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Showing 81 to 100 of 1290 Records
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2024 (1) TMI 1210 - CESTAT AHMEDABAD
CENVAT Credit - Time limitation of Six months for availing the Cenvat credit in terms of 3rd Proviso to Rule 4 of Cenvat Credit Rules, 2004 brought into effect from 18.09.2014 - applicability to duty paying documents issued prior to 18.09.2014 - Cenvat credit of renting of immovable property service in respect of warehouse located outside the factory - denial on the ground that the invoice from which the credit was availed at the address of head office and hence was not in accordance with Rule 9(1) of the Cenvat Credit Rules, 2004.
Whether the limitation of Six months for availing the Cenvat credit in terms of 3rd Proviso to Rule 4 of Cenvat Credit Rules, 2004 brought into effect from 18.09.2014 is applicable to duty paying documents issued prior to 18.09.2014? - HELD THAT:- In view of the judgment in AALIDHRA TEXTOOL ENGINEERS PVT LTD VERSUS C.C.E. & S.T. -DAMAN [2020 (1) TMI 1617 - CESTAT AHMEDABAD] and ROQUETTE RIDDHI SIDDHI PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, CUSTOMS AND SERVICE TAX, BELGAUM [2022 (3) TMI 358 - CESTAT BANGALORE], it is settled that the provision for limitation of Six months/ One Year for availment of credit from the date of invoice, is applicable only in respect of the invoices issued after 18.09.2014. In the present case, since the invoices are prior to 18.09.2014, the limitation of six Months/ one year shall not apply. Hence, the credit on this issue is admissible to the appellant.
Whether the Cenvat credit of renting of immovable property service in respect of warehouse located outside the factory is available to the appellant? - HELD THAT:- From the judgments in SAURASHTRA CEMENT LIMITED VERSUS C.C.E. & S.T. - BHAVNAGAR [2018 (8) TMI 460 - CESTAT AHMEDABAD] and SWISS GLASCOATE EQUIPMENTS VERSUS C.C.E. & S.T. -VADODARA-I [2022 (3) TMI 47 - CESTAT AHMEDABAD], it can be seen that even though services were provided outside the factory premises but the same is in relation to the manufacture of the final product of the appellant the credit was allowed. Following the said judgments, in the present case also the appellant are entitled for the Cenvat Credit in respect of renting of immovable of property i.e. warehouse located outside the factory premises.
Whether the Cenvat credit can be denied on the ground that the invoice from which the credit was availed at the address of head office and hence was not in accordance with Rule 9(1) of the Cenvat Credit Rules, 2004? - HELD THAT:- There is no dispute that the service was received by the appellant in their factory. Even though the address of head office is mentioned but so long the input service was received by the appellant for their factory, the credit cannot be denied. There is no case of the department that the credit on such invoice has been taken in appellant’s other unit. This issue has been considered by this Tribunal in the case of M/S. MADHYA PRADESH CONSULTANCY ORGNISATION LTD. VERSUS CCE, BHOPAL [ 2017 (4) TMI 954 - CESTAT NEW DELHI] where it was held that denial of credit only on the ground that the address of branch office or head office was mentioned instead of appellant’s address cannot be the ground for denial of otherwise eligible Cenvat credit - thus, it is settled that merely because the invoice is bearing the address of head office credit to the appellant’s unit cannot be denied.
The appellant succeeds on all the three issues and the credit on all the three issues are admissible to the appellant. Accordingly, the impugned order is set aside - appeal is allowed.
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2024 (1) TMI 1209 - DELHI HIGH COURT
Cancellation of GST registration of the Petitioner with retrospective effect - non-filing of returns for a continuous period of six months - HELD THAT:- In terms of Section 29(2) of the Central Goods and Services Tax Act, 2017, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. Registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria. Merely, because a taxpayer has not filed the returns for some period does not mean that the taxpayer’s registration is required to be cancelled with retrospective date also covering the period when the returns were filed and the taxpayer was compliant.
It is important to note that, according to the respondent, one of the consequences for cancelling a tax payer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period. Although, it is not considered apposite to examine this aspect but assuming that the respondent’s contention in this regard is correct, it would follow that the proper officer is also required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer’s registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.
