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Showing 21 to 40 of 1390 Records
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2023 (10) TMI 1370 - CHHATTISGARH HIGH COURT
Seeking grant of bail - opening bank account in the name of the villagers by using documents given by the villagers and forging their signatures - money deposited in such bank accounts was channelized as share capital in M/s. Prime Ispat Limited through shell companies - application is a lady suffering from various ailments - twin requirement of Section 45 of PMLA satisfied or not - HELD THAT:- It is not in dispute that the FIR was registered on 19.02.2010 whereas the respondent filed a complaint arraying the applicant as accused in ECIR on 04.01.2021 i.e. after 10 years. From the summons issued to the applicant, it is quite vivid that she was permitted to appear through an authorized person and it cannot be said that she did not cooperate in the investigation. According to the proviso appended to Section 45 of the PMLA Act, a woman suffering from certain ailments may be granted anticipatory bail.
The decision cited by learned counsel for the respondent states the twin conditions of Section 45 of the PMLA Act are to be satisfied but at the same time, the judgment passed by the Hon'ble Supreme Court in the matter of SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION & ANR. [2022 (8) TMI 152 - SUPREME COURT] cannot be lost sight of as the applicant is a lady suffering from various ailments and she cooperated in the investigation of the matter and other co-accused persons against whom similar allegations were made, have already been granted anticipatory bail by the Hon'ble Supreme Court and by this Court, therefore, in opinion of this Court, the present is a fit case to extend the benefit under Section 438 of Cr.P.C. to the applicant.
It is directed that in the event of arrest of the applicant in connection with the aforesaid offence, she shall be released on anticipatory bail on her furnishing a personal bond for a sum of Rs. 50,000/- with one surety in the like sum to the satisfaction of the arresting officer and she shall abide by the conditions imposed - bail application allowed.
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2023 (10) TMI 1369 - BOMBAY HIGH COURT
Grant of bail - diversion of funds or not - accusation is that the applicant defrauded the bank by declaring false value of stock offered as collateral - bail sought on medical grounds - Section 447 of the Companies Act, 2013 - HELD THAT:- The Forensic Audit Report which SFIO is relying upon indicates that JACPL has faced genuine business losses and that there is no financial irregularities. It appears that there is no independent stock audit done by SFIO. The SFIO has arrived at value of the stock based on the statement of the store keepers and there are some substance in the contention of learned senior advocate for the applicant that SFIO did not carry out any independent forensic analysis relating to valuation of the stock.
So far as the accusation that Rs. 550 crores have gone to ‘Jagat Overseas’ from the account of the company which amounts to siphoning is concerned, it appears that in the financial year 2014-2015 Rs. 522.60 crores were transferred from ‘Jagat Overseas’ account to the account of JACPL and Rs. 552.41 crores was received back from JACPL to ‘Jagat Overseas’. Prima facie, this may be a transaction squaring up of the amount credited and debited. In prima facie opinion, there is a reasonable ground to believe that the offence punishable under Section 447 of the said Act may not be attracted in the present case.
The applicant is 63 years of age. It is thus seen that the applicant needs constant medical treatment. No doubt the same is available and provided to the applicant at Sir J. J. Hospital and in prison hospital. However, there are no hesitation in opining that the applicant needs constant medical attention considering his age and ailment. The age and medical condition of the applicant is one of the circumstance which is taken into consideration for enlarging the applicant on bail.
Though it is stated that the applicant is willing to furnish a surety having valuation of upto Rs. 5 crores for the purpose of releasing him on bail, on behalf of the applicant, learned counsel on instructions of the applicant through his son who is personally present in the Court submitted that a sum of Rs. 5 crores will be deposited with the Special Court by way of Fixed Deposit in the name of the concerned Registrar/ Superintendent of the Special Court within a period of two months from the date of the applicant’s enlargement on bail. The statement is accepted as an undertaking to this Court. The affidavit to that effect be filed by the applicant in this Court before his release. Registry to accept. The said deposit will abide by the orders passed by the Special Court.
The applicant is in custody for more than 18 months with no possibility of the trial concluding any time soon. The investigation is complete. The charge-sheet has been filed. There are no criminal antecedents reported against the applicant. The applicant does not appear to be a flight risk. Further incarceration will only be by way of a pre-trial punishment.
