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Showing 81 to 100 of 1128 Records
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2024 (4) TMI 1048 - SC ORDER
Conspiracy with the consignee and other persons - Smuggling - cigarettes - alloy wheels - metal scrap - initiation of proceedings under Sections 112 and 117 of Customs Act - notice was issued in compliance of provisions of Section 155(2) of the Act - It was held by High Court that The larger issue thus, remains whether there was a conspiracy with the consignee and other persons. These are factual aspects which the writ Court will not go into. Since the reply has already been filed, it is opined that it is for the authorities to take a decision on the above said show cause notices and it is not for the writ Court to entertain the petition of an employee who prima facie is guilty of eating the fence.
HELD THAT:- There are no reason to interfere with the order impugned herein under Article 136 of the Constitution of India.
The Petition for Special Leave to Appeal is dismissed.
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2024 (4) TMI 1047 - CALCUTTA HIGH COURT
Maintainability of Appeal - Appropriate forum - matter relates to the valuation of a car which was imported - rejection and redetermination of value - HELD THAT:- The matter concerns valuation of the imported goods and there is the clear bar of this Court (High Court) in entertaining this appeal.
The appeal is held to be not maintainable before this Court.
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2024 (4) TMI 1046 - MADRAS HIGH COURT
Seeking amendment of bill of entry - grant of benefit of N/N. 152/2009, dated 31-12-2009 - HELD THAT:- In the present case, it appears that nothing has been mentioned in the assessed bill of entry by the respondent with regard to the petitioner’s entitlement of exemption under Notification No. 152/2009, dated 31-12-2009. Hence, the petitioner made a rectification application on 1-6-2023. However, in the said rectification application, no order has been passed by the respondent till date.
The respondent is directed to dispose of the rectification application dated 1-6-2023 filed by the petitioner in accordance with law after affording an opportunity of personal hearing to the petitioner - the writ petition is disposed off.
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2024 (4) TMI 1045 - CESTAT NEW DELHI
Request for conversion of free Shipping Bills into Drawback Shipping Bills rejected - long lapsed period between exports (1998) and the request for conversion (2007) - section 149 of Customs Act, 1962 - HELD THAT:- The free shipping bills in question pertain to 1998 and the request for conversion was made in 2007. Although the request was made in terms of section 149 of the Act, as per the interpretation of this section by Delhi High Court in M/S. TERRA FILMS PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS [2011 (4) TMI 13 - DELHI HIGH COURT] and Madras High Court in THE COMMISSIONER OF CUSTOMS (SEAPORT-EXPORT) VERSUS M/S. SUZLON ENERGY LIMITED [2013 (3) TMI 506 - MADRAS HIGH COURT], conversion of shipping bill from one scheme to another is not an amendment because it changes the entire nature of the document.
Viewed in this legal position, the appellant’s request for conversion of free shipping bills to drawback shipping bills cannot be accepted for more than one reason - Firstly, it changes the entire nature of the Shipping Bills and it is not merely amendments to them - Secondly, any amendment can be permitted only on the basis of documents available at the time of export. The appellant’s prayer that the rates notified much later may be applied to it’s case retrospectively cannot be accepted because the notified All-Industry Rates are always prospective and also because these rates had not existed when the goods were exported - Thirdly, any amendment under section 149 is a matter of discretion of the officer and not a right of the exporter.
Considering the long period that lapsed between exports (1998) and the request for conversion (2007), the Commissioner was correct in not allowing the conversion.
The impugned order is upheld - Appeal dismissed.
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2024 (4) TMI 1044 - CESTAT KOLKATA
Provisional release of the goods allowed - SCN not issued within time limitation - seizure of goods under Section 110 (2) of the Customs Act, 1962 - HELD THAT:- As per Section 110 (2), the adjudicating authority was required to issue show cause notice under section 124 of the Customs Act within six months of seizure. The period of six months may on sufficient cause being shown can be extended for another period of six months, but in this case, neither any show cause notice has been issued to the appellant under section 124 of the Act nor the period for issuance of the show cause notice has been extended till date. Admittedly the goods have been seized on 22.09.2023 and presently it is 19.04.2024.
