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Showing 121 to 140 of 1429 Records
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2023 (12) TMI 1309
Taking possession of the demise premises in view of Section 14(1)(d) of I&B Code - it was held by NCLAT that 'Since the demised premises ceased to be the property of the Corporate Debtor much prior to the initiation of CIRP, therefore, it cannot be covered under Section 14 much less 14(1)(d) of the Code' - HELD THAT:- There are no reason to interfere with the order of the National Company Law Appellate Tribunal since no substantial question of law is involved in the appeal.
Appeal dismissed.
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2023 (12) TMI 1308
Rectification u/s 154 - contribution towards the EPF and ESIC disallowed - Tribunal instead of deciding the case on merits has simply adjudicated the issue on the ground that the rectification application was not maintainable - HELD THAT:- After going through the order it appears that though the application was filed under the nomenclature of rectification but if certain amount on which the tax is imposed is not legally recoverable then it also touches upon the merit. Consequently, in order to advance the cause on merits about the issue, we set aside the order of the ITAT and remit back the same to the Income Tax Appellate Tribunal to adjudicate the same on merits.
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2023 (12) TMI 1307
Foreign tax credit u/s 90 - belated filling of Form No. 67, i.e. within the due date of filing of return of income prescribed under section 139(1) - claim made with revised return of income - HELD THAT:- As decided in Sonkashi Sinha [2022 (10) TMI 107 - ITAT MUMBAI] here it is not the case of violation of any of the provisions of the act but of the rule, which does not provide for any consequence, if not complied with. Therefore, we hold the assessee is eligible for foreign tax credit, as she has filed form number 67 before completion of the assessment, though not in accordance with rule 128 (9) of The Income-tax Rules, which provided that such form shall be filed on or before the due date of filing of the return of income.
Thus Appellant would be eligible to foreign tax credit where Form No. 67 is filed before the completion of assessment for the relevant assessment year.
Thus we remand the issue raised in present appeal relating to claim of foreign tax credit back to the file of Assessing Officer with the direction to grant foreign tax credit to the Appellant - Ground No. 1 raised by the Appellant is allowed for statistical purposes.
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2023 (12) TMI 1306
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 - HELD THAT:- The factual aspect has to be gone into by the authorities as to whether the petitioner was responsible for clearing the container along with his co-employee. Apparently, the fact remains that he was placed under suspension immediately, which is also conceded as such by the Counsel for the petitioner, on the detection of the container having been cleared without following the procedure prescribed and the fact that the said container contained the goods which had not been declared.
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.
The present petition is dismissed at this stage without commenting upon the merits of the case leaving it open to the petitioner to take all his pleas before the authorities concerned.
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2023 (12) TMI 1305
Liability of appellant (sub-contractor) to pay service tax - service tax has been paid by the main contractor on the whole contract value - difference of opinion - HELD THAT:- Section 65(7) of the Finance Act 1994 defines “assessee” as a person liable to pay the service tax and includes his agent. Rule 2(1)(d) of Service Tax Rules 1994 defines “person liable for paying service tax”. As per the said Rule, in respect of services other than in Rule (2)(1)(d)(i), it is the provider of service who is the person liable to pay service tax. When the law fixes the liability to pay tax on a particular person, the parties cannot mutually agree to absolve from liability or shift the liability to another. The activity of providing a taxable service being the taxable event, the subcontractor cannot escape the liability even though the main contractor has paid his part of the liability on the gross amount charged. As already stated as the main contractor being eligible to avail Cenvat Credit there is no situation of double taxation.
The Tribunal in very recent decisions as pointed by the Department has followed the decision in the case of Melange Developers Ltd. [2019 (6) TMI 518 - CESTAT NEW DELHI-LB], to hold that the sub-contractor is liable to pay service tax even if the main contractor has discharged service tax on the contract value. Judicial propriety makes it binding to follow the Larger Bench decision in order to reduce conflict of decisions - the decision of Larger Bench in the case of Melange Developers & Co. would apply.
