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2023 (11) TMI 1367
Reopening of assessment u/s 147 - limitation period - procedural requirements mandated under the newly introduced Section 148A - HELD THAT:- In normal cases, no notice shall be issued if three years have elapsed from the end of the relevant assessment year. Notice beyond the period of three years from the end of the relevant assessment year can be issued where the AO would not be in possession of books of accounts or other documents or evidence which would reveal that the income chargeable to tax, represented in the form of asset, which has escaped assessment, amounts to or is likely to amount to fifty lacs rupees or more for that year.
In such cases, notice can be issued beyond the period of three years but not beyond the period of 10 years from the end of the relevant assessment year. Notice under Section 148 of the Act can be issued when there is information with the Assessing Officer which suggests that the income chargeable to tax has escaped assessment in the case of an assessee for the relevant assessment year. The specified authority for approving inquiries, providing an opportunity for passing orders under Section 148 of the Act and for issuance of notice u/s 148 of the Act is the Principal Commissioner or Principal Director or Commissioner or Director, if three years or less than three years have elapsed from the end of the relevant assessment year or Principal Chief Commissioner or Principal Director General or Chief Commissioner or Director General if more than three years have elapsed from the end of the relevant assessment year.
The object behind Section 148A as is evident from the findings in the fountainhead decision of GKN Driveshafts (India) Ltd. [2002 (11) TMI 7 - SUPREME COURT] is to enable the assessee to be informed of the reasons and information suggesting that income chargeable to tax has escaped assessment and, therefore, in turn to empower the assessee to prepare and file an effective reply and thereafter the Assessing Officer to pass an order under Section 148A(d), followed by issuance of notice under Section 148 of IT Act.
Considering the aforesaid, normally, the writ Court should not interfere at such premature stage when the proceedings initiated against the assessee are yet to be concluded by the statutory authorities.
This Court refrains to interfere with the order(s)/notice impugned. Pertinently, the question of going into the veracity and genuineness of the material/evidence forming the opinion of the Assessing Officer suggesting that income of petitioner/assessee has escaped assessment ought not to be gone into while exercising writ jurisdiction under Article 226 or supervisory jurisdiction under Article 227 of the Constitution of India.
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2023 (11) TMI 1366
Classification of Roasted Areca Nuts / Betel Nuts intended to be imported - to be classified under Chapter 8, which includes edible fruits and nuts, or under Chapter 20, which covers preparations of vegetables, fruits, nuts, or other parts of plants? - HELD THAT:- The processes mentioned in Chapter 8 include chilling, steaming, boiling, drying and provisionally preserving. It does not specifically include the process of roasting. Here it is important to understand the difference between the processes of moderate heat treatment & dehydrating/drying referred in chapter 8 and processes of dry roasting, oil-roasting and fat-roasting referred in chapter 20. The terms dry-roasting, oil roasting and fat-roasting however are not defined in the Customs Tariff Act, 1975 - Chapter 20 of the Tariff covers the Preparations of vegetables, fruit, nuts or other parts of plants. As per Chapter Note 1 (a) to Chapter 20, the Chapter does not cover vegetables, fruits or nuts prepared or preserved by the processes specified in Chapters 7, 8 or 11. Therefore, vegetable, fruit or nut products or preparations made other than by the processes specified in Chapters 7, 8 or 11 are classifiable in Chapter 20. The processes specified in Chapters 7, 8 or 11 mainly include freezing, steaming, boiling, drying, provisionally preserving and milling. Therefore, any vegetable, fruit, nut or edible parts of a plant which is prepared or preserved by any other process than these are liable to be classified under Chapter 20.
While examining the scope of CTH 2008, it is found that as per HSN Explanatory Notes, heading 2008 covers fruit, nuts and other edible parts of plants, whether whole, in pieces or crushed, including mixtures thereof, prepared or preserved otherwise than by any of the processes specified in other Chapters or in the preceding headings of this Chapter. Specifying what is included in this heading, the explanatory note states that almonds, ground nuts, areca (or betel) nuts and other nuts, dry-roasted, oil-roasted or fat-roasted, whether or not containing or coated with vegetable oil, salt, flavours, spices or other additives. Dry-roasting, oil-roasting & fat-roasting, as a process, are very much a part of chapter heading 2008 by virtue of HSN Explanatory Notes. It is also pertinent to observe that none of these processes are mentioned in the chapter note 3 to Chapter 8 of the Customs Tariff Act, 1975 as well as HSN Explanatory Notes to Chapter heading 0802.
