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Showing 161 to 180 of 1396 Records
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2021 (4) TMI 1236
Dishonor of Cheque - insufficiency of funds - opportunity of hearing provided or not - Section 138 of NI Act - HELD THAT:- Petitioner filed the said petition dated 17/11/2015 in the trial court after the petitioner was examined under Section 313 Cr.P.C. and the case was listed for arguments. The trial court vide order dated 26/11/2015 disposed the petition holding that adequate opportunity was provided to the petitioner to rebut the case by adducing his own evidence and it would not be proper to turn back the clock without any justifiable ground. Section 243 Cr.P.C. provides that if the accused in a criminal trial who has entered upon his defence applies to the court for the purpose of examination or cross examination, or the production of any document or other thing, the magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or defeating the ends of justice. The court is required to record the reasons in writing while rejecting such application.
Admittedly the petitioners were jointly carrying on partnership business of manufacturing and selling of bricks in the name of “MAA Brick Society” and they used to operate the accounts of their company in their joint names. It has been proved beyond doubt that the complainant supplied coal to them for which they had an existing liability to the complainant and in the discharge of such liability the petitioners jointly issued the impugned cheque to the complainant which was later dishonoured for insufficiency of fund. The courts below have returned the findings of guilt of the petitioners on proper appreciation of evidence and held the petitioners guilty and sentenced them appropriately.
Revision dismissed.
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2021 (4) TMI 1235
Orders passed by the Settlement Commission u/s 245D - sole grievance of the petitioner stems out of factual matters which have been duly considered by the second respondent after a thorough enquiry and a detailed 'speaking order' has been passed by the second respondent in this regard - HELD THAT:- In view of the fact that the petitioner could able to establish that the first respondent has not approached the second respondent/Settlement Commission with true and full disclosure of his income and during the course of proceedings, offered additional income and the findings of the Settlement Commission would also confirm the same, the said offerings of the additional income would be sufficient for the purpose of arriving a conclusion that the first respondent filed an application under Section 245C of the Act without disclosing true and full income.
Thus, the second respondent/Settlement Commission ought to have rejected the application, at the stage when it noticed that the first respondent has not disclosed true and full facts which was not done. Thus, the Settlement Commission has committed an error apparent and allowed the application filed by the first respondent which is in violation of the provisions of the Act. Thus, the order impugned passed by the second respondent in proceedings dated 14.09.2015 is quashed and the writ petition stands allowed
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2021 (4) TMI 1234
Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 - petition raises issues concerning wrongful assumption of jurisdiction by the assessing officer under the 2015 Act, and the violation of the principles of natural justice - HELD THAT:- The matter would require consideration.
Revenue's counter-affidavit, in this behalf, will be relevant. This is especially so, as Mr. Anand vehemently argues that the issues that arise in other writ petitions, to which a reference has been made to by Mr. Vohra, do not overlap with those, that have been raised in the instant petition.
It would, therefore, be in the interest of both parties to file, at least, the grounds taken in the other petitions, to which a reference has been made in the instant petition.
Accordingly, issue notice. Mr. Anand accepts notice on behalf of the revenue.
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2021 (4) TMI 1233
Interpretation of statute - Paragraph 3.09(2)(i) of the FTP in so far as it excludes “Service Providers in Telecom Sector” from the benefit of SEIS - Benefit under Service Exports from India Scheme (SEIS) - Duty Drawback Scrips on foreign exchange remittance - HELD THAT:- The “Service Providers in Telecom Sector” meant and included only the Telecom Service Providers of services mentioned therein. The ambit and scope of such exclusion was not of Service Providers who render services to such Telecom Service Providers - Though, a similar list is not appended to FTP or HBPv1, there is no reason for a different interpretation to be placed to FTP 2015-20. Clearly, what was made ineligible for availing benefit of SEIS in terms of paragraph 3.09(2)(i) are the Telecom Service Providers and not the Service Providers who provide services to such Telecom Sector.