The view taken by brother Member (Technical) is agreed upon and it is held that the Appellant is liable to pay service tax on the value of sub-contract/work done inspite of the fact that the main contractor has discharged the service tax on the whole contract value.
The reference is answered and the difference of opinion stands resolved - papers may be placed before the Division Bench for deciding the appeal.
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2023 (12) TMI 1304
Validity of assessment proceedings u/s 153C - absence of a valid satisfaction note prior to initiation - HELD THAT:- There is no dispute the satisfaction note u/s 153C has been recorded by the AO. It is well settled law that the Assessing Officer need to make only one satisfaction note, if the AO is same for the 'person searched' and 'other person' u/s 153C of the Act. Thus, we find no merit in ground of the assessee, accordingly, dismissed.
Addition u/s 69 - documents were found from the premises of the searched person in search and seizure operation - validity of Dumb documents seized - assessee submitted that the addition has been made based on the dumb document and the said document does not bear date or signature - HELD THAT:- Papers found during the search are neither dated nor signed/stamped, there is no head note on the paper which could suggest the purpose for which it was created, the loose paper contained list of many other property transaction which were related neither to the assessee nor to Sh. Buti Singh (seller) which demonstrates that neither the assessee nor the seller was the author of the document. The loose paper did not belong to the assessee or to the seller, there is no description or comment explaining the hand written jottings-whether it represented a proposal for purchase or construction by the builder or payment between assessee and right seller, there is no date of receipt or payment mentioned against any figure, the content of the paper was incorrect as the total sales consideration did not match to the sales consideration as per the agreement. Further, the sales consideration as per the loose paper did not even match to the handwritten jottings which raise serious doubts on its validity and accuracy.
Thus, the above said loose paper was not speaking document and it is a dumb document which can be used as a basis for making the addition u/s 69 of the Act in the absence of any substantive enquiry to validate the content of the paper with any supportive and corroborative material and evidence.
The evidentiary value of loose paper which is unsigned, undated and unverified has been held to be highly questionable and has not been accepted by the Hon'ble Supreme Court and various High Courts. Thus in absence of any supportive and corroborative material and evidence, a loose paper found during search containing rough notings of proposals/offers could not be a basis for making addition u/s 69 of the Act. See SHRI SHARAD CHAUDHARY [2014 (8) TMI 309 - ITAT DELHI]
AO did not consider the need to summon the seller or the person searched, or to record the statement of the author/searched person/seller by giving an opportunity to assessee to cross examine the said person. The AO has not even made any enquiry about the value of the property purchased by the assessee. Thus we delete the addition made u/s 69.
Addition on account of audit objection and passing the order u/s 154 before the proceedings u/s 153C of the Act were completed - assessee submitted that the Ld. AO was wrong to make addition on account of audit objection and passing order u/s 154 of the Act, before the proceedings u/s 153C were completed and the rectification proceedings are limited to correction of mistake apparent from record only - HELD THAT:- The issue raised by the assessee in this Ground is not emanating from the impugned order of the Ld. CIT(A) which is under challenge before us, therefore, the Ground No. 3 is dismissed as devoid of merit.
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2023 (12) TMI 1303
CENVAT Credit - Inputs used for repairing and maintenance of the plant and machinery, as capital goods. - eligible inputs for availing credit under the relevant Modified Valued Added Tax (Modvat) and Central Value Added Tax (Cenvat) Credit Rules, as amended from time to time or not - HELD THAT:- In view of the settled legal position, the interpretation of the expression “used in or in relation to manufacture” is of a very wide import and takes within its scope and ambit all items used in the process of manufacture whether directly or indirectly and whether contained in the final product or not. The items used for maintenance of plant and machinery are also items used in the manufacture of finished goods. Hence, credit on the items used for maintenance, repair, upkeep or fabrication of plant and machinery are admissible to the assessees.
