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Showing 41 to 60 of 1266 Records
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2023 (11) TMI 1226 - ITAT MUMBAI
Deduction u/s 80P(2)(d) - appellant is Co- operative Housing Society and has received the interest from Co-operative Society - HELD THAT:- As per catena of judicial decisions were the co-operative society receives/earns interest on deposits with the co-operative bank is eligible for claim of deduction under section 80(2)(d) of the Act. The recent decision of Kerala State Cooperative Agricultural & Rural Development Bank Ltd Vs Assessing Officer (2023 (9) TMI 761 - SUPREME COURT) has upheld the view of allowing deduction U/sec 80P(2)(d) of the Act to the Cooperative society.
Accordingly, we set aside the order of the CIT(A) and direct the AO to allow the claim of deduction u/sec 80P(2)(d) on the interest income received /earned from the co-operative banks. And the grounds of appeal allowed in favour of the assessee.
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2023 (11) TMI 1225 - RAJASTHAN HIGH COURT
Validity of order passed u/s 148A (d) - scope of alternate remedy - HELD THAT:- As we are informed today that infact in the present case the assessment order was passed prior to filing of the writ petition and this fact has not been disclosed by the petitioner while filing the writ petition, may be that assessment order was passed only a day before filing of the petition. It appears that the petitioner has not duly instructed the counsel on several subsequent dates when this case was listed for hearing i.e. on 27.09.2023, 20.10.2023 & 17.11.2023.
Also in the present case the order u/s 148A (d) was passed way-back on 25.07.2022 but it was not challenged by the petitioner but he participated in the assessment proceedings and just a day before passing of the assessment order, the petitioner filed the writ petition. This Court in almost similar circumstances refused to entertain the writ petition taking into consideration that there exists an alternative remedy, in the case of Bhag Chand Jangid Versus Principal Chief Commissioner of Income Tax Rajasthan & Others [2023 (4) TMI 1299 - RAJASTHAN HIGH COURT] - Therefore, in these circumstances, we are not inclined to entertain this petition and leave the petitioner to raise all the grounds which have been raised in the petition by way of an appeal as remedy is available to the petitioner under the law.
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2023 (11) TMI 1224 - ITAT DELHI
Assessment order without quoting DIN - HELD THAT:- The object and purpose of the issuance of the 2019 Circular, inter alia, was to create an adult trail. Therefore, the communication relating to assessments, appeals, orders etcetra which find mention in paragraph 2 of the 2019 Circular albeit without DIN, can have no standing in law, having regard to the provisions of paragraph 4 of the 2019 Circular. Assessee appeal allowed.
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2023 (11) TMI 1223 - ITAT DELHI
Deduction u/s 80IA - claim denied as projects executed by the contractee companies are neither Central Government nor State Government or a local authority nor any other statutory body and assessee is only an EPC contractor for carrying out work awarded by NHAI to Mokama-Munger Highway Ltd - HELD THAT:- Issue decided in favour of assessee as relying on own case [2022 (11) TMI 1446 - ITAT DELHI] to prove that the assessee fulfils all requisite conditions to claim deduction under section 80IA of the Act was given. For ease of ready reference as to how the conditions were complied with, two projects namely Meghalaya Project and Danapur ROB were taken up.
As submitted that submissions have been made for above two projects. It is however clarified that all other projects have also been executed in a like manner and there is parity of facts. The assessee was prepared to make submission for all the projects, if required. However, the assessee submitted agreements of all other projects including Sonbarsa Project and SH-83 Project. It was clarified that Mokama-Munger Project and Sonbarsa Project were awarded by NHAI to the assessee company.
Neither the Ld. AO nor the Ld. DRP required the assessee to demonstrate as to how the necessary conditions for claiming deduction under section 80IA were fulfilled for Sonbarsa Project and SH-83 Project even though the assessee had offered to do so. None-the-less the fact remains that copy of agreement for these two projects were submitted before the Ld. AO. If he wanted, he could have gone into further details but the Ld. AO chose not to do so. Therefore, we do not find any substance in the argument of the Ld. CIT-DR that because claim of deduction under section 80IA has been made first time during the year for these two projects, the decision (supra) of the Tribunal does not cover the issue.