The order of cancellation is modified to the extent that the same shall operate with effect from 30.06.2020, i.e., the date on which the petitioner discontinued the business - Petition disposed off.
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2024 (1) TMI 1208 - MADHYA PRADESH HIGH COURT
Demand for excess Input Tax Credit (ITC) along with interest and penalty u/s 74 - Reversal of excess Input Tax Credit availed - Order passed without considering the submissions of petitioner and also without providing an opportunity of hearing to the petitioner - violation of principles of natural justice - HELD THAT:- In the instant case whether or not the petitioners have specifically asked for personal hearing, fact remains that the adverse decision was contemplated against the petitioners. In that event, it was obligatory and mandatory on the part of respondents to provide the petitioners opportunity of personal hearing. Admittedly, no opportunity of personal hearing has been provided in both the matters. Resultantly, the decision making process adopted by the respondents is vitiated and runs contrary to the principles of natural justice and statutory requirement of sub-section 4 of Section 75 of GST Act.
As a result, the impugned proceedings after the stage of reply of show cause notices, in both the cases are set-aside. The respondents shall provide opportunity of hearing to the petitioners in both the cases by some other officer than the officer who has issued the show cause notice as per M/S ULTRATECH CEMENT LIMITED HAVING OFFICE AT UNIT VIKRAM CEMENT WORKS THRU. ITS AUTHORIZED REPRESENTATIVE MR. VINOD KUMAR SONI S/O SHRI OM PRAKASH VERSUS UNION OF INDIA, STATE OF MADHYA PRADESH, DEPUTY COMMISSIONER OF STATE TAX UJJAIN-2 [2023 (1) TMI 1027 - MADHYA PRADESH HIGH COURT].
Both the writ petitions are disposed of.
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2024 (1) TMI 1207 - ALLAHABAD HIGH COURT
Maintainability of appeal before the appellate authority - time limitation - appeal filed by the petitioner dismissed on the ground that the same was time barred as it was filed beyond the period of four months - HELD THAT:- Perusal of the record shows that the appeal was filed beyond time and when there is no dispute with regard to filing of the appeal beyond the time prescribed, this Court under the extraordinary jurisdiction cannot interfere with the appellate authority's order as the application of Limitation Act, 1963 does not apply to Section 107 of the Act.
The Central Goods and Services Act is a special statute and a self-contained code by itself. Section 107 of the Act has an inbuilt mechanism and has impliedly excluded the application of the Limitation Act. It is trite law that Section 5 of the Limitation Act, 1963 will apply only if it is extended to the special statute. Section 107 of the Act specifically provides for the limitation and in the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. Accordingly, one cannot apply Section 5 of the Limitation Act, 1963 to the aforesaid provision.
Thus, no interference is required in this petition and the same is, accordingly, dismissed.
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2024 (1) TMI 1206 - PUNJAB AND HARYANA HIGH COURT
Challenging the FIR - Recovery of goods without payment of Goods and Services Tax - involvement of GST officials and other government officials who were running racket for GST - cheating - criminal conspiracy - HELD THAT:- When the allegations prima facie disclose a cognizable offence, then the police is under a statutory obligation to investigate the same and concluding the investigation by either launching prosecution or by filing a closure report. In between the FIR can only be quashed if investigation is almost completed on all important aspects and remaining investigation will not unfold any significant fact or not likely to unearth any evidence which is likely to change the outcome of the FIR itself. Otherwise the FIR can be quashed and criminal proceedings can be disrupted under Section 482 CrPC only when the investigation is complete in all material particulars. In this case, it has been brought to the notice by the State that four diaries were recovered in which there was a mentioning of payment of bribe to the government officials, who in-turn would lead to petitioner’s transporting the goods without payment of taxes.
Thus, whether it is a case only of Section 122 of CGST Act 2017 or Section 420 & 120B IPC and/or under PC Act, it is the matter of investigation which is continuing. If this Court disrupts criminal proceedings at this stage, it would amount to interference in the powers of police to investigate and also it would be violative of statutory provisions of CrPC where police has been authorized to conduct investigation within the reasonable time till they come out with either closure report or a report under Section 173 CrPC.
