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Showing 1 to 20 of 1432 Records
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2021 (8) TMI 1435
Seeking invocation of the contempt jurisdiction under Contempt of Courts Act, 1971 so also under Article 215 of the Constitution of India - grievance is made by the applicant that although the contemnor was served with all these notices, none of the same has been replied or responded to and the amount of compensation continued to lie with the opponents - HELD THAT:- Section 13B provides that the Court may permit in any proceedings or contempt of Court justification by truth as a valid defence, if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide. In other words, the justification by truth is considered a valid defence, provided it is in public interest and the request for its invoking such defence is a bona fide request.
There is a patent absence of the respondent having exercised due diligence to prevent commission or having made all possible endeavours to ractify the situation. To continue to justify as this being the continuous defaults of his predecessors and he being extremely hard pressed work wise for being incharge of the post, are hardly palatable defences. Neither they appear as valid or truthful defences nor are they anywhere touching the requirement of public interest.
After the delivery of decision by this Court in, of course, another matter on identical issue, there are six notices issued by the applicant in post 31st March, 2016 period being (i) 15.06.2016 (ii) 12.07.2016 (ii) 25.08.2016 (iv) 18.10.2016 (v) 24.06.2017 (vi) 24.07.2019 and not a single notice is answered and in absence of any justifiable ground this willfull, deliberate and arbitrary approach is not explained in any manner except as discussed which is not only not satisfactory explanation, it pains to find that such kind of bureaucratic approach is capable of not allowing the fruits of the decision of the Court to be reaped by the common man.
Conclusion - The interest amount under section 28 of the Land Acquisition Act since partakes the character of compensation, it cannot fall under the expression interest under section 145A of the Income Tax Act.
Petition disposed off.
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2021 (8) TMI 1434
Vivad se Vishwas Scheme - settlement of pending disputes - Assessee submitted that the Department has accepted application filed by the assessee and issued Form 3 quantifying amount of taxes payable under VSVS scheme, therefore, assessee submitted that the appeal filed by the Revenue may be dismissed as withdrawn.
DR, on the other hand, has no objection for dismissing the appeal as the Designated Authority has issued Form 3.
HELD THAT:- Considering the fact that the assessee has filed application for withdrawal of appeal and has also filed Form 3 issued by the Department, we dismiss the appeal filed by the Revenue as withdrawn. However, a liberty is given to the assessee to restore the appeal, in case the application filed by the assessee before the Designated Authority, is rejected for any reason.
Appeal filed by the Revenue is dismissed as withdrawn.
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2021 (8) TMI 1433
Unjust adjustment of excess refunds - petitioner submits High Court [2013 (10) TMI 117 - SUPREME COURT] has granted interest on refund at the rate of 15% per annum which is contrary to the provisions of Section 244A and reliance placed on the judgment of Gujarat Fluoro Chemicals [2013 (10) TMI 117 - SUPREME COURT]
HELD THAT:- Issue notice, returnable in twelve weeks.Dasti, in addition, is permitted.
Counter affidavit be filed within a period of six weeks from the date of service of the notice.
Till the next date of listing, there shall be a stay of the direction of the High Court insofar as it pertains to the award of interest in excess of 6% per annum.
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2021 (8) TMI 1432
Rectification of mistake - HELD THAT:- The appeal was disposed as files closed for statistical purpose as the issue was pending before the Hon'ble High Court. The department has now filed the ROA application to restore the appeal on the file of the Tribunal as the issue stands decided in their favour.
The ROA is allowed. Appeal is restored to the files of the Tribunal. Registry is directed to list the appeal in due course.
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2021 (8) TMI 1431
Transitional Credit/adjustment of excess of input tax credit against future liabilities of the petitioner - purchase of cartridge - unjust enrichment - financial year 2007-08 and 2011-12 - credit reflected in the ledger - whether, the credit reflected in the electronic credit ledger of the petitioner amounts to either availment or utilization of the credit? - it was held by High Court that 'The order dated 6.11.2018 passed by the respondent no.3, the Assistant Commissioner of State Taxes in purported exercise of power vested in him under section 73 of ‘the BGST Act’ is held per se illegal and an abuse of the statutory jurisdiction and is accordingly quashed and set aside.'