The Foreign Trade Policy is clear and unambiguous inasmuch as it excludes the Telecom Service Providers from the benefit of the SEIS and not the Service Providers who provide services to such Telecom Service Providers. As noted hereinabove, the ambit of the term was clearly spelled out in S.No. 2(C) of Appendix-10 to HBPv1 to FTP 2009-14. No different intention regarding the same is discernible from the FTP 2015-20 - the ‘Service Provider’ is one who in terms of a license granted under Section 4 of the Indian Telegraph Act, 1885 provides Telecommunication Services as defined under Section 2(k) of the TRAI Act. I see no reasons to interpret ‘Service Providers in Telecom Sector’ in the FTP differently.
Thus, exclusion of ‘Service Providers in Telecom Sector’ from benefit of SEIS is of a service provider providing telecom services. The Impugned Instructions dated 22.05.2019, therefore, sought to impose fresh restrictions on the eligibility of the service providers entitled to the benefit under SEIS, which amounted to amendment in the policy, and is therefore, ultra vires the Foreign Trade Policy - there is no ambiguity in the FTP on the scope of exclusion from SEIS benefit as provided in Paragraph 3.09(2)(i) thereof, even if one is to hold otherwise, the above principles would apply and the interpretation sought to be placed by the respondent on the said provision cannot be sustained.
Where the impugned Instructions/Circular dated 22.05.2019 has been issued under the instructions of the DGFT itself, the remedy of appeal under Section 15 of the Act would clearly be otiose and redundant. As far as the remedy under Section 16 of the Act is concerned, once it is held that the Impugned Orders have been passed on basis of Instructions which are otherwise ultra vires the Act, the petitioner cannot be denied the benefit of an original adjudication on merits and the decision on an appeal under Section 15 of the Act in accordance with law, and be relegated only to a remedy of review.
The respondents are directed to consider the claims of the petitioner(s) under the SEIS afresh and in accordance with FTP 2015-20 - Petition allowed.
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2021 (4) TMI 1232
Demand of tax with penalty - petitioner was not afforded reasonable opportunity of presenting his case before the said authority - violation of principles of natural justice - HELD THAT:- In plain terms the order passed by the said authority suffers from grossest possible violation of principles of natural justice. Having issued notice calling upon the petitioner why certain demand of tax with penalty not be confirmed he passed the final order confirming the demand on the same date as the notice and long before the time he had granted the petitioner to respond to the notice. We may recall the show-cause notice was issued on 06.11.2018 which required the petitioner to appear before the said authority on 23.11.2018. Without permitting the petitioner to appear and file reply and oppose the demands the Inspector confirmed the demand by passing separate orders on 06.11.2018. This was wholly impermissible - Petition disposed off.
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2021 (4) TMI 1231
Verification regarding the Certificate of Origin produced - Concessional rate of Customs Duty - whether the verification is random verification falling under Rule 6(1)(c) of the CAROTAR, 2020 or the verification falls under the category leveled by Rule 6(1)(b) of the CAROTAR, 2020? - HELD THAT:- The petitioner has brought categorical allegation against the respondents that he has furnished all requisite documents and information for clearance but the imported goods have been ware-housed without any reason being disclosed to the petitioner whether those goods were held up for any verification regarding the Certificate of Origin produced by the petitioner for availing the concessional rate of the customs duty or for any other reason. This allegation has been levelled in para-7 of the writ petition and in reply thereof, the respondents have evaded any specific reply - The said reply does not conform to any verification under Rule 6(1)(b) of the CAROTAR, 2020 which is structured on the failure to provide the requisite information, as no such information was asked from the petitioner. The said verification cannot be treated as prima facie verification under Rule 6(1)(b) of the CAROTAR, 2020, rather it would prima facie come under Rule 6(1)(C) of the CAROTAR, 2020. Thus, Rule 5(b) of CBEC’s circular No.38/2016-customs dated 22.08.2016 will apply in the present case.
