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Showing 141 to 160 of 420201 Records
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2024 (11) TMI 1338
Levy of central excise duty - debonding of a 100% EOU unit to DTA, on finished and semi-finished goods, which are either exported on bond or cleared in domestic market on payment of excise duty, during 18.12.2012 (cutoff date) to 15.02.2013 (final exit order) - HELD THAT:- The issue of non-payment of central excise duty on final goods on debonding is settled in favour of appellant. Also, prima facie, the other issue that no duty is payable on semi-finished goods is settled in favour of appellant in terms of decisions relied upon in paragraph 2 above. However, it is seen that although the Learned Commissioner took verification report dated 20.01.2017 from jurisdictional office, the same was not furnished to the appellant.
The Hon’ble Supreme Court in KOTHARI FILAMENTS & ANR. VERSUS COMMISSIONER OF CUSTOMS (PORT) KOLKATA & ORS. [2008 (12) TMI 28 - SUPREME COURT] has held that documents relied upon in the adjudication order are required to be supplied to the appellant in terms of principles of natural justice. There are considerable force in appellant’s submission that question of demand of excise duty does not arise if goods are exported which fact can be verified from the CA certificate dated 15.11.2016 which was submitted before the Learned Commissioner, however, the same was not considered. The same needs to be considered.
The matter needs to be reconsidered by the Learned Commissioner/ adjudicating authority by (i) providing the letter dated 20.01.2017 issued by the jurisdictional Assistant Commissioner to the appellant; and (ii) considering the CA certificate dated 15.11.2016 to ascertain claim of export of goods, along with other evidence which may be put on record by the appellant.
The impugned order is set aside and the appeal allowed by way of remand to the adjudicating authority for passing a fresh order.
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2024 (11) TMI 1337
Challenge to action of the respondents in freezing his saving bank accounts with the purpose to recover the VAT dues of M/s East Bourne World Cuisine Private Limited, where the petitioner was a former director - HELD THAT:- The company has itself filed an appeal before the appellate authority, which is still pending. It is also noticed that the company is functional and the petitioner is no more a director of the said company. In the circumstances, there was no occasion for the respondent to attach the bank accounts of the petitioner for recovery of its dues as against the concerned company.
A perusal of Section 83 (3) of Companies Act also reflect that the recovery from the director of a company can only be made when such a company has been wound up. Even under the Companies Act, 1956, the provision for recovery from the director is not available at the stage prior to winding up of the company - There is also no case of allegation of mismanagement of the company and in such circumstances also, the order would have to be obtained from the concerned NCLT.
The order of attachment of the saving accounts of the petitioner and the notice dated 12.02.2021 are quashed and set aside. The petitioner is held to be entitled to receive a sum of Rs. 1 lac as penal cost for wrongful attachment of his bank accounts putting him in unnecessary financial distress. The amount of Rs. 1 lac shall be paid by the respondent authorities and deposited in his bank account within two months, failing which interest @ 18% shall also be paid, which may be recovered from the concerned delinquent officer, who has arbitrarily issued attachment order without authority.
The writ petition is allowed.
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2024 (11) TMI 1336
Rectification application to recall earlier order - error apparent in the original order or not - HELD THAT:- Mistake of law is an interpretation of law which a particular Court may hold. However, merely because a different interpretation can be taken of the provisions of law, rectification application cannot be allowed to be entertained.
There has been a gross abuse of the process of the Court in passing the order dated 24.12.2007, and the same therefore, cannot be allowed to be sustained. The same is accordingly set aside.
The VAT appeal is allowed.
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2024 (11) TMI 1335
Rejection of Original Application on the ground of delay and laches - applicability of time limitation - issuance of the provisional gradation list - scope of judicial review - HELD THAT:- The principle of delay and laches is to be applicable in a case where the principle of limitation is made out. The same is strictly applicable in a proceeding under Article 226 of the Constitution of India or any other litigation where the principle of limitation is not applicable. If the principle of limitation is applicable then, the case is to be considered on the basis of applicability of principle of limitation by giving go-bye to the principle of delay and laches.