The credit on welding electrodes and other items such as jointing sheets, SS plates etc. used for maintenance, repair, up-keep or fabrication of plant and machinery are admissible to the assessees.
Appeal allowed.
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2023 (12) TMI 1302
Addition u/s 56(2)(viib) - FMV determination of the shares issued to the assessee - AO rejecting the DCF method adopted by the assessee - As per AO assessee could not substantiate the FMV adopted as per DCM method to the satisfaction of the AO - HELD THAT:- Once the assessee applied particular method of valuation, (in the present case DCF method), then it is the duty of the AO / CIT(A) to scrutinize the valuation report within the four corners or parameters laid down while making the valuation report under DCF method only. It is not permissible for the AO to reject the method opted by the assessee and apply a different method of valuation and the AO can definitely reject the valuation report but not the method. In case, the AO rejected the valuation report, then the AO has to carry out a fresh valuation report by applying the same valuation method and determine the fair market value of the unquoted shares.
Therefore, in our view, the AO was incorrect in concluding that the DCF method is “quite unrealistic and inapplicable” to the terms of the Income Tax Act. On the contrary, the DCF method is quite applicable and was required to be applied by the Assessing Officer to determine the FMV of the unquoted shares. Our above conclusion is based on the bare reading of the provisions reproduced hereinabove and also on account of the decision referred by the Tribunal in the case of Innoviti Payment Solutions Pvt. Ltd. [2019 (1) TMI 688 - ITAT BANGALORE] as held that AO can scrutinize the valuation report and the if the AO is not satisfied with the explanation of the assessee, he has to record the reasons and basis for not accepting the valuation report submitted by the assessee and only thereafter, he can go for own valuation or to obtain the fresh valuation report from an independent valuer and confront the same to the assessee. But the basis has to be DCF method and he cannot change the method of valuation which has been opted by the assessee.For scrutinizing the valuation report, the facts and data available on the date of valuation only has to be considered and actual result of future cannot be a basis to decide about reliability of the projections.The primary onus to prove the correctness of the valuation Report is on the assessee as he has special knowledge and he is privy to the facts of the company and only he has opted for this method.
Thus AO was incorrect in rejecting the DCF method adopted by the assessee.
Whether the valuation report based on which the valuation was arrived by the assessee was in accordance with law or not? - CIT(A) instead of examining the valuation report and the fair market value of the shares by applying the DCF method, had resorted to examining the functionality and working of the NAV method and thereafter, came to the conclusion that FMV has to be determined by the NAV method based on the CBDT Circular dt.12.07.2017 whereby it was envisaged that the value of the shares shall be determined by the Assessing Officer by taking into account the value of the intangible asset for the purpose of working of the net value.
This approach of the ld.CIT(A) was not in accordance with law. As we have held hereinabove that the option is not available to the Assessing Officer, then the exercise carried out by ld.CIT(A) became futile and of no consequence. Further, the determination of FMV on the basis of NAV by the Ld. CIT(A) was otherwise not sustainable and is bad in law as per Rule 11U(j), which defined valuation date and Rule 11U(b), which defined Balance Sheet. The conjoint reading of the above-mentioned Rules make it clear that the valuation of the asset as per the NAV method is required to be determined while making a valuation of the assets mentioned in the balance sheet.
In any case, the CBDT Circular dt.12.07.2016 cannot be made available and applied retrospectively to the facts of the case as the valuation report in the present case was prepared on 01.07.2016, i.e., one year prior to the issuance of the CBDT Circular. The valuation report is dated 01.07.2016. In that view, the NAV method adopted by the ld.CIT(A) is of no help to the assessee. In light of the above, the approach of the Assessing Officer as well as the ld.CIT(A) cannot be sustained.
Having held that both the approach of the AO as well as the ld.CIT(A) were incorrect, hence, we deem it appropriate to remand back the matter to the file of the Assessing Officer with a direction to determine the FMV after exercising the power conferred under the Act and after applying DCF method on the valuation date dt.01.07.2016 based on the balance sheet or any other material as available on that day, after granting due opportunity of hearing to the assessee. Accordingly, appeal of the Revenue is allowed for statistical purposes.
