|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1587 Records
-
2022 (7) TMI 1590
Validity of Order passed u/s 254 hereby the Petitioner has been directed to pay an amount of Rs. 5 crores against the outstanding demand for the Assessment Year 2018-19 - Petitioner states that the challenge is primarily on the ground that said order has been passed arbitrarily as the payment has been directed against additions which stand covered in favour of the Petitioner by a series of decisions rendered by the Tribunal in the Petitioner’s own case in previous seven assessment years - HELD THAT:- In the present case, the fact that the additions stand covered in favour of the Petitioner by a series of decisions rendered by the Tribunal for the last seven assessment years is not in dispute.
This Court finds that the Central Board of Direct Taxes (CBDT) has itself issued Instruction No. 1914 dated 02nd February, 1993 giving guidelines for Stay of Demand. One of the Guidelines for grant of complete stay is “if the demand in dispute relates to issues that have been decided in assessee’s favour by an appellate authority or court earlier.”
The impugned Order is in the teeth of the decisions of this Court which have categorically held that recovery of demand against issues which have been decided in favour of Assessee is wholly unwarranted.
Consequently, keeping in view the Guidelines/Instruction issued by the CBDT subsequent to the judgment of the Supreme Court in Dunlop India Ltd. [1984 (11) TMI 63 - SUPREME COURT (LB)], the condition of deposit of Rs. 5 crore imposed by the Tribunal vide impugned order dated 14th July, 2022 is set aside and the matter is directed to be heard by the Tribunal as expeditiously as possible.
-
2022 (7) TMI 1589
Stay of demand - as contended that the assessee should be directed to deposit at least 20% of the tax demand to avail the benefit of stay of remaining demand - HELD THAT:- Mitigating circumstances exists in the present case to grant partial stay of the outstanding demand. At the same time, we are equally alive to the concern raised by the Revenue. On weighing the totality of circumstances, we are of the view that interest of the Revenue can be balanced by an additional payment of Rs. 5 crore.
The aforesaid amount shall be paid by the assessee on or before the end of August, 2022 and proof of payment thereon shall be produced before the Assessing Officer. Subject to aforesaid, we entertain the stay application and exercise our statutory discretion in favour of the assessee for stay of recovery of balance outstanding demand for a period of six months or till the disposal of the appeal of the assessee by the Tribunal whichever is earlier.
The Registry is directed to fix the assessee’s appeal for out of turn hearing on 1st October, 2022. The parties will file all requisite documents and material well in advance for an expeditious disposal of the appeal. Stay application of the assessee is allowed.
-
2022 (7) TMI 1588
Seeking grant of bail - clubbing of all the FIRs registered in different States for a single trial to avoid multiplicity of proceedings - HELD THAT:- The offence registered in the State of West Bengal being RC/40/S/2014 dated 05.06.2015 registered with CBI/SCB/SIT, Kolkata, will proceed before the concerned Court in the State of West Bengal independently. Similarly, the FIR registered at Pindwara, Sirohi, State of Rajasthan being FIR No. 338/2018 dated 12.09.2018 shall proceed before the concerned jurisdictional Court in that State itself being the only case registered in connection with the Indian Penal Code (IPC) offences in that State and cannot be clubbed with the cases pending in other States, as the same will have to proceed under the special enactment of the concerned State.
In each of the States, where directions for clubbing of FIRs is being passed, the subsequently registered FIRs shall be treated as statements under Section 161 of the Code of Criminal Procedure (Cr.P.C.). The investigating officer in criminal case arising from the first FIR in the concerned State, as referred to above, will be free to file supplementary chargesheet after collation of all the records concerning other FIRs in the respective States, which are clubbed in terms of this order. In the event, the investigating officer in other FIRs had already filed the police report under Section 173 of the Cr.P.C. before the concerned Court and the concerned Court had taken cognizance thereof, the said FIRs and criminal cases would also stand transferred and merged/clubbed alongwith the first criminal case registered in the respective State, as referred to above, to be proceeded with in accordance with law. The investigating officer in the stated case (principal case to which the subsequent FIRs would stand merged/clubbed), will be free to file supplementary chargesheet on the basis of material collated during investigation of other FIRs.