The position of law is very settled that under Article 226 of the Constitution of India the principle of delay and laches is held to be applicable, however, the period of limitation is not applicable.
In STATE OF MP VERSUS NANDLAL JAISWAL [1986 (10) TMI 321 - SUPREME COURT], the Hon'ble Apex Court has observed that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and if there is inordinate delay on the part of the petitioner in filing the writ petitioner and such delay is not satisfactorily explained, the High Court may decline to interfere and grant relief in exercise of its writ jurisdiction. Emphasis was laid down on the principle of delay and laches stating that the High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and inconvenience in bringing the justice.
The Central Administrative Tribunal has been given the Constitutional status and in order to carry out the judicial proceeding a statute has been formulated known as the Administrative Tribunal Act, 1985. The Tribunal has been conferred with a power under section 14 of the Administrative Tribunal Act, 1985 - Further, the Tribunal has been conferred with the power to condone the delay as per the provision made under sub-section (3) of Section 21 of the Act, 1985 whereby and whereunder, it has been laid down in view of the principle as contained under Section 5 of the Limitation Act, 1963 to condone the delay if the sufficient cause will be shown.
It is evident that the Administrative Tribunal Act, 1985 wherein the Tribunal is to apply the principle of limitation for the purpose of acceptance of the original application subject to the power to condone the delay, meaning thereby, the whatever power has been conferred to the High Court under Article 226 of the Constitution of India, the same is little bit different, even though the Tribunal is having the Constitutional status to the effect that under Article 226 of the Constitution of India, there is non- applicability of principle of limitation and, as such, by virtue of the judicial pronouncement the principle of delay and laches has been held to be applicable on the principle that inordinate delay cannot be allowed to approach the Court of equity after lapse of a reasonable delay, subject to sufficient cause.
Thus, it is evident that the sufficient cause means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted deliberately” or “remained inactive”. However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously.
This Court is of the view that the objection has been dealt with by the authority on 13.01.2020 and immediately within a period of one year the Tribunal has been approached by the petitioner and, as such, it is not even a case to satisfy the learned Tribunal for the purpose of condoning the delay, since, the Tribunal has been approached within a period of one year from the date when the objection of the writ petitioner has been rejected , i.e., on 13.01.2020.
The error apparent on the face of the order means that if the order appears on its face having with error, then only the power of judicial review is to be exercised. The scope of judicial review conferred to the High Court under Article 226 of the Constitution of India in sowing interference with the award passed by the adjudicator/Tribunal - This Court in the premise of the power conferred to exercise the power of judicial review is now proceeding to examine the propriety of the impugned order wherefrom it is evident that the Original Application of the writ petitioner has been rejected on the ground of applicability of principle of delay and laches and limitation.
It is evident that while dealing with the issue of limitation, the learned Tribunal has not dealt with that as to from which date either the limitation will count or from which date the principle of delay and laches would be applicable - this Court is of the view that the learned Tribunal has not appreciated the factual aspect before coming to the conclusion about the applicability either of the principle of delay and laches or the principle of limitation.
The impugned order dated 24.08.2022 passed in Original Application by the learned Tribunal is hereby set aside - the matter is remitted to the learned Tribunal to pass order afresh after affording opportunity of hearing to the parties concerned in accordance with law - Petition disposed off.
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2024 (11) TMI 1334
Cancellation of GST registration of petitioner due to non-filing of the GSTR 3B returns - dismissal of appeal on the ground of limitation - non-application of mind on the part of respondents - violation of principles of natural justice - HELD THAT:- On perusal of record of this case, this Court finds that for non-filing of GST returns, the petitioner was issued a Show Cause Notice dated 21.11.2019 for cancellation of registration as he has not filed returns for a continuous period of six months - On perusal of the said show cause notice, it is not clear that reply submitted by the petitioner has not been considered. Thus, the aforesaid show cause notice shows and impugned order are passed without application of mind on the part of respondents.