The applicant- Sant Lal Aggarwal shall be released on bail on his furnishing P.R. Bond of Rs. 1,00,000/- with one or more local sureties in the like amount and subject to fulfilment of conditions imposed.
Bail application allowed.
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2023 (10) TMI 1368 - GUJARAT HIGH COURT
Classification of supply - supply of services - lease, tenency or easement, license to occupy land - HELD THAT:- Issue Notice returnable on 07.12.2023.
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2023 (10) TMI 1367 - SUPREME COURT
Seeking cancellation of Regular Bail granted - gross misuse of concession of bail - sufficient material gathered by the prosecution to indicate the involvement of Respondent No. 1 in a criminal conspiracy hatched for killing his wife or not - HELD THAT:- The unusual and surprising events that have happened post the grant of bail to Respondent No.1, do make out a case for recalling the witnesses for an effective, fair, and free adjudication of the trial. This Court is vested with vast and ample powers to have such recourse not only under Article 142 of the Constitution but also under Section 311 of the Code of Criminal Procedure, 1973, be it on the request of the prosecution or suo moto. Such Constitutional or statutory power is not limited by any barriers like the stage of inquiry, trial, or other proceeding. A person can be called and examined though not summoned as a witness, or can be recalled, or reexamined so as to throw light upon the imputations. Section 311 CrPC, of course, does not intend to fill the lacunae in the prosecution’s case and cause any serious prejudice to the rights of an accused. The exercise of power under this provision is intended to meet the ends of justice and to gather overwhelming evidence to scoop out the truth.
In the case at hand, the family members of the Deceased are the most crucial witnesses to test the veracity of the allegations levelled by the prosecution. Their stand in the examinationinchief is diametrically opposite to the one in the cross- examination. The fact that the parents and sister of the Deceased have resiled from their earlier standpoint where they had been found to be agitating vigorously before different forums since the year 2019, implores us to invoke our Constitutional powers under Article 142 read with Section 311 CrPC and direct their recalling for a fresh crossexamination after ensuring a congenial environment, free from any kind of threat, psychological fear, or any inducement.
This is a case fit for recalling the witnesses (PW1, PW4 and PW5) for their further crossexamination to reach an effective decision in the subject trial.
The impugned order dated 12.08.2020 is set aside and the bail granted to Respondent No. 1 is hereby cancelled - Appeal allowed.
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2023 (10) TMI 1366 - ITAT AHMEDABAD
Addition u/s 68 - cash deposit in the bank account - rejecting the book of accounts - AO estimated the GP after reducing the amount of cash deposit from turnover - assessee during the demonetization period made cash deposit in the bank account - assessee submitted that cash has been deposited out of sale proceeds which were duly recorded in the books of accounts which were duly audited by the independent auditor, supported by the bills and voucher, purchases and stock register, cash book, bank book etc.
HELD THAT:- We find that the assessee has maintained proper books of account and furnished details as required by the A.O. except the details of the stock in the desired format. The details submitted by the assessee include audited financial statement, details of the purchases, gold stock summery and other information about the sales, GP of different years which are available in the paper book filed before us. In these documentary evidence no defect was pointed out by the AO except non-maintenance of stock register in the desired format. Therefore, without bringing any corroborative material on record suggesting specific defect in the books of account the book result cannot be rejected merely for not providing certain detail which the AO requires to verify. See AWADHESH PRATAP SINGH ABDUL REHMAN AND BROTHERS [1993 (12) TMI 28 - ALLAHABAD HIGH COURT]
AO after rejecting the books accounts has proceeded to treat the cash sales as unexplained cash credit u/s 68 of the Act on various grounds. AO has relied upon the same set of data/figures as shown by the assessee for treating the cash deposit as unexplained cash credit u/s 68 of the Act.
There was no iota of doubt on the genuineness of the other income and the expenses was brought on record by the assessee. To our mind, once the books of accounts have been rejected, the AO has to estimate the profit and he has no right to make any individual addition or deletion to the total income of the assessee. However, in the case on hand, the AO has not done so. See HYNOUP FOOD & OIL INDUSTRIES (P.) LTD. [1992 (2) TMI 111 - ITAT AHMEDABAD-A]
Therefore, we hold that the book result shown by the assessee in the given facts and circumstances has to be accepted. Accordingly, we set aside the finding of the learned CIT-A and direct the AO to delete the addition made by him. Decided in favour of assessee.