HELD THAT:- It is not required to interfere in this Special Leave Petition.
SLP disposed off.
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2021 (8) TMI 1430
Validity of assessment order passed without issuing notice u/s 143(2) - HELD THAT:- No notice u/s 143(2) was issued before finalizing the assessment order u/s 147. We find that the assessee is hesitated this issue before CIT(A) as well that in absence of notice u/s 143(2) the assessment is invalid.
It is an admitted position under the law that assessment order passed without issuing notice u/s 143(2) is invalid. Therefore, subsequent assessment proceedings and the subsequent addition made therein is void ab-initio.
We have accepted the preliminary contention of the submission of assessee. The assessment order is passed without issuing notice u/s 143(2), therefore discussion on other grounds of appeal have academic. Appeal of the assessee is allowed.
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2021 (8) TMI 1429
Lifting of restrictions on movement due to latest government notification on July 31 - HELD THAT:- In view of the State Government having issued the latest notification on 31st July, which has lifted the restrictions on movement of persons and public transport in the entire State of Odisha, while placing some restrictions as regards the cities of Cuttack, Bhubaneswar and Puri, and with the hybrid hearings having resumed in the High Court and in the District Courts, the Court directs that the interim order passed earlier on 29th April, 2021 shall not continue hereafter.
The writ petition is disposed of.
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2021 (8) TMI 1428
Notice u/s 153C against deceased person - liability of legal heir of late assessee - as decided by HC [2021 (3) TMI 892 - GUJARAT HIGH COURT] only proposition of law that is applicable in the present litigation is that a notice, be it under Section 148 of the Act or Section 153C of the Act, issued to a dead person, is unenforceable in law. If such is the legal position, the Revenue cannot contend that as they had no knowledge about the death of the assessee, they are entitled to plead that the notice is not defective.
It is true that although the father passed away in the year 2017, yet the legal heir did not inform the department upto October 2019. However, at the same time, we should not overlook the fact that even after coming to know about the demise of late Bhupendrabhai, the department could have issued a valid notice to the legal heir as the period of limitation of 21 months had not expired. We fail to understand what prevented the department from issuing a valid notice to the legal heir within the prescribed time period.
HELD THAT:- We are not inclined to interfere with the impugned order.
Special Leave Petition is, accordingly, dismissed.
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2021 (8) TMI 1427
Appeal under Section 66(1) of the Karnataka Value Added Tax Act, 2003 - Input tax credit - denial on the ground that the selling dealer has not paid the tax - HELD THAT:- The issue decided in the case of THE STATE OF KARNATAKA VERSUS SRI RAJESH JAIN [2017 (1) TMI 333 - KARNATAKA HIGH COURT] where it was held that 'Once the purchaser dealer-assessee satisfactorily demonstrates that while purchasing goods, he has paid the amount of VAT to the selling dealer, the matter should end so far as his entitlement to the claim input tax credit'
The impugned order is upheld - appeal allowed.
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2021 (8) TMI 1426
Suit for rejection of plaint - statutory bar in receiving the action - cause of action as pleaded in the plaint had no nexus with this court exercising authority on the Original Side - HELD THAT:- The wording of Section 17 of SARFAESI Act, 2002 does not imply that the challenge that must be carried thereunder must be confined to the measure taken by the secured creditor under Section 13(4) of the said Act. The very status of the creditor as a secured creditor may be questioned; as, if the creditor is not a secured creditor within the definition of the expression in the Act of 2002, the creditor could not have invoked the provisions of the said Act. That the opening words of Section 17 of the Act of 2002 permit a challenge to be carried against a measure taken by a secured creditor under Section 13(4) of the Act of 2002, does not preclude even the act of labelling the relevant account as non- performing asset to be questioned. The opening words of the provision must be seen to be indicative of when the right to apply thereunder arises, but cannot be confined merely to a challenge to the measure adopted under Section 13(4) of the Act of 2002, since a challenge to the measure adopted would always include the authority to take the measure, whether on account of the status of the creditor or on any other available count.