The appeal filed by the petitioner against order dated 09.06.2022, has been dismissed by the Appellate Authority by the impugned order dated 29.05.2024 on the ground of limitation - In the impugned order dated 09.06.2022, it is observed that the petitioner is required to pay the following amount, however, the amount is mentioned as "zero". Therefore, there was no occasion to deposit the amount because the respondents did not mention the amount to be paid.
The orders dated 09.06.2022 passed by the Adjudicating Authority and order dated 29.05.2024 passed by the Appellate Authority are hereby set aside - Consequently, the petition is allowed.
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2024 (11) TMI 1333
Levy of differential GST on account of tax liability difference between Form GSTR-1 and GSTR-3B Returns filed for the period of 2017 to 2018 - Whether the petitioners are entitled to pay 10% of the disputed amount as a pre-condition in filing appeal by way of debiting the amount available in the Electronic Credit Ledger? - HELD THAT:- A reading of the Section would show that the amount available in the Electronic Credit Ledger may be used for making any payment towards output tax. The word used in the above provision is 'may' and it is not 'shall'. In the event if the word 'shall' is used, the amount available in the Electronic Credit Ledger shall be utilized only for the purpose of payment of output tax. Further, in terms of Section 107(6) of TNGST Act, if 10% of the disputed tax has to be paid, it means that the deposit is made only towards discharging liability of output tax. In the event if the appellants are not succeeding, the amount paid by utilizing the Electronic Credit Ledger will be taken as output tax alone.
Therefore, at no stretch of imagination, one can arrive at a conclusion that 10% of the amount paid as pre-condition for filing an appeal can be utilized other than the discharge of output tax. Rule 86(2) of TNGST Rules provides that Electronic Credit Ledger shall be debited to the extent of discharge any liability in accordance with the provisions of Section 49 or 49A or Section 49B.
A reading of the Circular dated 06.07.2022 shows that input tax credit can be utilized not only for payment of the self assessed output tax but also payable as a consequence of the proceeding instituted under the provisions of GST Laws. This circular also clarifies the position that to discharge the liability of 10% of the output tax liability in terms of Section 107(6) of TNGST Act, the amount can be remitted through Electronic Credit Ledger. Further, as contended by the petitioners that the only restrictions on the usage of Electronic Credit Ledger for payment of pre-deposit is in respect of tax payable under reverse charge mechanism, as the same is outside the ambit of Section 2(82) of TNGST Act. In the present case, there was no remark under reverse charge mechanism on the petitioners in these proceedings.
It is to be noted that the statutory appeal form APL-01 provides for the mechanism to pay pre-deposit by utilizing Electronic Credit Ledger as well. Further, vide circular dated 02.11.2023 the CBI & C prescribed special procedure for filing appeals beyond the time period specified under Section 107 of TNGST Act on condition that out of 12.5% of the prescribed mandatory deposit, 20% ie., (2.5%) has to be paid by debiting the Electronic Cash Ledger. Therefore, it is evident that the remaining statutory mandatory pre-deposit (10% of the disputed tax) under Section 107(6) of TNGST Act can be very well made by using the amount available in Electronic Credit Ledger.
This Court has no hesitation to come to the conclusion that the pre-deposit can be made through Electronic Credit Ledger. Therefore, the impugned orders passed by the 1st respondent are liable to be quashed, accordingly, quashed - Writ Petitions are allowed with a direction to the 1st respondent to take up the appeals filed by the petitioners on record, in the event if the appeals are dismissed only on the ground that pre-deposit has been made through Electronic Credit Ledger.