The Honourable High Court of Madras in its recent judgement on 01.08.2023 [2023 (8) TMI 492 - MADRAS HIGH COURT], has upheld the classification of Roasted Betel Nuts under CTH 2008 19 20.
Conclusion - The Roasted areca/betel nuts fall under Custom Tariff Heading 2008, specifically under CTI 2008 19 20 "Other roasted nuts & seeds" of Chapter 20 of the First Schedule of the Customs Tariff Act, 1975.
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2023 (11) TMI 1365
Challenge to impugned order - appellable order or not - appropraite forum or not - HELD THAT:- Though the aforesaid impugned order is appellable order under the statete before the Tribunal but since the said forum is not available at present this writ petition is being entertained and the issues involved in this writ petition cannot be adjudicated without calling for affidavits from the respondents.
Let the respondents file affidavit in opposition within four weeks; reply thereto, if any, to be filed by the petitioner within two weeks thereafter - There shall be no coercive steps for recovery of the demand in question arising out of the impugned order of the appellate authority concerned if petitioner pays further 20% of the disputed amount of tax within a period of ten days from date.
List the matter for final hearing in the monthly list of February, 2024.
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2023 (11) TMI 1364
Deduction u/s 10A - telecommunication expenses excluded from export turnover and total turnover - HELD THAT:- CIT (A) in first appellate proceedings has directed the AO to reduce telecommunication charges from export turnover and total turnover while computing deduction u/s 10A. The contention of the assessee is that export turnover does not include telecommunication charges.
It is no more res-integra that freight, telecommunication charges, or insurance charges attributable to the delivery of the Computer Software outside India are to be excluded from export turnover as well as total turnover.
As in the case of CIT vs. HCL Computer Technologies Ltd [2018 (5) TMI 357 - SUPREME COURT] has in an explicit manner held that if freight, telecommunication charges and insurance charges are excluded only from export turnover and not the total turnover it would give absurd result as Total Turnover = Export Turnover as defined in Explanation 2(iv) of section 10A of the Act + Domestic Sale Profits.
Allowing a revised computation of long-term capital gains, which was based on a revised sale consideration of land - HELD THAT:- It is a well settled principle that only the real income of assessee can be taxed. Department cannot tax the income that has never accrued to or received by the assessee. The Hon'ble Apex Court in the case of CIT vs. Shoorji Vallabhdas & Company, [1962 (3) TMI 6 - SUPREME COURT] held, “Income-tax is a levy on income. No doubt, the Income-tax Act takes into account two points of time at which liability to tax is attracted, viz. the accrual of its income or its receipt; but the substance of the matter is income, if income does not result, there cannot be a tax, even though in book-keeping an entry is made about a hypothetical income, which does not materialize.” The aforesaid principal laid down as been reiterated in the case of Hemal Raje Shete [2016 (4) TMI 1082 - BOMBAY HIGH COURT] and Dinesh Vazirani [2022 (4) TMI 746 - BOMBAY HIGH COURT]. Thus in an undisputed facts of the case we find no merit in ground.
Allowing interest u/s. 244A on the refund arising out of excess self- assessment tax paid by the assessee - HELD THAT:- For refund arising out of self-assessment tax paid there is no dispute. As in the case of Stockholding Corporation of India [2014 (11) TMI 899 - BOMBAY HIGH COURT] has held that tax paid on self-assessment would fall u/s. 244A(1)(b) of the Act that is a residual clause. The said section clearly mandates that the Revenue would pay interest on the amounts refunded for the period commencing from the date payment of tax is made to the Government exchequer upto the date when refund is granted. Hence, the assessee is eligible for interest on refund on excess amount paid on self assessment tax. We find no error in the findings of CIT (A) on this issue, hence, ground No. 4 of appeal is dismissed.
