Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
October 30, 2023
Case Laws in this Newsletter:
GST
Income Tax
Customs
Corporate Laws
PMLA
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Articles
News
Notifications
Companies Law
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G.S.R. 801(E) - dated
27-10-2023
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Co. Law
Companies (Management and Administration) Second Amendment Rules, 2023
GST - States
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(16/2023) FD 16 CSL 2023 - dated
20-10-2023
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Karnataka SGST
Amendment in Notification (17/2017) No. FD 55 CSL 2021, dated the 18th November, 2021
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(15/2023) FD 16 CSL 2023 - dated
20-10-2023
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Karnataka SGST
Amendment in Notification (15/2017) No. FD 48 CSL 2017, dated the 29th June, 2017
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(14/2023) FD 16 CSL 2023 - dated
20-10-2023
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Karnataka SGST
Amendment in Notification (13/2017) No. FD 48 CSL 2017, dated the 29th June, 2017
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(13/2023) FD 16 CSL 2023 - dated
20-10-2023
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Karnataka SGST
Amendment in Notification (12/2017) No. FD 48 CSL 2017, dated the 29th June, 2017
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(12/2023) FD 16 CSL 2023 - dated
20-10-2023
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Karnataka SGST
Amendment in Notification (11/2017) No. FD 48 CSL 2017, dated the 29th June, 2017
Circulars / Instructions / Orders
Highlights / Catch Notes
GST
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Validity of Show Cause Notice - SCN issued straight away, without issuing a prior intimation under Rule 142 (1A) - It is a trite law that whenever any ambiguity arises with regard to any provision, the benefit must go to the tax payer. In the instant case, since admittedly the tax period related to 01.07.2017 to 31.03.2021 which covers the pre and post amended period of Rule 142(1A), the 1st respondent ought to have issued tax intimation to the petitioner under Rule 142 (1A). - HC
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Cancellation of Registration Certificate - SCN devoid of required particulars - the allegation that, the ‘person’ issued invoice or bill without supplying goods or services are both, in violation of the provisions of this Act and the rules made thereunder - the said allegation is not clear enough to communicate whether the “person’ means the petitioner herein or his vendors and particulars of fake invoices and bills. - Order of cancellation set aside - HC
Income Tax
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Penalty u/s 271AA - failure to make disclosures, as required u/s 92E - as to whether SPMCECL was a related party is an issue qua which there can possibly be more than one view. Assessee has taken a stand that the legal advice that it received seems to indicate that it was not a related party. CIT(A) has done its own analysis of the Chinese Law and concluded that it was a related party to the transaction and hence required disclosure. - No penalty being reasonable cause shown - HC
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Reopening of assessment u/s 147 - difference between the amount invested by the petitioner/assessee in Company and the amount shown under the heading 'loans and advances' by the company in its books - - In the order rejecting objections there is no discussion about the explanation given by the petitioner/assessee with regard to the charge levelled against it. - Notice issued u/s 148 quashed - HC
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Rectification of mistake - application rejected alleging that assessee is making fresh claim of benefit u/s 12AA - The assessee’s claim of exemption u/s 11 coupled with the ITR furnished u/s 139(4A) of the Act clearly establishes that in its rectificatory application u/s 154, the assessee was not making any fresh claim of benefit u/s 12AA as alleged by the Ld. AO/CIT(A). - AT
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Validity of order of CIT(A) - order based on wrong assessment order - Revenue and assessee both attached different assessment orders - mismatch and inconsistency in the contents - Matter restored back to CIT(A) for verification of facts and see if there is any malpractice or fraud committed through manipulating the contents of the assessment order. - AT
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Validity of Assessment u/s 144C r.w.s 147 - eligible assessee - Non-Resident - Absence of an order u/s 92CA(3) - addition on account of unexplained cash deposits - Even otherwise such reading of words “AND” produces an unintelligible or absurd results, as the Parliament never intended that even in a case of Non-Resident, an order u/s 92CA(3) is prerequisite condition. - AT
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Revision u/s 263 - The findings of CIT suffer from apparent error and incompleteness. CIT has summarily set aside the re-assessment order and shifted the responsibility on the AO to examine or verify the facts. The opportunity contemplated under Section 263 is thus rendered illusory and merely an empty formality resulting in miscarriage of justice in contravention of express intendment of provision of Section 263. - AT
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Disallowing the provisions made for raw materials, stores and spares treating the same as contingent liability - the assessee could not file any evidence or could not explain how this amount is allowable. - Additions confirmed - AT
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Revision u/s 263 - allowing deduction u/s 54F in the absence of Long Term Capital Gain - When the assessee has not held the flats for a minimum period of 3 years, the provisions of section 54F are not fulfilled and therefore, by allowing the claim of deduction u/s 54F, the order of the Assessing Officer has become erroneous as well as prejudicial to the interest of the Revenue. - AT
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Exemption u/s 11 - Assessment of trust - The activity of organizing the shivir which is in the nature of seminar, conference and lectures on the education and therefore, an aid to the main object of the assessee. Neither the AO nor the Ld. CIT(A) has disputed that the shivir organized by the assessee is for the purpose of education to the students and children as well as training for the teachers. - the expenditure incurred in organizing such shivir/seminars, conference, lectures partake character of application of income for charitable purpose. - AT
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Surplus on maturity of the policy /prematurely surrendered insurance policy - Income from other sources of capital gain - the addition made by the Assessing Officer in the hands of the Appellant holding the same to be ‘Income from Other Sources’ is set aside. AO is directed to compute the amount of capital gains tax liability, if any, as per law. - AT
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Undisclosed debit entries in the impounded books - investment in advances for properties - No such evidence furnished before the CIT(A). It is for the first time, the assessee filed such affidavit before this Tribunal, in our opinion, is only to protract the litigation. The assessee ought to have filed the same before the AO during the course of assessment proceedings in 2016 and as well before the CIT(A) in 2017. - Additions confirmed - AT
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Computation of the interest on refund u/s 244A - the judicial proprietary demands that order of the Tribunal of earlier years must be followed and therefore we direct the AO to re-compute the amount of interest u/s. 244A by first adjusting the amount of refund already granted towards the interest component and balance left if any shall be adjusted towards the tax component. - AT
Customs
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Levy and collection of Social Welfare Surcharge (SWS) computed @10% on the notional BCD in cash - The assessments in each of the impugned BOE’s covered by the impugned orders are modified in so far as imposition of SWS is concerned and the appeals are allowed with consequential relief. - AT
Service Tax
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Valuation - inclusion of TDS amount - import of services - the TDS amount paid to the Income Tax department by the appellant from his own account cannot form part of the consideration of the service charges paid to the overseas service provider, accordingly, service tax is not payable on the TDS amount paid by the appellant. - AT
Central Excise
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Grant of Sanction for prosecution - In the present case, except the office communication dated 01.08.2014, there is no separate sanction order which is accorded by the Chief-Commissioner. A mere letter conveying that the Chief Commissioner had accorded administrative approval for launching criminal prosecution cannot be a valid document to launch prosecution against the petitioners.- The Court cannot take cognizance of an offence until pre-requisite of sanction is fulfilled by the prosecution - HC
Case Laws:
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GST
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2023 (10) TMI 1246
Validity of Show Cause Notice - SCN issued straight away, without issuing a prior intimation under Rule 142(1A) of CGST Rules, 2017 - Violation of principles of natural justice - Applicability of Rule as amended - HELD THAT:- Prior to the amendment, Rule 142(1A) of CGST Rules, 2017 reads that the proper officer shall, before service of notice on the person chargeable with tax, interest and penalty under Section 73(1) or 74(1) of CGST/APGST Act, communicate him the details of tax, interest and penalty as ascertained by the said officer in FORM GST DRC-01. The employment of the word shall in Rule 142(1A) would indicate that the officer shall necessarily follow the procedure prescribed under Rule 142(1A) of the Act, meaning thereby, an intimation of tax shall be issued in terms of Rule 142(1A) at first and if there is no response from the tax payer, then he can issue a show cause notice under Section 74(1) of CGST/APGST Act - Rule 142(1A) of CGST Rules,2017 has been amended as by virtue of notification No. 79/2020-CT dt.15.10.2020 and by virtue of the said amendment, the words proper officer shall has been substituted with the words proper officer may as appearing in Rule 142(1A). Thus, post amendment, the issuance of intimation under Rule 142(1A) is not mandatory, but discretionary on the part of the assessing authority. It is a trite law that whenever any ambiguity arises with regard to any provision, the benefit must go to the tax payer. In the instant case, since admittedly the tax period related to 01.07.2017 to 31.03.2021 which covers the pre and post amended period of Rule 142(1A), the 1st respondent ought to have issued tax intimation to the petitioner under Rule 142 (1A). Since it was not done, as rightly argued by the learned counsel for the petitioner, the assessment order, dated 31.03.2022, fell foul of law and is liable to be set aside. The impugned assessment order, dated 31.03.2022, passed by the 1st respondent is set aside with a direction to the 1st respondent to issue a fresh tax intimation to the petitioner in terms of Rule 142(1A) (pre amended Rule 142 (1A)) within two weeks from the date of receipt of copy of this Order - Petition allowed.
