|
Advanced Search Options
Case Laws
Showing 61 to 80 of 1612 Records
-
2022 (4) TMI 1552 - DELHI HIGH COURT
Seeking grant of regular bail - smuggling of Ganja - contraband item - whether there are reasonable grounds to believe that accused is not guilty of such an offence and whether he is likely to commit any offence while on bail? - HELD THAT:- The knowledge of the possession of contraband has to be gleaned from the facts and circumstances of a case.
This Court is cautious of the fact that physical possession means physical possession with animus, exercise of dominion and control as a result of concealment or personal knowledge as to existence of the contraband and the intention based on this knowledge - It is pertinent to note that the possession in the present case is from a private vehicle with few persons known to each other. In the facts and circumstances, it is difficult to assume at this stage that the petitioner who had been driving from Orissa to Delhi with known individuals was unaware of the concealment of contraband. It also does not strike to reason that the petitioner would have been driving the truck without any remuneration or benefit as it is claimed that no monetary benefit was gained by the petitioner.
The procedure followed in the present case appears to be distinguishable as referred in the typed copy of the complaint annexed with the application. In the present case, total 58 big packets were divided in 11 lots and 48 small packets were divided in 02 lots. Two samples of 25 gms. each were drawn from each lot (after taking small substance from each packet). Thus, total 26 samples were drawn - at this stage, it may be premature to hold that the procedure adopted for sampling vitiates the entire proceedings since the sampling was done after each of the packets tested positive for Ganja. The prejudice, if any, on account of alleged improper sampling as contended by counsel for the petitioner, can only be appropriately considered after the examination of the witnesses during the course of trial.
In the facts and circumstances and considering the connecting evidence on record, wherein the contraband has been recovered from private vehicle driven by the petitioner, it is opined that no grounds for grant of bail are made out in the light of twin conditions laid down in Section 37 of NDPS Act.
The application is accordingly dismissed.
-
2022 (4) TMI 1551 - BOMBAY HIGH COURT
Jurisdiction of Assessing Officer to issue notice and/or passing an order u/s 154 - Petitioner seeks leave to withdraw the petition with liberty to raise all points including the jurisdiction of AO to issue notice and/or passing an order under Section 154 of the Act before the appellate authority.
Petitioner states that an appeal will be filed within 20 days from today. Statement is accepted. If there is delay upto 20 days, that delay stands condoned. Petition dismissed as withdrawn with liberty as prayed for.
-
2022 (4) TMI 1550 - BOMBAY HIGH COURT
Rectification u/s 154 - As Petitioner states that in Exhibit A annexed to the said affidavit, the document name is mentioned as “Order u/s 154”. The same page is annexed at Annexure-I to the affidavit filed by one Yashraj Nain affirmed on 15th February 2022, where the document name is given as “Order u/s M.O. intimation for FBT 154”.
Petitioner therefore, stated that the documents seems to have been manipulated. An affidavit in response to the affidavit of Dr. Kate has been filed and copy served on respondents on or about 13th April 2022. Dr. Kate is directed to respond to this affidavit of petitioner filed by Vaishali Paradkar affirmed on 13th April 2022. The said affidavit to be filed and copy served by 12 noon on 26th April 2022.
Stand over to 27th April 2022.
-
2022 (4) TMI 1549 - KARNATAKA HIGH COURT
Repetition of proceedings by ED - accused was already discharged by the Special Court - Money Laundering - attachment of properties - scheduled offences/predicate offence - illegal extraction of mines from the area which comes to 1.43 crores metric tons - case of Revenue is that the order passed by the appellate Tribunal will not come in the way of conducting prosecution against the petitioners and release of the property will not be a reason for closing the offence.
HELD THAT:- After the amendment of the Act in the year 2012, Sub-section (5) of Section (8) provides where on conclusion of a trial, an offence under this Act, the Special Court finds that the offence of money-laundering has been committed, it shall order that such property involved in the money-laundering or which has been used for commission of the offence of money-laundering shall stand confiscated to the Central Government. Sub-section (6) of Section 8 states where on conclusion of a trial under this Act, the Special Court finds that the offence of money-laundering has not taken place or the property is not involved in money-laundering, it shall order release of such property to the person entitled to receive it. That means, prior to the amendment, the power of confiscation and releasing the property to the holder was within the jurisdiction of the adjudicating authority under the PML Act, whereas in the Amendment Act, 2012 (Act 2 of 2013), the power was entrusted with the Special Court.