TP adjustment - software development services - Comparable selection - Sasken Network Systems Ltd - HELD THAT:- TPO selected the said company as comparable. One of the filters applied by the TPO for rejection of comparable was Related Party Transaction >4%. Assessee referring to the P&L Account of Sasken Network Systems Ltd. has pointed that the RPT of the said company is more than 8%. Hence, the said company was excluded by the CIT (A) from the list of comparable.
Four Soft Ltd. - The said company was excluded by the CIT (A) for the reason that the RPT of the said company was>5%. The submissions made by the assessee before the CIT (A) shows that the RPT of the company is 22.69%.
Thirdware Solutions Limited - CIT (A) rejected the company from the list of comparables on the ground that no segmental data is available. In support of the findings the assessee has drawn our attention to the extracts of the financials of the company. A perusal of the same reveals that the company has revenue from sale of licenses, services, export and subscription. However, no segmental profits were reflected by the company.
Tata Elxsi Limited - CIT (A) has excluded the company from the list of comparable as RPT is >4%. Assessee has drawn our attention to the extracts of P&L Accounts for the year ended 31/03/2005 of Tata Elxsi Limited at page 668 of the paper book to contend that RPT of the said company is >5.74%.
Flextronics Software Systems Ltd.- The said company has also been rejected by the CIT (A) on the ground of RPT filter >4%. As per the findings of the CIT (A) the RPT of the said company for the relevant Assessment Year is 5.23%
Infosys Technology Limited - The said company has also been rejected by the CIT (A) on the ground that RPT is >4%. The ld.Counsel for the assessee has drawn our attention to the extract of the Annual Report of the company to contend that RPT to cost is 5.26%.
Exensys Software Solutions Ltd. - CIT (A) has excluded the said company from the list of comparables as an exceptional event had happened during the relevant period. During the relevant period, another company Holool India Ltd. was amalgamated with Exensys Software Solutions Ltd. w.e.f. 01/04/2004, which had purportedly significant impact on the financial results of company for the year ended 31/03/2005.
Larsen & Toubro Infotech Ltd. - The said company was excluded from the list of comparable by the CIT (A) as it had RPT of >4%. The ld. Counsel for the assessee pointed that the RPT of the said company is 4.35%.
The reasons given for rejecting the aforesaid companies by the CIT (A) could not be controverted by the Department. In the absence of any contrary material, we find no reason to interfere with the findings of CIT (A) in excluding the said companies from the list of comparable.
Inclusion of ASM Technologies Ltd. and Subex Systems Ltd., Blue Star Infotech Ltd.,Goldstone Technologies Ltd.,Megasoft Ltd., Mphasis BFL Ltd.as functionally similar.
Allowing depreciation and working capital adjustment -Depreciation adjustment is not an alien concept. The Tribunal in the case of Egan Communication Pvt. Ltd. [2008 (6) TMI 299 - ITAT PUNE-A] allowed adjustment for depreciation, where the rates of depreciation adopted by the tested party and the comparable companies were different.
As regards working capital adjustment the assessee had carried out the adjustment to eliminate interest component in working capital. No contrary material is placed before us by the Revenue to support the argument against allowing of working capital adjustment.
Disallowance with respect to secondment of employees to AEs -We find that the Co-ordinate Bench in assessee's own case in preceding year i.e. AY 2004-05 in ITA No. 5653/Mum/2009 [2023 (4) TMI 889 - ITAT MUMBAI] approved the approach of the CIT (A) in considering Indian salary of employees. We see no reason to interfere with the findings of CIT (A) on this issue, hence, ground No. 6 in the appeal by the Revenue is dismissed.