The respondents are directed to release the imported goods under the Bill of Entry No.659390/INP/AGT-LCS/2020-21 dated 26.12.2020 on obtaining an indemnity bond to be submitted by the petitioner binding himself to deposit the duty meaning the difference between the duty that would be assessed by the competent authority on verification and the preferential duty which has been paid by the petitioner - Petition allowed.
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2021 (4) TMI 1230
Reopening of assessment u/s 147 - undisclosed contract receipts - HELD THAT:- The reasons for reopening of assessment intimated to the writ petitioner reveals that from revised 26AS details, the assessee company has received contract receipts of ₹ 5,78,10,06,904/-, on which, tax at source has been deducted to the tune of ₹ 12,54,24,815/-. The assessee company claimed the TDS of ₹ 12,41,50,256/-. However, the assessee company credited P & L account as contract receipts and sales for ₹ 521,79,70,864/- only. Thus, the assessee has not offered receipts of ₹ 56,30,36,040/- for taxation, resulting in escapement of income due to failure on the part of the assessee company to correctly account its income. Thus, the Assessing officer has reason to believe that income of ₹ 57,97,88,686/- has escaped assessment within the meaning of Section 147 of the Income Tax Act due to the failure on the part of the assessee company to disclose fully and truly all material facts necessary for its assessment.
in the presence of materials on record, if the power under Section 147 is invoked by the competent authority, then the authorities competent must be allowed to proceed with the reopening proceedings by following the procedures as contemplated. High Court cannot adjudicate the disputed facts and materials to form an opinion in a writ proceedings. The High Court, under Article 226 of the Constitution of India, is empowered to scrutinize the process, through which, the decision is taken and the reasons and in consonance with the statutory requirements, but not the decision by itself. Thus, the scope of Article 226 of the Constitution of India cannot be expanded for the adjudication of the disputed facts and circumstances with reference to the documents, evidences produced by the respective parties and such an adjudication must be allowed to be done by the competent authorities under the provisions of the Statutes by following the procedures as contemplated and by affording opportunity to the assessee.
As in these writ petitions, the respondent could able to establish that sufficient materials are available for the purpose of reopening of assessment for the Assessment Years 2009-10 and 2010-11 and thus, the respondent must be allowed to proceed with the reopening of assessment by following the procedures as contemplated and the writ petitioner is bound to co-operate by defending their case by availing the opportunities to be provided under the Statute. - Decided against assessee.
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2021 (4) TMI 1229
Verification of the Country of Origin Certificate - whether the process of verification is random in nature or it is a verification which falls under Rule 6(1)(b) of the CAROTAR, 2020? - HELD THAT:- Even though the petitioner has brought allegation against the respondents by stating that he has met all the requirements for getting the clearance, but it has been found by the customs that he has made some inaccurate statement in respect of minimum value addition in Bangladesh. That apart, some components contributing to the price could not be figured out. Thus, the verification on deficiency is prima facie justified. Within a short while, the reason for ware-housing had been disclosed to the petitioner. The petitioner was apprised of his right of exercising option for the provisional assessment of the duty subject to the final decision.
The petitioner therefore might get the imported goods released on furnishing the Bank Guarantee (BG) for an amount of ₹ 12,74,031/-, but the petitioner has not done so in terms of the communication dated 17.10.2020 [Annexure-E to the reply]. In the facts and circumstances as surfaced, this court is not inclined to interfere in the manner as asked for - The petitioner may take release of the imported goods covered by Bill of Entry No.659, 629/IMP/AGT-LCS/2020-2021 dated 29.09.2020 without prejudice to his claim - Petition dismissed.
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2021 (4) TMI 1228
Reopening of assessment u/s 147 - notice issued on non-existig entity - Scheme of Amalgamation - HELD THAT:- When Section 170(ii) contemplates that the successor Company is liable and responsible, mere service of notice in respect of company, which was not existing cannot be a ground to assail the proceedings instituted for reopening of assessment under Section 147.