All cases in the State of Maharashtra will stand clubbed with FIR No. 552/2016 dated 15.04.2016, registered with Police Station Ramnagar, Chandrapur, and to be tried by Special Court at Chandrapur (Maharashtra). Similarly, all criminal cases arising from the FIRs filed at the different point of time in the State of Madhya Pradesh will stand clubbed with FIR No. 915/2016 dated 09.11.2016, registered with Police Station Kotwali, Sehore – to be tried by Special Court, Sehore (Madhya Pradesh); and in the State of Chhattisgarh on the same lines will stand clubbed with FIR No. 146/2017 dated 04.04.2017 registered with Police Station Surajpur – to be tried by Special Court at Surajpur (Chhattisgarh) - If the accused has been granted bail in connection with the principal FIR or criminal case arising therefrom, in which the other FIRs/criminal cases will stand clubbed/merged in terms of this order, the bail so granted must enure in his favour until the Court of competent jurisdiction cancels the same owing to supervening circumstances including breach of bail conditions. In case, no bail has been granted in the principal FIR (case), the appellant may apply for the same before the jurisdictional court competent to try the principal crime.
Petition disposed off.
-
2022 (7) TMI 1587
Overvaluation of the export consignments to Bangladesh for availing higher benefit of DEPB scheme - Rejection of declared value u/r 8 of Customs Valuation (Determination of value of export goods) Rules, 2007 - confiscation of the export consignments u/s 113(d) & (i) of the C.A. 1962 - imposition of penalty u/s 114 & 114AA of the said Act - HELD THAT:- From the impugned order it is evident that the Commissioner has determined the value of impugned export consignments on the basis of the verification jointly undertaken jointly by the members of the market verification committee and Mr. Nathmal Jajodia, Director of M/s. Jai Vikshu Niketan and Sri Sandeep Jati, authorized representative of M/s. A.S, Traders. It is also noted by the Commissioner for the joint verification of the market price of the impugned goods, he had invited the conversant officers of DRI. Commissioner also refers to the communication made by the ADG DRI, refusing to be the part of such joint market verification.
It is not even the case of revenue that these enquiries were conducted fraudulently. During the adjudicating proceedings commissioner has duly ordered for such market verification on the basis of the same sample that were drawn from the export consignment at the time of seizure. On the examination of the same samples and verification undertaken Commissioner has re-determined the market value of the export consignments and concluded that the value as declared by the exporters was genuine. Revenue in their appeal have sought to place reliance on the market enquiries that were conducted by the DRI without associating the exporter with the same.
It is basic law of evidence that every evidence that is to be adduced in a proceedings against the person should be tested for it veracity and authenticity by the person adjudging the issue. In this case Commissioner has got the market verification done and have rejected the market enquiries undertaken by the DRI. The approach of the Commissioner cannot be faulted.
Once Commissioner has concluded that the value as declared by the respondent to the Custom Authorities in India is genuine, other charges made against the exporter do not survive. Even if there are certain irregularities found in the export vis a vis the legal requirements in the destination country, (Bangladesh), the same could not be made a ground for proving the misdeclaration of value. For the irregularities committed vis a vis the legal requirements in Bangladesh, it is for the Bangladesh Authorities to proceed against the importer/ exporter of the goods. Neither show cause notice nor the appeal conclusively makes an assertion to that effect.
Conclusion - The Commissioner's decision to reject the DRI's market verification upheld, due to the lack of participation by the exporter, emphasizing the need for evidence to be tested for authenticity. The fraudulent acts involving document forgery intended for Bangladeshi authorities do not constitute a violation under the Indian Customs Act, as they are not presented to Indian Customs.
The appeal filed by the revenue is dismissed.
-
2022 (7) TMI 1586
TDS u/s 195 - payments in the nature of Royalty by holding that the payments were made for information concerning commercial experience in terms of Article 13(3) of the India-UK DTAA - HELD THAT:- Deolitte Global Holdings has been incorporated by DTTI to facilitate attainment of various objectives to further international alignment, co-operation, cohesion and professional standards of highest quality amongst its member firms, such as the appellants herein. It incurs expenses for the above activities for the benefit of all the members which are then recovered from the members without any mark-up.
The terms on which the activities are carried out by Holdings and the expenses recovered by it from the members have been enshrined in the “Shared Services Agreement”. Though there are many services which have been enumerated in the said “Shared Services Agreement”, however, the dispute is with regard to the payments made under the head global brand, global communication and global technology/knowledge management.