The present petition is premature and this Court cannot scuttle and disrupt the investigation by quashing the FIR for the reason of recovery of diaries pointing towards payment of bribe. Be that as it may, the petitioner shall be at liberty to file a fresh petition for quashing of FIR when he receives a report under Section 173 CrPC., provided the same is filed against the petitioner.
Petition dismissed.
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2024 (1) TMI 1205 - KERALA HIGH COURT
Claim of interest on delayed refund - The claim was rejected on the ground that the amount was recredited to the credit ledger - HELD THAT:- From a bare perusal of Section 56 of the CGST Act, it is evident that if any eligible tax amount ordered to be refunded under subsection (5) of section 54 is not refunded within sixty (60) days from the date of receipt of application, interest at such rate not exceeding six per cent is to be given, as may be specified in the notification to be issued by the Government on the recommendations of the Council. The petitioner had made application for refund on 17.1.2018 and refund has been granted/recredited vide order dated 10.8.2022.
As per the provisions of Section 56, the petitioner is entitled for interest @ 6% on the amount ordered to be refunded from the date of expiry of sixty (60) days from the date of the application for refund, i.e. 17.1.2018, till the date of refund/credit to petitioner's credit ledger, as per notification No. 9/2017 dated 28.6.2017 - Ext. P5 order rejecting petitioner's claim for interest on the tax amount ordered to be refunded is quashed and the respondents are directed to calculate the interest on the amount, which was refunded/credited to the petitioner’s cash credit ledger, as directed above, and disburse the same within a period of two months from today.
The present writ petition stands finally disposed of.
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2024 (1) TMI 1204 - GUJARAT HIGH COURT
Refund of IGST on Ocean Freight - reverse charge mechanism - HELD THAT:- The petition is disposed of with a direction to the respondent-authority to consider the refund application of the petitioner as per the decision of the Hon’ble Supreme Court in case of UNION OF INDIA & ANR. VERSUS M/S MOHIT MINERALS PVT. LTD. THROUGH DIRECTOR [2022 (5) TMI 968 - SUPREME COURT].
The impugned Deficiency Memo Form-RFD-03, so far as it relates to the aspect of the applicability of the decision of the Apex Court is concerned, is quashed and set aside. The respondent-authorities are directed to process the refund application in accordance with law - Petition allowed.
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2024 (1) TMI 1203 - KERALA HIGH COURT
Refund of accumulated input tax credit - inverted duty (tax) structure - LPG supplies to domestic customers after bottling in cylinders - case of the petitioner does not fall within the exception as provided in clause (ii) of sub-Section (3) of Section 54 of the CGST Act - HELD THAT:- On a bare reading of Section 54, it is clear that if the supplies are not coming within the exceptional clause and credit had accumulated on account of rate of tax on inputs being higher than the rate of tax on output supplies, a dealer shall be entitled for refund of the credit accumulated in such a situation, irrespective of the fact whether the input and output supplies are one and the same or not.
All the four High Courts in BMG INFORMATICS PVT. LTD., VERSUS THE UNION OF INDIA AND 3 ORS., THE COMMISSIONER CENTRAL GOODS AND SERVICE TAX GUWAHATI, THE JOINT COMMISSIONER (APPEALS) CGST CENTRAL EXCISE AND CUSTOMS GUWAHATI, THE ASSISTANT COMMISSIONER CGST AND CENTRAL EXCISE DIVISION II [2021 (9) TMI 472 - GAUHATI HIGH COURT], M/S. SHIVACO ASSOCIATES & ANR. VERSUS JOINT COMMISSIONER OF STATE TAX, DIRECTORATE OF COMMERCIAL TAXES & ORS. [2022 (4) TMI 118 - CALCUTTA HIGH COURT], BAKER HUGHES ASIA PACIFIC LIMITED VERSUS UNION OF INDIA, THE STATE OF RAJASTHAN, THE DEPUTY COMMISSIONER, STATE TAX, CIRCLE BARMER, RAJASTHAN, CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS [2022 (7) TMI 73 - RAJASTHAN HIGH COURT] and INDIAN OIL CORPORATION LIMITED VERSUS COMMISSIONER OF CENTRAL GOODS AND SERVICES TAX & ORS. [2023 (12) TMI 361 - DELHI HIGH COURT] have held that the condition laid down in clause 3.2 of the Circular, which denies refund of credit accumulated to a dealer as a result of higher tax on inputs than the output supplies, when the input and output supplies are one and the same, would have to be ignored.