As the provision of section 110(2) of the Customs Act has not been complied with, therefore, the goods in question are to be released to the appellant immediately - the adjudicating authority is directed to do so.
The goods in question are to be released to the appellant immediately without any condition for provisional release - Appeal disposed off.
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2024 (4) TMI 1043 - CESTAT MUMBAI
100% EOU - Validity of EPCG Licenses - Cancellation of bonded warehouse licence, letter of permission (LOP) and registration - Duty liability u/s 28 - interest - ‘export promotion capital goods (EPCG)’ scheme in the Foreign Trade Police (FTP) - breach of the principles of natural justice - HELD THAT:- On a perusal of the scheme of Customs Act, 1962, we find that there is no provision whatsoever for the consequences of cancellation of a warehousing licence other than through section 58 of Customs Act, 1962 by giving one month notice in writing and opportunity to be heard. Therefore, notwithstanding the issue of letter of permission which was also the genesis of the private warehousing licence, provisions of Customs Act, 1962 do not envisage such deftailing of a scheme in Foreign Trade Policy with the self content and apprehensive provision for a warehousing in chapter IX of Customs Act, 1962 with the procedures formulated for implementation of such a scheme did prescribe the licencing of a private bonded warehouse for enabling operation as export oriented unit (EOU). Such a procedure cannot correct the existence and sanctity of a warehouse licenced under the provisions of chapter IX of Customs Act, 1962.
Any termination of the said warehousing licence and its consequence, was necessarily follow the provisions embodied in the said chapter and cannot be said to be linked to a permission accorded under the Foreign Trade Policy (FTP). It may also be noted that the said appendix in the Handbook of Procedures cited in the impugned order had been put in a place solely for the purpose other than the effect of the exemptions in Income Tax Act, 1961. There is no statutory reference whatsoever but Customs Act, 1962 and therefore the procedure prescribed for a scheme under a policy cannot render an institution established and controlled under a statute to be subservient them too.
It would, therefore, appear that the impugned order, fastening the consequences of payment of duty on goods that continued to be warehoused till 6th of April 2015 is not only contrary to the provisions of Customs Act, 1962 but also in breach of the principles of natural justice which prescribes consequences of termination of warehousing licence only after completion of the due process.
Thus, we set aside the impugned order and, as the show cause notice had not been decided after due consideration of the legal provisions, the matter is remanded to the original authority for a fresh decision on the termination of warehousing licence and consequences thereof, if any, strictly in accordance with law.
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2024 (4) TMI 1042 - SC ORDER
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Debt or not - Civil Suit for specific performance - non-allotment of 39100 sq. ft. built-up area of land or not - default in terms of Section 3(12) of the I&B Code, 2016 - it was held by NCLAT that There is no financial debt in favour of the Appellant. It is pertinent to mention that Appellant's pleading is that the amounts have been paid by the Appellant to the Respondent and the consent decree itself is the debt for which Section 7 Application has been filed - HELD THAT:- There are no good ground and reason to interfere with the impugned judgment and hence, the present appeal is dismissed.
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2024 (4) TMI 1041 - TELANGANA HIGH COURT
Refund of Service Tax - tax paid as a mistake of law - applicability of time limitation as per Section 11B of the Act, 1944 - HELD THAT:- This question came up for consideration before the Delhi High Court in HIND AGRO INDUSTRIES LIMITED VERSUS COMMISSIONER OF CUSTOMS [2007 (8) TMI 215 - DELHI HIGH COURT]. After considering the judgment of the Hon’ble Supreme Court in case of Mafatlal Industries Ltd. [2002 (11) TMI 707 - CEGAT, MUMBAI], the Delhi High Court held that the judgment of Mafatlal Industries Ltd. nowhere talks of a situation where the refund of a tax paid under the relevant Act albeit erroneously was required to be made under the Excise Act or the Customs Act and under no other enactment. It was clearly held that judgment of Mafatlal Industries Ltd. (supra 1) is of no assistance in a case where tax is erroneously paid as a mistake of law.