Providing common policies or guidance relating to the brand and collaborating with member firms ostensibly cannot be reckoned as use of or right to use any copyright of literary, artistic or scientific work. Holdings only perform various activities for its members and its guidance is only for internal use by the member firms. Hence, in our view payment for such services cannot be considered for information concerning industrial, scientific or commercial experience. Again, there is no transfer of intellectual property by Holdings to the appellants and also there cannot be a case of giving industrial, commercial or scientific equipment. Thus, the payments made for global brand cannot be treated as in the nature of Royalty as per Article 13(3) of India-UK DTAA. Another important thing is that the payment is also not for any use of trademark/patent provided by Holdings.
Payments for global activities given in Global Communication, Holdings distributes the publications and reports for DTTI and support global public relations, thought leadership initiatives, events, guidance, common standards, guidelines, organising internal events, etc so that there is alignment of all the member firms for internal and external communication. It gives guidance about the media communication, distribution of newsletter, external and internal distribution.
From a bare perusal of aforesaid activities, it cannot be held that it is for use of or right to use of any copyright of literary, artistic or scientific work or for any other terms given in Article 13(3). Further, it also cannot be held for information concerning industrial or scientific experience and/or for commercial experience because the basic underlying fact is that it is purely for internal use of member firms and not for any third party or any client. Thus, these activities cannot be reckoned for providing industrial, commercial or scientific equipment to the appellants and, therefore, outside the nature and scope of Royalty as defined in Article 13(3) of the India-UK DTAA.
As regards the services mentioned in global technology/global management, from the bare perusal of the same it cannot be said to be for use of or right to use any copyright or any literary, artistic or scientific work or any transfer of intellectual property rights.
The software acquired by the network and distributed to the members does not include payment for use of or right to use computer software as it has merely obtained a licenced product from vendors for use of member firms. The licensee was allowed to use the software only for its own business purpose and is not permitted to transfer copy of the software and as such there is no transfer of any right in respect of copyright by the vendors and it is a case of mere transfer of copyrighted article.
Thus, the payments made for the activities/services under the aforesaid three heads cannot be held to be in the nature of Royalty as per the definition given in Article 13(3) of the India-UK DTAA and, accordingly, the payments made by the appellants to Holdings cannot be held to be Royalty.
In this case also, AO has heavily relied upon the same judgment of AAR in the case of EY Global Services Ltd which now stands reversed by the Hon'ble Delhi High Court [2021 (12) TMI 571 - DELHI HIGH COURT] Thus, we hold that the payments made to Holdings is not taxable as Royalty under Article 13(3) of the India-UK DTAA.
As in all the appeals the payments made to Deloitte Global Holdings Ltd. do not fall in the scope and definition of Royalty under Article 13(3) of India UK DTAA and consequently appellants were not required to deduct TDS while making the payment. Thus, all the appeals of the assessees are allowed.
-
2022 (7) TMI 1585
Time barred SCN or not - suppression or misstatement is a factual issue or purely a legal question - whether the type of service rendered by the appellant was an exempted service is also a factual matter, which needs to be adjudicated by the appropriate authority, who has issued the show cause notice? - HELD THAT:- The learned Single Bench was fully right in refusing to entertain the writ petition and interdict the show cause notice.
The appeal and the connected application are dismissed and the order passed by the learned Single Bench is affirmed with a direction to the appellant to submit the objections to the show cause notice within a period of four weeks from the date of receipt of the server of copy of this judgment and order. On receiving the objections, the concerned authority / respondent shall adjudicate the show cause notice and pass a reasoned order on merits and in accordance with law.
-
2022 (7) TMI 1584
Time limitation of counter claims filed - whether the appellants' counter-claim was governed by Article 22 or Article 113 of the Limitation Act, 1963? - HELD THAT:- In the factual position as apparent in the present matter, the specific case of the defendantsappellants was that the respondentBank had extracted the amount from them by exerting undue influence. It could further be seen that the Board of Directors of the Appellant had contemplated and considered the possibility of approaching the Court against the respondent– Bank. However, it was thought fit not to drag the respondentBank to the Court to avoid adverse publicity and mar their chances of receiving loans from other banks. It could thus be seen that the learned DRT has come to a finding of fact that it was the conscious decision of the appellants to pay off whatever amount was demanded by the respondent–Bank without joining the issue and they had accordingly paid the amount, may be much against their wishes.
