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2024 (12) TMI 72
Foreign Tax Credit (FTC) denied - Form No. 67 was filed belatedly - exparte assessment order challanged - HELD THAT:- Since the appeal against exparte assessment order is still pending before NAFC. Without expressing anything on merits of the case, the present appellate order passed by CIT[A] is hereby set-aside with a direction to decide the same along with the other appeal within a period of four months.
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2024 (12) TMI 71
Disallowance of carried forward loss and unabsorbed depreciation u/s 72AB due to merger - HELD THAT:- We note that after taking into account the factual aspect of assessee’s case under consideration, we note that the assessee has fulfilled the conditions mentioned u/s 72AB of the Act and hence, the assessee is eligible to claim set-off of accumulated loss and un-absorbed depreciation.
AO has erred in interpreting the provisions to the effect that the claim could be made only after completion of the mandatory period referred to in sub section (2) of Section 72AB of the Act. The AO is therefore, directed to allow the claim of set off of carry forward losses and unabsorbed depreciation allowance of the predecessor entity in the hands of the appellant to the extent it is allowable in the hands of the predecessor entity as per records, in accordance with the provisions of Section 72BA of the Act. Decided in favour of assessee.
Disallowance u/s 36(1)(viia) as assessee not having any rural branches and thus no rural advances - HELD THAT:- As decided in [2022 (12) TMI 1544 - ITAT RAJKOT] in assessee's case, wherein the Tribunal passed order to allow assessee's claim under section 36(1) (viia), what is to be seen by Assessing Officer is as to whether provision for bad and doubtful debts is created, irrespective of whether it is in respect of rural or non-rural advances by debiting profit and loss account and, to extent provision for doubtful debts so created, assessee is entitled for deduction subject to upper limit of deduction laid down in said section. In the case of Kodungallur Town Co-op Bank Ltd. [2016 (7) TMI 1413 - ITAT COCHIN] a Cooperative Bank is entitled to claim deduction of bad debts provided in first part of clause (viia) (a) of section 36(1) being 7.5 per cent of total income and same cannot be denied linking it to rural advances. Appeal of the Revenue is dismissed.
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2024 (12) TMI 70
Denial of Exemption u/s 11 - non-filing of audit report in Form 10B along with return of income - form No. 10B was filed by after the filling of return of income - HELD THAT:- Admittedly, in the instant case the audit report in Form 10B was filed by the assessee through e-portal on 26.12.2020. Hence the audit report in Form 10B was filed prior to one month of the due date for furnishing the return of income under sub-section (1) of section 139 of the IT Act i.e. 15th February, 2021 in the instant case. Although the assessee failed to reflect the fact of filing audit report in its return of income, we are of the considered opinion that this being a technical error inadvertently committed by the assessee needs to be pardoned.
Since the audit report in Form 10B was furnished by the assessee prior to one month of the due date for furnishing the return of income, therefore, the compliance of section 12(1)(b)(ii) r.w.s. 44AB, Explanation (ii) was very well made by the assessee and accordingly the order passed by Addl./JCIT(A)-1, Jaipur in our opinion is not justified. Accordingly, we set-aside the order passed by Ld. Addl./JCIT(A)- 1, Jaipur and allow the claim of exemption u/s 11 & 12 by the assessee in the light of the fact discussed in foregoing paragraphs that audit report for the period under consideration in Form 10B was filed prior to one month of the extended due date of filing return of income. Thus, the grounds of appeal raised by the assessee are allowed.
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2024 (12) TMI 69
Reopening of assessment - undeclared sale consideration/capital gain - AO specifically mentions that the income is likely to be escaped is more than Rs. 50 lakhs and is represented in the form of asset - HELD THAT:- The assessee had merely sold immovable property amounting to Rs. 43 lakhs and, in fact, had invested this amount in purchase of another property of Rs. 90 lakhs leading to an addition of Rs. 47 lakhs. In this context, we have also examined the order under clause (d) of section 148 dated 29.03.2022 and we find that on the basis of sale of immovable properties worth Rs. 1,33,00,000/-, the assessee was show caused for the purpose of section 147 of the Act and, accordingly, the notice u/s 148 dated 29.03.2022 was issued.