The Tribunal has also taken note of the judgment of Karnataka High Court in COMMISSIONER OF CENTRAL EXCISE (APPEALS), BANGALORE VERSUS KVR CONSTRUCTION [2012 (7) TMI 22 - KARNATAKA HIGH COURT]. The Karnataka High Court also considered the judgment of Delhi High Court in case of Hind Agro Industries Limited [2007 (8) TMI 215 - DELHI HIGH COURT] and the judgment of Mafatlal Industries Ltd. and in no certain terms made it clear that where the tax is admittedly paid as a mistake of law, the limitation will not come in the way for refund.
Thus, no substantial question of law subsists and needs to be answered, because curtains are already drawn on this issue by various High Courts. Thus, admission is declined.
The Central Excise Appeal is dismissed.
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2024 (4) TMI 1040 - CESTAT CHENNAI
Payment through CENVAT credit not accepted - supporting documents furnished were also not referred - HELD THAT:- There are no doubts as to the availability of CENVAT credit in the books of the appellant. But however, the lower authority has brushed aside the request of the appellant which is borne on record, but it was incumbent upon the original authority discharging the role of an adjudicating authority to verify/cross verify and then give proper findings through speaking order as to whether the claims of the appellant were acceptable or not. It is precisely the case of the appellant that they had discharged service tax liability to a larger extent through credit balance, but however, the original authority has ignored the claims of the appellant, which is not in accordance with law. Further, it is not even the case of the Revenue that the claims of the appellant were wrong insofar as the availability and the utilization thereof, CENVAT credit towards the payment of their service tax liability, however as contended by the learned Advocate, there may be a slight delay, for which statutory provisions are available to safeguard the interest of the revenue.
If the stand of the appellant is to be accepted upon verification, then, the demand once again would amount to double taxation, which is not the spirit of the taxing statute. In that view of the matter, it is deemed most appropriate to set aside the impugned order and remit matter back to the file of the original authority for de-novo adjudication, who verify the claims of the appellant and thereafter, pass a speaking order in accordance with law.
Appeal is allowed by way of remand.
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2024 (4) TMI 1039 - CESTAT KOLKATA
Interest on delayed refund - deposit of whole amount of service tax demanded, under protest - HELD THAT:- Admittedly, in this case, the appellant has made the pre-deposit of whole of the demand of service tax although under protest, but the same was not required to be paid by the appellant to file appeal before this Tribunal - In that circumstances, the appellant is entitled to claim the interest on 7.5% of the demand of service tax deposited (Rs.7,90,08,905/-) on 28.12.2018 till its realization i.e. 01.09.2022.
In terms of the decision of this Tribunal in the case of M/S. PARLE AGRO PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS & SERVICE TAX, NOIDA (VICE-VERSA) [2021 (5) TMI 870 - CESTAT ALLAHABAD], the appellant is entitled for interest at the rate of 12% per annum - the appellant is entitled to interest on 7.5% of Rs.7,90,08,905/- from 28.12.2018 till 01.09.2022 at the rate of 12% per annum.
Appeal disposed off.
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2024 (4) TMI 1038 - CESTAT ALLAHABAD
Non-payment of service tax - Valuation - Reimbursements of expenses - Pure Agent - 'Freight Reimbursed' and 'Miscellaneous Expense Reimbursed' - Whether the services provided under two separate agreements (Handling Agent Agreement and Transport Agreement) should be classified independently or merged as a single clearing and forwarding agent service for tax purposes. - Reverse Charge Mechanism - extended period of limitation - HELD THAT:- The dispute in this case is for the inclusion of freight amount in the value of C & F service for which a separate agreement has been entered into with the principal, which we do not consider legally tenable. In the case of Gunesh India Pvt. Ltd [2022 (5) TMI 1042 - CESTAT NEW DELHI] in similar type of arrangement with M/s Ultra Tech Cement Ltd Delhi Bench has held under this agreement under the scope of work, the appellant have correctly treated the work as GTA service and service tax have been rightly discharged by the recipient–Ultratech Cement Ltd under Reverse Charge Mechanism. Thus, the confirmation of demand on the appellant is bad and accordingly set aside.
The demand in terms of the above decision which is squarely on the same set of facts have been set aside both on the merits and also limitation.