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2023 (10) TMI 1245
Cancellation of Registration Certificate - SCN devoid of required particulars - 1st respondent has not referred and considered the explanation dated 06.07.2023 offered by the petitioner - violation of principles of natural justice - HELD THAT:- The 1st respondent only mentioned that the registration was allegedly obtained by means of fraud, willful misstatement or suppression of facts. However, there are no other relevant requisite facts mentioned in the said allegation as to the manner how the petitioner committed fraud or willful misstatement or suppression of the facts relating to his obtaining registration. In the present form of allegation, it will be difficult for anybody including the petitioner to offer his explanation to the said allegation No. 1. As regards the allegation that, the person issued invoice or bill without supplying goods or services are both, in violation of the provisions of this Act and the rules made thereunder. Here also the said allegation is not clear enough to communicate whether the person means the petitioner herein or his vendors and particulars of fake invoices and bills. Therefore, this allegation is also as vague as it could be without giving an opportunity to the petitioner to submit his explanation in a proper manner. The 1st respondent, in issuing the show cause notice without necessary details and passing the final order of cancellation of Registration, not followed the principles of natural justice, and therefore, the show cause notice dated 12.06.2023 as well as the final order dated 03.08.2023 are liable to be set aside and are accordingly set aside - Petition disposed off.
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Income Tax
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2023 (10) TMI 1244
Addition u/s 14A - shares as held as stock-in-trade - HELD THAT:- As assessee was a nationalised bank and that in terms of the judgment rendered in Maxopp Investment Ltd [ 2018 (3) TMI 805 - SUPREME COURT] qua shares are held as stock-in-trade, the provisions of Section 14A would have no applicability. Tribunal has correctly deleted the disallowance made under Section 14A as the subject shares were concededly held as stock-in-trade. HTM Securities - This issue is covered by the decision rendered in Oriental Bank of Commerce [ 2016 (5) TMI 1514 - DELHI HIGH COURT] Thus, having regard to the decision of the coordinate bench, in our view, no substantial question of law arises for our consideration qua this issue. Depreciation on temporary erections - As applying the principle of consistency, in the AYs in issue, the respondent/assessee should have been allowed depreciation on temporary structures. Interest on overdue deposits - Said issue is covered by the decision of Oriental Bank of Commerce v. Additional Commissioner of Income Tax. [ 2018 (1) TMI 904 - DELHI HIGH COURT] . Disallowance of provision made for bad and doubtful debts u/s 36(1)(vii) - This issue is squarely covered in favour of assessee by virtue of the judgment rendered by the Supreme Court in Vijaya Bank v. CIT [ 2010 (4) TMI 46 - SUPREME COURT]
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2023 (10) TMI 1243
Penalty u/s 271AA - failure to make disclosers as required u/s 92E - related party - shareholding structure of assessee - reasonable cause u/s 273B - HELD THAT:- Tribunal, in our opinion, while examining the veracity of the view taken both by the AO and the CIT(A), has adopted the correct approach. A perusal of the chart would show that one of the joint venture partners i.e., SUCG, is controlled by the State Assets Supervision and Administration Commission [ SASAC ]. The record shows that SASAC holds 100% shares in SUCG. There is a downstream control by SASAC of SPMCECL.The record also shows that the two joint venture partners i.e., L T and SUCG holds shares in the ratio of 68:32 in SPMCECL. L T, thus, has a dominant control in the joint venture. Besides this, as to whether SPMCECL was a related party is an issue qua which there can possibly be more than one view. Assessee has taken a stand that the legal advice that it received seems to indicate that it was not a related party. CIT(A) has done its own analysis of the Chinese Law and concluded that it was a related party to the transaction and hence required disclosure. One can only say that insofar as Chinese Law is concerned, it is a matter of fact which could only be ascertained, at the very least, by having an expert in Chinese Law being produced as a witness. We agree with Mr Sethi that the reasonable cause defence which is statutorily ingrained in Section 273B of the Act, perhaps, is the basis of the conclusion reached by the Tribunal. Section 273B of the Act, which refers to various penalty provisions, [including Section 271AA] clearly provides that no penalty is imposable on the person or the assessee, as the case may be, for any failure referred to in the said provisions, if he proves there was a reasonable cause for the said failure. Tribunal, in our opinion, has taken recourse to the correct approach.
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2023 (10) TMI 1242
Reopening of assessment u/s 147 - difference between the amount invested by the petitioner/assessee in Company and the amount shown under the heading 'loans and advances' by the company in its books - investment in the OFCDs - rejection of assessee objection - Prior to the scrutiny, the petitioner/assessee, inter alia, was called upon to furnish information as to various aspects, including the amount shown in the balance sheet for the year in issue under the heading non-current investments - HELD THAT:- The notices issued to the petitioner/assessee with regard to various matters including non-current investments , in reply to which petitioner/assessee has provided a complete break-up of the investments made in Divine. This is reflected in replies dated 16.12.2014 and 10.03.2015. Therefore, while there was a typographical error in Note 8 appended to the balance sheet ending on 31.03.2012, the other material before the AO clearly showed that the petitioner/assessee had made a clean breast that the amount was invested in Divine. AO, at that stage, had an opportunity to inquire further into the matter. AO for whatever reasons chose not to embark upon that journey. What is also relevant is that insofar as Divine is concerned, an order u/s 143(3) was passed on 26.02.2015. This aspect is specifically averred in the writ petition filed by the petitioner/assessee. The counter-affidavit of the respondent/revenue does not challenge or dispute the assertion made in this behalf by the petitioner/assessee. As in the order rejecting objections there is no discussion about the explanation given by the petitioner/assessee with regard to the charge levelled against it. This was not a case in which the AO could have triggered the reassessment proceeding against the petitioner/assessee. AO has failed to demonstrate that the explanation given by the petitioner/assessee was deficient and therefore, the reassessment proceeding ought to continue qua the petitioner/assessee. Accordingly, we are inclined to set aside the impugned notice issued u/s 148 and the order whereby, the petitioner/assessee s objections were rejected. Decided in favour of assessee.
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2023 (10) TMI 1241
Disallowance under the head of salary and wages claimed - AO found that the assessee is paying almost 24% of gross receipt on salary and wages - HELD THAT:- The assessee has not produced books of account and other supporting evidence before the AO or CIT(A) to substantiate the expenses claimed under the head of salary and wages. It is the duty of the assessee to produce his books of account and supporting evidence before the A.O. to substantiate the claim of the returned income, it is for the assessee to produce cogent evidence in support of low profit shown in the return of income, failing which the A.O. is the duty bound to make the disallowance. CIT(A) by taking into consideration that the net profit of the Assessee s business after deducting the interest on FDR which is at 15.55% on the gross receipt which is held to be excessive, therefore, rightly restricted the disallowance made by the A.O. under the head of salary from 25,28,872/- to 12,00,000/- and disallowance made under the head of wages of Rs. 22,91,791/- to Rs. 10,00,000/-. Addition on account of low Drawings - Since the assessee received major cash in his business, the A.O. was of the opinion that the assessee used the unaccounted cash for household withdrawal, thus undisclosed household expenses has been added back to the income of the assessee - HELD THAT:- It is found that the Ld. A.O. while making the above disallowance considered the various facts such as cost of school fee/college fee/tuition fee, other study related expenses per child, minimum cost of moderate standard of living in a city life Delhi for a family consist of four members and estimated at Rs. 40,000/- per month which is just in the facts and circumstances of the case, therefore we find no merit in the Ground of the assessee. Deduction u/s 80C - AO made addition as the assessee has not furnished any evidence - HELD THAT:- Considering the fact that the assessee had claimed the deduction u/s 80C but not produced any iota of document to substantiate his claim, the A.O. rightly made the addition which has been confirmed by the CIT(A), thus we find no merit in Ground of the assessee. Disallowing at 20% under the head of salary, daily allowance and festival expenses and disallowance of 10% of other expenses under the head of telephone, vehicle, general, travelling, business, promotion, staff labor cost of uniform - HELD THAT:- Though the assessee claimed that the above expenses have been incurred for the purpose of business, but could not produce the books of accounts and supporting bills and vouchers, therefore, 40% of the above expenses has been added to the income of the assessee due to non verification of expenses. In the Appeal before the CIT(A), the expenses deducted under the daily allowances, festival celebration expenses and establishment expenses have been confirmed to the extent of 20% and further the remaining expenses under the head of telephone expenses, vehicle running and maintenance, general expenses, travelling and conveyance expenses, business promotion, staff and Labour welfare and cost uniform expenses have been restricted at 10% of the expenses. In our considered opinion, the said action of the CIT(A) is reasonable and the same is neither excessive nor erroneous considering the turnover of the assessee. Appeal filed by the Assessee is dismissed.