Considering the ratio laid down in the aforesaid four judgments by the four High Courts, the present writ petitions are allowed and the petitioner is held to be entitled for refund of the credit accumulated on account of payment of higher rate of tax, i.e. @ 18%, on input supplies received by him for bottling of LPG for domestic supply, when the rate of tax is only @ 5%.
The matter is remanded back to the assessing authority to calculate the refund amount of accumulated ITC admissible to the petitioner for the aforesaid periods on account of higher rate of tax having been paid by the petitioner on input supplies of LPG for bottling and supplying in the domestic market.
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2024 (1) TMI 1202 - DELHI HIGH COURT
Cancellation of petitioner’s GST registration - fraudulent purchase - impugned order does not disclose any reason for cancelling the petitioner’s GST registration - violation of principles of natural justice - HELD THAT:- Undisputedly, the impugned Show Cause Notice fails to meet the requisite standard for such notice - It is also material to note that although the impugned show cause notice required the petitioner to appear for personal hearing on the appointed date and time and also cautioned that if the petitioner failed to do so, the case would be decided ex parte, but the notice does not specify any date or time at which the such personal hearing was scheduled - the petitioner had no opportunity to be heard.
The impugned order passed pursuant to the impugned show cause notice, is also liable to be set aside on the ground that it had been passed in violation of principles of natural justice - the impugned show cause notice dated 29.10.2021 and the impugned order dated 16.12.2021 are set aside.
The petitioner’s GST registration is directed to be restored forthwith - Petition disposed off.
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2024 (1) TMI 1201 - JHARKHAND HIGH COURT
Seeking to set aside Summary of the Show Cause Notice - only ‘Summary of Show Cause Notice’ has been issued and no proper Show Cause Notice has been issued to the Petitioner - violation of principles of natural justice - HELD THAT:- This Court, while considering the similar matter in the case of M/S. NKAS SERVICES PRIVATE LIMITED. VERSUS THE STATE OF JHARKHAND, THE COMMISSIONER OF STATE TAXES, RANCHI, DEPUTY COMMISSIONER OF STATE TAXES, GODDA [2021 (10) TMI 880 - JHARKHAND HIGH COURT], has held that Since we are of the considered view that the impugned show cause notice as contained in Annexure-1 does not fulfill the ingredients of a proper show-cause notice and thus amounts to violation of principles of natural justice, the challenge is entertainable in exercise of writ jurisdiction of this Court. Accordingly, the impugned notice at Annexure-1 and the summary of show-cause notice at Annexure-2 in Form GST DRC-01 are quashed.
In the instant case, from bare perusal of the order-sheet, it would transpire that Summary of Show Cause Notice in Form GST DRC-01 was issued to the Petitioner on 27.09.2019 and, although no date of compliance was given, the Petitioner, suo-motu, filed its reply on 22.10.2019. Thereafter, no date of hearing was fixed in the matter and, straightaway, vide order-sheet dated 02.09.2020, it has been recorded that Summary of Demand in Form GST DRC-07 is being issued to the Petitioner. Thus, admittedly, no opportunity of hearing was also granted to the Petitioner before the impugned demand was raised upon the Petitioner.
There are no option, but to quash and set aside the Summary of Show Cause Notice contained in Form GSTR DRC-01 dated 27.09.2019 (Annexure 2/1) issued by Respondent No. 2 and consequently, set aside the adjudication order dated 02.09.2020 contained in the order-sheet pertaining to financial year 2018-19 and, consequently also, the Summary of the Order issued in form GST DRC-07 dated 04.09.2020 issued by Respondent No. 2. However, Respondents would be at liberty to initiate fresh proceeding in accordance with law, if so advised.
The writ application is allowed and disposed of.