While in notice u/s 148A(b), AO had relied information of sale of immovable property worth 43lacs, received, from Sub-registrar and the TDS return filed u/s 194IA of the Act, was also considered to be sale of immovable property, while it was, in regard to TDS deduced as purchaser.
Thus it was not a case of capital gain of Rs 1,33,00,000/- escaping assessment, as alleged in notice under clause (b) of section 148A of the Act. It is no doubt a case of mechanical reopening, as the AO, did not even bother to differentiate, on the two different information heads independently, and cumulatively considered to be escapement of capital gains of more than Rs. 50, lacks. The contention of Ld. DR that only prima facie case has to be seen at time of reopening is not sustainable it the light of mandate of new regime with regard to reopening of assessment beyond three years. Appeal of the assessee is allowed.
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2024 (12) TMI 68
Levy of fee u/s 234E - Interest u/s 220(2) on default amount also been imposed - assessee submits that the provisions of sec 200A(1)(c)(d)(f) have come into force by Finance Act, 2015 only with effect from 01.06.2015 and there was no authority or competence or jurisdiction in respect of the assessment of the earlier period - HELD THAT:- As relying on SHRI BHASKAR ROY [2021 (12) TMI 784 - ITAT KOLKATA] we are inclined to hold that the demand raised by the Income-tax Authorities for levying late fee u/s. 234E of the Act for the period prior to 1-6-2015 cannot be sustained and we order accordingly. Decided in favour of assessee.
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2024 (12) TMI 67
Addition u/s 50C - difference between sale consideration and stamp duty value - Difference was marginally very low i.e. only 2.7% of the sale consideration - HELD THAT:- Addition was unwarranted. Since this argument aligns with the judicial principles emphasising that minor deviation does not necessarily reflect an attempt to evade taxes, particularly when the variation is below a threshold limit of 5%. We in this respect rely on the decision of ‘Shaista Irphan Mogul 2021 (8) TMI 270 - ITAT MUMBAI]. Accordingly, the addition made u/s 50C is deleted and Ground of the assessee is allowed.
Allowability of deduction u/s 54F - Assessee claimed that two flats were constituted a single unit based on architectural plans and interior design - In this regard, architectural certificate was also furnished before the Bench. It is also acknowledged that the assessee has made substantive investment within the prescribed period by depositing in CGAS account, hence, we deem it necessary to allow the instant issue in favour of the assessee considering the judgment of Devdas Naik [2014 (7) TMI 173 - BOMBAY HIGH COURT] and accordingly, we direct the AO to delete the impugned addition.
Appeal of the assessee is allowed.
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2024 (12) TMI 66
Validity of assessment completed u/s 153A - No valid and lawful approval u/s.153D - assessee agued statutory approval given to the Assessing Officer for the assessment orders was not based on application of mind - approval was given by Addl. CIT in a mechanical manner within a short period of time during which it was humanly impossible for the Addl. CIT to go through exhaustive assessment records, search & seizure materials and to thereafter give approval after due application of mind - HELD THAT:- We are of the view that the issue in dispute is squarely covered by the order Subodh Agarwal [2023 (2) TMI 1072 - ALLAHABAD HIGH COURT] order of Serajuddin & Co. [2023 (3) TMI 785 - ORISSA HIGH COURT] and Shiv Kumar Nayyar [2024 (6) TMI 29 - DELHI HIGH COURT] in favour of the assessee. Further the issue in dispute is also squarely covered in favour of the assessee by the orders of Khoday Ehshwarsa and Sons [2024 (9) TMI 1660 - ITAT BANGALORE]. and in the case of Sanjay Duggal and Others [2021 (1) TMI 909 - ITAT DELHI] and in the case of Quality Structure Pvt. Ltd.[2024 (9) TMI 1661 - ITAT LUCKNOW] In view of the foregoing, we set aside the impugned appellate orders of learned CIT(A) deserve to be set aside; and the assessment orders passed by the Assessing Officer deserve to be annulled.
Additions made in absence of incriminating material - Following the order of Hon'ble Supreme Court in the case of Pr. CIT vs. Abhisar Buildwell (P) Ltd. [2023 (4) TMI 1056 - SUPREME COURT] no additions could be made in the assessment orders passed by the AO in the aforesaid assessment orders. Accordingly, the additions made in the aforesaid assessment orders deserve to be deleted.