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2023 (10) TMI 1240
Ex-parte adjudication compelled by CIT(A) - Penalty u/s 271(1)(c) - Covid-2019 pandemic outbreak - HELD THAT:- Once there is no material on record in the CIT(A)'s order that this assessee has been actually served the last corresponding notice(s) of hearing in both these appeals. We are mindful of the fact that the hearing in both these appeals had taken place after Covid-2019 pandemic outbreak followed by many lockdowns. Faced with this situation, we deem it appropriate to restore assessee s instant twin appeals back to the CIT(A) for his afresh appropriate adjudication as per law, preferably within three effective opportunities of hearing. Ordered accordingly. Delay(s) of 266 days each in both these appeals as instituted on 28.12.2020 stands condoned since covered under Covid-2019 pandemic outbreak period between 15.03.2020 to 28.02.2022 as per hon ble apex court s directions in Cognizance for Extension of Limitation, In re [ 2021 (11) TMI 387 - SC ORDER] read with judgment in Cognizance for Extension of Limitation, In re [ 2021 (3) TMI 497 - SC ORDER] and [ 2020 (5) TMI 418 - SC ORDER] , excluding the covid-19 pandemic outbreak period from for all intents and purposes under the limitation law.
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2023 (10) TMI 1239
Revision u/s 263 - As per CIT Allowability of corresponding expenses for the purpose of computing the long term capital gains not taken by AO - HELD THAT:- There is not even a single notice by the AO raising specific queries of the details of cost of acquisition/ improvement claimed at the assessee s behest whilst computing his capital gains. We make it clear that the assessee s case before us is that although we are in assessment year 2015-16; however, the impugned expenditure had been incurred from assessment year 1989-90 onwards. That being the case, it was assessee s bounden duty only to file the requisite supportive material during the course of assessment on being put to question by the AO. As admittedly not been done as the facts before us speak for themselves. Faced with the situation, we quote Malabar Industrial Company Ltd [ 2000 (2) TMI 10 - SUPREME COURT] Rampyari Devi Saraogi [ 1967 (5) TMI 10 - SUPREME COURT] , Tara Devi Aggarwal [ 1972 (11) TMI 2 - SUPREME COURT] and Paville Projects Pvt. Ltd [ 2023 (4) TMI 295 - SUPREME COURT] to confirm the learned PCIT s revision directions. Decided against assessee.
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2023 (10) TMI 1238
Rectification of mistake - Rectification application rejected as assessee making fresh claim of benefit u/s 12AA - Benefit of exemption u/s 12A/12AA rejected - Claim denied as assessee inadvertently omitted to show in the return that 12A registration had been obtained by it - assessee mistakenly mentioned No in the column of the ITR asking whether registered under section 12A/12AA - HELD THAT:- It is now well established that mistake apparent from the record may be one that can be gathered from the entire record of the case provided it does not call for evidence extraneous to the record. As stated earlier the assessee is a charitable trust registered under section 12A long ago and has all along been enjoying the benefits arising there-from in past years as also in the subsequent year. The case of the assessee before the AO/CIT(A) has been that it was inadvertently by clerical mistake that an incorrect fact was mentioned in the ITR at the time of online filing for which the assessee sought rectification. The assessee did not seek registration under section 12A/12AA in its rectification application under section 154. It was the request of assessee to rectify the inadvertent mistake which has crept in the ITR filed by it online. The Ld. AO/CIT(A) misread the assessee s request and proceeded with the erroneous impression that the assessee is seeking the fresh claim of benefit of exemption under section 12A/12AA in its rectificatory application. The assessee s claim of exemption under section 11 coupled with the ITR furnished under section 139(4A) of the Act clearly establishes that in its rectificatory application under section 154, the assessee was not making any fresh claim of benefit under section 12AA of the Act as alleged by the Ld. AO/CIT(A). Thus set aside the order of the Ld. CIT(A) and direct the Ld. AO to allow the benefit of registration under section 12A to the assessee in accordance with law - Assessee appeal allowed for statistical purposes.
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2023 (10) TMI 1237
Estimation of gross profit @8% on total gross receipts - Assessee argued it on higher side - assessee is doing business of buying bananas from farmers and selling them to traders - HELD THAT:- As assessee has not placed any material to establish that the estimation of 8% is exorbitant and on higher side. Therefore, in the absence of such evidence, no hesitation to come to the conclusion that 8% of gross receipts is reasonable and therefore dismiss the ground raised by the assessee. Wrong assessment of income by the AO - excess amount [Profit estimation] as wrongly adopted by the Learned Assessing Officer in the computation sheet - HELD THAT:- It is undisputed fact that profit is estimated @8% on gross receipts of Rs. 3,60,84,530/- which comes to Rs. 28,86,760/-, but an amount of Rs. 29,68,705/- was taken wrongly by the AO in the computation. Hence,direct the AO to adopt the correct amount of Rs. 28,86,760/- instead of Rs. 29,68,705/- in the computation and pass order accordingly. Accordingly, the ground raised by the assessee is allowed.
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2023 (10) TMI 1236
Validity of order of CIT(A) - order based on wrong assessment order - Revenue and assessee both attached different assessment orders - mismatch and inconsistency in the contents of para 8 as appearing in the respective assessment orders filed by the parties herein - Whether CIT(A) had adjudicated on the basis of wrong assessment order? - HELD THAT:- The case records provides considerable amount of clarity and validity regarding the facts and circumstances of each case in matters of any ambiguity on enquiry. As already examined the contents of para 8 as appearing in the assessment order in the case record and it is matching with the contents of para 8 of the assessment order filed by the Revenue in its appeal memo. Therefore, without any doubt the correct assessment order has to be the one as appearing in the case record. Now, neither the ld.AR nor ld.DR could demonstrate through evidence as to which assessment order had been considered for adjudication by the ld. CIT(A). This kind of situation, have never been encountered with and it is a very serious matter where the records itself are suffering from ambiguity and uncertainty. We are unable to come to the stage of adjudication because firstly it has to be ascertained whether CIT(A) in passing the impugned order has placed reliance on the correct assessment order or not. That, suppose if the ld. CIT(A) had adjudicated on the basis of wrong assessment order, then the impugned order has to be quashed as being non est and the correct assessment order has to be restored. How a wrong assessment order could have been sent to the assessee by the Department ? - Considering these circumstances, we set aside the order passed by the ld. CIT(A) and remand the matter back to his file to verify the issues enumerated in the foregoing paras of this order and adjudicate denovo complying with the principles of natural justice. We order accordingly for both the matters filed before this Bench. Before parting we state that given the seriousness of the ambiguity and uncertainty in the present circumstances, this Bench also does not rule out the possibility of occurrence of any malpractice or fraud committed through manipulating the contents of the assessment order. Appeals stands allowed for statistical purposes.
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2023 (10) TMI 1235
Validity of Assessment u/s 144C r.w.s 147 - eligible assessee - Non-Resident - Absence of an order u/s 92CA(3) - addition on account of unexplained cash deposits - AO as well as DRP had disbelieved the explanation filed in support of the sources for cash deposits by holding that the appellant had failed to adduce the reasons for withdrawal of the cash from one bank account and deposits made in other bank account and the assessee failed to establish the live link between the withdrawals of the cash and deposit of same cash in bank - HELD THAT:- The word and used by the Parliament in sub-clause (i) of sub-section (15) of section 144C shown in italics is to be read as or , as the two part of sub-section (15) of section 144C are disjunctive as it prescribes two separate and distinct categories of assessee as eligible assessee . Even otherwise such reading of words AND produces an unintelligible or absurd results, as the Parliament never intended that even in a case of Non-Resident, an order u/s 92CA(3) is prerequisite condition. Thus, we do not find any merit in the contention raised on behalf of the appellant. It is only from the assessment year 2020-21 that a Non-Resident is made as eligible assessee , therefore, the Assessing Officer ought not to have exercised the jurisdiction u/s 144C of the Act - It is settled position of law that the assessment procedure which provides a machinery procedure for quantification of charge and levying as well as collection of tax in respect of charge, thereof, it falls under realm of the procedural law. A procedural law is generally applicable to all the pending cases. The procedural law always has the retrospective application. The rule against retrospective operation of statute or a provision is not applicable to a statute or provisions if the same operates in the domain of procedural aspects of the statute. The Apex Court in several cases held that no person has a vested right in any course of procedure. He has only the right of prosecution or defense in the manner prescribed for the time being by or for the court in which the case is pending, and if, by an Act of Parliament the more of procedure is altered, he has no other night than to proceed according to the altered mode. Therefore, since in this case, admittedly, the reassessment proceedings were conducted after the amended provisions came into effect i.e. w.e.f. 1.4.2020, the Assessing Officer was justified in adhering to the provisions prescribed u/s 144C of the Act. Therefore, the contentions of the appellant are being devoid of any merit and dismissed. Decided against assessee. Addition being cash deposits in bank account u/s 69A - It is settled position of law that the cash withdrawn from the bank is treated as available for subsequent deposit into the bank, in the absence of any material on record to indicate that the cash withdrawn was utilised for some other purposes. Specially, in the present case, the interval between the withdrawal and deposit of the cash is hardly two days. There can be hundred and reasons as to why the assessee had withdrawn the money from one bank account and deposited in other bank account. Merely because the assessee had failed to explain the reasons for withdrawal from one bank account and deposited to another bank account, cannot lead to the conclusion that the cash withdrawn earlier was not available for subsequent deposit in the bank account. The reasoning of the DRP that the assessee had not furnished the sources of the cash deposits made cannot be a reason to make the addition on account of cash deposits, inasmuch as, the FDs in the bank were not made during the previous year relevant to the assessment year under consideration. When no addition can be made on account of unexplained sources for FDs for the year under consideration, the question of furnishing of explanation in support of such FDs does not arise. We find that the approach and reasoning of the DRP is unreasonable and illegal. It is most unfortunate that the DRP, a collegium consisting of three Commissioners of Income Tax had adopted such unreasonably illegal approach to confirm the addition. Approach adopted by DRP militates against the very object behind enactment of DRP prediction for speedy resolution of disputes and avoid unnecessary litigation. An authority created under statute conferred with process, it has obligation to act as a body living upto expectations which law mandates. As regards to the cash deposit of Rs. 20,00,000/- made out of money received from brother, namely, Saber Fakir Shaikh. The material on record clearly indicates that money was withdrawn from his bank account. The affidavit from his brother also affirms this fact. Even during the course of statement recorded from him, he had not denied that the money was given to the appellant. There is nothing on the record to disbelieve the explanation filed in support of cash deposit of Rs. 20,00,000/-. Therefore, we reverse the order of the lower authorities and direct the Assessing Officer to delete the addition made u/s 69A of the Act. Decided in favour of assessee.