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2024 (1) TMI 1200 - AUTHORITY FOR ADVANCE RULING, TAMILNADU
Classification of goods - treated water that would be sold by the Applicant, after carrying out various treatment process on the effluent water purchased by them - rate of GST applicable on the said treated water - HELD THAT:- Upon going through the processes effected by the Applicant, the effluent water is subjected to micro-filtration and sand filtration process to remove suspended impurities. They have then used a scries of RO units for removing minerals. In spite of the RO treatment, the TDS of the treated water is higher, which can be seen from the test report. As per the report furnished by The South India Textile Research Association (SITRA) Textile Testing and Service Centre, test report No. V2300303, dated 9-8-2023 of Sample given for testing, in the case of the Applicant, it is seen that the recovered water contains chlorides, sulphates, Bicarbonates, etc. The TDS levels of the treated water as per the test report is 294 mg/1, which clearly shows the treated water is not demincralized as per the standard norms. From the above, it is clear that treated water cannot be construed as demineralized water.
Water recovered out of the effluent treatment process nothing but an ordinary water which is suitable for reuse by the dyeing and bleaching units as a solvent and as a washing, rinsing medium. Thus, it aptly fits into Sl. No. 99 of Notification No. 2/2017-C.T. (Rate), dated 28-6-2017 under the Heading 2201 rather than Sl. No. 24 of Notification No. 1/2017-Central Tax (Rate), dated 28-6-2017 under the same Heading 2201.
The common effluent treatment plant has been set up in order to comply with the legislative and environment regulations thereby conserving water through recovery and reuse and not to manufacture water or chemicals - effluent treated water is eligible for exemption as per Notification No. 2/2017-Central Tax (Rate) as amended vide Notification No. 7/2022-Central Tax (Rate), dated the 13th July, 2022.
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2024 (1) TMI 1199 - SC ORDER
Penalty levied for inaccurate particulars of income - As per AO assessee treated the revenue receipt of subsidy as capital receipt - debatable issue - as per HC no error in the findings recorded by Tribunal while setting aside penalty as there is no dispute about the quantum of receipt of grant in aid from the State Government. The assessee reflected the same as capital receipt, whereas it has been treated as to be revenue receipt. The issue; whether the amount of grant in aid is capital receipt or a revenue receipt, is a debatable issue.
HELD THAT:- Additional Solicitor General, has in his usual fairness stated the correct position of law as it exists in the facts and circumstances of the case. Taking note of the legal position, the Special Leave Petitions are dismissed.
Pending applications, if any, shall stand disposed of.
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2024 (1) TMI 1198 - DELHI HIGH COURT
Addition on the basis of seized documents found during the course of the search - unaccounted transaction/Purchases - ITAT instructed to restore the issue to the file of the AO with a direction to obtain information from the parties regarding transactions carried on by the assessee during the above 2 years - HELD THAT:- It is thus manifest that since the exercise of assessment was not confined merely to the material gathered in the course of a search but was kept open to be examined with reference to all transactions in the Assessment Years in question, we find no ground to entertain the instant appeals on Question A.
Estimation of income - bogus purchases - ITAT has essentially held that since the books of account had not been rejected it would not be open for the Assessing Officer to undertake an assessment of income - Appellant invited our attention to the following observations as appearing in the decision rendered in Unit Construction Co. Ltd. vs Joint Commissioner of Income-Tax [2003 (1) TMI 85 - CALCUTTA HIGH COURT] to contend that it is not necessary for the Assessing Officer to reject the book of accounts in order to assess income on a best judgment basis - HELD THAT:- In order to enable learned counsels to examine whether this issue stands concluded by a decision rendered by this Court, let the appeals be re-notified on 13.02.2024.
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2024 (1) TMI 1197 - GUJARAT HIGH COURT
Revision u/s 263 - Taxability of income disclosed in survey proceedings u/s 133A at Higher Rate of tax u/s 115BBE - While deleting the addition, ITAT found that there was nothing stated in either pre-amended or post-amended provision of Section 115BBE that when the assessee surrendered undisclosed income during the search action for the relevant years, higher tax rate is required to be charged.
HELD THAT:- In the facts of the case, during the course of assessment proceedings, as the Assessing Officer had made due inquiries and was aware of the fact that the assessee had disclosed the income as business income in his return of income in respect of which it had claimed expenditure in relation to interest and remuneration paid to partners and after making inquiries, Assessing Officer allowed the claim of the assessee by treating undisclosed income found during the survey as assessee’s business income and in view such finding of facts arrived at by the Tribunal, we are of the opinion that no substantial question of law arises from the impugned order of the Tribunal. Decided against revenue.