Tax benefit under section 80IA was introduced for encouraging private sector participation by way of investment in development of the infrastructure sector and not for the person who merely execute the civil construction work or any other works contract.
Assessee is not a developer but contractor - Assessee is liable for all risks for loss, damage to physical property, personal death insurance in consequence of performance of contract liable for liquidated damages to the employer due to delay in execution of contract, liable for cost of repairs for the loss or damages to the works or materials. Assessee is responsible for whole work from the date of takeover of the site till completion responsibility for maintenance of the road portion including the portions where the work is not started. All these clauses goes to show that the assessee is not a simplicitor contractor rather the assessee is a developer of the project. Therefore, the contention of the AO that the assessee is not a developer but only a contractor is misconceived.
On the face of the clear cut finding of the Tribunal that the assessee is a developer of the Projects and not only a contractor, the contention of the Ld. CIT-DR is rejected being devoid of merit. We decide Ground in favour of the assessee holding that the assessee is eligible to claim the impugned deduction under section 80IA of the Act.
Deduction of expenses u/s 40(a)(ia) disallowed in earlier years - AR submitted that before the Ld. DRP the assessee objected to non-acceptance of the revised computation of income and submitted complete details as also comparison of original and revised return in this regard along with necessary documentary evidence - HELD THAT:- We deem it fit to remit the matter to the file of the Ld. AO to examine the details and supporting documentary evidence and decide the issue afresh in accordance with law after affording reasonable opportunity of hearing to the assessee. We order accordingly. This ground is treated as allowed for statistical purposes.
TP adjustment - interest receivable on advance given - HELD THAT:- Every item of “receivables” appearing in accounts of entity which may have dealings with foreign AE would not automatically be characterized as an International Transaction. It is also observed that there has to be a proper enquiry by the TPO by analyzing the statistics for a period of time to discern a pattern which would indicate that vis-à-vis the “receivables” for the supplies made to an AE, the arrangement reflects an International Transaction intended to benefit the AE in some way. On perusal of the TPO’s order, we find that no such exercise has been carried out by the TPO in benchmarking the interest on “receivables”
We send the matter back to the Ld. AO/TPO for deciding the issue afresh keeping in view the evidence submitted by the assessee as also the observations of the Hon’ble Delhi High Court in PCIT vs. Kusum Health Care (P) Ltd [2017 (4) TMI 1254 - DELHI HIGH COURT] and as per law.
Addition of retention money retained by the employer - application of provisions of section 43CB(2) - HELD THAT:- It is not in dispute and the parties agree that the Finance Act, 2018 has inserted section 43CB with retrospective effect from 01.04.2017 and thus apply to AY 2017-18 and subsequent years. It is also not in dispute that in the case of the assessee the amended law has to be applied. We, therefore, consider it fit and in the interest of justice to restore the matter back to the file of the Ld. AO with a direction to him to apply the provisions of section 43CB(2) and decide the issue afresh after allowing reasonable opportunity of hearing to the assessee. We order accordingly and treat these grounds as allowed for statistical purpose.
Late deposit of EPF contribution of employees though deposited before due date of filing ITR - HELD THAT:- , we deem it fit to restore the issue to the file of the Ld. AO with a direction to him to verify the veracity of the contention raised by the Ld. AR before us and if his contention is found to be correct and in accordance with the settled position of law as enshrined by the Hon’ble Supreme Court in Checkmate Services (P) Ltd. [2022 (10) TMI 617 - SUPREME COURT] modify the assessment accordingly.
TDS credit - as stated that the Ld. AO has allowed credit of TDS less that is allowable to the assessee according to the income offered for taxation by the assessee - HELD THAT:- It is a matter which requires verification from the records. We, therefore direct the Ld. AO to look into the assessee’s claim and after due verification take remedial action in accordance with law.