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2023 (10) TMI 1234
Assessment u/s 153C - unexplained cash credit u/s 68 - limitation period of six years - HELD THAT:- As considering this admitted factual position, respectfully following the judgment of Jasjit Singh [ 2023 (10) TMI 572 - SUPREME COURT ] we hold that the assessment year 2006-07 would fall beyond six years as contemplated by the law. Therefore, we set aside the impugned assessment order being bad in law. Decided in favour of assessee.
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2023 (10) TMI 1233
Revision u/s 263 - as per CIT re-assessment order accepting the cash advance in a commercial and business transaction is without proper inquiry having regard to the provisions of Section 40A(3) and therefore erroneous in so far as prejudicial to the interest of the Revenue - HELD THAT:- CIT cannot merely set aside the assessment on the basis of a new fact (albeit incorrect) coming on record without exerting himself and provide some basis to dislodge the response of the assessee on such new material. CIT, under the circumstances, is under bounden duty to take into account the perspective of the assessee on such fresh material and is required to pass a speaking order thereon. CIT thus is not expected to sit solely in the capacity of revisionary authority qua the new fact coming to the light post assessment/re-assessment order but is required to assume the task of AO in tandem and discharge quasi judicial functions in a reasonable manner. CIT, in the instant case, has failed to do so. There is not even an iota of any discussion as to how reply of the assessee is without any substance particularly when the assessee has furnished evidences to corroborate his version before theCIT. CIT has abruptly observed that the re-assessment order is erroneous in so far as it is prejudicial to the interest of the Revenue in view of following observations but however no observations thereafter has been found to be made. Thus, findings of CIT suffer from apparent error and incompleteness. CIT has summarily set aside the re-assessment order and shifted the responsibility on the AO to examine or verify the facts. The opportunity contemplated under Section 263 is thus rendered illusory and merely an empty formality resulting in miscarriage of justice in contravention of express intendment of provision of Section 263. Directions towards verification of impugned transactions without observance of natural justice and without speaking order on the point based on some degree of inquiry by CIT himself, are unsustainable in law and deserves to be quashed. Decided in favour of assessee.
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2023 (10) TMI 1232
Revision u/s 263 - assessee case selected for limited scrutiny - share capital and other capital receipts - as per CIT AO failed to examine the issue relating to sale of shops and computation of long term capital gain - HELD THAT:- As gone through the assessment order, passed by AO and noted that assessment order was passed by the AO in the limited scrutiny only to examine the items of share capital and other capital . The scrutiny assessment was for limited purpose to examine the issue of share capital and other capital . AO has examined the share capital and other capital in the scrutiny assessment and framed the assessment order u/s 143(3) - PCIT has raised the issue, stating that there were sale of shop and computation of long-term capital gain, their on which was not the subject matter of limited scrutiny . Therefore, the issue raised by the L PCIT is outside the scope of limited scrutiny. Assessee s case was selected for limited scrutiny purpose for the purpose of verification of Share capital/other capital . Therefore, AO need not to examine the issue relating to sale of shops and computation of long term capital gain, which was raised by the PCIT. Since in the limited scrutiny case, AO has to examine only those issues which are mentioned in the notice of limited scrutiny. If the AO wants to examine other items, which are not mentioned in the limited scrutiny notice, then in that circumstances, he has to convert the limited scrutiny into unlimited scrutiny by taking permission from the higher authorities, which the AO has not done in the assessee`s case under consideration. Therefore, the issue relating to sale of shops and capital gain thereon and other few issues raised by PCIT, which were raised by the PCIT in his order u/s 263 is outside the scope of the examination conducted by the AO hence order passed by PCIT in his revision order is not tenable and therefore, order of PCIT may be quashed. AO had rightly raised query regarding sources of substantial increase in capital, vide notice u/s 142(1) of the Act and the assessee had also submitted her detailed reply and explanation with supporting evidences, against notice u/s 142(1) - order passed u/s 143(3) of the Act is neither erroneous nor prejudicial to the revenue, as it was passed after detailed examination and proper verification of all documents of subject matter of limited scrutiny - Decided in favour of assessee.
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2023 (10) TMI 1231
Proportionate interest paid on borrowed funds - HELD THAT:- We noted that the funds advanced to assessee is a continuous process and these are old advances and these have been considered by the Tribunal from assessment year 1997-98 to 2004-05. There is no change in facts and hence, we feel that this issue is fully covered by the Tribunal s decision. Hence, we find no infirmity in the order of CIT(A) and the appeal of the Revenue is dismissed. Disallowing the provisions made for raw materials, stores and spares treating the same as contingent liability - HELD THAT:- Before us, assessee could not explain how this is allowable and in our view, since the assessee has paid this amount of Rs. 50 lakhs towards demurrage charges already on 19.03.2008, the provision shown as payable cannot be allowed as deduction. Hence, we confirm the order of CIT(A) on this issue. As regards to balance provision assessee had paid a sum in the next financial year and for this, assessee has filed proof before CIT(A) and therefore, he allowed the same but sustained the balance amount being excess provision made in the accounts. Even now before us, the assessee could not file any evidence or could not explain how this amount is allowable. Hence, we confirm the order of CIT(A) on this issue. Thereby the total amount sustained on account of provision made for power division and the order of CIT(A) on this, is confirmed. Addition of non-existing sundry creditor liability - Difference in outstanding balance vis a vis the balance reflected in the books of the appellant company based on the statement of account obtained from the concerned supplier - HELD THAT:- CIT(A) noted that the assessee could not file any explanation as to why they have declared excess liability in its books of accounts. He also noted that there Thermodyne Technologies Pvt. Ltd., has declared liability to the extent of Rs. 18,68,421/- as against declared by assessee at Rs. 71,67,656/-. Since nothing was explained before AO or no evidence was filed to prove its claim, the CIT(A) also confirmed the order of AO. Even now before us, the assessee could not file any evidence or could not make any arguments to support its ground, hence we find no infirmity in the order of CIT(A) and affirm the order of CIT(A) on this issue. This issue of assessee s appeal is dismissed. Non-existent liability on account of amount payable to Associated Traders - HELD THAT:- The assessee has made provision in its books of accounts by debiting the discount account and shown the same as outstanding liability. But the assessee could not file any evidence before AO or CIT(A) to explain the outstanding liability. We also noted that there is no evidence that the assessee has given discount to the party and shown only amount outstanding. We noted that assessee is contemplating recovery of the amount from the party and not treated the same as bad debit. Once the amount is shown as outstanding, the assessee is duty bound to explain the entry by filing evidences. As there is no evidence, the AO is justified in making addition and CIT(A) has confirmed the addition on non-existence of liability and we confirm the same. This issue of assessee s appeal is dismissed. Provision made for excise duty on closing stock of finished goods - HELD THAT:- As assessee stated that she has no grievance against the order of CIT(A) and the AO will verify the factual position. Hence, this ground is dismissed. Addition of provision made by assessee for ocean freight from the value of closing stock - HELD THAT:- As claimed before AO and CIT(A) that assessee has paid a sum of Rs. 70,914/- on 24.03.2008 and if already paid during financial year relevant to assessment year 2008-09, then it was directed to AO to allow the claim after verification. We noted that this matter has already been referred back to the file of the AO for verification of facts and decide accordingly. We don t want to interfere in the findings of CIT(A). Let AO will examine this issue afresh and will decide as per directions of CIT(A). This issue of assessee s appeal is also dismissed. Estimated disallowance of 20% of total repair and maintenance - HELD THAT:- We have gone through the assessment order and noted that the AO has purely estimated disallowance at 20% but assessee explained that the assessee company is following a practice of claiming this expenditure towards building repairs and maintenance, plant repairs and maintenance and other maintenance and by this, it has incurred and claimed expenditure - AO has simply disallowed without verifying and without any basis. We are of the view that disallowance should have some basis. There can be a reason for some personal disallowance and for that estimated disallowance can be to the extent of 10% and hence, we restrict the disallowance at 10% and allow this issue of assessee s appeal partly.