Admittedly, the said amount, which according to the appellants, was paid under undue influence in the year 1994 - It appears that after waiting for a period of five years, the appellants woke up from their deep slumber and issued a notice on 22nd September 1999.
Conclusion - The DRT, the DRAT as well as the High Court have concurrently held that the counterclaim of the appellants was based upon the amount deposited in the year 1994, which according to the appellants was paid under undue influence. If that be so, no error could be noticed in the finding of the fact as recorded by the DRT, the DRAT and the High Court that the counterclaim was squarely covered under Article 113 and not under Article 22 of the Limitation Act.
There are no merit in the appeal. The appeal is dismissed.
-
2022 (7) TMI 1583
Addition made u/s 50C(1) within the ambit of adjustments provided u/s 143(1)(a) - HELD THAT:- Undoubtedly, section 50C is a deeming provision. Though, sub-section (1) of section 50C provides for substituting the stamp duty value as deemed sale consideration in place of the declared sale consideration, however, sub-section (2) carves out an exception by providing that if the assessee objects to the stamp duty value, the valuation has to be referred to DVO and in case the value determined by the DVO is lower than the stamp duty value, the value determined by DVO has to be considered for computing capital gain in terms with sub-section (3) of section 50C.
Therefore, sub-section (1) to section 50C cannot be considered in isolation. By making an adjustment of the nature contemplated under sub-section (1) to section 50C, that too, by CPC, the Department takes away a valuable statutory right given to the assessee to object to the value determined by stamp valuation authority.
Therefore, such type of adjustment, cannot be made u/s 143(1)(a). This is so because, at the stage of processing of return u/s 143(1)(a), if such an adjustment is made, the assessee does not get an opportunity to object, as per section 50C(2). More so, when conditions of the 1st and 2nd proviso to section 143(1)(a) are not complied. Therefore, hold that the addition made by CPC under section 50C(1) by way of adjustment u/s 143(1)(a)(ii) is unsustainable. Decided in favour of assessee.
-
2022 (7) TMI 1582
Rectification u/s 254 - assessee had raised Ground No.10 in the appeal which was with respect to the claim of deduction of expenses in respect of Technical Knowhow, but though the ground has been reproduced in the order of Tribunal but the same has not been adjudicated
HELD THAT:- We find that assessee has raised ground No.10 which was with respect to the claim of deduction of expenses in respect of Technical Knowhow but the same was not adjudicated by Tribunal in the order dated 09.11.2021.
We therefore find force in the argument of AR. We therefore recall the order [2021 (11) TMI 570 - ITAT DELHI] for limited purpose of adjudicating Ground No.10. We accordingly direct the Registry to fix the aforesaid appeal for hearing on 22.08.2022. Since the date of hearing of the aforesaid appeal is pronounced in the open court, no separate notice of hearing is required to be issued to the parties.
MA of the assessee is allowed.
-
2022 (7) TMI 1581
Disallowance of telecommunication line expenses as capital in nature - DRP sustained the disallowance on the ground that the assessee has claimed internet and telephone expenses separately and that the telecommunication line expenses pertain to expenses incurred for IT infrastructure which is capital in nature - HELD THAT:-Charges paid by the assessee are towards telephone lines, monthly port charges and recurring internet charges and hence we are of the considered view that the expenditure incurred by the assessee under the head ‘telecommunication lines’ is of revenue nature.
We also notice that the AO in assessee’s own case for AY 2018-19 has allowed the expenditure after verifying the sample invoices on the basis that the expenditure is ‘recurring charges’ and paid for a ‘specified period’. DPR/AO has in the order had stated that the assessee has claimed telephone and interest charges separately and stated it as reason for holding that the expenditure incurred as telecommunication lines is capital in nature.
This in our view is not correct as the expenditure incurred under the head ‘telecommunication lines’ have to be verified based on invoices submitted to decide whether they are capital or revenue in nature. From the sample invoices it is clear that the assessee incurs monthly recurring charges, towards internet, telephone lines, port charges, etc. which in our view are of revenue nature. These expenditure do not bring any benefit of enduring nature to the assessee and is incurred in the normal course of business. We therefore delete the addition made with regard to ‘telecommunication lines’. This ground of the assessee is allowed.