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2023 (11) TMI 1363
Order of Cancellation of registration u/s 12AB(4) passed without DIN number - HELD THAT:- Circulars of the Board are binding on the ld. tax authorities. Reliance in this regard can be placed on the judgement of Geep Industrial Syndicate [1987 (2) TMI 34 - DELHI HIGH COURT]
As with regard to the subsequent validation of the order, it comes up that although this proposition is also not sustainable and the reasons have been elaborately discussed in the case of Abhinav Chaturvedi [2023 (8) TMI 378 - ITAT DELHI], still, for sustaining this argument, there should have been some material to show that at any stage the DIN was generated and even if it was generated at all, since the DIN is not scribed on the order itself, the order cannot be considered to be a valid order.
Taking up the attempt of the DR to distinguish the facts on the principle of sub silentio, we are of the considered view that the same has no application to the present facts and circumstances. The point under consideration is purely a question of law arising out of non-compliance of a mandatory Circular of the Board and judgement of Brandix Mauritius Holdings Ltd.[2023 (4) TMI 579 - DELHI HIGH COURT] holds the field without any exception for a distinction on facts or any other principle of interpretation. In the light of the aforesaid, we are inclined to allow the additional ground and set aside the impugned assessment order being non est. Appeal of the assessee is allowed.
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2023 (11) TMI 1362
Violation of principles of natural justice - challenge to show-cause cum demand notice on the ground that reply to the pre-show-cause notice was not properly considered and discussed and dealt with while issuing the impugned show-cause notice - HELD THAT:- It is not a case that where no opportunity to file any objection for personal hearing was given to the petitioner. Sufficiency o the reason recorded in the impugned show-cause notice cannot be appreciated by the writ Court when the petitioner still has been given ample opportunity to file reply/objection to the impugned show-cause notice which the petitioner did not avail.
Petition disposed of by extending the time to file reply by the petitioner to the impugned show-cause notice dated 18th September, 2023 and also to take all the points raised in this writ petition, to be filed within fifteen days from date and if petitioner files the reply to the same, the same shall be considered and disposed of in accordance with law and by passing a reasoned and speaking order and after giving opportunity of hearing to the petitioner.
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2023 (11) TMI 1361
TP adjustment - power purchased and consumed by the appellant company from its captive power generation units, for the purpose of computing deduction u/s. 80IA - HELD THAT:- This issue is no longer the res integra. As decided in the case of DCIT vs M/s. India Cements Ltd. [2021 (12) TMI 390 - ITAT CHENNAI] has considered an identical issue, where the Tribunal by following the decision of Reliance Industries Ltd [2019 (2) TMI 178 - BOMBAY HIGH COURT] held that, for the purpose of computing deduction u/s. 80IA of the Act, towards power generated from captive power generation units and consumed by other units, the rate at which the power distribution companies supplied powers to consumers should be adopted instead of the rate at which the power generating companies supplied power to power distribution companies.
We are of the considered view that there is no error in the reasons given by the ld. CIT(A) to delete additions made by the AO/TPO towards transfer pricing adjustment, in respect of deduction claimed u/s. 80IA of the Act, for windmill division. Thus, we are inclined to uphold the findings of the ld. CIT(A) and dismiss appeal filed by the revenue.
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2023 (11) TMI 1360
Estimating the gross commission income on total purchase and sales turnover - HELD THAT:- As in the case of Sanjay Kumar Choudhary (HUF) & Ors. [2021 (12) TMI 1414 - ITAT SURAT] this Tribunal has sustained the addition only on sales / commission and not on both the elements i.e. purchase and sales, therefore we direct the AO to estimate the addition at the rate of 0.05% of the total sales turnover of the assessee and the same should be sustained.
Therefore, we direct the AO to compute the estimated addition on sales at the rate of 0.05% on sales in case of other assessees also, namely Saffron Gems Pvt. Ltd., Tanman Jewels Pvt. Ltd. and Nobal Jewels Pvt. Ltd. This way, the assessee’s appeal is partly allowed in above terms.
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2023 (11) TMI 1359
Seeking grant of bail - Money Laundering - illegal appointments of primary teachers in West Bengal - twin conditions as per Section 45 of the PMLA Act satisfied or not - HELD THAT:- The nature and gravity of accusation in a case while deciding an application for bail assumes importance as the Court has to consider the manner of commission of the offence, the harm or likely harm which may be extended to the victim and the harm or likely harm which may be caused to the society and its values.