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2024 (11) TMI 1332
Imposition of time limit for claiming ITC under Section 16(4) of the CGST Act - violation of Article 14 of the Constitution of India - doctrine of legitimate exception - HELD THAT:- As per Section 16(4) of the Act, the assessee or a registered person shall not be entitled to take ITC in respect of any invoice or debit note for supply of goods or services or both after the due date of furnishing of the return under Section 39 for the month of September following the end of financial year to which such invoice or invoice relating to such debit note pertains or furnishing of the relevant annual return, whichever is earlier - The provision of Section 16(4) of the CGST Act which restricts the claim of ITC only on the ground that a return is filed after the date prescribed is arbitrary as well as the tax payer who is claiming the ITC has already made the payment of tax to the supplier from whom the foods and services has been received. The payments include both cost of service or goods and the amount of Tax, thus the taxpayer cannot be deprived from his right to claim ITC.
The GST laws do not have any provision and scope for filing a revised return, taxpayers are extremely cautious to file the monthly return for March and may like to wait for a longer time to reconcile the entries and ensure that there is no unnecessary mismatch between the GST returns and the financial records - Allowing a taxpayer to file returns with payment of late fees and then disallow him the ITC, because the return was filed belatedly, is punishing him twice for a single default so committed. Moreover, with the payment of late fee u/S 47 as well as payment of interest u/S 50, the treasury has been suitably compensated for the postponement of the tax. Payment of late fees and interest are already there as deterrent for the taxpayers forcing them to be disciplined. Under such circumstances, saddling with double payment of tax by way of Section 16(4) is arbitrary and capricious.
Since, the Central Government by way of the Act of 2024 has proposed to amend Section 16 of the GST Act by introducing Section 118 of the Act of 2024, thereby jettisoning the condition of time limit, this Court is of the considered opinion that this batch of petitions deserves to be allowed without examining the constitutional validity of Section 16(4).
Petition allowed.
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2024 (11) TMI 1331
Validity of Show Cause Notice (SCN) and final order issued against a non-existent entity - rectification of procedural defects - Applicability of Section 160 of the CGST Act, 2017 - application of Section 87 of the CGST Act, 2017, concerning amalgamated companies - HELD THAT:- Section 87 essentially seeks to preserve and identify the transactions which may have occurred between two or more companies which ultimately amalgamate and merge. In order to fix the liabilities that would accrue under the CGST Act and to avoid a contention being raised that the Amalgamating Company and transactions undertaken with it would no longer be subject to tax, the Legislature, ex abundanti cautela, has come to place Section 87 on the statute book and which bids us to bear in mind that notwithstanding an order of amalgamation or a scheme of merger coming to be approved, for the purposes of the CGST Act, the two entities would be treated as a distinct companies for the period up to the date of the order of the competent court or tribunal approving the scheme and the registration certificate of the companies being cancelled.
Section 87 cannot be read as enabling the respondents to either continue to place a non-existent entity on notice or for that matter to pass an order of assessment referable to Section 73 against such an entity. In fact, in terms of Section 87, the liabilities of the non-existent company would in any case stand transposed to be borne by the amalgamated entity. This is, therefore, not a case where the Revenue would stand to lose or be deprived of their right to subject transactions to tax.
The impugned SCN dated 3 December 2023 as well as the impugned order dated 27 April 2024 quashed - petition allowed.
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2024 (11) TMI 1330
Refund of IGST on ocean freight - Constitutionality of N/N. 8/2017 and N/N. 10/2017 dated 28.06.2017 - HELD THAT:- The issue of levy of IGST on ocean freight is no longer res integra and has decided by the Hon’ble Apex Court in case of UNION OF INDIA & ANR. VERSUS M/S MOHIT MINERALS PVT. LTD. THROUGH DIRECTOR [2022 (5) TMI 968 - SUPREME COURT] and the decision of various High Courts including this Court in case of BLA COKE PVT. LTD. VERSUS UNION OF INDIA & ORS. [2024 (10) TMI 492 - GUJARAT HIGH COURT], wherein, it has been categorically held that when the Notification itself is struck down, the respondent-authorities cannot insist for levy of IGST on the amount of ocean freight. Such being the position, the main issue falls for determination of this Court is whether the prayers for refund of the amount of levy are maintainable and whether this Court must direct the respondents to refund the same to the petitioner.