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2023 (10) TMI 1230
Revision u/s 263 - PCIT observed that the assessee in the instant case has not fulfilled the conditions prescribed u/s 54F - HELD THAT:- We do not find any force in the argument of assessee. It is seen from the letter addressed by the assessee to the AO in response to the notice u/s 143(2) that the assessee has categorically stated that she has sold all the flats. When the assessee has not held the flats for a minimum period of 3 years, the provisions of section 54F are not fulfilled and therefore, by allowing the claim of deduction u/s 54F, the order of the Assessing Officer has become erroneous as well as prejudicial to the interest of the Revenue. Order of the Assessing Officer is also very cryptic and the reasons for which the case was selected for scrutiny have not been addressed at all. The order passed by the AO u/s 143(3) in our opinion, has become erroneous as well as prejudicial to the interest of the Revenue. We therefore, do not find any infirmity in the order of the learned PCIT invoking the jurisdiction u/s 263 - Decided against assessee.
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2023 (10) TMI 1229
Exemption u/s 11 - Assessment of trust - expenditure incurred in organizing such shivir/seminars, conference, lectures - expenses on Vaman Drishtishivir - whether expenses incurred by the society were for the purpose and object of the society which is carrying education and overall developments of education system through all type and levels of educational institutions related to the society? - HELD THAT:- As decided in Credai Bengal [ 2019 (6) TMI 348 - ITAT KOLKATA ] the organizing fairs, exhibitions and ancillary in the pursuit of achieving the main objects of the institution/trust are incidental to the main object of the institution and therefore, cannot be held as activities of trade or commerce. The activities of assessee continuing Education Diploma and Certificate Programme; Management Development Programme; Public Talks and Seminars and Workshops and Conferences are held to be fall in the realm of education which is charitable as per section 2(15) - In the case of assessee the activity of organizing the shivir which is in the nature of seminar, conference and lectures on the education and therefore, an aid to the main object of the assessee. Neither the AO nor the Ld. CIT(A) has disputed that the shivir organized by the assessee is for the purpose of education to the students and children as well as training for the teachers. Even if the expenditure incurred by the assessee is not regarded as solely for the purpose of providing formal education but if the same is incurred for the activities which are ancillary and part and parcel of the activities of imparting education then the same is considered as incurred for achievement of overall object of the assessee society. Various distinguish speakers have delivered their lecture on the topic of improvement of quality of education, improvement of moral values in the students and children of the society therefore, the shivir organized by the assessee cannot be separated from the activity of imparting education but it is an essential part of the educational activity for the overall development of the students as well as training of the teaching staff. Hence, the expenditure incurred in organizing such shivir/seminars, conference, lectures partake character of application of income for charitable purpose. Accordingly the addition made by the AO on this account is deleted. Decided in favour of assessee.
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2023 (10) TMI 1228
Bogus share capital gain/loss - unusual hike in the price of Banas not backed by fundamentals - HED THAT:- As decided in PCIT, Mumbai Vs. Indravandan Jain HUF [ 2023 (7) TMI 1091 - BOMBAY HIGH COURT] shares were purchased by respondent on the floor of Stock Exchange and not from the broker, deliveries were taken, contract notes were issued and shares were also sold on the floor of Stock Exchange. As in the present case the documents clearly establish that the shares were purchased on the floor of stock-exchange (not from broker); the contract note of purchase was issued; shares were sold on the floor of stock exchange; contract note of sale was issued; the deliveries were taken into and given from De-mat A/c within normal time; the payment and receipt of considerations were made through bank a/c (not in cash). Therefore, the transactions are well-explained with the support of all documentary evidences and there is no infirmity or fallacy at any stage of transactions. Thus AO is not justified to disallow the short-term loss declared by assessee. Decided in favour of assessee.
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2023 (10) TMI 1227
Surplus on maturity of the policy /prematurely surrendered insurance policy - Income from other sources of capital gain - difference between aggregate surrender value and the purchase value - assessee as contented since the policy was held for more than three years from the date of acquisition/purchase, the capital gain arising from such transaction was in the nature of Long Term Capital Gains. The Appellant was entitled to claim benefit of deduction u/s 54F - HELD THAT:- Appellant has held investment for a period of more than three years. Single premium was paid on 31/03/2008 and surrender value was received after 31/03/2011 during the relevant previous year. In the present case the investment were in the nature of investment in Debt Mutual Fund. According, we hold that the accretion value was in the nature of long term capital gains. Accordingly, the addition made by the Assessing Officer in the hands of the Appellant holding the same to be Income from Other Sources is set aside. AO is directed to compute the amount of capital gains tax liability, if any, as per law. AO is also directed to grant the benefit of Section 54F to the Appellant after verifying the claim of the Appellant taking into consideration the Agreement for Sale, dated 09/12/2014 filed by the Appellant.
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2023 (10) TMI 1226
Undisclosed debit entries in the impounded books - investment in advances for properties - contention of the ld. AR in respect of non-materialization of transaction with Manas Arun Kulkarni argued that the contents therein deposed before the Executive Magistrate supports the statement of non-materialization of transaction regarding the alleged payment - HELD THAT:- Since, the AO made addition taking into the said entry which was challenged before the CIT(A) except making reiteration of the statement that was made before the AO, no evidence such as the affidavit filed before the AO, also as well in the First Appellate proceedings. We see no reason for non-filing of the same before the AO and CIT(A) as rightly pointed by the ld. DR. Further, CIT(A) clearly observed vide notice that the dates and payments was specifically mentioned and as such on the dates and payments are different. Therefore, the statement made by the said Manas Arun Kulkarni before the AO is a mere statement without any evidence. No such evidence furnished before the CIT(A). It is for the first time, the assessee filed such affidavit before this Tribunal, in our opinion, is only to protract the litigation. The assessee ought to have filed the same before the AO during the course of assessment proceedings in 2016 and as well before the CIT(A) in 2017. It is pertinent to note that the said affidavit is dated 04-05-2017 is only after 4 days of passing of impugned order. Therefore, taking into consideration the facts and circumstances of the case and the finding of CIT(A) in the impugned order, we find no infirmity in the order of CIT(A) and it is justified. Thus, ground raised by the assessee are dismissed. Agricultural income - According to the AO no complete details were furnished regarding the total sales and expenditure, but however, allowed 50% taking into account the large land holdings by the assessee - said 50% was treated as income from other sources is allowed setoff against the addition on account of undisclosed source of income - HELD THAT:- AO and CIT(A) made addition in this regard on estimation basis, in our opinion, without considering the land holding and crops yielded i.e. Jowar, Cotton, Udad, Adrak, Harbhara and Banana. We note that the details filed by the assessee in written statement that the Banana crop yielded alone Rs. 75,60,000/- as gross receipt, but however, both the authorities below without considering the land holding, crops yielded, and value of crop yielded therein proceeded to make disallowance on estimation basis. Therefore, taking into consideration the facts and circumstances of the case i.e. land holding and details of crop yielded, average yield as per Government chart, rate per quintals and sale amount, we reverse the order of CIT(A) and hold that the assessee is entitled to claim allowance of entire agricultural income. Thus, ground No. 5 raised by the assessee is allowed.
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2023 (10) TMI 1225
Computation of the interest on refund u/s 244A - Adjustment of refund already granted first against the interest amount and thereafter adjust the balance against the tax amount refundable to the assessee - HELD THAT:- As decided in own case [ 2019 (6) TMI 1707 - ITAT MUMBAI] since the statute itself has already prescribed a particular method of adjustment in explanation to section 140A(1), then justice, fairness, equity and good conscience demands that same method should be followed while making adjustment for refund of taxes, especially when no contrary provision has been provided - we find that the judicial proprietary demands that order of the Tribunal of earlier years must be followed and therefore we direct the AO to re-compute the amount of interest u/s. 244A by first adjusting the amount of refund already granted towards the interest component and balance left if any shall be adjusted towards the tax component. Thus, with these directions, the appeal of the assessee is allowed The assessee would be entitled for interest on the unpaid refunds in accordance with the principle laid out in the aforesaid decision of Union Bank of India [ 2016 (8) TMI 688 - ITAT MUMBAI] AO is hereby directed to compute the interest on refund u/s 244A of the Act as per the plea of the assessee. Accordingly, the grounds raised by the assessee are allowed and that of the revenue are dismissed.
