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TMI Tax Updates - e-Newsletter
February 28, 2024
Case Laws in this Newsletter:
GST
Income Tax
Customs
Insolvency & Bankruptcy
Service Tax
CST, VAT & Sales Tax
Articles
News
Notifications
Circulars / Instructions / Orders
Highlights / Catch Notes
GST
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Validity of assessment order - Discrepancy Nos. 1, 2, 10, and 11: The discrepancies include issues such as non-GST supplies, alleged mismatch between GSTR-3B and GSTR-1 returns, indirect income, and payment of rent for commercial purposes. - The High court quashes the assessment order in part (related to Discrepancy Nos. 1, 2, 10, and 11) and remands the matter for re-consideration. A fresh show cause notice is allowed for Discrepancy No. 2.
Income Tax
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Addition u/s 69A r.w.s. 115BBE - Assessment of trust - ‘unexplained money' - Income consists of voluntary contributions from devotees and followers - The High Court held that, ITAT having accepted Petitioner’s plea that for the assessment year in question, Petitioner’s total income should be computed as ‘Nil’, the only task before the AO was to issue refund to Petitioner of all taxes paid or recovered from Petitioner for AY 2017-2018. Since before the Hon’ble ITAT there was no controversy as regards the date of filing of return by Petitioner or Form 10B, the AO cannot, in the garb of giving effect to the order of ITAT, initiate a new controversy.
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Scope of the term “Principal Officer” of the company for the purposes of initiating prosecution u/s 276B - The High Court opinioned that merely because a person holds an office in a corporate entity would not be sufficient to place that individual in clause (b). The intention of the respondent to treat an individual as the “Principal Officer” must be based on it being satisfied that the person was connected with the management or administration of the company. - The court finds that the respondents failed to establish the petitioner's connection with the management or administration of the company based on the evidence presented. Therefore, the impugned orders are set aside and restored back for fresh adjudication.
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Settlement application u/s 245C - Apportioning the undisclosed income in the hands of the petitioner and the Company - The High court examines the petitioner's disclosure and the basis for apportionment of income. It notes discrepancies and lack of clarity in the petitioner's submissions regarding the apportionment of unaccounted sales, expenditures, and income between the petitioner and the company. - The High court concurs with the Commission's finding that the petitioner did not disclose true and correct facts, violating the requirements of Section 245C(1).
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TDS u/s 195 - payment for time charter higher charges are Royalty u/s 9(1)(vi) - The Tribunal held that the payments made by Jaisu Shipping Co. Pvt. Ltd. for hiring dredgers from a non-resident entity fall under the definition of "Royalty" as per Section 9(1)(vi) of the Income Tax Act. This classification is based on the provision that payments for the use or right to use any industrial, commercial, or scientific equipment are considered royalties. The decision emphasized that the control and physical possession of the equipment (dredgers) by the assessee, to the exclusion of others, and the obligation to maintain the equipment in good working condition, did not constitute a provision of services but were corollary to the hiring of equipment itself. - ITAT concluded that the assessee was under an obligation to deduct tax at source as royalty payments.
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Depreciation on car purchased in the name of the Director - Depreciation @15% claim has been disallowed as asset could not be said to be of the company - However, AO allowed deductions for interest on car loan and insurance expenses. - The tribunal found that the appellant company had effectively purchased and used the car for business purposes, warranting the allowance of depreciation.
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Assessment of Income from House Property - ALV determination - The Tribunal dismissed the assessee's appeal and upheld the ITD's order. The Tribunal directed the Assessing Officer to adopt the municipal value adopted by the Chennai Corporation for determining the annual letting value of the property.
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Addition of income declared by assessee under Voluntary Disclosure of Income Scheme, 1997 (VDIS, 1997’) - The Tribunal allowed the assessee's appeal and deleted the addition made by the ITD. The Tribunal noted that the assessee provided evidence to support their claim that the investments and expenditures related to previous years, and the ITD did not establish that they occurred in 1997-98.