In case of MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [1996 (12) TMI 50 - SUPREME COURT], the Apex Court has gone on to hold that for the first type of cases namely unconstitutional levy, the remedy of writ jurisdiction exists, both under Articles 32 and 226 of the Constitution of India respectively.
The writ petition filed by the petitioner seeking refund of the IGST is maintainable and must be allowed as the levy has been held to be unconstitutional. Impugned order is hereby quashed and set aside - The petition, therefore, succeeds and is accordingly allowed.
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2024 (11) TMI 1329
Cancellation of GST registration of the petitioner - petitioner had stopped business at the place mentioned in the certificate of registration - issuance of certain fake invoices without actual supply of goods - HELD THAT:- The petitioner has not made out any case for interference with the impugned orders. A perusal of Ext.P4 order of the original authority will show that the contentions taken by the petitioner had been considered by the original authority, and there was a specific finding that the petitioner was not conducting business in the premises mentioned in the certificate of registration. It is also seen from Ext.P4 that, according to the statement recorded from the landlord of the petitioner, the premises in question were leased out to the petitioner for conducting iron and steel business from 2012 to May 2017, and thereafter no business had been conducted by the petitioner in the said premises. It is also seen that the premises were thereafter leased out by the landlord to another person, who had no relation whatsoever with the petitioner.
The original authority therefore recorded that it is evident that the details provided at the time of migration from the registration under the VAT to GST were false and the registration of the petitioner is therefore liable to be cancelled.
There is nothing on record to indicate that any of the findings recorded by the Appellate Authority are wrong and require interference at the hands of this Court under Article 226 of the Constitution of India. That apart, as rightly pointed out by the learned Government Pleader, if the petitioner intends to restart the business, it will always be open to the petitioner to apply for fresh registration after complying with formalities.
There are no reason to entertain this writ petition - petition dismissed.
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2024 (11) TMI 1328
Exemption from GST - supply of food to all the inpatients - composite supply or not - Applicability of N/N. 12/2017 read with Sec. 8(a) of the GST Act - raising invoices by considering the services provided to the Central Hospital, South Eastern Railway, Garden Reach Road, Kolkata 700043 falling under the SAC 999311 - exempty as per entry N/N. 12/2017 Central Tax (Rate) dated 28.06.2017 or not.
HELD THAT:- In the instant case, the applicant has entered into the agreement with the Central Hospital, South Eastern Railway for provide catering services by running the in-house kitchen of the hospital and for which the Central Hospital is liable to pay the consideration to the applicant. So, there can be no dispute that the applicant is supplying the services to the Central Hospital who is engaged in providing health care services to the patients. So, it is the Central Hospital and not the applicant who provides health care services.
The Telengana Authority for Advance Ruling in the case of IN RE: M/S. NAVNEETH KUMAR TALLA, [2020 (8) TMI 104 - AUTHORITY FOR ADVANCE RULINGS, HYDERABAD TELANGANA] held that GST is payable on the service of supplying food and no exemption is provided as service is outsourced by the hospital and the applicant is not a clinical establishment.
Composite supply thus is constituted with two or more taxable supplies which are naturally bundled and supplied in conjunction with each other. In the instant case, the Central Hospital, being a clinical establishment, provides food to the in-patients. Such food has been outsourced by the Hospital from the applicant. Therefore, food supplied to the in-patients as advised by the doctor/nutritionists constitutes a part of composite supply of health care services in the hand of the Central Hospital itself. Supply made by the applicant to the Central Hospital is a standalone service of supply of food and in no way can be considered as a composite supply of health care services.