On perusal of the said letter reveals that the address of the sender as well as the change of the address is one and the same. HCL Peripherals Limited merged with HCL Corporation Limited with effect from 01.04.2009 and both the offices are running in the same premise. Further, acknowledgement of the notice issued by the respondent has not been disputed by the petitioner. Therefore, Section 170(ii) would be applicable in the present case and the said ground cannot be considered for the purpose of quashing the entire proceedings initiated under Section 147 of the Act. Even on merits, the respondent could able to establish that there is a "reason to believe" in view of certain new materials noticed in the matter of purchased units of mutual funds to the extent of ₹ 52,39,18,310/-.
his being the facts and circumstances established, the petitioner has to participate in the reassessment proceedings by submitting their documents, evidences to establish their case. Thus, the respondents have to proceed with reopening of the assessment already made and the proceed with the assessment by following the procedures as contemplated under the Act and by affording opportunity to the assessee. In view of the fact that the petitioner has not established any acceptable reason for the purpose of assailing the impugned order, the writ petition stands dismissed.
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2021 (4) TMI 1227
Reopening of assessment u/s 147 - LTCG on sale property - HELD THAT:- Sale consideration shown by the assessee in the return of income for the assessment year 2013- 14 is not disputed. The document registered, which is now in appeal under Section 47A of the Indian Stamps Act is also not in dispute. Thus, the market value as stated in the document is disputed and the actual market value and the stamp duty paid is also in dispute. Thus, the disputes are providing new material facts and informations to the Income Tax Department for reopening of the assessment.
The manner in which the sale deed was valued by the assessee and the stamp duty paid at the time of registration as well as the appeal filed under Section 47A of the Indian Stamp Act and the actual market value prevailing during the relevant point of time with reference to the subject property, provides new information and an additional material, which were not considered by the Assessing Officer at the time of original assessment. Thus, the said factors would be new material for the purpose of reopening of assessment. Thus, the reopening of the assessment by the Assessing Officer is in consonance with the provisions of Section 147 and no further inference is required from the hands of this Court.
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2021 (4) TMI 1226
Reopening of assessment u/s 147 - huge difference between data reflected in Form 26AS and assessee's statement - HELD THAT:- As seen from the Form 26AS downloaded that assessee was in receipt of income of ₹ 419,47,44,777/-, whereas the total amount credited in P & L account is ₹ 387,30,50,376/-. In this context, the Assessing officer relied on the breakup details. In view of large discrepancy and mismatch, the Assessing officer has reason to believe that income of ₹ 41,59,51,722/- has escaped assessment within the meaning of Section 147 due to the failure on the part of the assessee to disclose all and true material facts necessary for assessment.
The rectification application dated 20.07.2011, submitted by the assessee company was also considered by the Assessing Officer and the Assessing Officer verified the informations provided in the rectification application and found that very Form 26AS that was downloaded in view of assessee's application for the rectification, it was found that there was huge mismatch in receipts appearing in 26AS vis-a-vis receipts credited in P & L Account. Assessing Officer has reason to believe that the income of the assessee as escaped assessment and decided to reopen the assessment. This apart, the Assessing officer relied on the MB Shah Commission, set up by the Government of India to enquire into the cases of illegal mining in the State of Odisha. The petitioner/assessee was a raising contractor, employed by one KJS Ahulwalia, who was a lessee found in the Shah Commission report. For all these reasons, the Assessing officer has reason to believe for reopening of assessment.
The respondents have placed on record the materials and informations and evidences that gave them reason to believe that there is escapement of income.