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Accrual of income in India - royalty income - supply of software - absence of PE of the assessee in India - The Tribunal held that, the payments received by the assessee were for the supply of software, not for the use of the copyright or imparting information concerning industrial, commercial or scientific experience. As a result, the payments were not taxable as royalty income under the India-China Double Taxation Avoidance Agreement.
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Revision u/s 263 - The Tribunal observed that for invoking the provision of section 263 of the Act, twin conditions must be satisfied: the order should be erroneous and prejudicial to the interest of Revenue. If the AO adopts one of the plausible views, no prejudice would be caused. - In this case, the redemption of units of Bajaj Alliance and the claim of it as capital gain were made, which is amenable to capital gain tax under section 45 of the Act. - Consequently, the tribunal set aside the impugned order, restoring the findings of the AO.
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Unexplained cash credit u/s 68 r.w.s 115BBE - inflated sales pursuant to demonetization - Unaccounted Stock Due to Valuation Differences - The Tribunal held that the addition made by the Revenue on account of undisclosed income from the sale of diamonds was unjustified, as the transactions were recorded in the books and formed part of the assessee's regular business operations. - The Tribunal dismissed the addition made on account of the alleged unaccounted stock, recognizing the discrepancy as a result of a typographical error in the tax audit report.
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Addition u/s 68 r.w. section 115BBE - unexplained cash deposits in the bank account - The tribunal finds that the AO did not provide a satisfactory explanation for rejecting the source of cash deposits - The ITAT held that the authorities erred in treating the cash deposits as unexplained income without any evidence to question the genuineness of the sales or the source of funds. The assessee's appeal was allowed, and the addition made by the authorities was deleted.
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Revision u/s 263 - 56(2)(x)(c)(B) - FMV purchases exceeds the price of shares - The tribunal observed that, the option to adopt either NAV or DCF Method for valuing the shares has been given to an Assessee in the statute itself. When the A.O. has appreciated this option availed by the Assessee, his order cannot be construed as erroneous. - Further, it is observed that it is not a case wherein the Assessing Officer failed to conduct enquiry rather it is the case wherein the AO has conducted an elaborate enquiry and adopted one of the two views which was plausible view. - Consequently, the ITAT following the decision of Supreme Court, quashed the revision order.
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MAT computation - adjustment of rent/lease equalization reserve u/s 115JB of the Act - The Assessee contended that the reserve was not covered under Explanation 1(b) or 1(c) to section 115JB of the Act. The Tribunal agreed, referencing judgments that clarified such reserves are not to be added back while computing book profits under section 115JA. Hence, the addition made by the Assessing Officer deleted.
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Penalty u/s. 271(1)(c) for under reporting income - defective notice - The Tribunal agrees with the appellant's argument, emphasizing that the AO did not apply his mind properly while initiating the penalty proceedings - The Tribunal rules in favor of the appellant, stating that the penalty proceedings were not validly initiated due to the lack of clarity in the penalty charge. - As a result, the penalty is deleted for all assessment years under consideration.
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Revision u/s 263 - unexplained cash deposits - The tribunal rejected the notion that unexplained deposits prior to withdrawals undermined the explanation provided by the appellant. - Regarding the PCIT's assertion of the AO's mistake in not making the addition, the tribunal stated that an assessment order must be interpreted as is, without assumptions or postulations. If the AO had indeed erred, avenues for correction, such as rectification under Section 154 of the Act, were available but not utilized.
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Levy of Dividend distribution tax (DDT) at the rate of 20.36% u/s 115O - claim of assessee that it should have been levied at the rate of 15% in terms of Article 10 of DTAA between India and Thailand - The ITAT dismisses the appeal regarding the rate of DDT, citing a previous decision that shareholders have no influence on the levy of DDT, which is an additional tax charged on distributed profits of the company.
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Additions towards cash deposits u/s. 69A r.w.s. 115BBE in demonetized currency - Addition based on report received from the ADIT (Investigation), Trichy - The ITAT held that, no error in the findings recorded by the CIT(A) to re-compute net profit from business and to be taxable under normal rate of tax, and thus, we are inclined to uphold the findings of the CIT(A) and reject the ground taken by the Revenue.