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Customs
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2023 (10) TMI 1224
Validity of SCN - authority issuing the show-cause notice not being the competent authority - authorities have not taken into consideration the response and explanation given to the department at the time of the pre-notice consultation - SCN does not deal with the submission of the petitioner made in their explanation to the pre-notice consultation - laboratories have given a report that the product being unfit for human consumption. HELD THAT:- On going through the contents of the impugned show-cause notice there were certain serious allegations levelled against the petitioner, firstly, so far as selling the product in the open market loosely and which presumably was for human consumption; secondly, the sale being not made to any of the agencies dealing with animal feeds; thirdly, the petitioner violating the declaration that he had given in the course of the import being made; fourthly, there being no sufficient documents / invoices or details of the sale made by the petitioner in respect of the entire consignment imported by them. Reliance placed in the decision of the Hon ble Apex Court in MALLADI DRUGS PHARMA. LTD. VERSUS UNION OF INDIA [ 2004 (3) TMI 67 - SC ORDER ] , wherein the Hon ble Apex Court held Neither party knows whether the Department has proceeded further and / or whether any order has been passed pursuant to the show-cause notice. Even otherwise, in our view, the High Court was absolutely right in dismissing the writ petition against a mere show-cause notice. We see no reason to interfere. The appeals stand dismissed. Taking into consideration the gravity of the contents of the show-cause notice, the writ petitions not entertained at this juncture - petition dismissed.
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2023 (10) TMI 1223
Levy and collection of Social Welfare Surcharge (SWS) computed @10% on the notional BCD in cash - Challenge to assessment of SWS in each of the BOEs - HELD THAT:- Since both EC and SWS are in the nature of surcharge and the provisions pertaining to their quantification as contained in Section 94(1) of the Finance (No. 2) Act, 2004 and Section 110(3) of the Finance Act, 2018 are pari materia, the jurisprudence as regards non applicability/non levy of Education Cess in respect of goods imported against the DEPB and/or Target Plus Scheme should equally apply in the context of SWS in respect of goods imported against the MEIS/SEIS Schemes. The circular dated 10.1.2020 which takes the same view for SWS as was canvassed in Circular dt. 31.01.2005 for Education Cess cannot be given primacy over the later circular dt. 01.02.2022. Hon ble Supreme Court in M/S. UNICORN INDUSTRIES VERSUS UNION OF INDIA OTHERS [ 2019 (12) TMI 286 - SUPREME COURT] was concerned with the interpretation of an exemption notification no. 71/2003-CE dt. 9.9.2003 granting area based exemption to units located in the north east. Under Notification No. 71/2003-CE, units in the north east were entitled to refund of specified duties paid on value addition and the question before the Hon ble Court was whether EC, SHEC, NCCD imposed by the Finance Act 2001, 2004 and 2007 which were not specifically exempted under Notification No. 71/2003 shall also come within the scope of the said exemption for the purposes of refund - The Hon ble Supreme Court denied refund of the un-specified duties under Notification No. 71/2003-CE as would be evident from para 40 of the said order as the exemption was categorical in its scope. Further, since refund of specified duties under Notification No. 71/2003-CE was only possible post collection, the question of non leviability of Education Cess under Section 94 of the Finance (No. 2) Act 2004 for want of collection of the underlying duty was not germane to the issue before the Hon ble Supreme Court and was therefore not gone into. The assessments in each of the impugned BOE s covered by the impugned orders are modified in so far as imposition of SWS is concerned and the appeals are allowed with consequential relief.
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Corporate Laws
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2023 (10) TMI 1222
Seeking transfer of proceedings pending before High Courts relating to winding to the NCLT - HELD THAT:- Clearly, the winding up petition is at a nascent stage and no proceedings have been taken after the issuance of notice in these petitions. Only pleadings have been completed. In the meantime, the Companies Act, 1956 has been amended and a provision has been enacted for transfer of winding up proceedings pending before the High Courts. Transfer of proceedings pending before High Courts relating to winding to the NCLT has been provided in Section 434 of the Companies Act, 2013. The Supreme Court in ACTION ISPAT AND POWER PVT. LTD. VERSUS SHYAM METALICS AND ENERGY LTD. [ 2020 (12) TMI 535 - SUPREME COURT ], has held that winding up proceedings which have not reached an advanced stage ought to be transferred to the National Company Law Tribunal (NCLT). In the opinion of this Court, since hardly any proceedings have been taken towards winding up of the company, the petition no longer deserves to be continued before this Court. The petition is itself at the very nascent stage and no substantive orders have been passed towards winding up of the company. Accordingly, in view of this position and in view of the settled law, the petition is liable to be transferred to the NCLT. The NCLT shall now proceed in accordance with law in all three petitions. The Registry to transfer all these petitions as also the electronic record of this Court to NCLT. Parties to appear before the NCLT on 5th December, 2023.
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2023 (10) TMI 1221
Re transfer of shares on account of non fulfillment of MoU by Arcadia - whether the Arcadia can be restrained from taking any decision which will hamper the interest of Hexogon while protecting their right to two mortgaged flats? Grievance is when the full amount is not advanced, the transfer of shares of defendant nos. 5 and 6 are ineffective. HELD THAT:- The law is well settled in case of Life Insurance Corporation of India [ 1985 (12) TMI 289 - SUPREME COURT] and it is reiterated by the Division bench of this Court in case of Invesco Developing Markets Fund and Ors. [ 2022 (3) TMI 1175 - BOMBAY HIGH COURT] . Court cannot restrain holding of any Extra Ordinary General meeting. There are only certain exceptions, where Court can interfere and it can be only when procedural and numerical requirements are not fulfilled. The Division bench of this Court has also cautioned what will be situation if the Court will start interfering in holding of the meeting of the Company. Ultimately, it is part of the Corporate democracy. No ground is made out for stalling of EOGM. The Court cannot stall holding of any meeting of the company. This is the prerogative of the shareholders. About offering corporate guarantee by Hexagon - when the proceeding will be go on with DRT, there will be conflict of the interest in between the Defendant No. 4 being managed only by Arcadia on one hand and Arcadia as borrower of the Kotak Mahindra Bank Limited on the other hand - HELD THAT:- No doubt, it is true that Plaintiff or Hexagon does not say that they have paid dues of the Arcadia. It is an independent issue. It is also true that the Arcadia being lender has got right as per the Memorandum of Understanding to sell those flats by giving a notice. No doubt notices are also given. That right is an independent right. However, when the question of the proceeding before the DRT arises, certainly the interest of the Hexagon needs to be protected to certain extent. The issue raised about notice by India bulls to the Hexagon cannot be considered in this application. So also the argument of by plaintiff s counsel about newspaper articles about the antecedents of directors of Arcadia is not impressing. This Court is aware that the issue of those flats is not subject matter of the inquiry before this Court. However, when it is question of taking decision by Arcadia being in management of the Hexagon, on limited extent, this Court can certainly interfere. It may also happen that the Arcadia being in control of the Hexagon may pass a resolution about their possible stand before DRT or may even submit to the Orders of DRT - the interest of the Plaintiff and shareholder of the Hexagon needs to be protected. As a shareholder of defendant No. 4, Defendant No. 1 is restrained from taking any decision which may amount to giving consent/NOC for handing over possession of two flats before DRT in proceedings involving Kotak Mahindra Bank Limited. - application disposed off.
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2023 (10) TMI 1220
Seeking transfer of proceedings pending before High Courts relating to winding to the NCLT - HELD THAT:- The petition was filed some time in 2015 and since then, the pleadings have been completed in the matter. However, no further orders have been passed. In the meantime, the Companies Act, 1956 has been amended and a provision has been enacted for transfer of winding up proceedings pending before the High Courts. Transfer of proceedings pending before High Courts relating to winding to the NCLT has been provided in Section 434 of the Companies Act, 1956. The Supreme Court in ACTION ISPAT AND POWER PVT. LTD. VERSUS SHYAM METALICS AND ENERGY LTD. [ 2020 (12) TMI 535 - SUPREME COURT] , has held that winding up proceedings which have not reached an advanced stage ought to be transferred to the National Company Law Tribunal (NCLT). In the opinion of this Court, since hardly any proceedings have been taken towards winding up of the company, the petition no longer deserves to be continued before this Court. The petition is itself at the very nascent stage and no substantive orders have been passed towards winding up of the company. The petition is liable to be transferred to the NCLT. Parties to appear before the NCLT on 2nd November, 2023.