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2023 (12) TMI 1301
Refund of service tax paid on input services in terms of Notification No 40/2012-ST dated 20.06.2012 - impugned services are found in the approved list of services for the authorized operations of the unit located in SEZ or not - HELD THAT:- The issue in respect of applicability of the said condition for considering the application of refund made under the said notification is no longer res-integra and has been adjudged in a series of decisions of CESTAT.
Relevant paragraphs from the recent decision of the Allahabad Bench in the case of EXL Services SEZ BPO Solutions Pvt. Ltd. [2023 (9) TMI 196 - CESTAT ALLAHABAD] produced where it was held that In the present case revenue has not disputed the receipt of these services by the SEZ Unit, hence denial of the refund claim in respect of these three services for the reason that they did not find mention in the list of specified services approved by the SEZ authority cannot be upheld.
On the ground for rejection that certain invoices were addressed to some other premises of the Appellant which are outside the SEZ. There are no merits in the said ground. If it can be shown that the services covered by the said invoices were received and consumed by the appellant unit located in SEZ, then the CENVAT Credit/ Refund could not have been denied.
There are no merits in the impugned orders denying the CENVAT Credit/ Refund claims filed by the party in terms of the Notification No 40/2012-ST and 12/2013-ST on the grounds stated therein. However for determination of the refund claims in light of the above observations matter is to be reconsidered by the original authority.
Appeals are allowed and the matter remanded to the original authority for reconsideration of the refund claims.
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2023 (12) TMI 1300
Accrual of income in India - Addition of receipts from sale of software & support services as Royalty income - HELD THAT:- Similar issue came for consideration before this Tribunal in assessee’s own case for the assessment year 2006-07 [2021 (11) TMI 1023 - ITAT BANGALORE] by virtue of Article 12(3) of the DTAA, royalties are payments of any kind received as a consideration for "the use of, or the right to use, any copyright "of a literary work includes a computer program or software. It was held that the regarding the expression "use of or the right to use", the position would be the same under explanation 2(v) of section 9(1)(vi) because there must be, under the licence granted or sales made, a transfer of any rights contained in sections 14(a) or 14(b) of the Copyright Act. Since the end-user only gets the right to use computer software under a non-exclusive licence, ensuring the owner continues to retain ownership under section 14(b) of the Copyright Act read with sub-section 14(a) (i)-(vii), payments for computer software sold/licenced on a CD/other physical media cannot be classed as a royalty.
The terms of the licence in the present case does not grant any proprietory interest on the licencee and there is no parting of any copy right in favour of the licencee. It is non-exclusive non-tranferrable licence merely enabling the use of the copy righted product and does not create any interest in copy right and therefore the payment for such licence would not be in the nature of royalty as defined in DTAA. We therefore hold that the sum in question cannot be brought to tax as royalty.
Recharacterizing the maintenance & support services income as fee for technical services - HELD THAT:- As discussed earlier, similar issue came for consideration before this Tribunal in assessee’s own case in assessment year 2006-07[2021 (11) TMI 1023 - ITAT BANGALORE] on the question whether the sums in question can be taxed as FTS, we agree with the submissions made by the learned counsel for the Assessee set out in paragraph-18 & 19 of this order and hold that the sums in question cannot be brought to tax as FTS.
Assessee appeal allowed.