In case of Srinivasa Transports [2014 (6) TMI 205 - CESTAT BANGALORE] Bangalore bench has held the appellant has provided labour for undertaking miscellaneous jobs and payment has been made to the appellant based on number of man-days involved. This service also would not come under the category of cargo handling service. Therefore, clubbing all the activities undertaken by the appellant under “Cargo Handling Service” and levying Service Tax under the said category cannot be sustained in law. The adjudicating authority has to examine the individual activities carried out by the appellant and then classify the same, considering the definitions provided in the law, which has not been done in the present case. Therefore, the matter has to go back to the adjudicating authority for fresh consideration.
The impugned order cannot be sustained and the same is set aside - Appeal allowed.
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2024 (4) TMI 1037 - CESTAT KOLKATA
Denial of irregularly availed CENVAT Credit - allegation on the ground that there was no manufacturing facility in factory premises and appellant was engaged only in paper transactions - cross-examination of statement of witnesses not allowed - HELD THAT:- In this case the appellant has intimated suspension of their manufacturing activities vide letter dated 10.07.2008 and thereafter surrendered their registration on 01.08.2008 and whole of the investigation have been started thereafter. Moreover, the appellant has procured inputs from various dealers, manufacturers and suppliers and made payments through account payee cheques and investigation was conducted at their end and no inculpatory statement has been made by the supplier of the goods. Further, the appellant has supplied to various recipients of the goods whose investigation was also conducted at their end - It is also evident on record that whatever Cenvat credit has been taken by the appellant, the appellant has utilized the same for payment of duty on the clearance of the goods and also paid sufficient amount of duty through PLA.
The case of the Revenue is based only on the statements of certain transporters and on assumption and presumption that as no machinery was found at the time of investigation, the appellant was involved only on paper transactions and certain transporters have made inculpatory statements against the appellant - It is found that the transporters were not allowed to be crossexamined by the appellant in terms of section 9D of the Central Excise Act, 1944 which prescribes that to rely on the statement of a witness, the witness has to be tested by recording their statement at the time of adjudication in chief and thereafter to offer for cross-examination which has not been done in this case, therefore, the statement of the transporters which are inculpatory cannot be relied upon in terms of Section 9D of the Act.
The appellant is entitled to take Cenvat credit which has been utilized for payment of duty and the appellant has paid duty through PLA also. In that circumstances, the impugned proceedings are not sustainable - the demand on account of denial of Cenvat Credit is set aside, as the demand against the appellant is not sustainable, therefore, penalty on the appellants are not imposable. Moreover, the appellant No.1 is the proprietor of the appellant No.2, therefore, penalty on both the appellant is also not sustainable in the facts and circumstances of the case.
The impugned demand confirmed and penalty imposed on the appellant are set aside - Appeal allowed.
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2024 (4) TMI 1036 - CESTAT CHENNAI
Exemption for captive consumption - benefit of exemption N/N. 67/95 dated 16.3.1995 - Rectified Spirit - excisable goods or not - covered by the term ‘final product’ or not - HELD THAT:- This Bench has considered almost identical issue, in their own case to hold that the denial of exemption Notification No.67/95 was incorrect, for the reasons discussed therein, by also relying upon an earlier order of Chennai Bench in the case of Sri Ambika Sugars Ltd. [2014 (11) TMI 919 - CESTAT CHENNAI] has held The Tribunal in the case of RAJSHREE SUGARS AND CHEMICALS LTD. AND OTHERS VERSUS COMMISSIONER OF CENTRAL EXCISE, PUDUCHERRY AND OTHERS [2014 (11) TMI 919 - CESTAT CHENNAI] held that the denial of exemption notification 67/95 on molasses captively consumed to manufacture Rectified Spirit & DNA cannot be justified.
The impugned order is set aside - appeal allowed.