In the instant case, there was not even an FIR by the State Police or the State agencies and it was on the direction of the Hon’ble High Court that the CBI initiated the investigation wherein the main thrust of allegations related to the primary teachers’ job which have been purchased in lieu of huge amount of money and extraneous consideration extended to the ineligible candidates to get appointment as Assistant Teachers in primary schools.
Having regard to the issue relating to which the investigation of the case is being continued, the number of victims being involved, and the accused person being an influential person, whose means, position are beyond question at the State administrative level as also the education department, his release, will have an impact at this stage of the investigation when an outer limit of 31st December, 2023 has been fixed by the Hon’ble Division Bench to conclude the investigation, which is being carried on by the E.D.
The prayer for bail of the present petitioner is rejected.
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2023 (11) TMI 1358
Unexplained cash credit u/s. 68 and unexplained expenditure u/s. 69 - receipt of accommodation entry by way of bogus LTCG/STCG - HELD THAT:- AO based on the information available on Actionable Information Monitoring System (AIMS), as per the investigation conducted by the Kolkata Investigation Directorate that the assessee was said to be one of the beneficiaries of accommodation entry by way of bogus LTCG/STCG.
The assessee has declared income from house property, business, capital gains and income from other sources and had declared gain on sale of shares during the year under consideration which is exempted u/s. 10(38) - AO held the same to be penny stock and made an addition on the same. CIT(A) upheld the addition on lack of evidence in support of the assessee’s claim.
From the above observation, we deem it fit to provide the assessee with one last opportunity to present her case before the first appellate authority on the principles of natural justice - Appeal filed by the assessee is allowed for statistical purpose.
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2023 (11) TMI 1357
Dishonour of cheque - funds insufficient - vicarious liability of petitioner, as an Independent Non-Executive Director - Section 141 of the NI Act - HELD THAT:- Section 138 of NI Act casts criminal liability on a person who issues a cheque towards discharge of a debt or liability as a whole or in part and the cheque is dishonoured by the bank on presentation. Section 138of NI Act creates criminal liability in case of dishonour of a cheque.
Section 141 of NI Act extends criminal liability in case of a company to every person who at the time of the offence, was in charge of and was responsible for the conduct of the business of the company. A company is a juristic person and every person who at the time of commission of offence is in charge and responsible for the conduct of the business of the company is liable for the offence stated to be committed by the company. The criminal liability arises when the offence was committed and not on the basis of merely holding a designation or office in a company. Section 141 of the NI Act mandates that a person is criminally liable when at the time of commission of offence was in charge and responsible for the conduct of the business of the company and person connected with the company may not fall within the ambit of section 141 of the NI Act.
The Supreme Court in SMS Pharmaceuticals Ltd. V Neeta Bhalla & another, [2005 (9) TMI 304 - SUPREME COURT] held that 'the liability arises on account of conduct , act or omission on the part of a person and not merely on account of holding an office or a position in a company. Therefore, in order to bring a case within Section 141 of the Act the complaint must disclose the necessary facts which make a person liable.'
The Supreme Court in Siby Thomas V M/s Somany Ceramics Ltd. [2023 (10) TMI 487 - SUPREME COURT] referred decision in S.P. Mani and Mohan Dairy V Dr. Snehalatha Elangovan, [2022 (9) TMI 846 - SUPREME COURT] and observed that it is the primary responsibility of the complainant to make specific averments in the complaint, so as to make the accused vicariously liable.
It is accepted legal proposition in view of law laid down by the Supreme Court in above referred decision that it is the primary responsibility of the complainant to make specific averments in the complaint so as to make the accused vicariously liable. If the basic averment is made in the complaint under section 138 of NI Act that the Director was in charge of and responsible for the conduct of the business of the company at the relevant time when the offence was committed then Magistrate can issue process against such Director. The complaint should specifically spell out how and in what manner the Director was in charge of or was responsible to the accused company for conduct of its business and mere bald statement that he or she was in charge of and was responsible to the company for conduct of its business is not sufficient.