Disallowance of foreign exchange loss - AO disallowed the forex loss stating that the assessee has not provided proper explanation as to why the forex loss is claimed as an expenditure - HELD THAT:-From the perusal of the breakup of the forex loss claimed by the assessee we notice that the major portion of the loss has arisen out of the year end restatement of receivables and the balance in the EEFC a/c of the assessee which as per the ICDS VI clauses extracted above is a monetary item and accordingly to be converted into reporting currency based on closing rate and the difference shall be recognized as income/expense.
Therefore the assessee has correctly recognized the forex as per the ICDS which is to be recognized as a loss as per the provisions of section 43AA. It is also noticed here that the amount claimed is net loss after considering the forex gains arising in certain transactions and that the assessee has also submitted that the invoice-wise details of forex loss/gain - Thus, forex loss claimed by the assessee is an allowable expenditure. This ground is allowed in favour of the assessee.
Disallowance of unexplained expenses - AO disallowed the expenditure on the ground that the assessee has not provided details of the nature of expenditure - AR submitted before us that the issue may be remanded back to the AO, before whom the details for the balance amount disallowed would be furnished by the assessee - HELD THAT:- We remand this issue back to the AO for verification of further details and supporting documents and decide the allowability in accordance with law. The assessee is directed to submit the relevant details in this regard before the AO and cooperate with the proceedings.
-
2022 (7) TMI 1580
Maintainability of petition - availability of alternative remedy - Seeking release of goods with vehicle - HELD THAT:- This writ petition is dismissed on the ground of alternative remedy leaving it open for the petitioner to file an appeal before the Appellate Authority. In the event, an appeal is filed by the petitioner within 10 days from today along with a certified copy of this order, it shall be decided by the Appellate Authority in accordance with law, expeditiously.
-
2022 (7) TMI 1579
TP Adjustment - reallocating other expenses between software development service segment, marketing support service segment and Data center service segment on the basis of revenue by the Ld.TPO - HELD THAT:- We note that the Ld.AO/TPO rejected the segmental financial details provided by assessee and reallocated other expenses including restructuring cost between SWD segment, marketing support service segment and Data center service segment by using segmental turnover as the allocation key instead of “headcount” as was followed by the assessee in the TP study.
We note that the directions of the DRP has not been followed by the Ld.TPO. TPO is directed to pass the order in consonance with the directions of the DRP as per the sub clause (13) to section 144C of the Act. We therefore direct the TPO/Assessing Officer to consider this issue in accordance with the directions of DRP.
Comparable selection - exclusion of certain comparables on turnover filter as well as dissimilarity in functions - HELD THAT:-Exclude Tata Elxi Ltd (Seg.), Mindtree Ltd., Larsen and Toubro Infotech Ltd., RS Software (India) Ltd., Persistent Systems Ltd., Nihilent Technologies Ltd., Infosys Ltd., Cybage software Pvt.Ltd. for having high turnover as compared to a captive service provider like assessee.
Infobeans Technologies Ltd. be excluded as having multiple segments and cannot be compared with a captive service provider like assessee.
Inteq Software Pvt.Ltd as noted is involved in multifarious services such as application services, software testing, data warehousing, EDI, BPO, staffing etc. As noticed from the Ld.AO/TPO and the DRP's order, it is stated that Inteq Software Pvt.Ltd., is only involved in software development services and the entire turnover is from such service. It is not clear how DRP had arrived at such a conclusion. The profit and loss account of Inteq Software Pvt.Ltd., is not on record. We therefore, deem it appropriate to restore this issue to the file of Ld.AO/TPO.
Aspire Systems (I.) Pvt.Ltd. company is an outsourced technology service company. It is also stated that, there is income from power generation. Since the profit and loss account of the assessee company is not enclosed, we are not in a position to examine the observation of the DRP that, this comparable is a pure software development service provider. Therefore, we deem it appropriate to restore the issue to the files of the AO/TPO. The AO/TPO is directed to afford a reasonable opportunity of hearing to the assessee and take a decision whether Aspire Systems (I.) Pvt.Ltd., can be a comparable.
Non granting to WCA while computing the margines of the comparables - AO was not justified in denying adjustment on account of working capital adjustment. In the light of the decision referred to above, the assessee is entitled to working capital adjustment. The assessee is directed to provide the working capital adjustment for year under consideration The TPO is accordingly directed to allow the same as per law.