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Disallowance u/s 14A r.w.r. 8D - Addition of interest expenditure - The ITAT found substantial merit in the alternative contention of learned counsel for the assessee that the disallowance under Rule 8D(2)(iii) should be computed with reference to investments giving rise to exempt income during the year and not the entire investment, which might give rise to exempt income in further. Accordingly, AO directed to recompute the disallowance under Rule 8D(2)(ii).
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Assessment of trust - addition made u/s 115BBC on account of anonymous donations - The ITAT held that the addition made by the AO was not in accordance with the provisions of section 115BBC(3) since the statute does not require the Assessee to maintain PAN and bank account statements of donors, only the identity indicating name and address. Therefore, the addition made by the AO was not sustainable and was deleted.
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TDS u/s 194I and 194A - non deduction of TDS payment to New Okhla Industrial Development Authority (“NOIDA”) on account of lease rent and on account of interest on lease rent - The Tribunal, following the precedent set by the Delhi High Court and Supreme Court, set aside the matter and directed the Assessing Officer to decide afresh in accordance with the directions provided in the mentioned judgments.
Customs
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Customs officials claim to have received illicit gratification - Clearance of restricted goods without following proper procedures - improper finalization of provisional assessment - The review authority argued that the officials should be penalized for abetting the clearance of restricted goods, but the adjudicating authority disagreed, stating that the evidence did not support such claims. - The Tribunal dismissed the appeal, affirming the adjudicating authority's decision. It emphasized the importance of adhering to the charges outlined in the show cause notice and criticized attempts to introduce new allegations during the appeal process.
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Provisional Release of seized of vehicle - Vehicle sold by the diplomat in breach of conditions of import - bona fide purchaser - liability of paying the entire differential duty and executing a bank guarantee - The High court deliberates on the responsibility and liability of the petitioner in light of the breach of import conditions by the diplomat. While acknowledging the breach, the court considers the petitioner's status as a bona fide purchaser who acquired the vehicle from subsequent owners in India, thereby mitigating the extent of liability imposed on them. - Consequently, the HC modified the conditions for provisional release.
IBC
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Approval of Resolution Plan - Whether the treatment of Income Tax dues in the Resolution Plan where they have been treated as Operational Creditor and offered only Rs. 10 Lacs violates the provision of sub-section (2) of Section 30? - The NCLAT held that, there is no violation of provisions of subsection (2) of Section 30 of the Code with regard to dues of the Income Tax Department.
Service Tax
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Rejection of the application under SVLDRS due to an ongoing investigation and non-quantification of duty as of the cut-off date, June 30, 2019. - The court observed that, summary rejection of an application without affording an opportunity of being heard would fall foul of the principles of natural justice. - The High Court directed the respondents (Revenue) to consider the declaration of the petitioner in terms of the Scheme as a valid declaration under the category of “investigation, enquiry and audit” and grant the consequential reliefs to the petitioner.
VAT
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Seeking review - error apparent on the face of record or not - The High Court held that, these documents were not part of the pleadings. Review does not mean rehearing or appeal. - The Court concluded that there was no error apparent on the face of the record in the original judgment, thus finding no grounds to entertain the review petitions. Consequently, the review petitions were dismissed, upholding the initial ruling that granted specific tax relief to FL3 licensees for the lockdown periods without extending the same considerations to earlier fiscal years.