Appeal of the assessee is partly allowed for statistical purposes.
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2023 (11) TMI 1222 - KARNATAKA HIGH COURT
Validity of reopening proceedings - notice u/s 148A(b) is not either digitally or manually signed - HELD THAT:- With the authorities being unable to dispute that the notice under Section 148A(b) of the IT Act is not either digitally or manually signed and with the proposition enunciated by in Prakash Krishnavtar Bharadwaj vs. Income Tax Officer [2023 (1) TMI 428 - BOMBAY HIGH COURT] being applicable wherein held held that because the notice is not signed either digitally or manually, the same would be invalid.
The petition must be disposed of on the ground that the first respondent could not have continued the proceedings based on 148A(b) notice. However, the authorities must be reserved with liberty, subject to all just exceptions in law, to initiate further proceedings
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2023 (11) TMI 1221 - ITAT BANGALORE
Deduction u/s 80P - claim denied on the basis of assessee having nominal members and associated members - assessee's contention that being a primary agricultural co-op. society, they are eligible for the said deduction - HELD THAT:- We find that the decision of Mavilayi Service Cooperative Bank Ltd. & Ors. [2021 (1) TMI 488 - SUPREME COURT] wherein held that claim of assessee cannot be denied on the basis of assessee having nominal members and associated members.
As respectfully following the view taken in the case of PCIT & Anr. Vs. Totagars Cooperative Sale Society [2017 (1) TMI 1100 - KARNATAKA HIGH COURT] and Hon’ble Gujarat High Court in the case of State Bank Of India [2016 (7) TMI 516 - GUJARAT HIGH COURT] we hold that, the interest income earned by a cooperative society on its investments held with a cooperative bank that do not have license under section 22 of the Banking Regulation Act 1949, falls outside the definition the term, ‘Banking Company” as per section 2(c ) of the Banking Regulations Act, 1949, would be eligible for claim of deduction under Sec.80P(2)(d) of the Act. The Ld.AO is thus directed to carry out necessary verification in respect of the that same to consider the claim of deduction u/s.80 P(2)(d) of the Act. Further, we make it clear that the assessee is not entitled for deduction u/s 80P(2)(a)(i) of the Act in view of judgement of Hon’ble Supreme Court in the case of Totgars Co-operative Sale Society Ltd. [2010 (2) TMI 3 - SUPREME COURT]
It is directed that in the event it is found that the interest is earned by the assessee from such commercial/cooperative banks that fall within the definition of “banking company’ as per section 2(c), Section 5(b) and holds license under section 22 of the Banking Regulation Act 1949, such interest are to be considered under the head ‘income from other sources’ however, relief may be granted as available to the assessee u/s 57 of the Act in accordance with law. With the above directions, we remit this issue to the Ld.AO.
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2023 (11) TMI 1220 - ORISSA HIGH COURT
Violation of principles of natural justice - initiation of proceeding under Section 73 of the OGST & CGST Act - notice under Section 61 of the CGST/OGST Act has been issued - no opportunity of hearing was given to the petitioner - HELD THAT:- It is provided under Section 61(3) of the CGST/OGST Act that in case no satisfactory explanation is furnished within a period of thirty days of being informed by the proper officer or such further period as may be permitted by him or where the registered person, after accepting the discrepancies, fails to take the corrective measure in his return for the month in which the discrepancy is accepted, the proper officer may initiate appropriate action including those under Section 65 or Section 66 or Section 67, or proceed to determine the tax and other dues under Section 73 or Section 74. In the present case, the authority chose to initiate action under Section 73. Therefore, she was required to adhere to the modality contained in said Section 73 read with Rule 142.
The notice issued intimating discrepancy in the returns under Section 61 of the CGST/OGST Act dated 26.10.2022 under Annexure-2 and the order dated 31.01.2023 passed under Section 73 of the Act vide Annexure-1 cannot be sustained in the eye of law and the same are liable to be quashed and are hereby quashed - The matter is remanded to the Assessing Authority to proceed de novo from the stage of issuance of notice intimating the discrepancy in returns after scrutiny under Section 61 of the CGST/OGST Act by affording due opportunity of hearing to the petitioner.