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2023 (10) TMI 1365 - ITAT MUMBAI
Deduction u/s 80P - interest received by the assessee from cooperative banks - HELD THAT:- Assessee is a cooperative society more precisely a housing society and not a cooperative bank therefore the provision section 80P (4) does not apply to assessee and therefore assessee is eligible for deduction u/s 80 P (2) of the Act. Assessee has invested in saraswat Cooperative bank, shamrao Vithal cooperative bank and Maharashtra District cooperative bank limited.
There is no doubt that assessee is not a cooperative bank. Section 80P (4) denies deduction to cooperative banks only.
Now this view is upheld by the honourable supreme court in case of Kerala State Co-Operative Agricultural & Rural Development Bank Ltd [22023 (9) TMI 761 - SUPREME COURT] In view of this, we direct the ld AO to allow deduction to assessee cooperative housing society deduction on interest income. We reverse the order of the ld CIT (A) and allow solitary issue in appeal.
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2023 (10) TMI 1364 - GAUHATI HIGH COURT
Maintainability of an intra-Court appeal against an order passed in a criminal matter by Hon'ble Single Judge of this Court under Article 226 of the Constitution of India - HELD THAT:- An intra-Court writ appeal does not lie against an order/ judgment passed by the learned Single Bench in exercise of the criminal writ jurisdiction under Article 226 of the Constitution of India. As the Gauhati High Court Rules are silent on this issue, the anomaly shall forthwith be clarified with appropriate insertion in the Rules clarifying the position that no intra- Court appeal lies against an order/judgment passed by the learned Single Bench in exercise of the criminal writ jurisdiction.
The intra-Court writ appeal preferred by the appellant herein against the judgment passed by the learned Single Judge is hereby dismissed as being not maintainable.
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2023 (10) TMI 1363 - CESTAT MUMBAI
Levy of Service tax on the corporate guarantee given to the subsidiaries by the appellants - banking and other financial services - demand confirmed on the basis of the calculation of notional income made by the appellants as per the requirements under the Transfer Pricing under the Income Tax Act, 1961 - Income Tax department had charged guarantee commission as arm’s length commission on the issuance of corporate guarantee to overseas companies - HELD THAT:- The assessment order passed by the Income Tax Officer was appealed against before the learned Commissioner of Income-Tax (Appeals), Mumbai, which was allowed in favour of the appellants, with direction to the assessing officer to delete the addition, holding that no guarantee fee was actually charged on the loans concerned. Further, it is also found that the appellants did not charge any consideration for providing the corporate guarantees. Insofar as levy of service tax is concerned, the same should be on the amount of consideration received for provision of such service. In the present case, since there is no involvement of any commission amount in the form of consideration, the appellants cannot be saddled with the service tax liability as demanded in the impugned order
There are no merits in the impugned order, insofar as it has confirmed the adjudged demands on the appellants - appeal allowed in favour of appellant.
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2023 (10) TMI 1362 - KARNATAKA HIGH COURT
Disallowances u/s 40A(2) - service charges paid to own holding company - HELD THAT:- AO has recorded that assessee company is ‘unduly benefitting’ the holding company and derives the legitimate profits of the company through a colorable device termed as service agreement.
AO has clearly made no efforts to demonstrate as to why payment made is excessive and unreasonable having regard to the market value of the services for which such payment was made. Thus, the disallowance made under Section 40A(2) of the Act is based on surmises and hence, unsustainable.
ITAT has rightly held that the AO has not doubted the payment nor held the payment as excessive even though in terms of Section 40A (2) only ‘legitimate needs of the business’ is allowable as expenditure. Thus there is no material on record to support AO’s opinion. Therefore, we find no error in the order passed by the ITAT. Decided in favour of the assessee
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2023 (10) TMI 1361 - ITAT MUMBAI
Addition made u/s 14A and 115JB - Expenditure incurred on earning exempt income - HELD THAT:- We notice that the CIT(A) has followed the decision rendered in the case of Caraf Builders and Constructions P Ltd [2018 (12) TMI 410 - DELHI HIGH COURT] in holding that the disallowance u/s 14A should not exceed exempt income.