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PMLA
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2023 (10) TMI 1219
Seeking grant of bail - Money Laundering - ramifications involved in the Teachers Recruitment Scam - economic offences - applicability of principles as under Section 439 of the Cr.P.C. - factum of the complicity of the present petitioner so far as the proceeds of crime - HELD THAT:- At the initial stage when the argument commenced and the Enforcement Directorate prayed for filing their affidavit, this Court directed to clarify whether any policy has been adopted by the Investigating Agency so far as the exercise of the powers under Section 19 of the PMLA is concerned - There were no cogent reasons assigned by the Investigating Agency which in the background of the present case satisfies the conscience of the Court regarding the exercise of such powers. Towards the end of the hearing, it was pointed out by the Enforcement Directorate that the Teachers Recruitment Scam involves wide magnitude and there are materials which have recently surfaced leading to money trail where the involvement of the petitioner is glaring. Having considered the tentative time limit set by the Hon ble Division Bench to the Investigating Agency to conclude the investigation and further materials having surfaced for which the Investigating Agency at this stage sought for time to examine two more witnesses apart from the witnesses who have already been examined particularly with regard to the amount which has transpired relating to the donations in the account of the school, having regard to the ramifications involved in the Teachers Recruitment Scam, the Investigating Agency at this stage must be granted an opportunity to exhaust their powers relating to investigation. Accordingly, at this stage, the petitioner cannot be released on bail. Bail application dismissed.
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2023 (10) TMI 1218
Money Laundering - generation of illegal income - extorting crores of Rupees from different rich people by blackmailing them to get their video footage containing objectionable and inappropriate photographs viral - applicability of provision of Section 45(1) of the PMLA - HELD THAT:- Undeniably, the provisions as to bail are founded on the philosophy of protecting the most precious individual liberty of a person which is guaranteed under Article 21 of our sacred Constitution, but grant or refusal of bail to a person accused of offence is the discretion of the Court, however, such discretion should not be arbitrary or whimsical. Article 21 of the Constitution of India always reminds that the personal liberty is paramount and sacrosanct and no person shall be deprived of his personal liberty except according to the procedure established by law. An accused person who is sick in terms of proviso to Section 45(1) of PMLA can be granted bail without insisting upon him the strict compliance of the conditions enumerated therein, but who can be considered as a sick or what would be the level of sickness that would bring the accused within the parameters of sick has not been precisely defined or explained either in the PMLA or in any other act governing the provisions of bail. Normally, sick means suffering from disease or illness or unwell or ill and one who needs medication, but mere sickness, such as suffering from fever or illness which can be treated in the jail without any difficulty cannot be considered as sick so as to entitle the accused to bail in view of the exception to Section 45(1) of the PMLA. This Court is of the considered view that the sickness which are not only life threatening, but also serious and requires special medical attention and which the jail authority cannot provide in the jail would normally be considered as a ground for grant of bail to an accused by relaxing the strict compliance of Section 45(1) of the PMLA by giving benefit of the proviso appended thereto. Granting bail on mere sickness by extending the proviso appended to Section 45(1) of the PMLA will render the aforesaid proviso otiose. The pre trial detention of the Petitioner for near about ten months with uncertainty prevailing about execution of NBWA against coaccused affecting the commencement of the trial and, thereby, conclusion of trial being not possible in near future and regard being had to the nature of sickness of the Petitioner which allows him to obviate the rigor of compliance of the provision of Section 45(1) of the PMLA by way of relaxation, this Court considers that the Petitioner has made out a case for grant of bail. The bail application of the petitioner stands allowed and the petitioner may be released on bail subject to conditions imposed.
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Service Tax
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2023 (10) TMI 1217
Denial of benefit of Notification No. 17/2004-ST dt. 10.09.2004 - appellant are not holder of intellectual property rights but discharged service tax as receiver of service by virtue of Section 66A of the Finance Act, 1994 - inclusion of TDS amount in the gross taxable value on which service tax was paid - HELD THAT:- A similar controversy came before the Mumbai Bench of this Tribunal in M/S ROCHEM SEPARATION SYSTEMS (INDIA) PVT LTD VERSUS COMMISSIONER OF SERVICE TAX, MUMBAI-I [ 2015 (1) TMI 1052 - CESTAT MUMBAI] . This Tribunal analyzing Notification No. 17/2004-ST and charging Section 66 and Section 66A of the Finance Act, 1994 held that In the present case the charge of service tax is under Section 66 but the appellant being the receiver is liable to pay under Section 66A. The Commissioner s reasoning is not correct and is rejected. Following the above principles consistently held by the Tribunal, there are no merit in the impugned order that the benefit of Notification No. 17/2004-ST dt. 10.09.2004 would not be admissible to the appellant only on the ground that service tax was discharged by them under Sec. 66A of the Finance Act, 1994 on reverse charge mechanism basis. Inclusion of the TDS amount paid by the appellant - HELD THAT:- The issue has been recently considered by the Chennai Bench of this Tribunal in the case of M/S. VSL INDIA PRIVATE LIMITED VERSUS COMMISSIONER OF SERVICE TAX, CHENNAI [ 2023 (3) TMI 802 - CESTAT CHENNAI] whereunder this Tribunal after analysing the precedent and the relevant provisions held So, when such TDS is not received from the non-resident since it is not towards value/consideration, there is no merit in requiring such assessee to include even the TDS it paid in the value of services, as in the case on hand and the appellant was correct in not including the TDS amount in the value of taxable services. Thus, the TDS amount paid to the Income Tax department by the appellant from his own account cannot form part of the consideration of the service charges paid to the overseas service provider, accordingly, service tax is not payable on the TDS amount paid by the appellant. Also, it is brought on record that subsequent to the payment of the TDS, realizing that being wrongly paid, refund application filed. The impugned order is set aside - Appeal allowed.
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2023 (10) TMI 1216
Denial of benefit of VCES Scheme - no inquiry against the appellant and the inquiry was only against M/s. Adani - HELD THAT:- Section 106 elaborates the nature of person who is eligible to make a declaration under VCES Scheme. Sub-section 2 of 106, prescribes that people against whom any inquiry or investigation have been initiated prior to 1 March 2013 are not eligible for making VCES declaration. In the instant case, it is found that a summon was issued to the appellant on 28 March, 2012 and subsequently again on 07.03.2013. It is seen that Clause (ii) (iii) of sub-Section 106 (2) prescribes that, where summon has been issued 14 of Central Excise Act 1944, the person becomes in eligible for the scheme. In the instant case, it is noticed that a summon was issued to the appellant on 28.03.2012 much prior to the cut off date of 01 March 2013. Moreover, it is also informed to the court by the Learned Counsel that the subsequently a demand SCN was issued to the appellant in the same proceedings which were initiated by said summons. In view of above the appellants were rightly held ineligible for the scheme. There are no error in the impugned order. The appeal is therefore dismissed.
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Central Excise
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2023 (10) TMI 1215
Grant of Sanction for prosecution - petitioners would submit that the Prosecution is bad in law since no proposal was made for prosecuting the second petitioner - HELD THAT:- Any sanction required to be issued by a specified authority which would be the competent authority, the documents pertaining to the case have to be examined by such competent authority and proceedings have to be issued by giving reasons as to why prosecution has to be launched. A duty is cast upon the competent authority to apply its mind to the facts of the case to grant sanction. A statute requiring sanction to be made is for the purpose or ensuring that criminal prosecution is not launched vexatiously or improperly or in a routine manner or when no offence is made out. The competent authority has to shoulder responsibility of scrutinizing the available material and record its satisfaction to criminally prosecute a person. The Honourable Supreme Court in MANSUKHLAL VITHALDAS CHAUHAN VERSUS STATE OF GUJARAT [ 1997 (9) TMI 618 - SUPREME COURT ] held that whether a sanction is valid would depend upon the material placed before the sanctioning authority. Grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act. The prosecution instituted without a proper sanction would fail since the proceedings would be void for want of a valid sanction. The Court cannot take cognizance of an offence until pre-requisite of sanction is fulfilled by the prosecution and filed before the Court - In the present case, except the office communication dated 01.08.2014, there is no separate sanction order which is accorded by the Chief-Commissioner. A mere letter conveying that the Chief Commissioner had accorded administrative approval for launching criminal prosecution cannot be a valid document to launch prosecution against the petitioners. Since there is no valid sanction as required, the proceedings against the petitioners in CC.No.32/2015 on the file of Special Judge for Economic Offences at Hyderabad, are hereby quashed - the Criminal Petition is allowed.
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2023 (10) TMI 1214
Condonation of delay in filing the appeal by the Commissioner (Appeal) - HELD THAT:- In terms of Section 85 (3A) of the Finance Act, 1994, it is observed that the appeal was to be filed before the Commissioner (Appeal) within two months of the date of the receipt of the order in original by the appellant. As per the proviso Commissioner (Appeal) has been granted the power to condone delay of one month in filing the appeal on sufficient cause being shown - In the present case appeal was filed before the Commissioner (Appeal) after more than a year from the date of receipt of order in original. Hence Commissioner (Appeal) has rightly held that appeal was filed beyond the prescribed period of limitation and has dismissed the same on this ground alone. This issue is squarely covered by the decision of Hon ble Supreme Court in the case of SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [ 2007 (12) TMI 11 - SUPREME COURT] , wherein it has been held that Commissioner (Appeals) could not condone the delay beyond the 30 days in filing the appeal before him. There are no merits in this appeal filed by the appellant - appeal dismissed.