Petition disposed off by way of remand.
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2023 (11) TMI 1219 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI
Admission of Section 7 Application filed by the Financial Creditor - investment made by the Financial Creditor in the Corporate Debtor by means of Share Subscription-cum- Shareholders Agreements, Binding Term Sheet as well as Consent Terms - financial debt in default - HELD THAT:- The Hon'ble Supreme Court in Pioneer Urban Land and Infrastructure Limited and Anr. vs. Union of India and Ors. [2019 (8) TMI 532 - SUPREME COURT] had occasion to consider the concept of 'financial debt' and the meaning of the 'financial debt' as contained in the IBC.
The ratio of the judgment of the Hon'ble Supreme Court is that sub- clause (f) of Section 5(8) would subsume within it amounts raised under transactions which are not necessarily loan transactions so long as they have the commercial effect of a borrowing. In paragraph 76, the Hon'ble Supreme Court had quoted with approval the meaning of expression "borrow" and "commercial" from Collins English Dictionary. The condition which is essentially required to be fulfilled is disbursement against the consideration for the time value of money. On coming to sub-clause (f), the transaction has to have a commercial effect of a borrowing.
It is already noticed the facts and sequence of events of the present case, from which it is clear that Corporate Debtor has time and again acknowledged the debt. It is found that transactions between the parties including the Agreement, Supplementary Agreement and Binding Term Sheet, clearly indicate that there was a debt, due and payable, which debt was in the nature of 'financial debt'. It is further noticed that in the present Appeal, the Appellant has taken several opportunities to make payment to the Corporate Debtor to liquidate his debt, which could not be done by the Appellant. The above is also clear acknowledgement of debt and default on the part of the Corporate Debtor. The Adjudicating Authority has not committed any error in admitting Section 7 Application.
There are no good ground to interfere with the impugned order admitting Section 7 Application. The Appeal is dismissed.
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2023 (11) TMI 1218 - ALLAHABAD HIGH COURT
Illegal mining - Punishment for having excavated over Plot No. 824 Kha - HELD THAT:- In the show cause notice dated 31.5.2022, the District Magistrate, Sonebhadra had directed the petitioner to show cause with regard to the illegal mining over Plot No. 824 Kha but when the order impugned was passed we find that it is with regard to Plot No. 421Kha.
It is also found that the plot, which was mentioned in the show cause notice, had no bearing with the order impugned in the instant writ petition. In the light of above, it is crystal clear that not only is show cause notice badly drafted and incomplete but also the order passed subsequently is inherently misconceived going way beyond the show cause notice issued. Ergo, show cause notice dated 31.05.2022 and the order dated 20.6.2022 are quashed and set aside.
The writ petition is allowed.
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2023 (11) TMI 1217 - ANDHRA PRADESH HIGH COURT
Validity of impugned order - the impugned order is not signed by the authority - HELD THAT:- In M/S. SRK ENTERPRISES, VERSUS ASSISTANT COMMISSIONER (ST) , BHEEMILI CIRCLE, VISAKHAPATNAM [2023 (12) TMI 156 - ANDHRA PRADESH HIGH COURT], this Court referred to the previous order of the Co-ordinate Bench in the case of AV BHANOJI ROW VERSUS ASSISTANT COMMISSIONER ST VISAKHAPATNAM [2023 (2) TMI 1224 - ANDHRA PRADESH HIGH COURT] and held that the signatures cannot be dispensed with and the provisions of Section 160 & 169 of the CGST Act, 2017 would not come to the rescue.
This is not the first case in which the order is not signed by the concerned authority but uploaded. The challenge to such kinds of order has been upheld. This defect and consequently passing fresh orders, delays the proceedings in tax matters. Also unnecessarily burdens this Court.
Petition allowed.