Addition to be made under clause (f) of Explanation given under sec. 115JB of the Act for computing book profit - Delhi Special Bench of ITAT in VIREET INVESTMENT (P.) LTD. [2017 (6) TMI 1124 - ITAT DELHI] has held that the disallowance computed u/s 14A of the Act cannot be imported into sec. 115JB of the Act. Thus, we notice that both the decisions rendered by Ld CIT(A) is backed by judicial orders of higher forums. The revenue did not show any contrary decision before us. Accordingly, we uphold the order passed by Ld CIT(A) on both these issues.
Contention of the assessee that the “average value of investments” to be computed for the purpose of Rule 8D should be computed by considering only those investments, which have yielded dividend income - The above said contention finds support from the decision of Vireet Investments P Ltd [2017 (6) TMI 1124 - ITAT DELHI] - Accordingly, we direct the AO to compute average value of investments by considering only those investments, which have yielded dividend income and then compute the disallowance under Rule 8D.
One more principle to be followed is that, if the own funds available with the assessee exceeds the value of investments, then no disallowance of interest expenditure is called for u/r 8D(2)(ii) of I T Rules. If the disallowance so computed by applying above said principles works out to be lower than the value of exempt income, then the disallowance u/s 14A should be restricted to the lower amount so computed.
Appeal of the revenue is dismissed and the cross objection filed by the assessee is allowed.
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2023 (10) TMI 1360 - ITAT RAIPUR
Validity of reopening of assessment - jurisdiction over the assessee for framing of assessment - need for the passing of an order u/s 127 - jurisdiction over the assessee vested with ITO OR ACIT-3(1), Raipur - As it is stated by the A.O that since the case of the assessee was transferred from one Range to another pursuant to order u/s 120 of the Act, therefore, there was no need for the passing of an order u/s 127 of the Act
HELD THAT:- On what basis the case of the assessee de-hors any order as per the mandate of Section 127 of the Act was initially transferred by the ITO, Ward-1(2), Raipur on 05/02/2014 to the DCIT, Circle-1(1), Raipur. At this stage, it would be relevant to observe that as per sub-section (3) of Section 127 of the Act, even in case there is a transfer of any case from any A.O or AOs (whether with or without concurrent jurisdiction) to any other A.O or AOs (whether with or without concurrent jurisdiction), the requirement of passing an order of transfer under the aforesaid statutory provision is required and the same cannot be dispensed with. I may further observe that the order of transfer of the assessee’s case by the ITO-Ward 1(2), Raipur to DCIT-Circle 1(1), Raipur on 05.02.104 was much prior to Notifications No. 1/2014-15, dated 15.11.2014 and Notification No. 1/2014-15, dated 15.11.2014, based on which jurisdiction over the case of the assessee was vested with the DCIT/ACIT-3(1), Raipur, as brought to our notice by the A.O.
As the assessment in the case of the assessee had been framed by the ACIT, Circle-3(1), Raipur, who in light of the CBDT Instruction No. 1/2011 (supra) r.w. CBDT Instruction No. 6/2011 (supra )was not vested with any jurisdiction for framing of assessment in the case of the assessee who had declared Nil income; therefore, the order so passed by him cannot be sustained and is liable to be struck down on the said count itself. Thus assessment quashed for want of valid assumption of jurisdiction by the A.O - Ground raised by the assessee is allowed .
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2023 (10) TMI 1359 - TELANGANA HIGH COURT
Rejection of revocation of cancelation of GST registration of the petitioner - HELD THAT:- Given submission by the learned counsel for the petitioner that petitioner is read to pay whatever is the late fee as per the Rules so far as the delayed submission of returns is concerned. Taking into consideration the judgment of the Hon'ble Delhi High Court in the case of Kritika Agarwal [2023 (7) TMI 1006 - DELHI HIGH COURT] two orders are set aside i.e., the impugned order of the appellate authority, dated 08.08.2023 and the order of cancellation of GST registration, dated 25.03.2023 and remit the matter back to the respondent No.3 to consider the request of the petitioner so far as restoration of registration is concerned.
It goes without saying that the petitioner would be required to pay whatever is the late fee under the Rules and Circulars governing the field so far as the delayed submission of returns is concerned. It is also made clear that since the case is remitted back to the respondent No.3, the question of the limitation should not come in the way of petitioner so far as approaching the respondent No.3 seeking for restoration of registration of GST is concerned.
The writ petition is allowed.