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2024 (1) TMI 1196 - GUJARAT HIGH COURT
Bogus sundry creditors - difference between the outstanding balance of the sundry creditors as on 31.03.2015 and 31.03.2014, which was the net increase in creditors by treating the same as bogus creditors - CIT(A) deleted addition admitting additional evidences - whether CIT(A) had clearly violated the provisions of Rule 46A of the Income-tax Rules, 1962, while admitting additional evidence? - as per revenue assessee has not furnished any sufficient cause for not submitting the evidence and had remained absent in the assessment proceedings though sufficient opportunity was given
HELD THAT:- CIT after considering the explanation of the assessee that the assessee was illiterate person and has studied upto fourth standard and he was not able to read English Language, we are of the opinion that the provision of Rule 46A(1) more particularly Sub-clause(b) thereof which reads as under is complied with as the assessee was prevented by sufficient cause from producing the evidence which he was called upon to produce by the Assessing Officer.
In view of the above provisions of Rule 46A of the Rules, the assessee being an illiterate person could not appear before the Assessing Officer and the appellate proceedings being the continuation of the assessment proceedings, the CIT(A) has rightly permitted the assessee to produce the additional evidence in consonance with the Rule 46A of the Rules. Decided against revenue.
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2024 (1) TMI 1195 - GUJARAT HIGH COURT
Validity of final assessment order u/s 144B - petitioner request for adjournment was ignored - HELD THAT: -The issue is squarely covered by the decision of this Court in case of Verichand Bawandas HUF Karta of HUF Pawankumar Virdhichand Agrawal vs. National E-Assessment Centre [2022 (8) TMI 91 - GUJARAT HIGH COURT] Assessee congenial approach should be reflected not only in the application of taxation laws but also in the procedural mechanism to be applied towards assessee in treating him for the purpose of tax. It hardly stood to reason that the department refused the request of the assessee for grant of time to file his response to the draft assessment order. There was sufficient time available for the final assessment to be made.
As it was pandemic time when the department should have adopted liberal approach in refusing the request for time for filing objection to the draft assessment order and finally passing the assessment order. The department acted thick skinned.Thus petitioner deserves to be granted a relief. The assessment order dated under Section 143(3) read with Section 144B are hereby set aside.
In view of the above dictum of law in the aforesaid case, the petition is required to be allowed and is accordingly allowed. Matter is remanded back to the Assessing Officer to decide the same afresh from the stage of the draft assessment order.
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2024 (1) TMI 1194 - 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) - Review of final order passed[2023 (10) TMI 1353 - MADHYA PRADESH HIGH COURT] challenging order passed u/s. 148A(d) - Review petitioner is before this Court with the assertion that liberty be extended to petitioner to raise all contentions admissible in law in appeal which has been preferred against the final assessment order
HELD THAT:- As evident from the reading of order under review that this Court had declined to enter into merits of the matter especially the legality and validity of the assessment order against which an appeal has now been preferred.
Accordingly, this Court is of the considered view that petitioner who is an appellant before the Appellate Authority cannot be denied to raise any ground admissible in law and which can otherwise be raised under the relevant statute permitting filing of appeal. Especially when the scope and nature of interference available u/Art.226 of Constitution is at variance to an appeal.
Review petition stands disposed of with liberty to the review petitioner to raise all possible, permissible contentions as per law u/s. 246A of the Income Tax Act while assailing the assessment order.
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2024 (1) TMI 1193 - KERALA HIGH COURT
Validity of reassessment proceedings - Request adjournment date for submission of the response to the show cause notice - violation of the principles of natural justice - petitioner requested for adjournment to 17.3.2023 and the web portal of the Income Tax Department would suggest that the said request was considered, but no date was given for filing the response - petitioner was of the opinion that the petitioner had been granted time up to 17.3.2023 to give response to the notice , however, before 17.3.2023, the assessment order got finalised - HELD THAT:- As in agreement with the petitioner that in the absence of date mentioned for submission of the response to the show cause notice dated 23.2.2023, the petitioner had bona fide believed that the petitioner's request for adjournment to 17.3.2023 to give response to the show cause notice dated 23.2.2023 was accepted.