Admittedly, alleged offence by the petitioners was said to have committed prior to the amendment to the PML Act w.e.f. from 15.2.2013. As per the allegation against the petitioners and as per the proceedings of the CEC dated 02.07.2011, the CBI filed charge sheet as on 02.08.2013, i.e. much prior to the amendment of Section 8. Therefore, the old Amendment Act, 2009 (Act 21 of 2009) will applicable to the case on hand.
Once the ED submitted no objection before the appellate Tribunal for release of the property in favour of the petitioners stating that no offence was made out against them in view of the discharge of the petitioners in criminal case, and without challenging the order of the appellate tribunal, now the ED cannot blow hot and cold at the same time. Therefore, the contention of the respondent's counsel cannot be accepted.
As per the judgment of the Hon'ble Supreme Court in Radheshyam Kejriwal's case [2011 (2) TMI 154 - SUPREME COURT], the Hon'ble Supreme Court has categorically held at paragraph 38(vii) that in case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases.
Here, in this case the, adjudication proceedings were concluded and attained finality and it was ordered to release the property seized under the alleged crime under the PML Act. That apart, the Special Court has already discharged the accused holding that absolutely there is no material against the petitioners for framing charge. After analysing the documents produced by the CBI and after the conclusion of the criminal case, the trial Court has also released the property in question for interim custody which was not challenged by the ED before the Hon'ble Supreme Court or before this Court. The order of the appellate Tribunal also was not appealed before this Court or the Hon'ble Supreme Court, which has attained the finality - Therefore, the standard of proof in criminal prosecution is higher degree than the standard of proof required before the adjudicating authority, when the adjudicating authority themselves stated that no offence is committed and disposed the appeal and ordered to release the property.
Thus, conducting the criminal proceedings against petitioners-accused No. 1 and 2 is abuse of process of law and is liable to be quashed - petition allowed.
-
2022 (4) TMI 1548 - BOMBAY HIGH COURT
Validity of reopening of assessment u/s 147 - Eligibility of reasons to believe - HELD THAT:- The issue in this petition is squarely covered by the order passed by this court in Ashraf Alibhai Nathani, Mumbai [2022 (2) TMI 882 - BOMBAY HIGH COURT] where petitioner was brother of petitioner herein wherein held that there is nothing to indicate that there was non disclosure by the assessee of any material facts - AO has issued notice before passing assessment order to which Petitioner has responded providing all documents including the share purchase agreement and the AO has passed the assessment order accepting the returned income. Decided in favour of assessee.
-
2022 (4) TMI 1547 - DELHI HIGH COURT
Assessment u/s 153A - addition based on seized material or not? - competency of AO to consider all the material that is available on record - as per revenue ITAT erred in deleting the additions made by AO relying upon the judgment of this Court in the case of CIT Vs. Kabul Chawla, [2015 (9) TMI 80 - DELHI HIGH COURT] as he states that the Revenue has not accepted the judgment of Kabul Chawla (supra) and has preferred an appeal against the same in the Supreme Court - HELD THAT:- This Court is of the opinion that the questions of law raised in present appeals have been settled by earlier Division Bench in CIT Vs. Kabul Chawla (supra) and assessment of the respondents had attained finality prior to the date of search and no incriminating documents or materials had been found and seized at the time of search. Accordingly, no addition can be made under Section 153A of the Act as the cases of respondents are of non-abated assessments.
Though some of the judgments of this Court have been challenged and are pending adjudication before the Supreme Court, yet there is no stay of the said judgments till date. Consequently, in view of the judgments of the Supreme Court in Kunhayammed and Others Vs. State of Kerala And Another, [2000 (7) TMI 67 - SUPREME COURT] and Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI Cinod Secretariat, Madras [1992 (4) TMI 183 - SUPREME COURT] the present appeals are dismissed being covered by the judgment passed by the learned predecessor Division Bench.
-
2022 (4) TMI 1546 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, CHENNAI
Prayer for time to file ‘reply’ for the Respondent - HELD THAT:- For filing ‘counter’ before the ‘Registry’, Learned Counsel is permitted to file on both modes within two weeks from today and to serve copy to the other side, well in advance before the next date of Hearing.
The ‘Office of the Registry’ is directed to List the matter on 07.07.2022.