Section 141 of the NI Act provides for a constructive liability which is created by a legal fiction. The section 141 of the NI Act being a penal should receive strict construction and compliance. It the accused played insignificant role in affairs of the company may not be sufficient to attract the constructive liability under Section 141 of the NI Act - Had the petitioner not responsible for affairs of the accused no 1, it can only be established and proved in accordance with law during the trial of the complaint under section 138 of NI Act. The petitioner cannot be absolved from his liability qua the cheque in question by pleading that he was independent non-executive director of the accused no 1. The nomenclature of the petitioner in certain documents submitted by the petitioner and required to be proved in accordance with law does not mean that the petitioner was a non-functional director of the accused no1.
It is also relevant to mention that the petitioner never challenged his summoning for offence punishable under section 138 of the NI Act and only challenged impugned order whereby the trial court judicially opined about existence of prima facie case against him.
Conclusion - The complaint contained sufficient averments to proceed against the petitioner under Section 138 read with Section 141 of the NI Act. The petitioner's designation as an Independent Non-Executive Director did not absolve him of liability, given the allegations in the complaint.
There is no legal and factual infirmity in the order passed by the trial court and impugned order passed by the revisional court - Petition dismissed.
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2023 (11) TMI 1356
Penalty u/s 271(1)(c) - estimation of income on bogus purchases - AO disallowed 50% of such purchases - CIT(A) restricted to 5% of gross turnover - HELD THAT:- Addition was certainly bases on estimation made by the AO and modified by the ld. CIT(A).
As in the case of Bombaywala Readymade Stores [2014 (11) TMI 1099 - GUJARAT HIGH COURT] held that “whether since no income had been filed by assessee and income was assessed on estimate basis by revenue, no penalty u/s 271(1)(c) could be levied for concealment of income.”
Thus, we find that no penalty is leviable on the assessee, when the addition on account of impugned purchases was estimated merely on the basis of estimation, therefore, direct to delete the penalty levied u/s 271(1)(c). In the result, ground of appeal raised by the assessee is allowed.
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2023 (11) TMI 1355
Addition u/s 68 - Denial of claim u/s 10(38) - disallowing the assessee’s claim of exempted long term capital gains u/s 10(38) - bogus capital gain income so earned through rigging of shares - HELD THAT:- Since the company, namely, M/s. Kappac Pharma Ltd. was a regular listed company at the recognized stock exchange of India, the trading in shares of the said company was done like any other scrip and the events happened post facto to the transactions done by the assessee’s mother or the assessee itself does not prove that the assessee has routed her unaccounted money through sale of shares of which long term capital gain arose.
It is a fact that the price rigged up from 13.50 in 2009 to Rs. 680/- in F.Y. 2013-14. It was submitted by the assessee that in the stock market in the commercial terms, it is well known that the prices of the scrip are flown with the winds and the sentiments irrespective of the fundamentals of the scripts. In that view of the matter, price of the scrip though went substantially high after shares were purchased, doesn’t automatically mean that the transaction of the assessee in the said scrip is not genuine. The same cannot be, therefore, said to be doubtful mainly on surmises, conjunctures and on presumption basis without any supportive documents in the hands of the Revenue. There was no role to play by the assessee in inflation of sale price as alleged or at all with the connivance with the brokers and the price at which shares were sold were neither genuine price.
There was no material and/or evidence brought on record by the Revenue in order to establish that the company has indulged in providing accommodation entries and the prices were rigged and the mother of the assessee or the assessee was involved in rigging of the price of shares. The case of the Revenue has been dealt with on entirely unsubstantiated suspicions is wholly unjustified and bad in law.
As scrip was subscribed by the mother of the assessee way back in F.Y. 2009-10 which was acquired by the assessee as gift from her.
It appears that the holding period is more than 55 months in case of the assessee before us too which facts cannot be brushed aside and therefore, the judgment passed by the Jurisdictional High Court in the case of PCIT vs. Jagat Pravinbhai Sarabhai Tax [2023 (1) TMI 44 - GUJARAT HIGH COURT] seems to be applicable.