3 comparables sought for exclusion by the assessee under the MSS segment - Killick Agencies & Marketing Ltd is engaged in acting as agent for various foreign principals for sale of dredgers, dredging equipment, steerable rudder propellers, maritime and aviation lighting, acoustic communication equipment etc. and sales services, whereas, the assessee is involved in corporate services and market research & business development. The corporate service includes assisting the day-to-day management of the organization (e.g. finance, human resources, information systems etc.). With respect to human resources, financial management, routine administration etc. In our view this comparable cannot be held functionally similar with that of the assessee before us.
Digital Radio Broadcasting Ltd. - Comparing the functions with that of assessee before us, is after sales support functions for customers in India causing an increasing awareness of the Bluecoat products. Further the services are rendered only to the clientele of the AE to whom the Bluecoat products are sold. The above functions of this comparable is therefore not akin to the functions performed.
Justdial Ltd. has a turnover of more than 5,897.98 million. We note that this company works on pan India operation and is supported by sales and marketing team consisting of telesales executives, Feet-On-Street and Just dial ambassadors. The advertising activity carried by this company has led to increase in its brand value and is considered to be India’s leading local search related service provider. This company has its presence in the e-commerce sector with an unprecedented growth in the year 2014 with about 893 million wireless subscribers by placing India as the largest wireless largest market globally. With the above functions and the wide variety of services rendered by this company, assessee is not at all comparable that has carried on with the captive service provider only rendering services to the clients of its AE.
-
2022 (7) TMI 1578
Denial of benefit of exemption u/s 11 - Assessee society is set up for religious activities while claiming charitable status - ITAT dismissed the appeal of the Revenue by relying on ITAT's own decision rendered in assessee's case [2018 (1) TMI 1757 - ITAT DELHI] - HELD THAT:- This Court vide order [2022 (4) TMI 1651 - DELHI HIGH COURT] preferred by the Revenue as endorsed the opinion of the CIT(A) that the assessee was entitled to claim charitable status u/s 11 of the Act. In so holding it relied upon its preview views for AY 2009-10. No substantial question of law arises.
-
2022 (7) TMI 1577
Disallowance u/s. 56(2)(vii)(b)(ii) - rejecting the request of the assessee to refer the matter to the District Valuation Officer (DVO) because he has to complete the assessment to avoid delay in completing the assessment - CIT(A) also affirmed the view taken by the AO as the assessee could not produce the evidence by way of sale deeds last executed before getting the plots transferred from the other member of joint venture - AR now submitted that the assessee is having all the required documents, and, therefore, the issue may be restored back to the file of AO for limited purpose to decide the same after referring the matter to the DVO for valuation of the alleged land.
HELD THAT:- In view of AO request we are of the considered opinion that the AO is required to refer the matter to the DVO for determining the full market value of the alleged land, Accordingly, respectfully following the case laws relied on by assessee in his written submission in the case of Prem Chand Jain [2020 (7) TMI 188 - ITAT JAIPUR] and Gautam Bhakat [2018 (12) TMI 1551 - ITAT KOLKATA] we remit the issue to the file of AO for limited purpose to decide the issue afresh after getting valuation report from the DVO for determination of Full Market Value of the alleged land. Thus, we allow the sole ground of assessee for statistical purposes.
-
2022 (7) TMI 1576
Penalty u/s 271AAB - excess cash and jewellery was found in search - assessee has submitted that AO has not mentioned the specific clause of applicable provisions under which the alleged default was committed by the assessee - HELD THAT:- Upon perusal of statement it could be gathered that it is a general statement wherein no incriminating material has been confronted to the assessee and no question with respect to undisclosed income has been put to the assessee. Another statement has been recorded on next day.
Upon perusal of question no.6, it could be seen that the assessee was required to explain the variance in the amount of cash found. The assessee, in the reply, has sought time to furnish the requisite details to reconcile the discrepancies. There is no admission in the statement of the assessee regarding any ‘undisclosed income’. No question with respect to any other incriminating material is shown to have been put to the assessee in this statement also.