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2023 (12) TMI 1299
TP Adjustment - Corporate guarantee fee - HELD THAT:- Corporate guarantee given by the assessee on behalf of its AE for availing loan facility is for the purpose of reducing the interest rate charged by the banks and while determining the ALP of the said transaction the same has to be considered on the perspective of the benefit received by the AE as per the interest saving approach by reason of the corporate guarantee given by the assessee and to compare the same as to what would be the interest rate charged by the bank for the loan availed by the AEs if the corporate guarantee is not given by the assessee for availing the said loan
Reliance placed on the decision of Everest Kento Cylinders [2015 (5) TMI 395 - BOMBAY HIGH COURT] cannot be the basis for holding the corporate guarantee commission to be 0.5% which was held to be an appropriate rate by the Hon'ble High Court in case of that assessee and for that particular year under consideration. It is evident that 0.5% cannot be a standard rate for charging corporate guarantee commission and the same has to be determined in each case and for each year based on the credit rating of AE, comparable loan transactions where guarantees are issued and non guaranteed loans by working out interest saving and then sharing it between transacting parties.
We, therefore, direct the ld. A.O./TPO to determine the ALP on corporate guarantee commission on the basis of the interest saving approach of the said transaction. The assessee is also directed to bench mark the said transaction where it has already been held to be an international transaction and on the basis of which the ld. A.O./TPO has to determine the ALP of the corporate guarantee commission as per the provisions of section 92CA of the Act which makes it compulsory to benchmark the international transactions every year - We, therefore, remand this issue back to the ld. A.O. Assesee ground allowed for statistical purpose.
Disallowance u/s. 14A r.w.r. 8D - assessee contended that the investments made in the subsidiary companies are strategic investments which should not be considered for computing the disallowance under Rule 8D(2)(iii) - HELD THAT:- We deem it fit to direct the ld. A.O. to restrict the disallowance to the extent of investment which has yielded in earning of the exempt income and not those investments where the assessee has not earned any exempt income for the purpose of computing the disallowance u/s. 14A read with Rule 8D. See Vireet Investments Pvt. Ltd. [2017 (6) TMI 1124 - ITAT DELHI] - We, therefore, remand this issue back to the file of the ld. A.O. for recomputing the disallowance u/s. 14A read with Rule 8D to the extent of the investments made by the assessee which has resulted in earning of the exempt income.
Nature of income - Interest income on temporary deposits - A.O. observed that the assessee has availed external commercial borrowings (ECB) and temporary surplus of such borrowings were deposited in bank fixed deposit out of which the assessee has earned an interest was netted of against the interest expenses which was capitalized - AO taxing the said interest income as income from other source u/s. 56 - HELD THAT:- We do not find any observation by the lower authorities as to how the borrowed fund and the surplus amount parked in the fixed deposits are not ‘inextricably linked’ to the setting up of the new unit by the assessee. In the absence of such observation and by placing reliance on the decision cited by the assessee we hold that the interest income out of the fixed deposits which is made from the ECB has to be capitalized as capital receipt and not revenue receipt.
As decided in Indian Oil Panipat Power Consortium [2009 (2) TMI 32 - DELHI HIGH COURT] funds infused in the assessee by the joint venture partner were inextricably linked with the setting up of the plant, the interest earned by the assessee could not be treated as income from other sources. In the result we answer the question as framed in favour of the assessee.
Additional depreciation u/s. 32(1)(ii) - additional depreciation for plant and machinery which was purchased and put to use for less than 180 days during the financial year - AO held additional depreciation is to be restricted as per the second proviso to section 32(1)(ii) which restricts the claim of additional depreciation to ½ the amount otherwise allowable and in the absence of the explicit provision, the balance 50% of the additional deprecation would lapse - explicit provision applies 50% of the said claim was introduced by Finance Act, 2015 which is w.e.f. 01.01.2016 vide third proviso to sub section (1) of section 32 and since the said provision is applicable prospectively, the assessee’s claim of additional deprecation was disallowed by the ld. A.O - HELD THAT:- As this issue has been squarely covered by the decision of the Hon'ble Jurisdictional High Court in the case of CIT vs. Rashtriya Chemicals and Fertilizers Ltd. (2021 (10) TMI 1269 - BOMBAY HIGH COURT] wherein it was held that the 3rd proviso to clause (ii) of sub section (1) of section 32 of the Act being clarificatory in nature would apply to previous years also.