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2023 (10) TMI 1213
Method of valuation - to be valued under section 4 of CEA or not - related party transaction - case of the department is that since the manufacturing firm and the trading firms are run by one family members they are related in terms of Section 4 of Central Excise Act 1944 - levy of penalties - extended period of limitation - suppression of facts or not - HELD THAT:- Entire case is made out on the allegation that there is undervaluation of the excisable goods cleared by M/s Asha Industries on the ground that the buyer namely IPCO Sales Agency is related to M/s. Asha Industries. It is found that manufacturer Asha Industries is a partnership firm and the buyer M/s IPCO Sales Agency is proprietorship firm - a proprietorship firm and the partnership firm even though the said proprietor is one of the partner in the partnership firm, both cannot be a related person. However, this is a highly debatable issue. Time Limitation - HELD THAT:- The appellant manufacturer was partnership firm and the names of the partners are appearing on the registration i.e. Shri Indu bhai M Patel, Shri Devang bahi R Patel, Smt. Nayna ben A Patel. With this information the department was very well within the knowledge of the constitution of the manufacturer partnership firm - appellant from time to time informed the department regarding any change either in the manufacturer firm or in the buyer firm M/s IPCO Sales Agency. In the present case the demand was raised for the period 2002-06 to 2007-08 by issuing the show cause notice dated 30.09.2013 therefore, the entire demand is covered under the extended period of limitation - It is accepted that the above letters were submitted by the appellant with the department whereby the department was kept informed from time to time about the constitution of the manufacturer s partnership firm as well as the buyer s proprietorship firm. Therefore there is no suppression of fact on the part of the appellant. In the facts and circumstances of the present case, we find that the judgments relied upon by the Learned Counsel which are on the issue of limitation directly apply in the present case. Accordingly, the entire demand is beyond the normal period of limitation. Hence the same is not sustainable on the ground of time bar. Since the demand itself is not sustainable, penalty on the appellant and other two appellants under Rule 26 shall also not be sustainable. Appeal allowed.
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CST, VAT & Sales Tax
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2023 (10) TMI 1212
Development of MSTT s Website - in affidavit placed on record it is inter alia stated that as soon as the proposal for the development of website from the President, MSTT is received to the Finance Department it would expedite the process of approval at the earliest - HELD THAT:- In the present era, the courts and tribunals which cater to demands of the consumers of justice cannot be expected to function without the basic requirement of an official website to say the least. It also cannot take so long to create and make the website functional. As observed by the Supreme Court, the technology plays an essential role in securing access to court rooms and, as a result, access to justice for citizens across the country. In embracing technology, the tribunals in a progressive State like Maharashtra cannot remain primitive. Providing of a website would certainly enhance the efficiency in the working of the tribunal and make effective the access to justice. Thus, it is of utmost necessity that the President of the MSTT on urgent basis forwards a proposal to the State Government in regard to making available video conferencing facilities in conducting Court proceedings, unless the same are already in place. The present proceedings are adjourned at the first instance to 28th November 2023 so that the further progress on all these aspects can be informed to us by the President, MSTT as also by the State Government.
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Indian Laws
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2023 (10) TMI 1211
Validity of sentence for murder - Murder of a person with criminal history / history-sheeter - Assaulting the deceased by lathis and tabbal - Inordinate delay in filing of the First Information Report (F.I.R.) - possibility of improvements thereby casting doubt on the version of the prosecution - testimonies of the witnesses of the prosecution being contradictory - accused persons present at the scene of the crime or not - plea of alibi. Inordinate delay in filing of the First Information Report (F.I.R.) - HELD THAT:- The document itself records the time of incident as being 8.15 a.m. and the time of report as being 11.00 a.m. The testimony of PW-3 at whose instance the FIR was recorded, shows that out of fear and having sustained numerous injuries, he ran from the place of occurrence and hid in the house of Baisakhu Kewat and only emerged therefrom two hours later - In such a situation, delay in filing of the FIR cannot be said to be fatal to the case of the prosecution more so in view of the injuries sustained by him; the place of occurrence being a remote village area and that the version of events was dictated to the police by this witness only upon their reaching his place of shelter. To us it does not appear to be a case of prior consultation; discussion; deliberation or improvements. There are nothing emanating which would credibly suggest that the time gap between the occurrence of incidence and registration of the FIR is unjustified - Resultantly, the first contention of the convict appellants must necessarily be answered in the negative. Plea of alibi - HELD THAT:- Both the defence witnesses do not conclusively establish the plea of alibi, based on the principle of preponderance of probability as their statements stand unsupported by any other corroborative evidence. Not only that, no reason stands explained in such testimony for A-9 having travelled from Bhalesur to Sundri in order to go to Sandi Bazar. It is a matter of record that A-9 is a resident of Bhalesur where he resided with his family. He owned farms in Sundri. The family of A-9 was not examined to substantiate the claim of such travel. For those reasons, we cannot believe the version testified to by DW-1 and DW-2 - for the plea of alibi to be established, something other than a mere ocular statement ought to have been present. After all, the prosecution has relied on the statement of eyewitnesses to establish its case against the convict-appellants leading to the unrefuted conclusion that convict-appellants were present on the spot of the crime and had indeed caused injuries unto the deceased as also PW-3 with Lathis and Tabbal on various and vital parts of their bodies. The prosecution case relies primarily on 3 witnesses whom, the Courts below have believed without exception. It is next urged that there are contradictions in the testimonies of three witnesses, hence, it would neither be appropriate nor safe to place reliance thereon. Having perused the same, we find them to be coherent on material facts such as the presence of the accused on the spot of the crime; the death of Chetram; a blast having taken place; and the accused being the assailants - there are no force in the contention that the testimonies relied on by the prosecution are inherently contradictory. It may be true that the deceased Chetram was a history-sheeter and had scores of criminal cases pending against him or cases in which he was involved. However, such fact is unsubstantiated on record for no detail whatsoever stands provided in respect of such cases involving the deceased - simply because the deceased had a chequered past which constituted several run-ins with the law, Courts cannot give benefit thereof, particularly when such claims are bald assertions, to those accused of committing such a person s murder. And in any event, such a plea is merely presumptuous. Thus, the charges levied against the accused, i.e., under Sections 148, 302 read with 149, 307 read with 149, IPC, and Sections 4/5 of the Explosive Substance Act, 1908, and the sentence corresponding thereto as awarded by the Trial Court and confirmed by the High Court, do not warrant interference of this Court. It may also be observed that the sentences awarded are in no manner excessive or disproportionate to the crimes for which the convict-appellants stand convicted. Appeal dismissed.
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2023 (10) TMI 1210
Dishonour of Cheque - insufficient funds - right of the petitioner to cross-examine the complainant is closed - HELD THAT:- Admittedly, the petitioner has already paid the cost imposed by the learned Trial Court for the purpose of conducting cross-examination of the complainant, and as clear from the contents of present petition and the arguments addressed before this Court, the petitioner has sought setting aside of the impugned order dated 11.04.2023 only on the ground that in the said order, learned Sessions Court had failed to consider the contentions raised by the petitioner/revisionist therein regarding the maintainability of the complaint case under Section 219 of Cr.P.C. and had not passed any order qua the same. As clear from the bare perusal of the records, the order dated 20.03.2023, which was impugned before the learned Sessions Court, did not record any observations on the maintainability of the complaint under Section 219 of Cr.P.C., rather only pertained to the right of accused to cross-examine the complainant - It is also not in dispute that the petitioner/accused has till date not challenged the order dated 16.04.2022 passed by the learned Trial Court vide which his application under Section 219 of Cr.P.C. was dismissed and though he had made references to the said order in his criminal revision petition filed before the learned Sessions Court and had taken a ground that the proceedings in the present complaint case were bad in law due to bar under Section 219 of Cr.P.C., the petitioner had still not assailed the order dated 16.04.2022 but had only challenged the order dated 20.03.2023 by virtue of which the learned Trial Court had closed his right to cross-examine the complainant. There was no occasion for the learned Sessions Court to have recorded any findings on the issue of whether the complaint was maintainable or not since the same was not an issue before the learned Sessions Court. Thus, there are no grounds to set aside the order dated 11.04.2023 passed by the learned Sessions Court. Petition dismissed.
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2023 (10) TMI 1209
Dishonour of Cheque - amicable settlement of dispute - acquittal of the accused - HELD THAT:- Since the parties are entering into compromise at the stage of revision, therefore, law laid down by the apex Court in the case of DAMODAR S. PRABHU VERSUS SAYED BABALAL H. [ 2010 (5) TMI 380 - SUPREME COURT] will be applicable in this case where it was held that If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit. Thus, considering the fact that the parties have amicably settled their dispute and have entered into compromise before this Court in the revision and decided to avoid further litigation, hence, the applicant is liable to pay 2% of the cheque amount i.e. Rs.8,480/- by way of cost to be deposited with the State Legal Services Authority Indore - Subject to payment of cost at the rate of 2% of the cheque amount with the State Legal Services Authority Indore, within a period of 15 days from today, the applicant be released from the jail. Sentence awarded to the applicant is hereby modified by reducing the sentence to the period already undergone.
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