-
2022 (4) TMI 1545 - UTTARAKHAND HIGH COURT
Levy of Service Tax - Mandi Shulk should be included in the sale price of the goods sold by the Nigam in the Mandi or not - HELD THAT:- he Hon'ble Supreme Court in the case of ANAND SWARUP MAHESH KUMAR VERSUS THE COMMISSIONER OF SALES TAX [1980 (9) TMI 238 - SUPREME COURT] was considering the question relating to inclusion of the market fee and the commission, otherwise called 'dami', payable to the commission agent, operating within a market area established under the Adhiniyam, in the turnover of purchases of the applicant for the purposes of levy of sales tax under Section 3D of the U.P. Sales Tax Act, 1948 - After taking into consideration the reported cases of Paprika Ltd. & Anr. v. Board of Trade; and Love v. Norman Wright (Builders) Ltd., the Hon'ble Supreme Court has come to the conclusion that Mandi Shulk should not be included in the sale price. In both the judgments referred to hereinabove, it has been laid down that the price payable by a purchaser under a contract of goods for the purpose of certain penal provisions was the price fixed by the contract, and a seller who wished to recover the amount of the purchase tax should, except where an adjustment was authorized by the Statute, include that amount in the price so fixed.
The Hon'ble Supreme Court, therefore, held that the contention of the appellant, in the reported case, that market fees payable under the Adhiniyam cannot be included in the turnover of purchases, has, therefore, to be upheld.
Thus, it is clear that any sums that are paid prior to the delivery, or at the time of delivery, are included in the sale price, but such sums which are allowed by the seller of the goods to the purchaser, or outward freight or delivery etc. are excluded, including tax under the Act. Thus, in view of the Hon'ble Supreme Court in M/s. Anand Swarup Mahesh Kumar, the sale price shall not include the Mandi Shulk that is collected by the Nigam and deposited with the funds of the Committee.
This Commercial Tax Revision is allowed.
-
2022 (4) TMI 1544 - SUPREME COURT
Seeking permission to withdraw the present appeal - HELD THAT:- The Civil Appeal stands dismissed as withdrawn with the liberty sought.
-
2022 (4) TMI 1543 - ITAT RAIPUR
Revision u/s 263 - assumption of revision jurisdiction on the basis of audit objection - HELD THAT:- An incorrect assumption of facts or an incorrect application of law or passing an order without application of mind or without applying the principle of natural justice, shall discretely be sufficient to hold the order being erroneous. Albeit the term prejudicial to the interests of the revenue is not at all defined in the Act, but is needs to be understood in its ordinary meaning and it is of wide import and is not confined to mere loss to an ex-chequer.
Where the revisionary proceedings are concluded entirely in concurrence of assessment proceedings and thereby betokening the mistake apparent on the face of the assessment order, where concluded finding of assessment remained untaxed, shall clearly validate the revisory action and jurisdiction u/s 263 for the protection loss of revenue to the ex-chequer, and not otherwise.
In no case, mere audit information renders the order of assessment erroneous, and the very absence of material before the revisionary authority itself sufficient to hold the action as unsustainable in law and our view has been invigorated in “Jeewanlal limited [1975 (12) TMI 34 - CALCUTTA HIGH COURT].
Also in “CIT Vs Gabriel India Ltd” [1993 (4) TMI 55 - BOMBAY HIGH COURT] has also taken similar view that, unless the revisionary authority forms a conclusion on the basis of concrete evidential material, it cannot reach to the conclusion rendering the order of assessment erroneous and prejudicial to the interests of the Revenue - Decided in favour of assessee.
-
2022 (4) TMI 1542 - CALCUTTA HIGH COURT
Levy of 200% penalty in terms of section 129 of the WBGST Act, 2017 - vehicle detained on the ground of expired E-way bill - HELD THAT:- The revenue would rely upon rule 138 of the rules to state that the appellant ought to possess a valid e-way bill and admittedly when the vehicle was intercepted, time stipulated in the e-way bill had expired. Sub-rule (10) of rule 138 lays down the validity period for a e-way bill. The 2nd proviso in sub-rule (10) provides that in circumstances of an exceptional nature including trans-shipment, the goods cannot be transported within the validity period of the e-way bill. The transporter may extend the validity period after updating the details in Part B of FORM GST EWB-01 - third proviso states that the validity of e-way bill may be extended within 8 hours from the time of its expiry. Thus, the rules give certain latitude and therefore, the conduct of the transporter is required to be examined bearing in mind that the rule itself provides for extension of the validity period of the e-way bill and the transporter has been given a latitude of 8 hours to seek for such extension.