The grounds placed before this Court for reopening of assessment is “sufficient reason” to believe that there is escapement of income and the “sufficiency” of the reasons cannot be gone into by the High Court in a writ proceedings under Article 226 of the Constitution of India. The contents of the breakup details, evidences, documents, invoices etc., have to be adjudicated during the course of hearing and certainly, not by the High Court in a writ proceedings - there is no illegality or irregularity as such, which can be attached to the reasoning of the competent authority for arriving a conclusion that there is a reason to believe for reopening of assessment. Thus, the grounds raised in the present writ petition are neither candid nor convincing and the petitioner has to co-operate with the Assessing Officer in the reassessment proceedings by availing the opportunities to be provided as contemplated under the Statute. WP dismissed.
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2021 (4) TMI 1225
Violation of the provisions of the Act - final assessment order passed erroneously, even while the title of the order reads as “Draft Assessment Order u/s 143(3) r.w.s. 144C - HELD THAT:- Prima facie, we are of the view that the petitioner appears to be correct in its contention, that there is a violation of the provisions of the Act.
Assessing Officer was perhaps required to pass, in the first instance, an order under Section 144 C (1) of the Act, which would have enabled the petitioner to file, if so aggrieved, its objections with the Dispute Resolution Panel.
Mr. Zoheb Hossain, who appears on advance notice, contends that for the moment, he does not have instructions in the matter. He, however, says that the timeline for passing the draft assessment order, as of now, expires on 30.06.2021.In the aforesaid circumstances, issue notice, both in the writ petition and the interlocutory application.
Mr. Hossain accepts service on behalf of the respondent/revenue. In the interregnum, there shall be a stay on the operation of the impugned order.
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2021 (4) TMI 1224
Cancellation of registration u/s 12AA(3) - Principal Commissioner or Commissioner power to cancel registration - HELD THAT:- As scope of Sections 11, 12, 12A and 12AA of sub-clause (3) in the aforementioned paragraphs, the Principal Commissioner or Commissioner was vested with the power even prior to 01.06.2010 to cancel the registration made u/s 12A of the Act, if the Commissioner is satisfied that the activities of such Trust or Institution are not genuine or are not being carried out in accordance with the objects of the Trust or Institution, as the case may be, and he shall pass an order in writing cancelling the registration of such Trust or Institution.
In the present case, the Commissioner of Income Tax in impugned proceedings considered the merits and demerits of the case and assigned reason for cancellation of registration, which reads as under:-
“3. Coming to the merits, search and seizure operations on 06.06.2007 at your premises, inter alia, have brought to light the following violations:
a) Capitation Fee was collected by the assessee Trust.
b) The funds of the Trust at least to the tune of ₹ 22 crores have been misused by the Trustees.
c) The provisions of Tamil Nadu Educational Institutions [Prohibition of Capitation Fee] Act, 1992 have been grossly violated.
d) The provisions of Section 11(2) of the I.T. Act, 1961, have not been adhered to.”
The reasons assigned for the purpose of cancellation are undoubtedly in consonance with the powers conferred on the Commissioner under sub-clause (3) to Section 12AA of the Act and therefore, the order of cancellation can at any stretch of time be stated as infirm or perverse.
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2021 (4) TMI 1223
Seeking enlargement of applicant on Regular Bail - applicant has undergone almost 16 months of incarceration and now prays for the release - HELD THAT:- The issue decided in the case of PARESH NATHALAL CHAUHAN VERSUS STATE OF GUJARAT [2020 (5) TMI 170 - GUJARAT HIGH COURT] where it was held that The loss of ₹ 60 Crores to the public exchequer so far cannot be considered as a small amount. It appears that it is only owing to timely detection of the crime that the loss so far is ₹ 60 Crores; it would have been much-much more in absence of detection of the crime. It is not as if the petitioner stopped at ₹ 60 Crores; in all probability he would have continued the racket in absence of its detection.
The present application is filed seeking the same prayer. This Court is of the considered opinion that there is no substantial change in circumstances after the rejection of the earlier application. The aspect of recovery of amount of ₹ 14,10,87,517/- till 17.03.2020 as mentioned in the affidavit dated 08.04.2020 was before the passing of the order dated 05.05.2020 by this Court in Criminal Misc. Application No.6237 of 2020 - Application dismissed.