Subsequently, during post search proceedings, the assessee group has agreed to offer lump sum Rs.40 Crore collectively to tax which has been confirmed by another assessee i.e., Shri Sardarmal M. Kothari in statement recorded on 14.02.2013 which is placed on page nos. 63 to 65 of paper-book. However, in this statement also, no incriminating material or documents have been confronted to that assessee.
Imposition of penalty is not automatic but it would apply on peculiar facts and circumstances of each case. Merely because the voluntary admission has been made by the assessee which is not represented by any incriminating material found during the course of search action, the same would not justify the imposition of penalty.
The principle of natural justice would demand that the aggrieved party is given an opportunity of hearing to defend its case. It is only after the defense of the accused has been considered, the authorities could proceed with penal consequences. Had the imposition of penalty been automatic, such an opportunity would have no relevance and no opportunity would be required to be given to the assessee. It is only after the assessee has been heard and Ld. AO finds it a fit case for imposition of penalty, the penalty could be levied on the assessee.
CIT(A) has clinched the issue in the right perspective. Therefore, we confirm the impugned order, however, with enhancement. It could be observed that excess cash was found for Rs.68.55 Lacs from the premises of M/s Kamachi Steel Ltd. which was owned up by the assessee and disclosure was made. Therefore, besides own cash, the assessee would be liable for penalty on this excess cash of Rs.68.55 Lacs also. We order so.
Rate of penalty - we concur with the adjudication of Ld. CIT(A) since it is undisputed fact that part payment of taxes was already made by the assessee along with return of income. The assessee had filed ‘No objection letters’ and requested for adjustment of the same which was rejected. Subsequently, when the refunds were issued, the tax liability was settled by the assessee. Further, a part of the tax liability was also settled by the assessee group by way of seizure of cash of Rs.88.10 Lacs by the department. Nevertheless, the amount seized as well as paid by the assessee along with return of income would amount to more than the penalty sustained by Ld. CIT(A) in the impugned order, which we have substantially confirmed. Therefore, we confirm the stand of Ld. CIT(A), in this regard.
-
2022 (7) TMI 1575
CENVAT Credit - capital goods/inputs - M.S. plates, beams, angles, channels, sheets etc. used for repair and replacement of damaged parts of cement plant and machinery – clin, pre-heater, cement mill, raw mill, coal mill etc. - HELD THAT:- CENVAT credit is allowable also as input, as the items have been used admittedly (indirectly) as inputs in the factory of production, for manufacture of dutiable finished goods. It is further noticed that these disallowance have been made by the Court below in view of the Larger Bench ruling of this Tribunal in the case of VANDANA GLOBAL LTD. VERSUS CCE [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)]. This ruling has been overruled by the Hon”ble High Court of Chhatisgarh in M/S VANDANA GLOBAL LIMITED AND OTHERS VERSUS COMMISSIONER, CENTRAL EXCISE AND CUSTOMS, CENTRAL EXCISE [2018 (5) TMI 305 - CHHATTISGARH, HIGH COURT]. The appellant further submitted that the issue in the present case is now squarely covered by Larger Bench ruling of this Tribunal in M/S. MANGLAM CEMENT LTD. VERSUS C.C.E., JAIPUR-I [2018 (3) TMI 1547 - CESTAT NEW DELHI]. On the other hand Ld. DR supported the impugned order and contended that the Commissioner (Appeals) right disallowed credit of (Rs. 2,50,195/- + Rs.3,39,873/-) or Rs.5,90,068/-.
The larger Bench of this Tribunal in Mangalam Cement Ltd. where the issue before the larger Bench was whether on Cement and Steel items used for foundation, for installation of machinery, which is embedded to earth, the assessee is entitled to avail Cenvat Credit on steel items in terms of Rule 2(k)/2(a) of the Cenvat Credit Rules, 2004, or not, the question has been decided in favour of the assessee.
Conclusion - The appellants are entitled to cenvat credit on the items of iron and steel etc.
Appeal allowed.
-
2022 (7) TMI 1574
Revision u/s 263 - brought forward loss was allowed to be set off against the income from the capital gains of the assessee during the relevant assessment year, though, the same was not liable u/s 72 - ITAT set aside revision proceedings - HC [2021 (2) TMI 284 - BOMBAY HIGH COURT] accepted the position that it is not the requirement of Section 72 of the said Act that such gain or profit must be taxable only under the head of “profits and gains of business or profession”. The carry forward business losses would therefore be set off against theshort-term capital gains on the sale of building, plant, and machinery. This is yet another reason not to accept the submissions of Ms. Linhares and to answer the substantial questions of law against the Revenue and in favour of the assessee.