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2024 (12) TMI 65
Refund claim being the excess payment of duty held as refundable consequent upon the passing of the Order-in-Original - original authority rejected the refund claim on the ground that the original Bills of Entry and their duty payment documents that is TR-6 challans were not placed on record. Secondly, since the assessments were provisional and the above order finalising the provisional assessments, the PD bonds were to be finalised and cancelled; and the cancellation of PD bonds was also not placed on record and no evidences was produced to prove unjust enrichment
HELD THAT:- The Order-in-Appeal which was relied upon by the authorities to reject the refund claim has been set aside by this Tribunal vide Final Order [2022 (1) TMI 326 - CESTAT BANGALORE]. Hence, the impugned order rejecting the refund claim on this ground cannot be sustained.
Non-submission of TR-6 challans and Bills of Entry - Appellant is directed to file the same before the refund authority after collecting it from the assessment group as stated by them in their letter dated 16.05.2016. Since the PD bonds has to be finalised and cancelled by the Department, it is for the Revenue to cancel the same and communicate to the concerned refund section.
Unjust enrichment - Tribunal vide Final Order had clearly held that unjust enrichment is not applicable to the provisions assessments prior to 2006 before the amendment to Section 27 read with Section 18 of the Customs Act, 1962. In similar cases, this Tribunal [2023 (10) TMI 1460 - CESTAT BANGALORE] has remanded the matter to the original authority for verification of documents.
The appeal is allowed by way of remand to the original authority to process the refund claims needless to say an opportunity of hearing to be provided to the appellant.
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2024 (12) TMI 64
Cancellation of registration of petitioner - cancellation order does not refer any reason for cancelling the registration of the petitioner - violation of principles of natural justice - HELD THAT:- The record shows that cancellation order has neither refer any violation of conditions mentioned under Section 29 (2) (a) to (e) of the GST Act nor reason has been mentioned for cancellation of registration of the petitioner. Further in the impugned order neither any reference whatsoever nor any finding was recorded to the effect of the material used against the petitioner nor any finding was recorded that the alleged material used against the petitioner was confronted with. In the absence of any such finding, the appellate order cannot be sustained in the eyes of law.
This Court in APPARENT MARKETING PRIVATE LIMITED. VERSUS STATE OF U.P. AND 3 OTHERS [2022 (3) TMI 493 - ALLAHABAD HIGH COURT] decided on 5.3.2022 has set aside the impugned order with liberty to the respondent authority to issue a notice in accordance with Section 29 (2) of the Act.
The impugned orders dated 31.3.2022, 26.3.2021 and 16.12.2020 are hereby set aside - Petition allowed.
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2024 (12) TMI 63
Challenge to notifications dated 12 January 2017 - HELD THAT:- This Petition is disposed off by directing the concerned adjudicating authorities to dispose of notices issued to the Petitioner’s members following the law and on their own merits after considering their contentions based on this Court’s order in TATA MOTORS LIMITED VERSUS UNION OF INDIA, THROUGH THE SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL BOARD OF INDIRECT TAXES & CUSTOMS. [2024 (10) TMI 1350 - BOMBAY HIGH COURT] and Hon’ble Supreme Court’s order in UNION OF INDIA & ANR. VERSUS M/S MOHIT MINERALS PVT. LTD. THROUGH DIRECTOR [2022 (5) TMI 968 - SUPREME COURT].
The Petition is disposed of.
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2024 (12) TMI 62
Detention and seizure of goods - State E-way Bill was not present at the time of interception - HELD THAT:- It is not a case of the respondent authority that at the time of interception of the goods in question, the Central E-way bill under the GST Act was not available. Only E-way Bill 01 under UP GST Act was not available with the goods in question however before passing of the penalty order, the same was produced.