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2021 (4) TMI 1222
Bail application - evasion of tax - inculpatory statement of the applicant under duress and coercion - It is submitted that the present offence is triable by the Magistrate and considering the burden of work and pending cases in trial court the applicant may be released on bail as the applicant is in jail since 14.12.2020 - HELD THAT:- Keeping in view nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, this Court is inclined to grant regular bail to the applicant.
The applicant shall deposit an amount of ₹ 2,00,000/- before the State Tax Officer and on depositing the aforesaid amount and producing appropriate document with regard to the depositing of the amount the applicant is ordered to be released on regular bail and further the applicant shall also file an undertaking to deposit the remaining amount of ₹ 13,00,000/- within the period of eight weeks - application allowed.
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2021 (4) TMI 1221
Money Laundering - siphoning of funds - petitioners prayed for withdrawal of the writ petition on the ground that the order of provisional attachment had expired by efflux of time under the provisions of Section 5(1)(b) of PMLA - The petitioners were opposed on the ground that the order of provisional attachment according to the said respondents did not expire by efflux of time - bifurcation of offence under PMLA into "Scheduled Offence" and "Offence of money-laundering" - HELD THAT:- The Director or an Officer not below the rank of Deputy Director while exercising jurisdiction under Section 5(1), therefor, has the discretion either to provisionally attach the property or not to do so. If the officer chooses to provisionally attach the property, he has to forward a copy of the order along with materials in his possession to the Adjudicating Authority. The Prevention of Money-Laundering (Issuance of Provisional Attachment Order) Rules, 2013 specifies the manner of issuance of provisional attachment order. The manner of forwarding a copy of the order of provisional attachment of property with materials as required under Section 5(2) of PMLA is provided in Rule 3 of the Prevention of Money-Laundering (the Manner of Forwarding a Copy of the Order of Provisional Attachment of Property along with the Material, and copy of the Reasons along with the material in respect of Survey, to the Adjudicating Authority and its Period of Retention) Rules, 2005. Rule 6 of the 2005 Rules provides for the period of time such order of provisional attachment, the materials and copy of the reasons are required to be retained by the Adjudicating Authority. Section 5(2) of PMLA, therefor, does not trigger the initiation of any Adjudication under Section 8(1) of PMLA -
The Adjudicating Authority after conclusion of hearing under Section 8 (2) of PMLA, therefor can either declare that the property or properties are involved in money-laundering or hold that they are not so. The adjudication process, by the Adjudicating Authority is thus not dependent on the order of provisional attachment being in force, though the initiation of adjudication under Section 8(1) of PMLA had commenced after a complaint being lodged under Section 5(5) of PMLA pursuant to an order of provisional attachment under Section 5(5) of PMLA. Even Section 8(1) of PMLA empowers the Adjudicating Authority to form a prima facie independent opinion before issuing a notice under such Section after receiving a complaint under Section 5(5) of PMLA. The adjudication by the Adjudicating Authority is, therefor, independent of the fact whether the order of provisional attachment on the date of completion of the adjudication under Section 8(2) of PMLA is in operation or not.