As seen that the Karnataka High Court in Rittal India Pvt., Ltd.,(2015 (1) TMI 1248 - KARNATAKA HIGH COURT] even without the aid of the statutory amendment held that remaining 50% unclaimed depreciation would be available to the Assessee in the succeeding Assessment Year. Now the legislation has amended the provision by adding a proviso which, specifically recognizes the said right. The Madras High Court in Shri T. P. Textiles Pvt. Ltd., (2017 (3) TMI 739 - MADRAS HIGH COURT] ruled that such proviso being clarificatory in nature, would apply to pending cases, covering past period also.
Thus we hold that the assessee is entitled to the additional depreciation claimed u/s. 32(1)(ii) of the Act and, therefore, find no infirmity in the order of the ld. CIT(A). Ground no. 1 raised by the Revenue is dismissed.
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2023 (12) TMI 1298
Registration u/s 80G - Application rejected as mistake in mentioning the proper Clause - Assessment of trust - HELD THAT:- All the facts were before ld. CIT (Exemption) when the assessee for the first time applied for the final approval u/s 80G of the Act. Merely, because the assessee out of inadvertence had mentioned another Clause, the same was not an illegality but rather the same was a rectifiable mistake. The facts were on the record that the assessee before the amendment was already approved as a charitable institution u/s 12A as well as 80G of the Act. The assessee duly applied for provisional registration in view of the amended provisions. The same was also granted to the assessee.
The next course for the assessee was to apply for the final registration u/s 80G of the Act which was also duly complied by the assessee within the time limit prescribed for the same. However, due to the mistake in mentioning the proper Clause, the assessee was told to withdraw the application and file a fresh application. The assessee filed the fresh application without any delay. However, ld. CIT (Exemption) completely ignored the events which occurred from the date of filing of the application for final approval and leading to the filing of the fresh application because of the technical mistakes. In fact, instead of getting the application withdrawn, ld. CIT (Exemption) was supposed to give opportunity to the assessee to rectify the mistake i.e. the mentioning of the appropriate Clause. Ld. CIT (Exemption) even could have suo-moto passed an order treating the said application under the relevant ‘Clause-iii’ of Section 80G(5) of the Act.
Thus delay in filing the fresh application is, hereby, condoned. It is directed that the application of the assessee for final registration may be treated as filed within the time limit prescribed and the time consumed by the assessee in filing the revised application will not be taken into consideration. The matter is accordingly restored to the file of ld. CIT (Exemption) with a direction that ld. CIT (Exemption) will pass an order on merits irrespective of the delay occurred in filing the fresh application for final approval u/s 80G(5)
Application for final registration was to be filed within six months from the commencement of its activities and therefore, the application of the assessee for final registration was time barred - We note that the issue has already been discussed and adjudicated by the Coordinate Bench of the Tribunal in the case of West Bengal Welfare Society vs. CIT(Exemption), Kolkata [2023 (9) TMI 1422 - ITAT KOLKATA] wherein, it has been held that the assessee, who has been granted provisional registration, is eligible to apply for final registration irrespective of the fact that the assessee had already commenced its activity even prior to the date of grant of provisional approval.
Thus matter is restored the file of the CIT(E) for decision afresh - Appeal filed by the assessee is treated as allowed for statistical purposes.
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2023 (12) TMI 1297
Validity of the order passed u/s. 92CA(3) - period of limitation - TPO will have to pass an order in time before 60 days prior to the date on which the period of limitation referred to in section 153 of the Act expires - HELD THAT:- Though in section 92CA(3A) of the Act it states that the ld. TPO has to pass the order before 60 days of the limitation period mentioned in section 153 which though seems to be only directory and not mandatory but various courts have held that the time limit prescribed for passing of the order by the ld. TPO is mandatory which has to be adhered to strictly while passing the TP order. In the present case, the order of the TPO should have been passed on or before 31.10.2019 and the impugned order dated 01.11.2019 is beyond the time limit stipulated u/s. 92CA(3A) r.w.s. 153 of the Act. Appeal filed by the assessee is allowed.