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2023 (10) TMI 1358 - ITAT MUMBAI
Validity of initiation of TP proceedings - resultant effect of omitted clause (i) of section 92BA with effect form 01/04/2017 - addition of specified domestic transaction by invoking provision of Clause (i) of Section 92BA as omitted from the Act - HELD THAT:- It is an undisputed fact that the reference to the ld. TPO with respect to specified domestic transaction was made under clause (i) of Section 92BA which was brought in the statute by the Finance Act 2012, however, has been omitted from the statute of the Finance Act 2017 w.e.f. 01/04/2017. The case of the assessee is that once omission has been made without the said clause, it is deemed that the said clause was never part of the Act wherein as the case of the department is that the omission was brought by the amendment by the Finance Act 2017 w.e.f. 01/04/2017.
Therefore, the reference at that point of time was valid. This issue has been discussed in the case of PCIT vs. Texport Overseas (P) Ltd. [2019 (12) TMI 1312 - KARNATAKA HIGH COURT] relying upon the judgment of Kolhapur Canesugar Works Ltd vs. Union of India [2000 (2) TMI 823 - SUPREME COURT] have held that once the statute has omitted clause (i) of Section 92BA by the Finance Act, 2017, the resultant fact is that it had never been enacted and to be considered as a law and it never existed. DR referred to various judgments of the Apex Court including the judgment of Hon’ble Supreme Court in the case of Shri Bhagwati Steel Rolling vs. Commissioner of Central Excise [2015 (11) TMI 1172 - SUPREME COURT]
This exact issue has been dealt in detail in the case of Yorkn Tech Pvt. Ltd., [2021 (8) TMI 1374 - ITAT DELHI] that once a provision in the statute has been omitted without any saving clause in the Act, then, it is treated that if provisions does not exist when such provisions are challenged before the Court and the aforesaid decision of the Tribunal, the ratio and principle laid down by the Constitutional Bench as well as subsequently, judgments referred by the ld. DR has been discussed in detail, therefore, following the same ratio we hold that in view of the exemption of Section 92BA(i) will lead to inference that in so far as any reference to the ld. TPO for SDT in Section 92BA(i) is invalid and no transfer pricing adjustment can be made on such SDT. Accordingly, the cross objection of the assessee is allowed and consequently, the appeal of the Revenue is dismissed.
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2023 (10) TMI 1357 - KERALA HIGH COURT
Validity of reassessment proceedings - denial of opportunity of being heard to the assessee contemplated under Section 148A(b) - HELD THAT:- Section 148A(b) begins with “provide an opportunity of being heard to the assessee”. Hearing does not mean filing reply to the show cause notice. If the provision of this Section contemplates opportunity of being heard that has to be construed as personal hearing. Therefore, we not find substance in the submission of learned Standing Counsel that an opportunity of being heard to the assessee contemplated under Section 148A(b) does not necessarily mean personal hearing. In our view, opportunity of being heard means an opportunity of personal hearing to the assessee.
Admittedly, no such opportunity of being heard was given to the petitioner before passing reopening order and issuing notice. Therefore, the same are set aside. The petitioner is directed to appear before the respondent on or before 27.10.2023 with all the relevant document in his possession of being heard.
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2023 (10) TMI 1356 - GUJARAT HIGH COURT
Dishonour of Cheque - It is the case of the present petitioner that when the impugned cheque is produced before learned trial court the petitioner denied signature on that cheque - HELD THAT:- The criminal appeal was filed in the year 2019 against the judgment of conviction made in Criminal Case No.2005 of 2018. The petitioner came out with an application on 6.3.2023 for seeking relief for the opinion of the forensic expert about signature on the disputed cheque. It is important to note that an application Exh.38 was unsuccessfully moved by the petitioner before the learned trial Court. The order was never carried to challenge before higher Court. Moreover, the learned Session Judge has noted that no questions are raised to the complainant nor to the defence witness about signature on the disputed cheque. Thus, what appears that the petitioner by way of filing application Exh.35 aimed to prolong the proceedings of the criminal appeal. The petitioner remained silent for three years for moving such application even in the proceedings of the criminal appeal. Thus, it appears that the petitioner was thoroughly careless and negligent and now, under the pretext of one or another application, is trying to prolong the proceedings of the criminal appeal.