In the instant case, the jurisdiction of the Adjudicating Authority was attracted on a complaint under Section 5(5) being lodged after an order for provisional attachment under Section 5(1) was made. The Deputy Director under PMLA in the instant case on 19th February, 2020 i.e., within 30 days from the date of passing the order of provisional attachment had filed the complaint under Section 5(5) of PMLA. The Adjudicating Authority on receiving the complaint under Section 5(5) upon having reasons to believe that the petitioner no. 1 has committed an offence under Section 3 or is in possession of proceeds of crime, served a notice under Section 8(1) of PMLA on 19th February, 2020 upon the petitioner no. 1 and its Directors calling upon them to indicate the source of income, earnings or assets out of which or by means of which the property attached under the provisions of Section 5(1) of PMLA was acquired. It is an admitted position that immediately upon expiry of the minimum 30 days' notice period for show cause under Section 8(1) was over, the country went into a national lockdown. As a natural consequence, the matter being fixed on 4th May, 2020 before the Adjudicating Authority for a hearing under Section 8(2) could not take place - The embargo to confirm an order of provisional attachment in a given case where such order of provisional attachment has lost its force by efflux of 180 days, however cannot be an impediment for the Adjudicating Authority in hearing a matter in terms of section 8(1) and 8(2) of PMLA. The narrow construction of the stature as sought to be made by the petitioners, therefore cannot be accepted as it will lead to holding 180 days to be the time period for completing adjudication under Section 8(2) of PMLA.
The Adjudicating Authority does not become functus officio on expiry of the period of 180 days from the passing of the order of provisional attachment unless such order is confirmed under Section 8(3) in view of the provisions of Section 5(3) of the PMLA, the Adjudicating Authority in the instant case, is, free to proceed with the Complaint Case being Complaint no. 1262 of 2020 till the Sec. 8(2) stage i.e., to give a finding whether the property is involved in money-laundering or not.
The order dated 26th March, 2021 is accordingly clarified that hearing of Complaint No. 1262 of 2020 now pending before the Adjudicating Authority shall continue up to the stage indicated in Section 8(2) of PMLA but the confirmation provided under Section 8(3) of PMLA shall take place after the final hearing of the writ petition depending upon the final result - Application disposed off.
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2021 (4) TMI 1220
Promulgation of the Ordinance titled The Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 - members whose tenures subsisted up until that date, have had their tenures brought to an end - Members entitled to claim compensation not exceeding three months’ pay and allowances for the premature termination of their respective tenures - HELD THAT:- Insofar as this Court is concerned, for the moment, we cannot issue any directions with regard to the pending cases, filed before the Authority for Advance Rulings [in short the “AAR”].
Having said so, we tried to impress upon Mr. Venkataraman that if some interim arrangement could be made, till the Board for Advance Ruling is constituted, then, perhaps, some pending cases could be disposed of, as has been done in the case of the Income Tax Settlement Commission.
Mr. Venkataraman will revert on this aspect of the matter. As prayed, another four weeks are granted to the respondents to file their counter-affidavits in the captioned matters. Rejoinders, thereto, if any, will be filed before the next date of hearing.
List for directions on 24.05.2021.
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2021 (4) TMI 1219
Grant of Bail - pendency of the trial on the ground that chargesheet was not filed - evasion of tax by creating fake invoices - HELD THAT:- Without discussing the evidence in details as well as without going into details, primafacie, this Court is of the opinion that this is a fit case to exercise the discretion to enlarge the applicant on bail. Hence, the application is allowed and the applicant is ordered to be released on bail in connection with the complaint being ACST/FSU11/ PUNDRIK TRIVEDI/201920/ B64 dated 27.01.2020 and complaint dated 24.03.2020 filed in Criminal Case No. 30267 of 2020 on executing a bond of ₹ 50,000/- with two local sureties of ₹ 25,000/- each to the satisfaction of the trial Court and subject to the conditions imposed.
Application allowed.
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2021 (4) TMI 1218
Property attached in respect of arrears of tax due to the Income Tax Department - HELD THAT:- In this case, the petitioner has been fighting for her rights over the property in terms of a sale agreement dated 30.06.1994. The Hon’ble Supreme Court ultimately accepted the contention of the petitioner that the third and fourth respondent’s mother late Mrs.J.Padmini ought to have executed a sale deed in favour of the petitioner in terms of the aforesaid sale agreement dated 30.06.1994.