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2023 (12) TMI 1296
Seeking grant of bail u/s 439 CrPC - Offence punishable under Sections 132(1)(b)(c)(f)(K) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- It appears that petitioner was arrested in the present case on 25.06.2023 and investigation has been completed; there are no antecedents of petitioner and punishment for the alleged offence of evasion of tax is to the extent of five years and fine as prescribed u/s 132(1) of the CGST Act, 2017. The Hon’ble Supreme Court in case of Ratnambar Kaushik [2022 (12) TMI 263 - SUPREME COURT], released the petitioner on bail after undergoing incarceration period of more than four months and in view of fact that conclusion of trial will take some time, Thus considering the period of incarceration of petitioner for about six months, but without commenting on merits of the case, this Court deems it just and proper to release petitioner on bail.
Accordingly, the bail application is allowed and it is ordered that accused-petitioner Rishabh Jain S/o Shri Yogesh Jain shall be released on bail provided.
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2023 (12) TMI 1295
Entitlement of claim of exemption u/s 11 - not filing of Form No.10 and / or 10B within due date as prescribed under the Act - procedural or mandatory lapses - assessee filed revised return of income with the higher claim of deduction under Section 11(2) - HELD THAT:- As in the instant facts, it is not a case where the assessee had not filed Form 10 in the original return of income, before the due date prescribed of filing return of income. It is only a case where the assessee observed that a certain error had crept in the original return of income, wherein the quantum of deduction claimed under Section 11(2) of the Act required correction and accordingly, the assessee filed revised return of income with the higher claim of deduction under Section 11(2) of the Act.
It has been held by various Courts that the requirement of filing Form 10 / 10B is merely directory in nature and failure to furnish Form 10 / 10B before due-date prescribed u/s 139(1) of the Act cannot be so fatal so as to deny they very claim of exemption u/s 11(2) of the Act especially when Form 10 / 10B was available on record when the intimation was passed by CPC u/s 143(1) of the Act - Decided in favour of assessee.
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2023 (12) TMI 1294
Principles of Equity - Challenge to garnishee order issued by the Department of Sales Tax - HELD THAT:- If the case of the petitioner is appreciated on the premise of equity, the action of the respondents can certainly be inequitable. But the fact remain that the respondents are also constrained to act in consonance with the mandate of the statute i.e., tax laws and hence the impact in following the course of law. Hence, the respondents also cannot be entirely faulted for the present state. But it is an admitted fact that the respondents and other arms of the Government seem to be due to the petitioner through the main contractor. The fact that the contractors have executed the Government work and the fact that the petitioner has executed some of those works as a sub-contractor is also an admitted fact.
The instant set of facts are required to be adjudicated equitably and without transgressing the four corners of GST Act.
It is deemed appropriate to modify the garnishee order passed by the respondents by restricting it, in so far as it relates to the amounts in the case of the garnishee namely M/s. Stanch Projects Private Limited. In so far as garnishee order passed by the respondents in respect of the other three garnishees, the same are set aside.
Petition disposed off.
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2023 (12) TMI 1293
Seeking grant of bail - money laundering - applicant and other accused persons in conspiracy with the office bearers of the housing societies have purchased the land which had already been sold to the members - HELD THAT:- So far as the role of this applicant is concerned, he got executed the sale-deed of Rs.2,00,00,000/- by issuing four cheques of Rs.50 – 50 Lacs and out of said four cheques, three were bounced and one cheque of amount of Rs.50 Lacs was transferred and that too in the forged account in the name of society. Thereafter, he took loan of Rs.10 Crores by mortgaging the said land from Allahabad Bank which he invested in C-21 Mall, Bhopal thus, he got benefited to the tune of Rs.8.63 Crores. It is submitted that this is the only case registered against the applicant. He is ready to appear in the trial Court to get the regular bail.