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2023 (11) TMI 1216 - DELHI HIGH COURT
Doctrine of Forum non-conveniens - Seeking permission to Appellant to appear for Class X and Class XII examinations - Appellant's father received a message from the Respondent School that due to non-payment of fees for the academic year 2017-2018, the Appellant was debarred from attending the Respondent School - HELD THAT:- On an examination of the peculiar facts and circumstances that have led to the present appeal, it is evident that the grievance of the Appellant emerges from the actions of the Respondent School which is located in Uttar Pradesh. This Court had directed the Respondent School to conduct Grade VIII examinations for the Appellant, not the CBSE. Therefore, contrary to the contention of the Appellant, in effect, the Appellant is seeking compensation from the CBSE not for any decision/action taken by the CBSE but instead due to an alleged failure of the CBSE to regulate the actions of the Respondent School.
It is a settled position of law that where only a small part of the cause of action arises in the territorial jurisdiction of a Court, the same cannot automatically clothe the Court with jurisdiction under Article 226 of the Constitution of India. In such cases, the Court is obligated to follow the doctrine of forum conveniens.
Division Bench of this Court in M/S SHRISTI UDAIPUR HOTELS AND RESROTS (P) LTD VERSUS HOUSING AND URBAN DEVELOPMENT CORPORATION LIMITED [2014 (5) TMI 1231 - DELHI HIGH COURT] dealt with a similar issue and observed that where the most vital parts of the cause of action have arisen elsewhere, the mere presence of the registered office of the Respondent in Delhi would be irrelevant in determining territorial jurisdiction as it amounts to a miniscule part of the cause of action.
The principle emerging from Shristi Udaipur is squarely applicable to the facts of the present case. In essence, the basis of the Appellant's claim for compensation is the loss of an academic year due a delay in examinations for Grade VIII. As the responsibility for conducting the examinations fell on the Respondent School, it is plain that the most vital part of the cause of action arose in Uttar Pradesh, where the Respondent School is located. Moreover, it must also be noted that the Appellant is a resident of Uttar Pradesh. Therefore, on a holistic examination of these circumstances, as the Appellant has failed to produce any material establishing that the grievance caused to her is directly attributable to the actions of the CBSE, we cannot but conclude that this Court is not the appropriate forum for adjudication of this matter.
It must be noted that the doctrine of forum conveniens is invoked to determine the most appropriate forum for adjudication of a dispute and this exercise is undertaken not only for the convenience of the parties but also in the interest of justice. Therefore, this Clause cannot be read in a matter that would permit all cases filed against the CBSE, regardless of the existence of a more appropriate forum, to be adjudicated in the Union Territory of Delhi; the existence of such a clause cannot exempt Courts from invoking the doctrine of forum conveniens especially in cases like the present where no direct actions of the CBSE have been impugned by the Appellant. Thus, the Clause has to be interpreted purposively to include within its ambit only those cases where the cause of action is attributable to the CBSE.
This Court finds no reason to interfere with the Impugned Judgement. Accordingly, the present LPA is dismissed.
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2023 (11) TMI 1215 - ITAT DELHI
Addition u/s 69A - jewellery found in the locker - seizure of jewellery in course of operations u/s 132 - appellant submits that the aforesaid jewellery was gifted to her on various occasions such as marriage, birth of children, etc.; such gifts are very common in Indian culture and society - whether the allowance of jewellery should be strictly restricted to 500 gms only as per the CBDT Circular or not? - HELD THAT:- The Hon’ble Delhi High Court in the case of Ashok Chaddha [2011 (7) TMI 142 - DELHI HIGH COURT] held that collecting jewellery of 906.900 gms by a woman in a married life of 25 years in form of stree dhan or on other occasions is not abnormal.
As decided in ITAT Delhi in the case of Vibhu Aggarwal [2018 (5) TMI 586 - ITAT DELHI]held that where Assessing Officer under section 69A made addition on account of jewellery found in search of assessee, since assessee belonged to a wealthy family and jewellery was received on occasions from relatives, excess jewellery was very much reasonable and, thus, no addition under section 69A was called for.