Thus, when an asset reconstruction company, as the assignee of the debt originally due to a secured creditor, adopts a measure under Section 13(4) of the Act of 2002, any person aggrieved thereby may challenge the same by questioning the assignment of the debt on any of the various grounds that may be available. It is incumbent on the jurisdictional DRT to deal with the matter and, technically, it may be said that upon the DRT coming to a conclusion that the secured creditor had no debt to pursue or that the person who had taken measures under Section 13(4) of the Act of 2002 did not qualify to take recourse to the provisions of such statute, it would lose further authority over the matter - There may be the odd situation where the limited authority of the DRT or the DRAT may not be effective to remedy the wrong; but Section 17(3) of the Act of 2002 confers sufficient authority on the tribunal to pass appropriate directions which are consequential to its finding that the secured creditor was not entitled to invoke the provisions of the Act of 2002 or the measures taken by the secured creditor were not in accordance with the provisions of the Act.
The issue as to whether this court had territorial jurisdiction to entertain the suit may not be conclusively answered and left open to the unlikely stage that the plaintiff may have to approach this court again and as to whether the relief claimed then for return of title-deeds is accompanied by a relief for the possession of the immovable property, whereupon the situs of the immovable property may be the deciding factor.
Since the suit that the plaintiff brought before this court can no longer be entertained on the grounds indicated, the order impugned does not call for any interference, though on completely different grounds than indicated in the judgment in support thereof.
Application disposed off.
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2021 (8) TMI 1425
Non-compliance with statutory provisions of Section 144B - Non adhering mandatory procedure prescribed under the “Faceless Assessment Scheme” - whether provisions of Section 144B of the Act would apply to even those proceedings, which were pending, on 1st April 2021?
HELD THAT:- Circular dated 31st March, 2021 issued by CBDT, Section 144B of the Act would apply to even those assessment proceedings which related to assessment years prior to 2021 provided they were pending disposal on 1st April, 2021.
This Court is also of the view that Section 144B(1)(xvi)(b) mandatorily provides for issuance of a prior show cause notice and draft assessment order before issuing the final assessment order.
Since in the present case no prior show cause notice as well as draft assessment order had been issued, there is a violation of principles of natural justice as well as mandatory procedure prescribed under the “Faceless Assessment Scheme”.
The impugned assessment order is set aside and the matter is remanded back to the Assessing Officer, who shall issue a show cause notice and draft assessment order and thereafter pass a reasoned order
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2021 (8) TMI 1424
Validity of faceless assessment - non-following the procedure laid down u/s 144B - Assessment Order passed u/s 143(3) read with Section 143(3A) and 143(3B) questioned - Denial of principles of natural justice - HELD THAT:- This Court is of the view that Section 144B(1)(xvi)(b) of the Act mandatorily provides for issuance of a prior show cause notice and draft assessment order before issuing the final assessment order.
Since in the present case no prior show cause notice as well as draft assessment order had been issued, there has been a violation of the mandatory procedure prescribed in law.
This Court is also of the view that once the assessment has been done by the respondent No. 1 in accordance with Section 144B of the Act, it has to be done in accordance with the procedure prescribed therein alone.
It is settled law that when power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are forbidden.
Consequently, even if it is assumed that the principles of natural justice have been complied with in the present case, then also the mandate of the statute would have to be complied with.
Keeping in view the aforesaid, the impugned assessment order passed under Section 143(3) read with Section 143(3A) and 143(3B) of the Act and disputed demand raised under Section 156 of the Act, are set aside.
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2021 (8) TMI 1423
Addition on account of difference in ALP of international transactions of payment of trademark fee entered into by the assessee with its Associated Enterprise (“AE”) in USA - HELD THAT:- There is no change into the facts and circumstances of the case in the present year. Therefore, taking a consistent view, we hereby direct the Assessing Officer to delete the addition in the light of decisions of the Tribunal pertaining to Assessment Years 2007-08 to 2009-10 [2016 (7) TMI 21 - ITAT DELHI] 2011-12 to 2012-13 [2018 (1) TMI 1716 - ITAT DELHI] and 2014-15 [2019 (2) TMI 2111 - ITAT DELHI] in assessee’s own case wherein concluded that there exists a direct nexus between the revenue earned by the assessee and the payment of royalty made to the associated enterprise for using brand name, and therefore, it would be incorrect to analyze the transaction of payment of royalty in isolation.