Case Laws:
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GST
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2024 (2) TMI 1242
Validity of assessment order - non GST supply - alleged mismatch between the GSTR-3B and GSTR-1 returns - indirect income - rent for commercial purposes. Alleged mismatch between GSTR-3B and GSTR-1 returns - HELD THAT:- It is evident that the assessing officer accepted the explanation of the petitioner that there was no mismatch. The finding recorded thereafter that there was short payment of tax under IGST cannot be countenanced on account of the fact that this issue was not raised in the show cause notice pursuant to which the assessment order was issued. As regards this head of liability, it becomes necessary for the assessing officer to issue a fresh show cause notice. Non GST supply - HELD THAT:- The assessing officer recorded that relevant documentary evidence such as invoices, ledger copy, agreement and debit notes were not produced. It is further recorded therein that the taxpayer had wrongly reported the claim under exempted category instead of non GST supplies. Tax liability with interest thereon and penalty should not have been imposed in these circumstances and, if necessary, the petitioner should have been called upon to produce additional documents to establish that it is a non GST supply. Indirect income - HELD THAT:- The last relevant discrepancy relates to payment of rent for commercial purpose. The impugned order records the reply of the taxpayer that tax liability on rental payment to unregistered persons was duly discharged. In light of this submission, the assessing officer should have called for relevant documents before concluding that the petitioner had not discharged tax liability in such regard. Rent for commercial purposes - HELD THAT:- The petitioner is permitted to submit any additional documents within a maximum period of two weeks from the date of receipt of a copy of this order. Upon receipt thereof, the assessing officer is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh assessment order within a maximum period of two months thereafter. The impugned order is quashed and the matter is remanded for re-consideration.
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Income Tax
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2024 (2) TMI 1241
Addition u/s 69A r.w.s. 115BBE - Assessment of trust - unexplained money' - Income consists of voluntary contributions from devotees and followers - Assessee admittedly is a charitable organization under Section 12A and runs a temple and community hall at Bangur Nagar, Goregaon, Mumbai -- ITAT accepted the plea of Petitioner that for assessment year in question Petitioner s total income should be computed as Nil as against amount assessed by the AO HELD THAT:- ITAT has also correctly recorded that Section 69A of the Act was not applicable to the facts and circumstances of this case. So also, the provisions of Section 115BBC of the Act because Sub-section (1) of Section 115BBC will not apply to donations like that has been received by Petitioner in donation boxes from numerous devotees, who have offered the offerings on account of respect, esteem, regard, reverence and their prayer for their deity/siddha peeth. Therefore, the only task that was left for the AO, was to give the refund of the taxes paid. This is because the ITAT has held that there was no income chargeable to tax. We should also observe that it has not been even argued before the ITAT that Section 44AB of the Act was applicable or that the Form 10B was filed after the due date because we do not find any such submissions recorded in the order of ITAT. Notwithstanding this, the AO once again called upon Petitioner to furnish complete set of Form 10B and also to justify why the claim of exemption under Section 11 of the Act be allowed. Strangely, the AO, one Mr. Meet Kumar, who has also filed the affidavit-in-reply, has stressed upon the time limit specified under Section 44AB of the Act ignoring the fact that it was not even argued before the ITAT and it had already been accepted in the original assessment order dated 26th December 2019 that Petitioner was entitled to deductions/ exemptions under Section 11 of the Act. We find it rather unacceptable that the officer has tried to take shelter under a paragraph of the order of ITAT where the Tribunal has only narrated what was the order passed by the CIT(A). Though we would have wanted to make observations against the said officer, we exercised restraint in view of the request made by Department ITAT having accepted Petitioner s plea that for the assessment year in question, Petitioner s total income should be computed as Nil , the only task before the AO was to issue refund to Petitioner of all taxes paid or recovered from Petitioner for AY 2017-2018. Since before the Hon ble ITAT there was no controversy as regards the date of filing of return by Petitioner or Form 10B, the AO cannot, in the garb of giving effect to the order of ITAT, initiate a new controversy. The order giving effect dated 30th November 2023 (impugned in the petition) has to be quashed and set aside. - Decided in favor of assessee.