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2024 (4) TMI 1035 - SUPREME COURT
Penalty for diversion and unlawful sale of foreign liquor - Applicability of the relevant rule for imposition of penalty - whether it is the rule that existed when the violation occurred during the license period of 2009-10 or the rule that was substituted in 2011 when proceedings for penalty were initiated? - HELD THAT:- The operation of repeal or substitution of a statutory provision is thus clear, a repealed provision will cease to operate from the date of repeal and the substituted provision will commence to operate from the date of its substitution. This principle is subject to specific statutory prescription. Statute can enable the repealed provision to continue to apply to transactions that have commenced before the repeal. Similarly, a substituted provision which operates prospectively, if it affects vested rights, subject to statutory prescriptions, can also operate retrospectively.
The principle governing subordinate legislation is slightly different in as much as the operation of a subordinate legislation is determined by the empowerment of the parent act. The legislative authorization enabling the executive to make rules prospectively or retrospectively is crucial. Without a statutory empowerment, subordinate legislation will always commence to operate only from the date of its issuance and at the same time, cease to exist from the date of its deletion or withdrawal. The reason for this distinction is in the supremacy of the Parliament and its control of executive action, being an important subject of administrative law.
The regulatory process requires the Government to deal with the problem of diversion and unlawful sale of foreign liquor and also provide an appropriate penalty and punishment. The process of identifying a crime and prescribing an appropriate punishment is a complex and delicate subject that the State has to handle while making rules and enforcing them. The gravity of the offence, its impact on society and human vulnerability are taken into account to provide the required measure of deterrence and reform - depending on the nature of offence, the proportionate penalty is required to be modulated from time to time.
The single Judge as well as the Division Bench have adopted two different approaches and we have not agreed with either of them. The single Judge was of the view that the amendment by way of substitution has the effect of repealing the law which existed as on the date of repeal. We have already explained the limitation in this approach. The Division Bench on the other hand, held that levy of penalty is substantive law, and as such, it cannot operate retrospectively. This again is a wrong approach. The substituted penalty only mollifies the rigour of the law by reducing the penalty from four times the duty to value of the duty.
The judgment of the Division Bench of the High Court set aside - appeal allowed.
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2024 (4) TMI 1034 - DELHI HIGH COURT
Violation of principles of natural justice - impugned order does not take into consideration the reply submitted by the Petitioner and is a cryptic order - HELD THAT:- The observation in the impugned order dated 29.12.2023 is not sustainable for the reasons that the reply dated 09.11.2023 filed by the Petitioner is a detailed reply with supporting documents. Proper Officer had to at least consider the reply on merits and then form an opinion. He merely held that the reply is incomplete, not duly supported by adequate documents, unable to clarify the issue, not clear and unsatisfactory which ex-facie shows that Proper Officer has not applied his mind to the reply submitted by the petitioner - Further, if the Proper Officer was of the view that any further details were required, the same could have been specifically sought from the Petitioner. However, the record does not reflect that any such opportunity was given to the Petitioner to clarify its reply or furnish further documents/details.
The impugned order cannot be sustained, and the matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned order is set aside and the matter is remitted to the Proper Officer for re-adjudication - Petition disposed off by way of remand.
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2024 (4) TMI 1033 - MADRAS HIGH COURT
Interest and penalty liability - Petitioner discharged GST liability before issuance of SCN - Petitioner sought permission to approach the appellate authority by way of statutory appeal. - Benefit of the proviso to Section 50(1) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- Petition is disposed of by permitting the petitioner to present a statutory appeal before the appellate authority subject to the condition that the petitioner remits a sum of Rs. 2.5 lakhs (Rupees two lakhs fifty thousand only) towards interest liability as agreed to within a period of three weeks from the date of receipt of a copy of this order. Subject to remittance of the amount specified above, if a statutory appeal is presented within the aforesaid period of three weeks, the appellate authority is directed to receive and dispose of the same on merits without going into the question of limitation.
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2024 (4) TMI 1032 - MADRAS HIGH COURT
Imposition of 100% penalty - wrongful availment of Input Tax Credit - Late Filing of Writ Petition - Petitioner seeks an opportunity to contest the liability towards penalty by way of statutory appeal - HELD THAT:- By taking into account the fact that the entire tax and interest liability was discharged and that an appeal was not filed earlier since the petitioner intended to discharge liability to that extent, it is just and appropriate that the petitioner be permitted to file a statutory appeal only insofar as it pertains to penalty.