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2024 (11) TMI 1327
Scope of supply - supply of works contract services - Sl. No. 3A Notification No.9/2017 dated 28-06-2017 Integrated Tax (Rate) or Sl. No. 3A of N/N. 12/2017-Central Tax (Rate) dated 28.06.2017 as amended from time to time - effective GST tax rate applicable to the supply - whether the services are in relation to any functions entrusted to a Panchayat under article 243G or to a municipality under article 243W of the Constitution of India? - HELD THAT:- The expression ‘public property’ has been defined in the Prevention of Damage to the Public Property Act, 1984 which inter alia includes any property, whether immovable or movable which is owned by, or in the possession of, or under the control of (i) the Central Government; (ii) any State Government; or (iii) any local authority. Lamphelat Lake, which is a natural water body, therefore comes under the purview of ‘public property’. However, dredging of a natural water body cannot be considered as services in regard to ‘Removal of Encroachment on Public Properties’. We are therefore unable to accept the contention of the applicant that maintenance of the natural water body can be regarded as maintenance of community assets as specified in the Eleventh Schedule [Article 243G of the Constitution (Seventy-Third Amendment) Act, 1992].
The work to alleviate urban flooding is not listed in the Eleventh and/or Twelfth Schedule supra. However, the functions entrusted to a Panchayat or to a municipality as listed in the Twelfth Schedule include the functions viz. (i) drinking water or water supply for domestic, industrial and commercial purposes and (ii) protection of the environment and promotion of ecological aspects. In the instant case, the objective of the project inter alia includes improvement of water security and enhancement of environmental situation which is a subject matter of Twelfth Schedule [Article 243W of the Constitution (Seventy-Fourth Amendment) Act, 1992].
The supply made by the applicant to the Government of Manipur is in relation to a function entrusted to a Municipality under article 243W of the Constitution.
Supplies made by the applicant for rejuvenating Lamphelpat waterbody to alleviate urban flooding, providing sustainable water source for Imphal City and promoting eco tourism to the State Government of Manipur are exempted from payment of tax vide serial number 3A of the N/N. 12/2017 – Central Tax (Rate) dated 28.06.2017 [corresponding State N/N. 1136 F.T. dated 28.06.2017], as amended or Sl. No. 3A N/N. 9/2017 dated 28-06-2017 Integrated Tax (Rate).
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2024 (11) TMI 1326
Validity of search - Petitioners state that the Revenue does not have the satisfaction note - Delay filling SLP - as decided by HC [2023 (9) TMI 1599 - BOMBAY HIGH COURT] Even if the search is held to be invalid, the information or material gathered during the course thereof may be relied upon by Revenue for making adjustment to assessee’s income in an appropriate proceeding, if so advised, and Revenue may utilize the information or material in such proceeding, as is permissible in law - HELD THAT:- There is a delay of 323 and 322 days in filing the Special Leave Petitions respectively which has not been satisfactorily explained. Even otherwise, we have gone through the Special Leave Petitions and do not find any merit in the same.
Special Leave Petitions are, therefore, dismissed on the ground of delay as well as on merits.
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2024 (11) TMI 1325
Revision u/s 263 - no proper enquiry has been conducted by the AO on issue of cash deposited during demonetization period, scrap sale and non-submission of audit report - ITAT set aside revision order - substantial question of law - HELD THAT:- In the instant appeal the department has only challenged the fact finding of the Tribunal. A catena of Supreme Court judgments have concluded that in relation to facts, no substantial question of law would arise unless the finding of fact is perverse. A factual decision is perverse when it is without any evidence or when it cannot be reasonably arrived at by a prudent man. Finding based upon surmises, conjectures or suspicion or when they are not rationally possible, have to be struck down. One may therefore examine the interpretation of ‘perversity’ by various Courts including the Supreme Court.
Unless there is any perversity in finding of facts, no substantial question of law would arise. Furthermore, for the Tribunal’s fact finding to be perverse, it would have be established that the finding of fact by the Tribunal directly or indirectly affects substantial rights of the assessee in the sense that it is such as could not have been reasonably arrived at on the material placed on record before the Tribunal. In the present factual matrix, it is crystal clear that the Tribunal has examined the facts in great detail, and only thereafter, held in favour of the assessee.