DR had raised a contention that the assessee has not demonstrated how the payment for royalty beneficial to the taxpayer. We are of the opinion that, ascertaining whether a service has actually benefitted the assessee is not within the prerogative of the tax authorities.
The Hon'ble Delhi High Court in CIT v. Cushman & Wakefield (India) (P.) Ltd. [2014 (5) TMI 897 - DELHI HIGH COURT] has held that the authority of the TPO is limited to conducting transfer pricing analysis for determining the ALP of an international transaction and not to decide if such services exist or benefits did accrue to the assessee. Such later aspects have been held to be falling in the exclusive domain of the AO.
Accordingly,nwe are of the opinion that since the operating margin of the assessee at 6.96% is higher than the comparables at 2.77%, the international transaction of payment of royalty entered into by the assessee are to be considered being at arm’s length applying TNMM as the most appropriate method. Thus, direct the assessing officer to delete the adjustment on this account.
Adhoc disallowance being 30% of the total expenditure incurred by the assessee on advertisement and publicity - assessee was show-caused as to why the expenditure incurred on advertisement should not be disallowed being in nature of brand building activity - HELD THAT:- We find that the similar issues arose in earlier years as well and the Tribunal was pleased to decide the issue in favour of the assessee [2019 (2) TMI 2111 - ITAT DELHI] held that the advertisement expenditure incurred by the assessee is incurred wholly for the purpose of its business and profession and ought to be allowed deduction in entirety. AO has clearly made an ad-hoc disallowance of advertisement expenditure incurred by the assessee, which is not permissible under the law. We are of the considered view that AO was not justified in making such ad-hoc disallowances and therefore, direct the assessing officer to delete the adjustment on this account - Decided in favour of assessee.
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2021 (8) TMI 1422
Issuance of Multiple first information reports (FIRs) based on the same transactions - Interpretation of Maharashtra Cooperative Societies Act, 1960 - HELD THAT:- From the perusal of the instant first information report it, prima facie, appears that it is in respect of the loan accounts of the Sonkar Group i.e. account Nos. 977, 998 and 1087. Item Nos. 91, 92 and 93 referred to in first information report No. 806 of 2019 are in respect of the same group of borrowers and account Nos. 977 and 1087, apart from account No. 928.
There can be no qualm with the proposition that offence warrant thorough investigation so as to unearth the alleged fraud. However, once the first information report in respect of a transaction or occurrence is registered, it is trite, there can be no second first information report in respect of the very same transaction or occurrence. There is no bar for investigation or further investigation in the offences committed in the course of same transaction. But there cannot be second first information report.
It is directed that though the investigating officer may proceed with the investigation, yet, no coercive action be taken against the petitioners till 30th August, 2021 - the petitioners are directed to appear before the concerned investigating officer on 16th, 18th and 20th August, 2021 in between 10 am to 12 noon and thereafter as and when called by the investigating officer.
List on 30th August, 2021.
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2021 (8) TMI 1421
Penalty u/s 271(1)(c) - suppression of income - difference in lodging receipts was treated as suppression in lodging receipts and the same was treated as concealment of income - HELD THAT:- In this case, the AO has levied the penalty by taking into consideration only five months of the lodging receipts and estimating for the remaining seven months and the addition is made.
In our opinion, penalty u/s. 271(1)(c) cannot be levied on the basis of estimation. AO has failed to prove that the Assessee had either concealed the income or filed inaccurate particulars. Therefore, Section 271(1)(c) has no application in this case. Accordingly, we reverse the order passed by CIT(A) and we cancel the penalty levied by the AO. Appeal of assessee allowed.