Reply to statutory notice u/s 138(B) of the NI Act is first stage of prosecution where the accused can raise his defence. In the present case, learned advocate for the petitioner has failed to point out that the accused has raised defence at the relevant point of time when the opportunity was available and disputed that he has not signed the cheque.
Thus, no case is made out to interfere with the impugned order under supervisory jurisdiction. Hence, present petition fails and stands dismissed.
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2023 (10) TMI 1355 - ALLAHABAD HIGH COURT
Seeking to command the opposite parties to make payment of GST along with interest, on the value of work done for all contracts for which agreement were entered into with PWD/RED prior to 01.07.2017 - non-imposition of any penalty/charges/interest upon petitioner firm - HELD THAT:- Petitioner claims that Value Added Tax regime was changed to G.S.T. and he has deposited certain amount as tax. Earlier the work order against which the petitioner was working, he was entitled for payment of amount along with VAT/GST amount. Although, the VAT amount was paid to the petitioner but the GST amount was not paid, hence, the petitioner could not deposit the GST amount also with the Tax Department. Petitioner claims that he is entitled to the said GST amount from the respondents. He further claims that the work was performed for the respondent no.5/Executive Engineer, Rural Engineering Department, Hardoi, U.P. and respondent no. 6/Executive Engineer, Nirman Khand II, Public Works Department, Hardoi, U.P.
In the given facts and circumstances of the case, the petitioner is permitted to move a fresh representation before the respondent nos. 5 & 6 annexing therewith all the documents in support of his claim, within a period of one week from today.
The present writ petition is disposed of.
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2023 (10) TMI 1354 - DELHI HIGH COURT
Bar against direct demand on assessee u/s 205 - Withholding tax payable on salary - Adjustment of the withheld tax not been deposited by the deductor in the Central Government Account against the refund due and payable to the deductee/assessee - outstanding demand along with the accrued interest - HELD THAT:- As tax having been deducted at source by the employer cannot be recovered from the petitioner in view of the embargo placed by Section 205 of the Income Tax Act, 1961 [in short, “Act”].
This issue is covered by the judgment of Sanjay Sudan [2023 (2) TMI 1079 - DELHI HIGH COURT], thus demand for AYs 2012-13 and 2013-14 are quashed. Consequentially, the show-cause notice shall collapse.
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2023 (10) TMI 1353 - MADHYA PRADESH HIGH COURT
Reopening of assessment u/s 147 - applicability of the time frame provided in Section 149(1) - validity of order passed u/s. 148A(d) - as argued reassessment proceeding is based upon search conducted in October, 2014, thus the provisions of Section 148A are inapplicable in view of second proviso to Section 149
HELD THAT:- A bare perusal of second proviso to Section 149(1) of IT Act reveals that in cases where notice u/S.153A or Section 153C read with Section 153A is required to be issued in relation to a search conducted u/S.132 or books of account and other documents or any asset are requisitioned u/S.132A on or before 31.03.2021, the time frame prescribed by Section 149(1) of IT Act is inapplicable.
Thus, it is obvious that in cases of search as is the case at hand, there is no restriction of time period for issuance of notice u/S.148 of IT Act.
The object of second proviso to Section 149(1) of IT Act is to keep the cases pertaining to search conducted for reassessment outside the purviews of the time restriction prescribed in Section 149(1) of IT Act. Thus the second proviso to Section 149(1) of IT Act does not eclipse the power of Revenue to issue notice u/S. 148 of IT Act.
Restriction, if any, imposed by second proviso to Section 149(1) of IT Act, is to the applicability of the time frame provided in Section 149(1) of IT Act to cases inter alia pertaining to search - ground raised by petitioner by relying upon second proviso to Section 149(1) of IT Act is not tenable. Petition dismissed.