If that benefit is granted to the appellant, then the delay would be about 1 hour and 35 minutes. Further, consignee Larsen & Toubro Construction had sent an e-mail on 15th May, 2022 stating that initially the goods were consigned to Kankora, Near Shantiniketan Road, Trilokchandrapur, Bud Bud, Panagarh, Durgapur, Barddhaman, West Bengal-713148. However, subsequently the consignee thought it to bring to another yard located at Degaule Avenue, Durgapur and the officer of the consignee accordingly, communicated the same - Admittedly the vehicle was within the area of Durgapur and even as per the revenue department, the distance between the place where the vehicle was intercepted and Durgapur was about 20 kilometres. There is no other allegation against the appellant.
This is not a case, where penalty that too 200% penalty should have been imposed - Petition allowed.
-
2022 (4) TMI 1541 - ITAT CUTTACK
Disallowance towards late payment of employees contribution to provident fund and ESI - Contribution made admittedly after the due date as prescribed under the relevant statute but before the due date of filing of the return - HELD THAT:- Hon’ble SC in case of M/s Rajasthan State Beverages Corporation Ltd [2017 (7) TMI 1087 - SC ORDER] Amount claimed on payment of PF and ESI having been deposited on or before due date of filing of returns, same could not be disallowed u/s 43B or u/s 36(1)(va).
The disputed controversy in the present case has been answered accordingly and the dispute which is for the assessment year 2020-21 and before is decided in favour of the assessee. AO is directed accordingly to delete the additions made for delayed remittance of employee’s contribution to PF / ESI after the due date under respective statutes but paid before the due date of filing of return of income u/s 139(1) of the income tax act.
As following the decision of Rukmani Infra Projects Ltd. [2022 (3) TMI 1536 - ITAT CUTTACK] we set aside the orders of lower authorities and delete the addition made by the AO and confirmed by the CIT(A) on account of delay in depositing the employees contribution to PF & ESI. Decided in favour of assessee.
-
2022 (4) TMI 1540 - GUJARAT HIGH COURT
Seeking restoration of cancelled GST registration of petitioner - HELD THAT:- This writ application is allowed in terms of the judgment in the case of AGGARWAL DYEING AND PRINTING WORKS VERSUS STATE OF GUJARAT & 2 OTHER (S) [2022 (4) TMI 864 - GUJARAT HIGH COURT], the impugned show cause notice dated 31.03.2022 at page 17, Annexure P/2, is hereby quashed and set aside.
It is is needless to clarify that since the impugned show notice has been quashed and set aside, the registration stands restored.
-
2022 (4) TMI 1539 - CESTAT MUMBAI
Recovery of Central Excise Duty alongwith interest and penalty - correctness of the inclusion of cost of ‘pre-delivery inspection’ and free ‘after-sale service’ undertaken by ‘dealers’ of the appellant in the assessable value - period from April 2010 to December 2010 - HELD THAT:- In COMMISSIONER OF CENTRAL EXCISE, MYSORE VERSUS M/S TVS MOTORS COMPANY LTD. [2015 (12) TMI 874 - SUPREME COURT], the inclusion of expenses incurred by the dealers on ‘pre-delivery inspection’ and ‘after-sale service’ in assessable value had been set aside with the finding that where the manufacturer has sold his goods to his dealer and wholesale dealer thereafter does ASS to the customer and incurs expenditure therefore, it cannot be added back to the sale price charged by the manufacturer from the dealer for computing the assessable value. This is more so, where the ASS is done by the dealer many weeks after the goods have been sold to him by the manufacturer. Such a post-sale activity undertaken by the dealer is not relevant for the purpose of excise since the goods have already been marketed to the dealer.
Appeal allowed.
-
2022 (4) TMI 1538 - BOMBAY HIGH COURT
Money Laundering - Appellate Tribunal under (PMLA) is not functional - Petitioner intends to prefer an Appeal against the order passed by the Adjudicating Authority within 45 days as stipulated under Section 26 of the PMLA - HELD THAT:- It is not in dispute that the Appellate Tribunal (under PMLA) is presently not functional for want of appointment a Chairperson - the statement of the learned counsel for the Petitioner is accepted that the Petitioner will be filing an Appeal along with a stay Application before the Tribunal within the stipulated period of the Act.
