment of CVD and SAD subsequently during the GST regime, for the imports made under advance authorisation prior to 30.06.2017 is not disputed. It is also not disputed that the Appellant have paid the CVD and SAD during the period August 2018 to March 2019, by way of regularisation of the shortfall in fulfilment of export obligation. We find that Section 142(3) read with 142(5) of the GST act, provides that every claim for refund by any person before, on or after the appointed day, for refund of any amount of Cenvat credit/duty/tax/interest or any other amount paid under the existing law, shall be disposed of in accordance with the provisions of the existing law and any amount eventually accruing to him, shall be paid in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provision of sub-section (2) of section 11B of the Central Excise Act (unjust enrichment).
Further from a conjoint reading of subsection (3) (5) and (8A) of Section 142 of the CGST Act it is evident than that an assessee is entitled to claim refund of CVD and SAD paid after the appointed day, under the existing law, and such claim has to be disposed of according to the provisions of the existing law. As the Appellant was admittedly entitled to Cenvat credit of the said amount of Rs. 3,28,75,733/-, which is now no longer available due to implementation of GST regime, it is held that they are entitled to refund of the said amount.
Thus, we allow this appeal and set aside the impugned order. Appeal allowed
-
2024 (2) TMI 1374 - ITAT RAIPUR
Condonation of delay - delay of 39 days days in filling appeal before ITAT - scope of "sufficient cause" for delay - HELD THAT:- In the present case, the delay of 39 days cannot be simply condoned on the basis of the unsubstantiated claim of the assessee. In fact, the conduct of the assessee before the A.O and the CIT(Appeals) clearly evidences his disregard for the process of law, which, we find, he had carried forward before me by preferring the appeal beyond a period of 39 days after the lapse of the stipulated time period.
Also, as observed in the case of Ramlal, Motilal and Chotelal Vs. Rewa Coalfields Ltd. [1961 (5) TMI 54 - SUPREME COURT] that seeker of justice must come with clean hands, therefore, now when in the present appeals the assessee appellant had failed to come forth with any good and sufficient reason that would justify condonation of the delay involved in preferring the captioned appeal, therefore, decline to condone the delay of 39 days and, thus, without adverting to the merits of the case dismiss appeal of the assessee as barred by limitation. Assessee appeal dismissed.
-
2024 (2) TMI 1373 - BOMBAY HIGH COURT
Disallowing adjustment u/s 143(1)(a)(iv) r.w.s. 36(1)(va) - delayed remittance of employees' contributions to Employee State Insurance (ESI) and Provident Fund (PF) - ITAT as relying on decision of the Hon'ble Supreme Court in Checkmate Services Pvt. Ltd. [2022 (10) TMI 617 - SUPREME COURT] held that based upon such delayed deposits, no adjustments or deductions could be claimed - assessee submitted that Checkmate Services Pvt. Ltd. (Supra) was a matter where the assessment was made u/s 143(3) of the IT Act and not under Section 143(1)(a) as in the present case.
HELD THAT:- The fact that the assessment order in Checkmate Services Pvt. Ltd. (supra) was incidentally under Section 143(3) and the assessment order in the present case is under Section 143(1)(a) of the IT Act, makes no difference to the principle involved in this matter. The ITAT decision does not discuss why this circumstance constitutes a distinguishing feature based on which the ratio of Checkmate Services Pvt. Ltd. (supra) could be departed from.
Checkmate Services Pvt. Ltd. (Supra) holds that the deductions can be claimed or adjustments can be made under section 141(1)(a)(iv), read with Section 36(1)(va) only when the employer deposits the contributions in the employees' accounts on or before the due date prescribed under the Employees Provident Fund /Employees State Insurance Act. In this case, admittedly, the contributions were deposited in the employees' accounts beyond the due date. The circumstance that the assessment order was made under Section 143(1)(a) of the IT Act can make no difference - Decided against assessee.
-
2024 (2) TMI 1372 - ITAT DELHI
Income taxable in India or not - taxability of the salary paid by the Indian company to a non-resident - incomes deemed to accrue or arise in India as assessee is a non-resident - HELD THAT:- As per the provision of Section 9 (1)(ii), the income earned under head “Salaries” is taxable in India “if it is earned” in India. The explanation issued for removal of doubts declares that ‘salaries if it is earned’ meets services rendered in India.