The third and the fourth respondents who were minors at the time of execution of the sale agreement on 30.06.1994 ought to have executed the sale deed in favour of the petitioner. Therefore, the subsequent tax liability of the fourth respondent and her husband for the Assessment Years 2012-13 and 2013 -14 cannot be to the disadvantage of the petitioner, since the petitioner has been diligently litigating since 2004. Therefore, fruits of the decree in a contested suit cannot be denied merely because the seller or one of the persons had incurred subsequent tax liability. The fruits of a decree will date back to the date of the suit.
Section 281 of the Income Tax Act, 1961 applies only to a situation where an assessee during the pendency of any proceeding under the Act, or after completion thereof, but before the service of a notice under Rule 2 of the Second Schedule, creates a charge on, or parts with the possession (by way of sale, mortgage, gift, exchange or any other mode of transfer whatsoever) of, any of his/her assets in favour of any other person.
Only such charge or transfer is void as against any claim in respect of any tax or any other sum payable by the assessee as a result of completion of the said proceedings or otherwise.
In this case admittedly the transfer was on account the final culmination of the litigation by the order of Hon’ble Supreme Court.There was only a delay in the execution of sale deed due to the pendency of the proceedings as the third and fourth respondent’s mother declined to execute sale deed under the sale agreement dated 30.6.1994.
Therefore the impugned communication dated 06.07.2018 asking the petitioner to obtain clearance from the second respondent cannot be countenanced. Further as per proviso to section 281 of Income Tax Act, 1961 such charge or transfer shall not be void if it is made-
(i) for adequate consideration and without notice of the pendency of such proceeding or, as the case may be, without notice of such tax or other sum payable by the assessee ; or
(ii) with the previous permission of the Assessing Officer.
The tax liability of the aforesaid firms of which the fourth respondent and her husband were the partners are subsequent to the commitment in the sale agreement dated 30.6.1994. Therefore, there is no justification in not releasing the registered sale deed in favour of the petitioner as the petitioner is a bonafide purchaser who has purchased the property after a long drawn litigation .
This Court is inclined to allow this writ petition as prayed for. Thus, this writ petition deserves to be allowed. The second respondent is directed to release the sale deed dated 29.06.2018 registered vide Document No. 89 of 2018 in favour of the petitioner within a period of two weeks from date of receipt of this order.
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2021 (4) TMI 1217
Classification of goods - rate of tax - plywood when it is sold locally to Railways within the State and if sold to Railways under CST on interstate sales - eligibility for concessional rate of sales tax - HELD THAT:- The facts regarding supply of plywoods to the Indian Railways are not disputed by the respondents. The petitioner produced evidence and established that they are the supplier of plywoods to the Indian Railways. Therefore, they are entitled for the concessional rate of Sales Tax as contemplated under Entry 112 of Part-B of the First Schedule, which reads as “Railway wagons, engines, coaches and parts thereof”.
The Explanation to Section 8 of the Act, contemplates that “for the purpose of this sub-section, a dealer shall be deemed to be a dealer liable to pay tax under the Sales Tax Law of the appropriate State, notwithstanding that he, in fact, may not be so liable under that law” - the provisions of the Act is clear that the rate of tax on sales in the course of interstate trade or commerce is enumerated under Section 8(1) of the Act. Under sub section (2) of Section 8 of the Act, once the concession for rate of tax is extended to the dealer, who supplied the materials to the Indian Railways, then the said benefit extended under Entry 112 of Part-B of the First Schedule is to be extended to another State supply also. In other words, there cannot be two sales tax, one for the supply inside the State and the other for another State supply. Once the concession is extended as far as the supply within the State is concerned, then the same benefit is to be extended in respect of interstate supply. Admittedly, supply of plywoods in WP 10623 of 2008 is supplied to the Indian Railways, more specifically, for construction of Railway coaches.
This Court is of an opinion that the concessional tax granted to the petitioner with reference to supply of plywoods, within the State is to be extended in respect of supply of plywoods to interstate to the Indian Railway - Petition allowed.
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