Petition is disposed of by permitting the petitioner to file a statutory appeal only with regard to the penalty imposed under impugned order dated 12.09.2023 within two weeks from the date of receipt of a copy of this order. If such statutory appeal is filed within the aforesaid period, the appellate authority is directed to receive and dispose of the same on merits without going into the question of limitation.
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2024 (4) TMI 1031 - CHHATTISGARH HIGH COURT
Violation of principles of natural justice - appellant has been non-suited on the ground of alternate remedy - personal hearing was not given (on seeking adjournment for personal hearing) - mandate of Section 75 (4) stands complied or not - Tax not paid or short paid - HELD THAT:- The opportunity of hearing when is contemplated under the statute, it has to be comprehensive and it cannot be short-circuited. The show cause notice reflects that the date of reply was given on 30.10.2023 and before the personal hearing date is given, it would be about a superfluous and would defeat the actual intent of the legislation of giving an opportunity of hearing. It is not expected that before the reply is filed, an assessee can be heard and thereafter the reply is filed. It is against the normal procedure and is against the normal practice of the parties that personal hearing is preponed and the reply is subsequently filed. This is not the intent of provisions of sub-Sections (4) and (5) of Section 75.
The Supreme Court has in number of occasion has held that the opportunity of hearing means granting real and meaningful opportunity and adequate time must given to prepare and present the defence - Supreme Court in UMA NATH PANDEY VERSUS STATE OF UP. [2009 (3) TMI 526 - SUPREME COURT] has observed Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him.
It is one of the established principles of Common Law that officials taking action of a judicial nature must give an adequate opportunity of being heard to a person against whom the action is proposed to be taken.
In the given case without filing the reply, it cannot be understood how personal hearing can be justified. When the assessee is burdened with a tax liability, then the intent and the object of the statute are strictly to be complied with. Prima Facie, sub-Section 4 of Section 75 of the CGST Act was completely shelved before the order dated 29.12.2023 was passed - The Supreme Court in KALPRAJ DHARAMSHI & ANR. VERSUS KOTAK INVESTMENT ADVISORS LTD. & ANR. [2021 (3) TMI 496 - SUPREME COURT] has held that when the principles of natural justice has not been followed, the litigant would be entitled to invoke the jurisdiction of High Court under Article 226 of the Constitution of India.
Now coming back to the hearing, the judgments which has been relied on by counsel for the appellant i.e. FINO PAYTECH LIMITED VERSUS UNION OF INDIA, THROUGH THE SECRETARY, MINISTRY OF FINANCE & ANR. [2024 (4) TMI 284 - BOMBAY HIGH COURT] and MS KEC INTERNATIONAL LIMITED VERSUS UNION OF INDIA AND 3 OTHERS [2024 (2) TMI 359 - ALLAHABAD HIGH COURT], also fall in the same line wherein, the High Courts have repeatedly held that when the statute contains a mandate of hearing which is synonym to natural justice, it cannot be given a go bye or can be made porous, therefore, the order dated 29.12.2023 wherein, it has been recorded that the personal hearing was given on 11.10.2023 and 25.10.2023 would amount to defeat the rules of natural justice and the object of the legislation. The order if is allowed to be maintained, it would amount to allow a script with flaws.
Thus, the appellant would be entitled for personal hearing according to mandate of sub-Sections (4) and (5) of Section 75 of the CGST Act.
Appeal allowed.
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2024 (4) TMI 1030 - RAJASTHAN HIGH COURT
Cancellation of registration of petitioner - appeal has been dismissed on the ground of same being time-barred - HELD THAT:- The controversy involved in this writ petition is squarely covered by the order passed by a Division Bench of this Court in POONAMCHAND SARAN S/O LATE MANGALRAM SARAN, MOHAN SINGH S/O LATE SHRI SALAM SINGH VERSUS UNION OF INDIA [2022 (10) TMI 180 - RAJASTHAN HIGH COURT] where it was held that Both the petitioners are given liberty to file appeal against the cancellation of their GST registration to the competent authority within ten days from today. Upon such appeals being filed, the same shall be considered and decided on all aspects in accordance with law excluding the bar of limitation in preferring the appeal by the petitioners.