Accordingly, no coercive steps be taken with respect to the subject properties till such time, the Appellate Authority (under the PMLA), decides the stay Application of the Petitioner - petition disposed off.
-
2022 (4) TMI 1537 - ITAT BANGALORE
Foreign Tax Credit as per Indo-American DTAA denied - Delayed submission of Form No.67 beyond the due date as prescribed u/s 139(1) for filing the return of income for the Assessment Year 2017-18 - HELD THA:- As this issue was considered in the case of 42 Hertz Softwrae India Pvt. Ltd.[2022 (3) TMI 834 - ITAT BANGALORE] one of the requirements of Rule 128 for claiming FTC is that Form 67 is to be submitted by assessee before filing of the returns. In our view, this requirement cannot be treated as mandatory, rather it is directory in nature. This is because, Rule 128(9) does not provide for disallowance of FTC in case of delay in filing Form No.67.
DTAA overrides the provisions of the Act and the Rules, as held by various High Courts, which has also been approved in case of Engineering Analysis Centre of Excellence (P.) Ltd. [2021 (3) TMI 138 - SUPREME COURT] - Thus hold that FTC cannot be denied to the assessee.
Thus remit the issue back to the AO on similar direction. AO to consider the claim of the assessee in accordance with law based on the verification - Appeal of the assessee is allowed for statistical purposes.
-
2022 (4) TMI 1536 - SC ORDER
Seeking grant of bail - bail sought on medical grounds - HELD THAT:- Since the High Court is reported to have passed an order on 8 April 2022 confirming the grant of bail on medical grounds, we dispose of the Special Leave Petitions while granting liberty to the petitioner to pursue his rights and remedies in respect of the order dated 8 April 2022. All the rights and contentions in that regard are kept open.
SLP disposed off.
-
2022 (4) TMI 1535 - BOMBAY HIGH COURT
Reopening of assessment u/s 147 - Reason to believe - genuineness of claim of assessee company about compensation payable not proved - HELD THAT:- It is a clear case of change of opinion. It is settled law that reopening can not be based on change of opinion. Change of opinion does not constitute justification and/or reasons to believe that income chargeable to tax has escaped assessment.
Admittedly, in this case, there was even survey operation u/s 133-A and in the survey report it was specifically commented to examine in detail genuineness of claim of assessee company about compensation payable - It is also admitted that the Assessing Officer in his order dated 31.12.2010 has accepted submissions of petitioner and allowed expenditure. According to Respondent No.2, the AO who passed the original assessment order should not have accepted the payment as expenditure but should have treated it as ‘capital payment’. It is clear case of change of opinion - quash and set aside notice u/s 148 - Decided in favour of assessee.
-
2022 (4) TMI 1534 - ITAT BANGALORE
Condonation of delay in filing appeals beyond the limitation period - sufficient cause of delay - whether delay was excessive or inordinate? - Levy of penalty u/s 271(1)(c) [Delay of 591 days] and levy of penalty u/s.271F[ Delay of 775 days] - HELD THAT:- Under the scheme of Constitution, the Government cannot retain even a single pie of the individual citizen as tax, when it is not authorised by an authority of law. Therefore, if we refuse to condone the delay, that would amount to legalise an illegal and unconstitutional order passed by the lower authority. Therefore, in our opinion, by preferring the substantial justice, the delay has to be condoned.
Question of condonation of delay is a factual matter and the result would depend upon the facts of the case and the cause shown by the assessee for the delay. Generally delays in preferring appeals are required to be condoned in the interest of justice, where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay.
As assessees have shown sufficient cause for the delay in filing the appeals before the Tribunal - Assessee’s appeals are treated as partly allowed for statistical purposes.
-
2022 (4) TMI 1533 - DELHI HIGH COURT
Petition was dismissed with liberty to the writ petitioners to approach the Court which is Forum Conveniens - HELD THAT:- Having heard learned counsels, and after considering all the relevant factors in the specific facts of this case, it is agreed that the impugned order be set aside and the writ petition be remanded back to the learned Single Judge for hearing on merits. It is ordered accordingly.
The appeal stands disposed of.
........
|