Thus in view the facts and circumstances of the instant case and also the jewellery found, the total income declared and in view of the various judgments cited above, we direct that the addition made on this account be deleted. Decided in favour of assessee.
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2023 (11) TMI 1214 - ITAT BANGALORE
Disallowance of Service tax payable u/s 43B - service tax collected and not paid to the government exchequer - HELD THAT:- We have no hesitation to hold that service tax collected by assessee and not paid to the government exchequer before the due date of filing the return is to be disallowed, though it was not charged to the P&L account and it attracts the provisions of section 43B of the Act and the present provisions of section 145A of the Act cannot be applied in view of non-absentee clause in section 43B of the Act. Same view was taken in case of ACIT Vs. Kunnel Engineers & Contractors Pvt. Ltd. 2020 (5) TMI 576 - ITAT COCHIN] Accordingly, this ground of appeal of the assessee is dismissed.
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2023 (11) TMI 1213 - SC ORDER
Locus Standi of shareholder of the Corporate Debtor to challenge the Resolution Plan - Seeking for forensic audit of the Books of Accounts of the Corporate Debtor, and not to approve the Resolution Plan till the disposal of the Application - CIRP proceedings (proceedings in rem) - it was held by NCLAT that This Tribunal finds no infirmity in the Order of the Learned Adjudicating Authority in the Approval of the Plan or in the rejection of application - HELD THAT:- There are no good ground and reason to interfere with the impugned judgment(s) and hence, the present appeals are dismissed.
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2023 (11) TMI 1212 - ITAT AHMEDABAD
Deduction u/s. 80P(2)(d) - receipt of interest from S. K. District Co-op. Bank Ltd. - HELD THAT:- It is pertinent to note that the assessee earned interest on Fixed Deposits from the S. K. District Co-operative Bank Ltd. As per the decision of Hon’ble Gujarat High Court in case of Sabarkanta District Co-op. Milk Producers’ Union Ltd. [2014 (6) TMI 977 - GUJARAT HIGH COURT] the credit society is allowed deduction under Section 80P(2)(d) of the Act, if the interest on FD is earned from District Cooperative Bank.
Therefore, in the present assessee’s case the same should have been considered by the CIT(A). Thus, the assessee is entitled to claim the deduction under Section 80P(2)(d) of the Act in respect of interest earned on FD from S.K. District Co-op. Bank Ltd. The appeal of the assessee is allowed.
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2023 (11) TMI 1211 - SUPREME COURT
Seeking permission to prosecution to produce the report and the certificate under Section 65B of the Indian Evidence Act, 1872 - delay of six years in producing the certificate or not - HELD THAT:- It cannot be inferred that there was delay of six years in producing the certificate. In fact, report received from CFSL, Hyderabad on the basis of the contents of electronic devices dated 29.11.2010 was already placed before the Trial Court on 16.10.2012. In fact, the stand of the prosecution was that when the original electronic devices were already produced and marked MOs, there was no need to produce the certificate under Section 65-B of the Act. Still, as a matter of abundant caution, the same was produced that too immediately after objection was raised by the accused against the production of CFSL report prepared on the basis of the electronic devices seized.
Fair trial in a criminal case does not mean that it should be fair to one of the parties. Rather, the object is that no guilty should go scot-free and no innocent should be punished. A certificate under Section 65-B of the Act, which is sought to be produced by the prosecution is not an evidence which has been created now. It is meeting the requirement of law to prove a report on record. By permitting the prosecution to produce the certificate under Section 65B of the Act at this stage will not result in any irreversible prejudice to the accused. The accused will have full opportunity to rebut the evidence led by the prosecution. This is the purpose for which Section 311 of the Cr.P.C. is there. The object of the Code is to arrive at truth. However, the power under Section 311 of the Cr.P.C. can be exercised to subserve the cause of justice and public interest - In the case in hand, this exercise of power is required to uphold the truth, as no prejudice as such is going to be caused to the accused.