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2021 (8) TMI 1420
Detention of goods - reliance placed on Handing of Cargo on Customs Area’s Regulations, 2009 - whether the first respondent has raised any claim on account of detention or the like? - HELD THAT:- It is recorded that the matter has been taken up on the appellant’s submission that the appellant has no claim against the second respondent and the order that the appellant seeks will not prejudice the second respondent.
In view of the fact that the first respondent has already made a claim on account of container detention charges or the delay that was occasioned to the first respondent as a result of the goods being detained, the first respondent cannot be called upon to release the goods without its demand being met or an adjudication that the demand may not be tenable.
The appellant is not entitled to any relief at this stage - Appeal dismissed.
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2021 (8) TMI 1419
Income Tax demands post insolvency proceedings concluded - assessee submitted that in the case of the company resolution order has been passed by the Hon’ble National Company Law Tribunal under Insolvency and Bankruptcy Code, 2016 and held that demands of any payable to Central Government will be deemed to be permanently extinguished - HELD THAT:- Instant appeals of the Revenue are dismissed as no useful purpose would be served by adjudicating the matter involved in appeals as dues of the Income Tax Department stands permanently extinguished.
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2021 (8) TMI 1418
Income Tax demands post insolvency proceedings - application of the waterfall mechanism mentioned in section 53 of the Code, the liquidation value due to unsecured financial creditors, operational creditors and other creditors of the assessee becomes nil - HELD THAT:- It is clear that in terms of the resolution plan as approved by the NCLT, all claims or demands or liabilities or obligations owed or payable to or assessed by or assessable by the Central Government/State Government in relation to any period prior to the acquisition, will be written off in full and will be deemed to be permanently extinguished. This position of law is clear in view of the decision of Hon’ble Supreme Court in the case of Ghanashyam Mishara and Sons vs. Edleweiss Assets Reconstruction Company Ltd. (2021 (4) TMI 613 - SUPREME COURT).
We are of the considered opinion that the dues to the Income-tax Department for the assessment year 2013-14, which are reflected in the list-B appended to NCLT order stood fully extinguished and no useful purpose would be served by adjudicating this matter. With this view of the matter, we dismiss the appeal of the Revenue.
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2021 (8) TMI 1417
Cenvat credit - input services used for trading business - compliance with Rule 6(3) - penalty - change in law affecting service classification - HELD THAT:- Learned counsel assailing the penalty states that due to the change in law, which have not come in notice, neither there was any advisory by the department, nor any public notice was given in the news paper by the Department, thus it is a case of venial breach of law and there is no contumacious conduct on the part of the appellant. Accordingly, he prays for setting aside the penalty. He further relies on the Division Bench ruling of the Tribunal in the case of Hindustan Antibiotics Ltd. V/s Commissioner of C. EX. [2015 (9) TMI 1581 - CESTAT MUMBAI].
I hold that it is a case of venial breach and there is no contumacious conduct on the part of the appellant. Penalties imposed are set aside and appeals are allowed. Appellants are entitled for consequential relief, in accordance with law.
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2021 (8) TMI 1416
Suit for declaration, recovery of possession and permanent injunction - entitlement for the decree to declare that the plaintiff is the owner in title of the property mentioned in the suit schedule of property - HELD THAT:- The Power of Attorney executed outside India has to be adjudicated in India as per the provisions of Section 18 of the Indian Stamp Act. The Power of Attorney having been failed to get adjudicated by a competent authority is not entitled to represent the plaintiff as Power holder and it is not valid. Whereas, the Court below failed to frame any issue in this regard, whether the Power of Attorney, which was marked as Ex. A.6 is valid or not. However, as rightly pointed out by the learned counsel for the first appellant/third defendant this issue can be raised before this Court and it can be answered by this Court. The Court below brushed aside the issue that if substantive justice and technicalities are fitted against each other with the technicalities go and substantive justice shall revive.
Since the Power of Attorney itself was not adjudicated before the authority concerned and as such, the Power holder has no authority to depose on behalf of the plaintiff. Section 18 of the Indian Stamp Act, mandates the adjudication before the registering authority when the Power of Attorney is executed outside India. Therefore, the Power holder cannot maintain the suit, unless the Power of Attorney is adjudicated before the registering authority.
This Appeal Suit is allowed.
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