In the instant case the assessee neither had any rest period nor leave period which is preceded and succeeded by the services rendered outside India. Since, the assessee has rendered services outside India, the salary cannot be taxable in India.
As per the definition the salary paid or the advances received are to be included in the total income of the person when the salary becomes due.
From the concurrent reading of Section 5 dealing with scope of total income, Section 15 dealing with computation of total income under the head salary and chargeability thereof and Section 9 dealing with income arising or accruing in India with reference to the salaries and the services rendered in India, we hold that no taxability arises on the salary/allowances received by the assessee since the assessee is a non-resident and has rendered services outside India. Decided in favour of assessee.
-
2024 (2) TMI 1371 - ITAT DELHI
Income deemed to accrue or arise in India - Taxability of income in India - salary income earned by the assessee for services rendered in Ireland - assessee being non-resident and covered under Article 15(1) of India - Ireland DTAA - HELD THAT:- Despite the submissions and evidence on record, AO erred in incorrectly holding that the Assessee was based in India and that the salary was taxable in India, where infact the salary was earned from BA PLC, Ireland and the services were rendered outside India.
DRP after perusing the documents submitted by the Assessee erroneously noted that there is a failure on the part of Assessee to provide agreement between Irish and Indian entity. Evidently, the ld. DRP failed to appreciate certificate / letter of reimbursement issued by BA PLC, Ireland substantiates the assessee's submission that during the impugned Assessment Year, the assessee was employed with BA PLC. Ireland and was paid salary in India merely for administrative convenience.
Salary income of the Assessee was not exigible in India under Article 15 of the DTAA - AO was not correct in not granting relief under Article 15 of the DTAA and disregarding that income is accrued where employment is exercised. As per the Article 15 of the DTAA between India and Netherlands, the income earned by the person is exempt from tax if following conditions are satisfied - If the person has not stayed for more than 183 days in India, and If the employment is exercised outside India.
In the present case, both the conditions prescribed in the Article 15 are satisfied. The first condition has not been disputed by the Assessing Officer, whereas the second condition has been justified by various evidences furnished by the assessee. The Assessing Officer himself in para 7 of the Assessment Order has accepted that the services were rendered outside India.
Therefore, it is hereby held that the assessee was a residing and exercising employment in Ireland under the complete control of BA PLC, Ireland for the impugned Assessment Year. Further, the salary was also borne by BA PLC, Ireland. Thus, the salary of the assessee derived from BA PLC, India on behalf of BA PLC, Ireland are duly considered exempt from tax in India.
Salary income earned by the assessee for services rendered in Ireland cannot be said to be deemed to accrue or arise in India under section 9 of the Act - if the services are rendered outside India, for which salary has been paid, then the income cannot be said to accrue or arise in India.
The contention of AO that the assessee rendered services from India in incorrect in light of the tax residency certificate for Ireland. The assessee for the year under consideration was a tax resident of Ireland - since the employment was not exercised in India, such income cannot be held to be taxable in India and hence, the addition made by the AO on this issue is hereby directed to be deleted. - Decided in favour of assessee.
-
2024 (2) TMI 1370 - MADHYA PRADESH HIGH COURT
Application u/s 197 for issuance of a Lower Deduction of Tax Certificate - bone of contention of petitioner is that the petitioner intended to submit an online document dated 1st April, 2023 and said document was not loaded because message was too large - Criticism is founded upon Rule 28-AA of the Income Tax Rules - HELD THAT:- Delhi High Court in the case of Cloudtail India Private Limited [2021 (8) TMI 1408 - DELHI HIGH COURT] opined that Rule 28AA is a statutory and mandatory provision. The revenue is under a statutory obligation to act in accordance with the mandate of Rule 28-AA. Even otherwise, this is trite that if a statute prescribes a thing to be done in a particular manner, it has to be done in the same manner and other methods are forbidden. [See : Baru Ram v. Prasanni [1958 (9) TMI 85 - SUPREME COURT], Dhanajaya Reddy v. State of Karnataka [2001 (3) TMI 1020 - SUPREME COURT] and judgment of this Court [2011 (2) TMI 1628 - MADHYA PRADESH HIGH COURT] Satyanjay Tripathi v. Banarsi Devi].
A plain reading of Rule 28-AA makes it clear that the 'satisfaction' needs to be recorded/determined by A.O. after taking into consideration the four factors mentioned in sub-rule (2) of Rule 28-AA. Thus, it is not the subjective satisfaction of A.O., but an objective satisfaction which must be based on Clauses (i), (ii), (iii) and (iv) of sub-rule (2) of Rule 28-AA.