The present petition is disposed of in the same terms while quashing and set aside the impugned order dated 28.12.2023 (Annex.3).
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2024 (4) TMI 1029 - BOMBAY HIGH COURT
Scope of challenge to orders passed by the ITSC - Validity of exercising discretion by the ITSC in granting relief to the assessee - Granting immunity from prosecution and certain penalties - Revenue is unhappy with the findings of the ITSC on 8 points, viz., income-Revised percentage of profit, cash loans, bogus purchase from Dwish Enterprise, disallowance under Section 14A, NCDs / shares issued to Cyprus and Mauritius based entities, NCDs issued to Kolkata based entities, claim of marketing expenses and penalty and prosecution.
HELD THAT:- In the case of income revised percentage of profit, data considered are documents/materials that were seized by the department. Considering the evidence and material before them and the submissions made, the ITSC restricted the additional account of on money at 20% of total money receipts and allowed claimed expenditure to the extent of 80%. It is a discretion that the ITSC exercised and there was nothing wrong in that. Whether to examine and how much to examine should be left to the discretion of the ITSC. Similarly for item (ii) cash loans, (iii) Bogus Purchase from Dwish Enterprises and (iv) Penalty and prosecution.
The Apex Court in Jyotendrasinhji Vs. S. I. Tripathi [1993 (4) TMI 1 - SUPREME COURT] held that the order of the ITSC is in the nature of a package deal and that it may not be ordinarily possible to dissect its order and accept what is favourable and reject what is not. Moreover, it is open to the ITSC to accept an amount of tax by way of settlement and to prescribe the manner in which it is to be paid. ITSC has the discretion to condone the defaults, penalties or prosecution, where it thinks appropriate. Thus, the sole limitation upon the ITSC is to act in accordance with the provisions of the Act.
Even if the interpretation placed by the ITSC on documents is not correct, it would not be a ground for interference since a wrong interpretation of documents cannot be said to be a violation of the provisions of the Act. The Apex Court has held that the scope of enquiry by the High Court under Article 226 should be restricted to i) whether the ITSC has acted in accordance to the provisions of the Act and ii) whether the order passed by it has prejudiced assessee apart from the ground of bias, fraud and malice which constitute a separate and independent category.
In N. Krishnan vs. Settlement Commission And Others [1989 (3) TMI 77 - KARNATAKA HIGH COURT] it is held that the ITSC is the forum for self surrender and seeking relief and not a forum for challenging the legality of assessment order or orders passed in any other proceedings. The Karnataka High Court held that the power conferred on the settlement commission is so wide that it can take any view on any questions of law, which it considers appropriate having regard to the facts and circumstances of a case including giving immunity against prosecution or imposition of penalty.
Therefore, in our view, ITSC was entitled to exercise discretion while passing the impugned order and has exercised its discretion. In our view, there is neither violation of any mandatory procedure prescribed under any of the sections of Chapter XIX-A of the Act nor any violation of any of the Rules of natural justice. Further, it cannot be said that the reasons assigned by the ITSC for granting relief sought for by assessee have no nexus to the decision taken.
As held by the Apex Court in Kotak Mahindra Bank Ltd [2023 (9) TMI 1231 - SUPREME COURT] the members of the ITSC have been appointed by Central Government in accordance with Section 245B (3) of the Act for their integrity and outstanding ability and for special knowledge and experience in, problems relating to direct taxes and business accounts. The members of the ITSC, therefore, cannot be questioned for their decision or for exercising their discretion.
In the circumstances, as it is evident from Section 245 of the Act that the Central Government has appointed the members as their representatives to settle the disputes with assessee, which reflects the confidence they had in the members because the persons appointed are of integrity and known for their outstanding ability and expertise and for the special knowledge and experience in problems relating to direct taxes and business accounts. Therefore, these members have been authorised to settle the disputes on behalf of the Government and it does not lie in the mouth of the Government to challenge the decision taken by their own representatives without making allegations of bias or fraud or malice. Rule discharged. Petition dismissed.
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