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2024 (2) TMI 1240
Principal Officer of the company for the purposes of initiating prosecution u/s 276B - default by the company to deposit TDS within the stipulated statutory period - HELD THAT:- As per Section 2(35) of IT Act clause (a), insofar as a company is concerned provides that the Secretary, Treasurer, Manager, or Agent thereof would be liable to be treated as the Principal Officer . Clause (b), however, speaks of a person connected with the management or administration of the company being liable to be treated as the Principal Officer . In our considered opinion merely because a person holds an office in a corporate entity would not be sufficient to place that individual in clause (b). The intention of the respondent to treat an individual as the Principal Officer must be based on it being satisfied that the person was connected with the management or administration of the company. While the respondents have referred to additional material in the counter affidavit and which clearly does not find notice or mention in the impugned orders in support of their contention that the petitioner was correctly identified as the Principal Officer , we find that those averments and assertions clearly travel far beyond what was alleged and asserted in the notices issued originally. Thus for the purposes of an individual being tried, it is mandatory for the respondents to establish that the person was in fact connected with the management and administration of the company. Thus we find ourselves unable to sustain the view as expressed by the respondents in the impugned order - respondents would have to examine the issue afresh bearing in mind the response which had been submitted by the petitioner and upon due inquiry being made with respect to whether the petitioner could be said to be a person connected with the management or administration of the company in question. The answer to the question which stands posited in the backdrop of Section 2(35) would have to be examined afresh and in light of the observations appearing hereinabove. Allow the instant with petition and set aside the impugned order.
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2024 (2) TMI 1239
Settlement application u/s 245C - Disclosure of full and true particulars of the income - Apportioning the undisclosed income in the hands of the petitioner and the Company - Commission, while rejecting the application of the petitioner, has held that the petitioner is the Director and Promotor/ Proprietor and Partner in multiple companies - During the course of search and seizure u/s 132, in the case of the petitioner/group, incriminating material evidencing unaccounted sales by the under-invoicing of sales receipts and collecting a part in cash was found - Commission was of the view that the petitioner had not adduced any reason or basis for apportioning the undisclosed income in the hands of the petitioner and the Company M/s Hailstone Innovations Private Limited during the course of the hearing, and no explanation came forward to explain the difference between the unaccounted sales calculated by the Principal Commissioner of Income Tax on the basis of the seized material and the unaccounted sale computed by the petitioner - Commission concluded that the petitioner had not come before the Board with clean hands and had not offered full and true particulars of his income. HELD THAT:- Section 245C(1) provides disclosure of full and true particulars of the income and the manner in which that income had been derived and apportioned in order to get the settlement. As the conditions prescribed in the provisions of Section 245C(1) have not been fulfilled in the case, the application was rejected by the impugned order. As petitioner submits that the petitioner had filed an objection to the report, and it was not considered by the Settlement Commission. The detailed reply has been placed on record. This Court has gone through the reply, but this Court has been unable to discern the basis for apportionment of unaccounted sales, unaccounted expenditures and unaccounted income between the petitioner and the Company. Thus the petitioner has not approached the Settlement Commission, with his application under Section 245-C, with clean hands and has failed to disclose true and correct facts. The provisions of Chapter XIX-A of the Income Tax Act 1961 are elaborate and provide a detailed mechanism for filing the application for settlement and its disclosure. The assessee is required to file an application under Section 245-C for settlement of disputes by the Income Tax Settlement Commission. Every order of settlement passed under sub-section (4) of section 245-D is conclusive as to the matters stated therein and no matter covered by such order shall, save as otherwise provided in Chapter XIX-A, be re-opened in any proceedings under the Act or under any other law for the time being in force. Section 245-L declares that any proceedings under Chapter XIX-A before the Settlement Commission shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 for the purposes of Section 196 of the Indian Penal Code. Thus, Section 245 provides a complete code and prescribes finality in the orders passed by the Settlement Commission. As incumbent upon the assessee to approach the Settlement Commission with true and full disclosure of income and its sources. PCIT, in his report, has held that the petitioner did not have any basis for apportionment of expenditure and undisclosed income between him and the Company. Despite the opportunity having been granted to the petitioner during the hearing, the petitioner did not explain the basis for apportionment of unaccounted sales, expenditure and income between the petitioner and the Company. Commission has taken a correct view that the petitioner failed to disclose true and correct facts before the Commission in his application and did not approach the Commission with clean hands. No grounds to interfere with the reasoned order of the Commission.