We have carefully considered the judgment passed in case of M/s. Affluence Commodities Pvt. Ltd [2023 (4) TMI 1052 - ITAT AHMEDABAD] wherein deletion of addition under Section 10(38) of the Act in respect of the LTCG out of the sale of scrip of M/s. Kappac Pharma Ltd. was upheld.
As upholding the genuineness of the scrip of M/s. Kappac Pharma Ltd., we do not find any reason for addition made by the Revenue which is found to be solely on the basis of surmises and conjunctures and without any cogent document in the hands of the Revenue. The same is, thus, hereby deleted. Decided in favour of assessee.
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2023 (11) TMI 1354
Rectification u/s 254 beyond period of limitation - Tribunal jurisdiction to condone delay in filing of Miscellaneous Application u/s. 254(2) - HELD THAT:- The sub-section (2) of section 254 mandates that the Tribunal at any time within six months from the end of the month in which the order was passed can rectify any mistake apparent from the record, if the mistake is brought to its notice by the assessee or Assessing Officer.
Tribunal order dated 21/09/2021 was dispatched to the assessee through Registered Post A.D on 16/11/2021 and was received by the assessee on 17/11/2021, as per the acknowledgement available on record.
In the case of Daryapur Shetkari Sahakari Ginning and Pressing Factory [2020 (12) TMI 84 - BOMBAY HIGH COURT] has held that the period of limitation prescribed in section 254(2) of the Act would commence from the date when the order comes to the knowledge of affected party. In the present case, if limitation for filing of Miscellaneous Application is calculated as per the aforesaid decision of Hon’ble Jurisdictional High Court, the period of six months commence from 17/11/2021 i.e. when the order was received by the assessee. Accordingly, the limitation for filing of appeal expired by the end of May, 2022. The present Miscellaneous Application has been filed on 26/08/2022 i.e. after almost three months of expiry of limitation.
Tribunal has no jurisdiction to condone delay in filing of Miscellaneous Application u/s. 254(2) of the Act. [Re. Karuturi Global Ltd. [2019 (7) TMI 939 - KARNATAKA HIGH COURT]].
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2023 (11) TMI 1353
Rejection of the petitioner's claims for transport subsidy by the State Level Committee based on the operational status of the industrial unit at the time of inspection - rejection on the ground that unit had not been functioning and was shown closed - HELD THAT:- This Court had duly perused the Transport Subsidy Scheme and had also taken note of the fact that the petitioner unit was duly functioning at the time when the claims for transport subsidy were made, and this aspect of the matter would be clear from the certificate issued by the General Manager, District Industries and Commerce Centre, Dibrugarh, stating that the petitioner unit was physically verified on 17.11.2016 and it was found functioning as on date. Even the affidavit-in-opposition filed by the respondents on 16.03.2022 reveal that the petitioner unit had to be closed down sometime in January, 2018 due to financial crisis and shortage or raw materials. Under such circumstances, it is the opinion of this Court that the respondent authorities, more particularly, the State Level Committee ought not to have rejected the claims of the petitioner on the ground that with effect from January, 2018 the petitioner unit was not functioning.
This Court therefore sets aside the decisions of the State Level Committee taken in its 55th meeting held on 09.08.2018 and 21.08.2018, whereby the petitioner’s 3 claims were rejected as well as the decision taken in the 57th meeting of the State Level Committee, held on 31.12.2019, whereby the petitioner’s 13 claims for transport subsidy were rejected on the ground that the petitioner unit was found closed since January, 2018. In the above backdrop, this Court further finds it relevant to direct the State Level Committee to decide on the 16 claims of the petitioner, as tabulated hereinabove, on the basis of the Transport Subsidy Scheme and further on the basis as to whether the petitioner herein had transported the raw materials as well as the finished products in question. This Court further is of the opinion that in the circumstances and on the basis of the materials available the State Level Committee has any doubt on any aspect of the claims made by the petitioner, an opportunity may be given to the petitioner to explain and clarify the said aspect of the matter.