The issue in hand is not res integra - The issue in hand is squarely covers with the judgements of Division Bench of this Court in the cases of M/S GODREJ AND BOYCE MANUFACTURING CO. LTD., L.G. ELECTRONICS INDIA PVT. LTD., BHARTI AIRTEL LIMITED, M/S GUALA CLOSURES (INDIA) PVT. LTD., M/S. RAS POLYTEX PVT. LIMITED, RIMJHIM ISPAT LIMITED, RIMJHIM ISPAT LIMITED, M/S. GAURANG PRODUCTS PVT. LTD., M/S. ADITYA BIRLA FASHION AND RETAIL LTD., M/S. NAVYUG AIRCONDITIONING AND M/S. PROACTIVE PLAST PVT. LTD. VERSUS STATE OF U.P. AND 02 OTHERS AND STATE OF U.P. AND 3 OTHERS [2018 (9) TMI 1261 - ALLAHABAD HIGH COURT] and M/S VARUN BEVERAGES LIMITED VERSUS STATE OF U.P. AND 2 OTHERS [2021 (10) TMI 429 - ALLAHABAD HIGH COURT].
Further during period from 1.2.2018 to 31.3.2018, the requirement of E-way Bill under UP GST Act read with the Rules framed thereunder was not enforceable. The goods in question was detained and seized on 18.03.2018 on the ground that E-way Bill 01-02 under UP GST Act was not accompanying with the goods. It is not the case of the respondent authorities that Central E-way Bill was not accompanying with the goods in question. Once the said fact is not disputed by the respondent authorities, neither the detention order nor the seizure order nor penalty was justified.
The impugned orders dated 18.03.2018 and01.10.2020 cannot be sustained in the eyes of law and same are hereby quashed - Petition allowed.
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2024 (12) TMI 61
Invocation of jurisdiction of the Department u/s 74(1) of the CGST Act, 2017 should not be invoked against the petitioner in respect of the amounts raised in the show cause notices - HELD THAT:- Having heard the learned counsel for the parties and upon perusal of the materials before the Court, at this stage let notice be issued, returnable in 2 weeks - Respondents may complete their instructions and file their counter affidavit in the meantime, if so advised - List on 09/12/2024.
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2024 (12) TMI 60
Application for modification of the order - interest on the delay in payment of the GST amount from the due date of payment till actual realization as per the schedule applicable for delayed payment of GST as provided in the GST Act, 2017 - HELD THAT:- Once the petition has been allowed or dismissed, the order cannot be modified by filing an interlocutory application. This amounts to review of the order passed by this Court. After considering all the facts and circumstances, the Court has granted the relief and if the petitioner is not satisfied with the relief, that cannot be a ground for modification of the order.
Application is accordingly dismissed.
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2024 (12) TMI 59
Time limitation - dismissal of appeal on the ground that the delay in filing the appeal is not liable to be condoned under Section 107 (4) of the KGST Act - HELD THAT:- Having regard to the contentions put forth by both the learned counsels, without going into the question as to the correctness or otherwise of the order dated 08.08.2024 (Annexure-A) passed by the Appellate Authority refusing to condone the delay having regard to the order passed in the case of M/s. Sadhana Enviro Engineering Services2, under the peculiar facts and circumstances of the present case, relief sought for by the petitioner is liable to be granted in terms of the orders passed in the case of M/s. Sadhana Enviro Engineering Services2.
The order dated 27.03.2024 bearing No. ACCT (Audit)-2/HPT/GST-ADJN/ORDER-2023/24/T for F.Y.2018-19 (Annexure–L1) passed by respondent No. 1 is set aside - writ petition is partly allowed.
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2024 (12) TMI 58
Challenge to assessment order - discrepancies between GSTR-01 and GSTR-3B and between the GSTR-2A and GSTR-3B - neither the show cause notices nor the impugned order of assessment have been served by tendering to the petitioner or by registered post, instead it was uploaded in the common portal - principles of natural justice - HELD THAT:- The impugned order is set aside and the petitioner shall deposit 25% of the disputed tax within a period of four (4) weeks from the date of receipt of a copy of this order. On complying with the above condition, the impugned order of assessment shall be treated as show cause notice and the petitioner shall submit its objections within a period of four (4) weeks from the date of receipt of a copy of this order along with supporting documents/material. If any such objections are filed, the same shall be considered by the respondent and orders shall be passed in accordance with law after affording a reasonable opportunity of hearing to the petitioner.
The Writ Petition stands disposed of.