The orders passed by the courts below are set aside - Appeal allowed.
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2023 (11) TMI 1210 - ITAT JODHPUR
Granting registration for 80G - application rejected has been filed beyond six months of commencement of activities and hence held it as time barred - whether the application of the assessee was time barred or not? - HELD THAT:- The sub-clause of the Proviso to Section 80G(5) says that the Institution which have provisional registration have to apply at-least six months prior to expiry of the provisional registration or within Six months of commencement of activities, whichever is earlier.
In continuation of this when we read the ‘sub clause iii of Proviso’ of section 80G(5), which we have already reproduced above, it is clear that the intention of parliament in putting the word “or within six months of commencement of its activities, whichever is earlier” is in the context of the newly formed Trust/institutions. For the existing Trust/Institution, the time limit for applying for Regular Registration is within six months of expiry of Provisional registration if they are applying under sub clause (iii) of the Proviso to Section 80G(5) of the Act. This will be the harmonious interpretation.
If we agree with the interpretation of the ld.CIT(E), then say a trust which was formed in the year 2000, performed charitable activities since 2000, but did not applied for registration u/s. 80G, the said trust will never be able to apply for registration now. This in our opinion is not the intention of the legislation. This interpretation leads to absurd situation.
As decided in K P Varghase [1981 (9) TMI 1 - SUPREME COURT] at the statutory provision shall be interpreted in such a way to avoid absurdity. In this case to avoid the absurdity as discussed by us in earlier paragraph, we are of the opinion that the words, “within six months of commencement of its activities” has to be interpreted that it applies for those trusts/institutions which have not started charitable activities at the time of obtaining Provisional registration, and not for those trust/institutions which have already started charitable activities before obtaining Provisional Registration. We derive the strength from the Speech of Hon’ble Finance Minister and the Memorandum of Finance Bill 2020.
Therefore, we hold that the Assessee Trust had applied for registration within the time allowed under the Act. Hence, the application of the assessee is valid and maintainable.
Even otherwise, the Provisional Approval is upto A.Y. 2025-26, and it can be cancelled by the ld. CIT(E) only on the specific violations by the assessee. However, in this case the ld. CIT(E) has not mentioned about any violation by the Assessee. Therefore, even on this ground the rejection is not sustainable.
CIT(E) has not discussed whether the Assessee fulfils all other conditions mentioned in the section as he rejected it on technical ground. Therefore, in these facts and circumstances we hold that the Assessee had made the application in form 10AB within the prescribed time limit and hence it is valid application. Therefore, we direct the ld. CIT(E) to treat the application as filed within statutory time and verify assessee’s eligibility as per the Act. The ld. CIT(E) shall grant opportunity to the assessee.
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2023 (11) TMI 1209 - CESTAT AHMEDABAD
Classification of imported goods - import of furnace oil from UAE - to be classified under CTH 27101950 (furnace oil) as declared by the appellant or under CTH 27109900 (waste oil) as alleged by the revenue? - entire case of classification of the goods imported by the appellant was decided on the basis of test report of CRCL- Vadodara - Confiscation - redemption fine - penalty under Section 112(a) of Customs Act, 1962.
HELD THAT:- From the perusal of all the Circulars, it is found that the facility to test waste oil or furnace oil was made available only as per the circular dated 07.06.2009 prior to that the CRCL Vadodara or as the case may be CRCL Delhi, did not have the facility to test the waste oil/furnace oil. Admittedly in the present case, the tests of goods in question were done prior to the issue of Circular No. 15/2009-Cus. Accordingly, the testing done by CRCL Vadodara/Delhi cannot be said to be the correct test as these Laboratories did not have the facilities for testing waste oil/furnace oil. It is a settled law that the Board Circulars are binding on the departmental officer as held by the Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE, BOLPUR VERSUS M/S RATAN MELTING & WIRE INDUSTRIES [2008 (10) TMI 5 - SUPREME COURT].