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2024 (11) TMI 1324
Recovery of the outstanding dues of Public Limited Company from the Director by invoking Section 179 - Liability of directors of private company - HELD THAT:- Section 179 of the Act empowers the Income Tax Authorities to recover dues of a private company from the person who was Director during the relevant previous year. Latter part of Section 179(1) casts a negative onus on the Director to prove that non-recovery was not attributable to gross neglect, misfeasance or breach of duty on part of Director in relation to the affairs of the Company.
In response to the show cause notice, it was specifically pleaded that since 1997 the Company was incorporated as Public Limited Company and is registered with the Registrar of Companies, Rajasthan.
While passing the order under Section 179 of the Act, the fact that Company is a Public Limited Company was not refuted. Similar is position in the reply filed to the writ petition. There is no dispute that Company was not a private company.
Revenue Authorities failed to lay down the factual foundation in the notice and order passed under Section 179 of the Act to dispute the status of the Company being the public limited company.
The contention of counsel for the petitioner that no proceedings can be initiated under Section 179 of the Act against the petitioner being a Director of Public Limited Company, deserves acceptance. The Section does not apply to the public limited company. WP allowed.
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2024 (11) TMI 1323
Validity of Assessment Order passed - shorter period to respond to SCN - petitioner had been served with the Show Cause Notice dated 21.09.2021. The petitioner was to respond to the same by 23.59 hours on 24.09.2021 - HELD THAT:- Assessment order has been passed in a hurry perhaps with a view to avoid the assessment getting lapsed due to the limitation under the Act. Although the respondents cannot have found fault with as the respondents are constrained to pass orders within the time stipulated u/s 153 of the Act. At the same time, the principles of natural justice cannot be casualty to sacrifice the rights of an assessee.
Therefore to balance the interest, the Court is inclined to quash the impugned order and remit the case back to the respondent to pass a fresh order on merits and in accordance with law and expeditiously as possible preferably within a period of three months from the date of receipt of a copy of this order.
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2024 (11) TMI 1322
Order passed u/s 148 (d) in respect of the issue which was not the subject matter of the two show cause notices - violation of provisions contemplated under Section 148 A (b) and also violation of principles of natural justice - Since the respondent was completely silent about the information available with them with regard to the search conducted with the Political Party, in relation to the donation receipt issued by the petitioner for a sum to political party, therefore, the impugned order/notice are liable to be set aside.
HELD THAT:- This Court is not inclined to accept the contention of the petitioner for the reason that, the petitioner submitted replies to show cause notices, annexing certain documents and the respondent, after going through those replies and on through scrutiny of the documents, found some irregularities with regard to the genuineness of such documents, hence, they conducted a investigation and gathered certain informations, based on which, an order was passed u/s 148A (d) of the Act.
Respondent passed such an order u/s 148A (d) and issued consequential notice u/s 148 only based on the informations, which were gathered during the surprise check conducted by the Enforcement Officials, which was in relation to the document produced by the petitioner in support of his case at the time of filing reply. Further, by virtue of the notice issued u/s 148, the petitioner was directed to file returns within the specified time, therefore, the petitioner shall file returns in terms of Section 148 of the Act and if the petitioner is aggrieved by the Section 148 notice, the petitioner can very well file reply to the said notice.
No merit in the contention raised by the petitioner.
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2024 (11) TMI 1321
Levy of late fee charged u/s. 234E - assessee has deliberately not filed the respective statements for the financial years under consideration within the due date -
Whether the levy of late fees is permissible under section 234E for three quarters of Financial year 2012-13 relevant to A.Y.2013-2014 and four quarters for Financial year 2013-14 relevant to A.Y.2014-2015, especially in view of the fact that the intimation u/s. 200A brought in statute w.e.f. 01.06.2015? - HELD THAT:- Section 234E of the Act by itself cannot make computation without the provisions of section 200A of the Act, when the empowering section came into effect only w.e.f. 1.6.2015. Thus, the enabling provision came into effect only w.e.f. 1.6.2015, obviously, 234E would be leviable only from the time the enabling section came into effect. This being so, as also after noticing that the ld CIT(A) has followed the decision ofTB and ID Hospital vs ITO-TDS(1) [2018 (8) TMI 1550 - ITAT CUTTACK] as also the decision of Fatehraj Singhvi & Ors vs Union of India [2016 (9) TMI 964 - KARNATAKA HIGH COURT] and also followed the judicial discipline, we find no error in the orders of CIT(A) to interfere in respect of three quarters of F.Y. 2012- 2013 relevant to A.Y.2013-2014 and four quarters of F.Y. 2013-2014 relevant to A.Y.2014-2015. Appeals of the revenue are dismissed.