Conclusion - i) The Transport Subsidy Scheme requires verification of the transportation of goods rather than the operational status of the industrial unit at the time of subsidy disbursement. ii) The State Level Committee's decisions to reject the claims set aside and a reassessment is directed based on the actual transportation of goods.
Petition disposed off.
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2023 (11) TMI 1352
Burning of paddy crop by the SHOs - implementation of financial and machinery support for farmers to prevent stubble burning - HELD THAT:- There are farmers operating at larger economic scales where they are able to gain even a profit out of this byproduct by use of these machines.
The Committee must look into the aspect of discouraging cultivation of rice especially on account of the water required for it and the wells running dry in Punjab. The long term impact could be disastrous. Thus, persons concerned must put their head together to see how to encourage the switch over to alternative crops.
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2023 (11) TMI 1351
Abolition of MSP forthwith on paddy - HELD THAT:- There are certain suggestions being made in the course of hearing and the concerned authorities will look to it. Among the suggestions which we can easily flag is that with technology available now information is forthcoming to be utilized to control the farm fire where the exact location of farm fire can be immediately detected. How to proceed with it and what measures are to be taken are administrative in character and the function of the Court is to make sure that the administrators perform the task assigned to them.
The Chairman, DPCC may not remain present in the court as the order has been complied with.
List on 21.11.2023.
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2023 (11) TMI 1350
Aggravating problem of pollution - HELD THAT:- The bottom line is that very sowing of paddy which is not a local crop and which is not consumed locally is the basis of the problem. As submitted it is not a regular crop. The switch over to alternative crops is necessary so that next year we don’t face this problem. The switch over can only occur when the MSP is not granted for paddy but is given to an alternative crop, something which the Central Government in any case is seeking to encourage by growing and utilization of the traditional crops.
Though the Delhi Government is seeking to impose restrictions on the basis of “Odd-Even”, she submits that this is really an unscientific method if on the basis of colour codded stickers, vehicles which have orange stickers can be banned instead. On this aspect also the State Government will report back.
Conclusion - There is critical need for proactive measures to address environmental challenges caused by crop burning and pollution, emphasizing the importance of immediate action and compliance with regulatory frameworks to safeguard public health and the environment.
The Delhi Government to also place the figures of Environment Compensation Charge, which has been collected and in what manner it has been utilized - List on 10.11.2023 along with IA No. 232078/2023.
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2023 (11) TMI 1349
Reopening of assessments - Addition made on the basis of statement recorded during the search - appellant company through its director had surrendered such sum as its own undisclosed income - HELD THAT:- There has to be any finding or direction in the order of the Tribunal then only the case can be reopened. From the reading of order of the Tribunal which is reproduced in paragraphs, it is seen that there is neither any finding nor any direction of the Tribunal regarding undisclosed income of the appellant company. There is no finding or direction of the Tribunal allowing the AO to bring to tax the amount in any manner whatsoever.
In the case of the individuals it is the finding of the Tribunal that no addition can be made if there is no supporting seized material to substantiate the addition. The same rule applies in the case of the appellant company. In the case of the appellant company also, addition has been made only on the basis of statement without any supporting seized material.
In both the reasons recorded for re-opening and in the assessment order there is no reference to any seized material that can substantiate the addition made by the AO.
We totally concur with the decision of the AO was not justified in reopening and adding the amount as undisclosed income in the hands of the assessee. Decided against revenue.
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2023 (11) TMI 1348
Refusal to condone the delay in filing Income Tax Returns [ITR] - HELD THAT:- Delay to be condoned is to be considered as of the date on which ITR is filed and not on the date on which the application is filed and the provisions of Section 119[2][b] of the IT Act would not impose any limitation for the purposes of filing an application for condonation of delay.
This Court, in the light of this proposition, which is very persuasive must opine that the impugned order cannot be sustained and the petitioner’s application for condonation of delay in filing the ITR on 22.08.2015 must be restored for consideration in the light of the reasons offered to explain the delay between 31.03.2015 and 22.08.2015 and with the directions to so consider the application within a reasonable period from the date of receipt of a certified copy of this order.
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