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2024 (2) TMI 1238
TDS u/s 195 - payment for time charter higher charges are Royalty u/s 9(1)(vi) - Non deduction of TDS - CIT(A) held that payments made by the assessee qualified as royalty within the meaning of Section 9(1)(vi) and the assessee was under an obligation to deduct tax at source on such royalty payments - HELD THAT:- The criterion for determining Royalty under the said provision is that the resident should have control and have physical possession over the equipment. The equipment should be under the exclusive possession and control of the resident, in exclusion to others. In the instant case, the assessee has full control over the dredger and the staff and operation of the equipment. From the facts produced we are of the considered view that the right to use the dredger has been transferred to the assessee for the period of lease. The Captain of the ship although appointed by the owners shall work under the orders and directions of the assessee. Once the hired dredger is placed at the disposal of the assessee, the payment to the lessor does not depend on the dredging activity undertaken. Even if the dredger does not work for a single hour, the payment to the lessor would remain constant. Further, the dredger has been given only to the assessee for his exclusive use. Accordingly, the assessee is in effective control of the equipment. As in the case of West Asia Maritime Ltd. [ 2006 (5) TMI 152 - ITAT MADRAS-B ] ITAT held that ship being an equipment under Article 12, hire charges for user of ship partook the character of royalty for use of equipment under provisions of Section 9(1)(vi) and, hence, exigible to tax in India. We are unable to accept the argument of the assessee that the assessee company merely availed the facility of dredger without exercising any possessory rights over it. The assessee has placed reliance on various cases, however, the same are distinguishable on facts and the aforesaid cases as cited read with the plain language of the Statute are clearly applicable to the assessee facts. Thus the payments made by the assessee to M/s. Miller Dredging Company Inc. qualify as Royalty for use of equipments under Section 9(1)(vi) of the Act and the assessee was under an obligation to deduct tax at source as royalty payments at the time of making payments to the non-resident payee. Validity of Order passed u/s 201(1) and Section 201(1A) as barred by limitation - HELD THAT:- In the instant case, the assessee had chosen not to furnish the correct details of the recipient entity (regarding the residential status of the non-resident recipient) and had also not approached the Tax Officer for determination of the correct amount of TDS u/s 195 / 197 of the Act and the assessee had taken the suo moto decision not to withhold taxes on continuous payments being made to the non-resident recipient entity M/s. Miller Dredging Company Inc., being a resident of British Virgin Islands, with whom India does not have a Tax Treaty, without deduction of tax at source for a period spanning over 10 years. We observe that notices under Section 201(1) and 201(1A) of the Act were issued by ADIT on the assessee, following survey proceedings in the case of the assessee. Accordingly, looking into the facts of the instant case and the conduct of the assessee as pointed out by the Ld. CIT(A) for not deducting tax at source on such payments, we are of the considered view that Ld. CIT(A) has correctly held that looking into the instant facts, the aforesaid proceedings are not barred by limitation. Non-deduction of taxes at source were attributable to a bona fide belief on part of the assessee - There is no reason as to why and on what basis the assessee could have formed a bona fide belief that it was not liable to deduct tax at source on the aforesaid payments. This is further coupled with the fact that the assessee was governed by the provisions of the Income Tax Act since the recipient was a tax resident of Virgin Island, with which India did not have a tax treaty. Accordingly, the argument of the assessee that it was under a bona fide belief for non-deduction of tax at source is hereby rejected. Assessee appeal dismised.
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2024 (2) TMI 1237
Revision u/s 263 against deceased assessee - HELD THAT:- Though the notice was served upon the assessee, since deceased, the order of assessment u/s 143(3) r.w.s. 263 of the Act was issued in the name of the deceased, knowing fully well that the assessee already died on 07.06.2017 fact of which was made known to the Ld. AO by and under letter enclosing death certificate of the assessee. The same is also annexed to the paper book filed before us. When the assessee sought for adjournment on 29.09.2017 requesting for some time to represent the matter before the Ld. AO, the Ld. AO should have given further opportunity to bring on record the legal heir of the assessee and to proceed with the matter strictly in accordance with law. The duty incumbent upon the Ld. AO is evidently failed to have been performed in its proper perspective. As the assessment order issued u/s 263 is found to have been issued in the name of the deceased assessee, it is non-est in the eye of law and, thus, liable to be quashed. See KRISHNAAWTAR KABRA L/H OF JAGANNATH RAMPAL KABRA [ 2022 (5) TMI 744 - GUJARAT HIGH COURT] - Decided in favour of assessee.