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2024 (11) TMI 1320
Revision u/s 263 - eligibility of exemption u/s 11 - assessee had not filed the original return of income u/s 139 within the due date and also the audit report (Form 10B) within the due date specified for filing the audit report. Hence, assessee was not eligible for any claim of exemption u/s 11 and 12 - HELD THAT:- There is no dispute regarding the fact that assessee had not filed its return of income u/s 139 of the Act. It filed the return of income, declaring total income only after receiving notice u/s 148 of the Act. The AO has passed the order accepting the returned income after considering explanation and details filed by assessee.
As decided in case of United Educational Society [2019 (7) TMI 738 - ITAT DELHI] filing of income u/s 139(4A) of the Act was not statutorily compulsory in AY.2017-18. Hence, the AO has rightly accepted the return of the assessee field u/s 148 of the Act.
We find that clause (ba) to sub-section (1) of section 12A was inserted by Finance Act, 2017 w.e.f. 01.04.2018. The said clause provides w.e.f. 01.04.2018, and applicable for AY.2018-19 and subsequent years, that the person in receipt of income shall furnish the return of income referred to in sub-section (4A) of section 139 within the time allowed under that section. The assessment year involved in this appeal is AY.2017-18 which is prior to insertion of clause (ba) of section 12A(1) by Finance Act, 2017. When the provisions were not in the statute, the AO could not have invoked the provision and asked the assessee to fulfil the conditions included therein.
AO has taken the correct view while passing the order and he has adopted one of the courses permissible in law. The CIT(E) has stated that the amendment is only clarificatory and the decision of ITAT is not mandatory. In the memorandum explaining the above provisions of the Finance Bill, it was explained that the amendment will take effect from 1st April, 2018 and will, accordingly, apply in relation to AY.2018-19 and subsequent years. The clause will not be applicable to the subject AY.2017-18.
As clause (ba) of sub-section (1) of section 12A is applicable for AY.2018-19 onwards and not for AY.2017-18 with which we are concerned. Hence, we hold that the order of AO was not erroneous and prejudicial to the interests of revenue and therefore, it was not amenable to revision u/s 263. Appeal of the assessee is allowed.
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2024 (11) TMI 1319
Penalty u/s 271(1)(c) - additional income offered by assessee in the return filed in response notice issued u/s 148 as well as addition made u/s 69 on account of deposit in City Bank - HELD THAT:- So far as additional income offered by assessee in response to notice u/s 148 is concerned, we find that such income is accepted by Assessing Officer and by accepting such additional income no penalty is leviable as has been held in the case of Kirit Dahyabhai Patel [2015 (1) TMI 201 - GUJARAT HIGH COURT] Similar view was taken in the case of Ravi Sud v [2015 (10) TMI 1476 - ITAT MUMBAI].
Addition u/s 69 - No penalty is leviable as mere cash deposit cannot be considered income of the assessee. It is also matter of record that no further appeal is filed by the assessee. The assessee has not filed further appeal due to smallness of the addition. Mere no further appeal is filed; it cannot be taken as admission on the part of the assessee.
Each and every addition cannot be a basis for levying a penalty under section 271(1), unless there is a finding of AO that the assessee has deliberately furnished inaccurate particulars or concealed the income. Assessee is her submissions categorically submitted that the bank account on the credit of which, the penalty is levied, was shown in his cash book and such deposit was not unexplained. Thus, we considering the aforesaid facts we do not find any justification for levying penalty even on the addition - Appeal of the assessee is allowed.
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