If impugned order Annexure P-5 and more particularly Annexure P-7 is examined, it shows that all those four factors have not been taken into account. Pertinently, the factum of receiving Annexure P-3 and P-8 is not in dispute in the instant case.
Since impugned orders are passed in clear violation of Rule 28-AA, we are constrained to hold that decision making process adopted by the respondents runs contrary to the requirement of law, i.e. Rule 28-AA.
The scope of judicial review in a writ petition is limited. Ordinarily, the Court is not obliged to examine the correctness of the decision. Instead, the Court is obliged to examine the correctness of the decision making process. At the cost of repetition, in our opinion, the decision making process is faulty and impugned order Annexure P-5 and P-7 are passed without considering the relevant factors ingrained in Clause (i), (ii), (iii) and (iv) of sub-rule (2) of Rule 28-AA.
Resultantly, both the impugned orders Annexure P-5 and P-7 are set aside. The matter is remitted back to respondent No. 2, who shall consider the claim of petitioner in accordance with law and pass a fresh detailed/speaking order thereupon within 30 days from the date of communication of this order.
-
2024 (2) TMI 1369 - SC ORDER
Maintainability of petition - High Court held that Since the petitioner has a forum of appeal available before the CESTAT, the present writ petition is rejected, reserving the right of the petitioner to avail the remedy of appeal - HELD THAT:- There are no reason to interfere with the impugned judgment passed by the High Court. Hence, the Special Leave Petition is dismissed.
-
2024 (2) TMI 1368 - BOMBAY HIGH COURT
Maintainability of appeal - time limitation - Since the Tribunal under Section 112 of the CGST Act, before whom an Appeal would lie against the said Order, has not been constituted, the Petitioner has filed the present Petition - HELD THAT:- The contents of the letter dated 9th September 2022 clearly show that the Petitioner had not received the Order dated 31st March 2022 on 4th April 2022 or on any other date prior to 9th September 2022. By the said letter dated 9th September 2022, the Petitioner has clearly recorded that, despite the earlier Order dated 14th March 2022 of this Court directing the Respondents to decide the issue of cancellation of CGST registration of the Petitioner within four weeks from the date of appearance, and despite the Petitioner appearing on 22nd March 2022, even after a lapse of more than five months, the directions of this Court had not been obeyed and an Order had not been passed - the contents of this letter clearly show that the Petitioner had not received the said Order dated 31st March 2022 by e-mail on 4th April 2022, as contended by the Respondents.
It is an admitted position that the Petitioner had filed the Appeal on 20th December 2022. Since, the Petitioner had filed the Appeal within a period of three months from the date of communication of the said Order on 20th September 2022, by virtue of the provisions of Section 107(1) of the CGST Act, the Appeal filed by the Petitioner is within limitation.
The impugned Order dated 25th October 2023, which holds that the Appeal of the Petitioner is barred by limitation, will have to be set aside, and Respondent No. 2 will have to be directed to decide the Appeal of the Petitioner on merits - Petitioner’s Appeal is restored.
-
2024 (2) TMI 1367 - DELHI HIGH COURT
Seizure of cash by respondent no. 2 from the residential premises and office of the petitioner - HELD THAT:- Reference may be had to the judgment of this Court in M/S K.M. FOOD INFRASTRUCTURE PVT LTD THROUGH ITS DIRECTOR MUKESH KAPOOR AND MUKESH KAPOOR AND OTHERS VERSUS THE DIRECTOR GENERAL DGGI HEADQUARTERS, NEW DELHI & ANR. [2024 (2) TMI 762 - DELHI HIGH COURT] wherein in similar circumstances this Court while interpreting provision of Section 67 of the Central Goods and Services Tax Act 2017 has held that ‘cash’ is clearly excluded from the definition of the term ‘goods’ and would fall with the definition of ‘money’ as defined in Section 2 (75) of the Act. This Court has further held that since cash is not goods, it could not have been seized under the provision of the Act, as seizure is limited to the goods liable for confiscation.
The ratio of the said judgment squarely applied to the facts of the present case. Accordingly, there is no justification for resumption of cash and its continued retention by the respondents.
Accordingly, the petition is allowed and respondents are directed to forfeit/remit the said cash seized from the premises of the petitioner to the petitioner along with interest.
........
|