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2023 (10) TMI 1352 - BOMBAY HIGH COURT
Jurisdiction - power to issue SCN - HELD THAT:- The first order passed on the proceedings of IDEA CELLULLAR LTD., INGRAM MICRO INDIA PVT. LTD. GE T AND D INDIA LTD., S. KUSHALCHAND AND COMPANY, GLOBAL EXIM, JINESH T. VIKAM, CHANDRESH G. PATEL, VIJAY G. PATEL VERSUS THE UNION OF INDIA, ADDITIONAL DIRECTOR GENERAL, ADDITIONAL DIRECTOR, DIRECTORATE OF REVENUE INTELLIGENCE MUMBAI ZONAL UNIT AND ORS. [2023 (6) TMI 1302 - BOMBAY HIGH COURT], whereby this Court has noted that there is a Review Petition arising out of the decision of the Supreme Court in M/S CANON INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF CUSTOMS [2021 (3) TMI 384 - SUPREME COURT], which is pending before the Supreme Court. Also subsequent the amendment which was brought about by Finance Act 2022, was subject matter of challenge before the Supreme Court in the proceedings of Writ Petitions which are also pending.
As and by way of ad-interim relief, the impugned order is stated, however with liberty to the respondents to make an application for vacating of the said order in the event the respondents are of the opinion that the same ought not to be continued and/or after the decision of the Supreme Court in the pending Review/Writ Petition in the case of Canon India Pvt. Ltd.
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2023 (10) TMI 1351 - ORISSA HIGH COURT
Bogus LTCG - exemption u/s 10 (38) in respect of LTCG rejected - consideration received by assessee was out of the sale of shares effected on a recognized Stock Exchange - shares had been held for a period of more than twelve months and Securities Transaction Tax (STT) had been paid at the time of transfer - Whether Tribunal has rightly accepted the claim of the assessee as per law regarding exemption u/s 10 (38) with respect to alleged income under the head “Long Term Capital Gain” on sale of shares of penny stock by ignoring the admission by their group before the Income Tax Authority that complete tax would be paid on the bogus LTCG claimed by the group subsequent to survey operation u/s 133A? - HELD THAT:- For claiming the benefit of exemption under Section 10(38) of the Income Tax Act, 1961 three requirements need to be fulfilled. Firstly, the share should be held for more than one year, secondly, it should be listed and sold on recognized stock exchange and, thirdly, on the said sale necessary Security Transaction Tax (STT) has to be chargeable. If all these requirements are satisfied, then the benefit of exemption u/s 10 (38) of the Income Tax Act, 1961 is admissible.
A survey u/s 133A was conducted on 20.08.2015 and, without detecting any incriminating documents or evidence against the respondent-assessee, recorded the statement that tax will be paid on the claim made under Section 10 (38) in filing the IT return for the AY 2013-14 and to be disclosed as income from other source. But the said statement, being without any incriminating evidence against the respondent-assessee, cannot be ipso facto decided against the respondent-assessee.
The present income tax appeal filed at the instance of the revenue involved no substantial question of law, as both the appellate authorities have decided on the basis of evidence and documents produced by the respondent-assessee and the revenue and, as such, on the basis of the facts, both the authorities have come to a conclusion that the respondent-assessee is entitled to the benefit u/s 10 (38) and held that the appellant-revenue had failed to bring any evidence in rebuttal nor was it proved that the documents produced were false, fabricated or fictitious, hence, the findings, as recorded by the appellate authorities, that the transaction of purchase and sale of shares could not be treated as non-genuine, were essentially in the realm of appreciation of evidence and, as such, no substantial question of law is involved.
In Vijaya Kumar Talwar [2010 (12) TMI 2 - SUPREME COURT] it has been held that in absence of demonstrated perversity in the finding of the Tribunal, interference cannot be warranted, when on thorough consideration of the material on record it was found that the transaction of purchase and sale of shares could not be treated as non-genuine.
It is worthwhile to mention here that, the Security Transaction Tax (STT) under Chapter-VII of Finance (No.2) Act, 2004 is a direct tax levied by Government of India on every purchase and sale of securities that are listed on the recognized stock exchanges in India.
STT was implemented to curb the tax avoidance on capital gains, which is similar to Tax Collected at Source (TCS) to be collected by a recognized stock exchange and both the buyer and seller will pay the said tax, as prescribed rate for carrying out the transaction of securities for financial gains, are liable to pay STT. All gains from such transactions are called capital gains and are classified as LTCG or STCG, depending on the holding period.
Income Tax Department laid emphasis on the CBDT Circular No.23 of 2019 dated 06.09.2019, as the matter related to bogus Long Term Capital Gain on Penny stock. But the said circular can only be applied prospectively not retrospectively, because the present appeal is for the AY 2013-14. Thereby, the circular relied upon by the Senior Counsel appearing for the revenue has no application to the present case.
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