It is directed that in the event of arrest, the applicant – Keshav Nachani shall be released upon his furnishing personal bond in the sum of Rs.5,00,000/- with one surety in the like amount to the satisfaction of the arresting officer. This order shall be governed by the conditions No.1 to 3 of sub-Section (2) of section 438 Cr.P.C. The applicant shall also co-operate with the investigation.
Application allowed.
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2023 (12) TMI 1292
Revision u/s 263 against reassessment order passed u/s 147 - taxability of capital gain arising out of the sale of the said land - as per CIT AO has accepted the source of cash deposit but did not investigate the nature of land alleged to be sold as agricultural land - assessee stated that AO could not have gone beyond the reasons recorded for reopening the assessment -
HELD THAT:- On a perusal of the notice PCIT himself has referred to the sale deed relating to sale of agricultural land. This very document was examined by the AO as mentioned in his assessment order when he was examining the source of cash deposited in the Savings Bank account.
These facts go on to show that specific queries were raised to which specific reply was filed. Therefore, it cannot be said that the AO did not make any enquiry. Moreover, assessment was reopened with specific reasons for reopening and those specific reasons have been duly examined by the AO before completing assessment.
In our considered opinion, for exercise of power u/s 263 of the Act, it is mandatory that the order passed by the Assessing Officer should be erroneous and prejudicial to the interest of the Revenue. A perusal of the assessment order shows that the returned income was accepted by the AO and no addition was made for reasons recorded at the time of issue of notice u/s 148 of the Act.
This is an undisputed fact that the issues which prompted the AO to reopen the assessment were duly considered and reply of the assessee was accepted and no addition was made. This fact has also not been disturbed by the PCIT in his order u/s 263 of the Act.
In our considered opinion, the AO could not have made the addition on the issues raised by the PCIT in his order as no addition was made on account of reasons recorded for reopening the assessment.
No hesitation in setting aside the order of the PCIT and restore that of the Assessing Officer - Decided against revenue.
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2023 (12) TMI 1291
Revision u/s 263 - Limited scrutiny case of assessee - correct head of income - income from the lease rent ought to have been charged under the head “other sources” instead of “business income” - PCIT holding assessment framed u/s 143(3) as erroneous in so far prejudicial to the interest of revenue - PCIT was of the view that such lease rent income should have been charged to tax under the head “other sources” and therefore other expenses such as remuneration/salary to the partner and other expenses of general in nature should not have been allowed as deduction
HELD THAT:- Case of the assessee was selected for limited scrutiny - On perusal of the notice, the case was selected for scrutiny “whether deduction claim on account of depreciation is admissible” so, it was a case of limited scrutiny and there was no option for the AO to verify anything other than the issue for which the case was selected for limited scrutiny.
Ast here was no possibility for the AO to inquire whether the income shown by the assessee was to be assessed under the head “business income” or “other sources” unless the limited scrutiny is converted to regular scrutiny. Accordingly, we hold that the PCIT cannot exercise his power u/s 263 of the Act, to verify those items which were not subject matter of the scrutiny.
As the contention of the Ld. Counsel that the limited scrutiny was not converted into regular scrutiny was also not controverted by the Ld. DR appearing on behalf of the revenue and that in the earlier AY, the income of the assessee was accepted as income under the head “business and profession” was not controverted by the Ld. DR. In view of the above, we hold that the revisional order passed by the Ld. PCIT is not sustainable. Decided in favour of assessee.
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2023 (12) TMI 1290
Eligibility for refund/ self-credit - Area-based exemption under Notification No.56/2002 dated 14.11.2002 as amended - Department was of the opinion that under Section 3, no refund/ self-credit was available as the said Cesses have not been exempted under the Notification No.56/2002.
The impugned order considers the self-credit taken by the appellants as “erroneous” credit and confirms the demand of the same in terms of Section 11A of Central Excise Act, 1944 along with interest and penalty under Section 11AC ibid.
HELD THAT:- The impugned order cannot be sustained and is accordingly set aside. Hence, the appeal is allowed.
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