In view of above undisputed fact that during the relevant time as per Board Circular the CRCL Vadodara or as the case may be CRCL Delhi being not equipped with the facility to test waste oil/furnace oil the test report of the said laboratories cannot be accepted.
Since the goods were supposed to be released as per the High Court order, the act of department is clearly the non-compliance with the High Court order for which if any action to be taken it is by the High Court. Therefore, even after prima facie finding that the goods were supposed to be released this Tribunal can not give any direction in this regard with reference to the Hon’ble High Court in GAURAV LUBRICANTS INDUSTRIES PRIVATE LIMITED VERSUS UNION OF INDIA [2018 (10) TMI 2016 - GUJARAT HIGH COURT]. However, since in the present case the matter decided on merit, the appellant is otherwise entitled for release of the goods.
Since the test report of CRCL Vadodara/Delhi cannot be accepted the declaration made by the appellant in respect of nature of goods, classification and also valuation are found to be absolutely correct.
The impugned orders are set aside - Appeals are allowed.
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2023 (11) TMI 1208 - DELHI HIGH COURT
Levy of Terminal Excise Duty in terms of the Foreign Trade Policy, 2009-14 - HELD THAT:- Referring the judgment of a Division Bench of this Court in Union of India v Aurobindo Pharma Ltd. [2023 (5) TMI 677 - DELHI HIGH COURT], which relies on a judgment passed by the Supreme Court in Sandoz Private Limited v. Union of India & Others, [2022 (1) TMI 225 - SUPREME COURT] it is submitted that, the provisions in relation to Terminal Excise Duty have now been struck down.
Thus, the prayers of the Petitioner can be granted by Respondent No.3 - In the interest of justice, list the matter for directions on 22.11.2023.
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2023 (11) TMI 1207 - ITAT VISAKHAPATNAM
Deduction u/s 80P - interest earned on deposits pertaining to reserve fund with DCC Bank, which is a cooperative bank - HELD THAT:- It is an admitted fact that the assessee has claimed deduction u/s 80P. The contention of the AO is that interest accrued on Reserve Fund Deposits is not eligible for deduction u/s 80P.
He relied on the decision of CIT Vs. Jilla Jahakan Kendriya Bank Maryadit [1996 (8) TMI 72 - MADHYA PRADESH HIGH COURT] that income from interest on securities ear marked to reserve fund has been held not eligible for deduction u/s 80P. He has also placed relied on the decision of in the case of M/s Totgars Cooperative Sale Society Ltd. [2010 (2) TMI 3 - SUPREME COURT] which held that “investment of surplus on hand not immediately required in Short Term deposits and securities by a co-operative society providing credit facilities to members or marketing agriculture produce to member”. However, in the instant case, the facts are distinguishable and hence, in my view, the ratio laid down in the case of M/s Totgars Cooperative Sale Society Ltd. [2010 (2) TMI 3 - SUPREME COURT] shall not be applied.
On similar set of facts, coordinate bench of this Tribunal in the case of Kakateeya Mutually Aided Thrift and Credit Co-op Society held in favour of the assessee [2023 (9) TMI 211 - ITAT VISAKHAPATNAM] assessee has invested surplus funds out of the activities carried out as per the provisions of section 80P(2)(a) of the Act. We therefore by respectfully following the jurisdictional High Court are of the view that interest income should be allowed as deduction u/s. 80P(2)(a)(i) of the Act and thereby the Ld. CIT(A) - NFAC has rightly held by deleting the addition made by the Ld. AO and hence we find no infirmity in the order of the Ld. CIT(A) -NFAC.
Respectfully following the decision of Vavveru Cooperative Rural Bank Ltd. [2017 (4) TMI 663 - ANDHRA PRADESH HIGH COURT] and in the case of Kakateeya Mutually Aided Thrift and Credit Co-op Society Limited [2023 (9) TMI 211 - ITAT VISAKHAPATNAM] we are inclined to quash the order passed by the Ld.CIT(A) and allow the appeal of the assessee.
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