However, before 17.3.2023, the impugned order, Ext. P6, has been passed on 14.3.2023, and therefore, there was violation of the principles of natural justice. For that reason, the impugned order is bad in law and is liable to be set aside.
Present writ petition is allowed and the impugned order is set aside and the matter is remanded back to open the link provided to the petitioner for uploading the response to the show cause notice dated 23.2.2023. If the petitioner fails to upload the response within the time prescribed for the same, the assessing authority would be free to pass fresh order.
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2024 (1) TMI 1192 - GUJARAT HIGH COURT
Exemption u/s 11 - delayed submission of Form 10B - mandatory v/s discretionary requirements - requirement of furnishing declaration for claiming exemption - audit report in Form No. 10B was not e-filed along with the return of income - non reliance of Supreme court decision - as submitted assessee ought to have filed the audit report in Form 10B before the due date of filing of the return to claim the exemption - ITAT allowed exemption -
HELD THAT:- Reliance placed on the decision of M/s. Wipro Limited [2022 (7) TMI 560 - SUPREME COURT] would not be applicable as in the facts of the present case, the assessee has claimed the exemption u/s 11 read with Section 12A(1)(b) of the Act which required the assessee to file audit report in Form of 10B which has nothing to do with claiming 100% exemption of total income in respect of newly established 100% Export Oriented Undertakings under Section 10B. Section 10B(8) requires the assessee to file an undertaking before the due date of furnishing of return of income under sub-section (1) of Section 139 before the AO in writing that the provision of Section 10B may not be made applicable to him, otherwise the provision of this Section shall not apply to him for any of the relevant assessment year.
Considering the language of the provision of Section 10B(8) of the Act, the Hon’ble Supreme Court in M/s. Wipro Limited [supra] held that it was mandatory on part of the assessee to file declaration before the due date of filing of return under sub-section (1) of Section 139 of the Act, whereas in the facts of the said case the assessee filed such undertaking along with the revised return under sub-section (5) of Section 139 and in such facts the Hon’ble Supreme Court held that the twin conditions prescribed under Section 10B(8) of the Act was mandatory to be fulfilled and it cannot be said that though the declaration is mandatory, the filing of such declaration within the due date of filing of return under sub-section (1) of Section 139 would be directory.
Tribunal has rightly followed the decision of this Court in case of Sarvodaya Charitable Trust [2021 (1) TMI 214 - GUJARAT HIGH COURT] as well as Social Security Scheme of GICEA [2022 (12) TMI 1172 - GUJARAT HIGH COURT] to uphold the decision of the CIT (Appeals), wherein this Court has held that the approach of the authority in such type of cases should be equitable, balancing and judicious and respondent No. 2 might be justified in denying the exemption under Section 11 of the Act being a technical in nature by rejecting such application. But, in the facts of the case, when the assessee has already uploaded the audit report in Form 10B as required under Section 10(23)C r.w.s. 12A(1)(b) of the Act before the Assessing Officer prior to the original assessment order under Section 143(3) passed on 06th April, 2021. Decided in favour of assessee.
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2024 (1) TMI 1191 - GUJARAT HIGH COURT
Revision u/s 263 - accrued interest income on deposit - addition on account of notional interest @10% on deposit - HELD THAT:- In view of the concurrent findings of the fact arrived at by both the authorities and in view of the fact that there was a stipulation in the loan agreement between the assessee and the M/s. Sanman Holdings Private Limited, which was placed on record by way of a paper book, Clause-f of the loan agreement reads as under Borrower shall pay interest at the end of the financial year to the Lender at the rate of 10% per annum, subject to its financial position and profitability, on the Loan from the date of disbursement of the Loan, after deduction of applicable Tax deduction at source. Any unpaid interest at the last business day of financial year shall be treated as loan to the borrower on first business day of next financial year. In event of amalgamation, merger or demerger or takeover of borrower or any other change in its management the liability to pay interest shall cease and lender shall not be entitled to any interest from the appointed date for such event.
As M/s.Sanman Holdings Private Limited to whom the assessee has advanced the loan was amalgamated with M/s. Tanti Holdings Private Limited, no interest was liable to be paid to the assessee as per the aforesaid clause. This fact is considered by both the authorities and accordingly it was held that the no interest accrued to the assessee from 01.04.2010. No substantial question of law.
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