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2024 (12) TMI 57
Challenge to Order of Assessment and order passed in the Rectification Application - error apparent on the face of record or not - HELD THAT:- A perusal of the order does not also indicate that there had been no error apparent on the record to reject the rectification. He had only extracted the tables indicating the figures which the petitioner is liable to pay. There is also no reasonings as to why there is no error apparent on the face of the record. For this reason, the impugned order dated 02.02.2024 is liable to be set aside.
If pursuant to a Rectification Application, if a rectification is made and if it adversely affects the assessee, Proviso 3 contemplates an opportunity of hearing to be given. However, when an Rectification Application is made at the instance of assessee and the rectification is being sought to be rejected without considering the reasons for rectification or by giving reasons as to why such rectification could not be entertained. It is also imperative that the assessee to be put on notice.
The order of rectification passed by the first respondent dated 02.02.2024 is contrary to the provisions of Section 161 and in that aspect, the same alone is set aside and the Rectification Application filed by the petitioner shall be taken afresh by the first respondent and after giving an opportunity to the petitioner, the first respondent shall pass appropriate orders and in accordance with law.
Petition allowed.
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2024 (12) TMI 56
Rejection of Petitioner’s Appeal and Rectification Application on the ground that the board resolution filed along with the Appeal memo was defective - HELD THAT:- There is no serious defect based upon which the Appeal or the Rectification Application could have been rejected.
Similar objections were made by the same officer rejecting about less than hundred matters on the alleged ground of defective resolutions. In DELPHI WORLD MONEY LTD. VERSUS THE UNION OF INDIA, THE COMMISSIONER (APPEALS-II) CGST & CENTRAL EXCISE, MUMBAI, COMMISSIONER OF CGST AND CENTRAL EXCISE, RANGE 1, DIVISION III, MUMBAI. [2024 (11) TMI 781 - BOMBAY HIGH COURT], earlier orders are referred and based upon the same order interfered with the orders made by this officer on almost identical grounds.
The second Respondent should dispose of the appeal as expeditiously as possible and in any event before 31 January 2025.
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2024 (12) TMI 55
Violation of principles of natural justice - service of SCN - impugned order is challenged on the premise that neither the show cause notices nor the impugned order of assessment have been served by tendering to the petitioner or by registered post, instead it was uploaded in the common portal - HELD THAT:- The impugned order is set aside and the petitioner shall deposit 25% of the disputed tax within a period of four (4) weeks from the date of receipt of a copy of this order. On complying with the above condition, the impugned order of assessment shall be treated as show cause notice and the petitioner shall submit its objections within a period of four (4) weeks from the date of receipt of a copy of this order along with supporting documents/material. If any such objections are filed, the same shall be considered by the respondent and orders shall be passed in accordance with law after affording a reasonable opportunity of hearing to the petitioner.
The Writ Petition stands disposed of.
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2024 (12) TMI 54
Challenge to validity of Section 16 (4) of the Central Goods and Services Tax Act, 2017 - setting aside the Notification dated 31.03.2023 issued by the Ministry of Finance (Department of Revenue), whereby the time limit was extended for passing the orders under Section 73 of the CGST Act - HELD THAT:- The impugned order dated 28.01.2024 passed by the respondent No.4 is set aside. The matter is remitted to the respondent No.4 to decide the matter afresh in accordance with the provisions of Section 16 of the CGST Act, as amended, after providing an opportunity of hearing to the petitioner, within a period of 2(two) months from the date of production of a certified copy of this order.
The writ petition stands disposed of.
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2024 (12) TMI 53
Cancellation of GST Registration of the Petitioner - no-filing of returns u/s 39 of the Central Goods and Services Tax Act, 2017 - cancellation of registration without assigning any reason - non-application of mind - violation of principles of natural justice - HELD THAT:- A perusal of the impugned order dated 06.04.2022 would show that the said order is passed by a quasi-judicial authority. The effect of the said order would be that in absence of a registration, the petitioner cannot carry out his business. Therefore, the effect of the said impugned order would entail civil consequences.
If this Court peruses the order, it is shocking that the respondent No. 4 had cancelled the registration without assigning any reason. This clearly shows a total non-application of mind. Accordingly, this Court therefore sets aside the said impugned order dated 06.04.2022, thereby restoring the status back to the date on which the Show Cause notice dated 02.02.2022 was issued.
The instant writ petition stands disposed of.
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