HELD THAT:- Since the tax effect is Rs 75.17 lakhs and is below the threshold, the Special Leave Petition is dismissed on that ground.
Pending application, if any, stands disposed of.
-
2022 (7) TMI 1573
Seeking an order for initiation of the Insolvency Resolution Process - Clause-F of the approved Resolution Plan bars the Financial Creditor from initiating the Insolvency Resolution Process against the Personal Guarantor.
Whether the Clause-F of the approved Resolution Plan bars the Financial Creditor to initiate Insolvency Resolution Process against the Personal Guarantor? - HELD THAT:- It is a settled position of law, the liability of Personal Guarantors are co-extensive with that of Principal Borrower. As per the Section 134 of the Indian Contract Act, 1872 a guarantor is discharged of its liability towards the creditor only if the creditor on its own instance discharges the Principal Debtor. The main ingredient of this section is discharge of the debtor through voluntary act of creditor and not due to operation of law.
The conclusion of Corporate Insolvency Resolution Plan does not bar Financial Creditor against Guarantor, and Financial Creditor can always approach this Adjudicating Authority as envisaged under the Code - Clause-F of Resolution Plan discharges the Personal Guarantor of Corporate Debtor for any future liabilities.
Conclusion - The Financial Creditor is entitled to initiate the Insolvency Resolution Process against the Personal Guarantor. It declared the Personal Guarantor insolvent and initiated the process, including a moratorium on legal actions against the debtor and the appointment of a Resolution Professional to manage the process.
Petition admitted.
-
2022 (7) TMI 1572
Reopening of assessment u/s 147 as barred by limitation - HELD THAT:- As per section 153(2) of the Act as was then available on the statute, the assessment u/ss. 147/143(3) could have been framed by the A.O. latest by 31.12.2008, i.e., upto 9 months from the end of financial year in which notice u/s. 148 of the Act was served.
In the present case the assessment had been framed by the A.O order passed u/s.143(3)/147, dated 24.11.2009, therefore, the same as claimed by the assessee, and rightly so, is much beyond the time limitation prescribed in sub-section (2) of Section 153 of the Act. We, thus, in terms of our aforesaid observations, quash the assessment framed by the A.O vide his order passed u/s.143(3)/147 dated 24.11.2009 as having been passed beyond the prescribed time limit. Decided in favour of assessee.
-
2022 (7) TMI 1571
Seeking to quash the proceedings on the file of the learned Judicial Magistrate, Dharapuram, thereby taken cognizance for the offences punishable under Sections 294(b), 323 & 506(2) of IPC as against the petitioners.
Offence under Section 294(b) of IPC - HELD THAT:- Admittedly, there is absolutely no words uttered by the petitioners as such to constitute the offence under Section 294(b) of IPC, there is no averments and allegations. Further the charges do not show that on hearing the obscene words, which were allegedly uttered by the petitioners, the witnesses felt annoyed. No one has spoken about the obscene words, they felt annoyed and in the absence of legal evidence to show that the words uttered by the petitioners annoyed others, it can not be said that the ingredients of the offence under Section 294(b) of IPC is made out.
Offence under Section 506(ii) of I.P.C - HELD THAT:- Threat should be a real one and not just a mere words when the person uttering does not exactly mean what he says and also when the person to whom threat is launched does not feel threatened actually. Whereas, in the case on hand, there is no averment to attract the offence under Section 506(ii) of I.P.C.
Offence under Section 323 of IPC - HELD THAT:- The first petitioner is a handicapped person up to the level of 80% and in fact he appeared before this Court through video conference and he could not even stand or walk. Therefore, there is absolutely no possibility for the first petitioner to attack the second respondent by his leg, since the first petitioner has severely affected with muscular dystrophy. Therefore, the present proceedings is nothing but clear abuse of process of law and initiated only to wreck vengeance against the petitioners.
Conclusion - The charges under Sections 294(b), 323, and 506(2) were not substantiated by evidence and were inherently improbable. The entire proceedings is clear abuse of process of law and it cannot be sustained as against the petitioners.
The Criminal Original Petition stands allowed.
........
|
9911796707