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2024 (2) TMI 1236
Depreciation on car purchased in the name of the Director - depreciation @15% claim has been disallowed as asset could not be said to be of the company - However, AO allowed deductions for interest on car loan and insurance expenses. - HELD THAT:- As the purchase of a car was made by the appellant company which is also reflected in the books of account of the appellant company and therefore it can be well said that the car is commercially used for the purpose of business of the company and the depreciation thereon cannot be denied; more so, the interest on car loan and car insurance was allowed by the department. Thus, we find that the appellant s case is squarely covered in the case of PCIT vs. Asian Mills (P.) Ltd. [ 2021 (12) TMI 365 - GUJARAT HIGH COURT] following the judgment passed in the case of Mysore Minerals Ltd [ 1999 (9) TMI 1 - SUPREME COURT] we allow depreciation in accordance with law. Appeal of assessee is allowed.
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2024 (2) TMI 1235
Enhanced loss not claimed through revised return of income - Increase in computation of capital loss, claimed at assessment stage only by way of filing a letter instead of revised return of income - HELD THAT:- Hon ble Jurisdictional High Court in the case of Abhinitha Foundation Pvt. Ltd.,[ 2017 (6) TMI 604 - MADRAS HIGH COURT] has finally considered and held that, what emerges from a perusal of the ratio of the judgments cited above, in particular, the judgments rendered by the Supreme Court in the case of Goetze India Ltd. [ 2006 (3) TMI 75 - SUPREME COURT ], and National Thermal Power Co. Ltd.'s [ 1996 (12) TMI 7 - SUPREME COURT ] case, and those, rendered in Ramco Cements Ltd. [ 2008 (12) TMI 413 - PUNJAB AND HARYANA HIGH COURT ] and CIT vs Malind Laboratories P. Ltd. [ 2014 (12) TMI 975 - MADRAS HIGH COURT ] as also the judgments of Sam Global Securities Ltd.'s case [ 2013 (9) TMI 876 - DELHI HIGH COURT ] and Jai Parabolic Springs Ltd.'s case [ 2008 (4) TMI 3 - DELHI HIGH COURT ] that, even if, the claim made by the assessee company does not form part of the original return or even the revised return, it could still be considered, if, the relevant material was available on record, either by the appellate authorities, (which includes both the CIT (A) and the Tribunal) by themselves, or on remand, by the AO. In the instant case, the Tribunal, on perusal of the record, found that the relevant material qua the claim made by the assessee company u/s 80 IB (10) of the Act was placed on record by the assessee company during the assessment proceedings and therefore, it deemed it fit to direct its re-examination by the Assessing Officer. We uphold the order of CIT(A) and dismiss this appeal of Revenue. Validity of Reopening of assessment - notice beyond period of four years - CIT(A) quashing the reassessment proceedings as there was no omission on the part of the assessee to disclose any material fact necessary relating to the assessment of this assessment year during the original assessment proceedings completed u/s. 143(3) of the Act and assessee s case was reopened after expiry of 4 years - HELD THAT:- AO has recorded the reason from verification of balance sheet and the profit declared from the profit loss account, which was subject matter of original assessment proceedings u/s. 143(3) of the Act. From the reason, it is not coming out that what is the failure of the assessee to disclose fully and truly the material facts relating to this assessment year for assessment of the assessee s income, which has escaped assessment. From the reasons recorded in the present case, we could not comprehend what is the failure of the assessee, as there is no mention by the AO in the reasons recorded of any failure of the assessee to disclose fully and truly all material facts for framing of assessment for the relevant assessment year of escaped income. Once this is the position, we are of the view that the assessee s case is fully covered by the proviso to section 147 of the Act and the decision of Hon ble Supreme Court in the case of Foarmer France [ 2003 (1) TMI 101 - SC ORDER ] squarely applies - Decided against revenue. Addition of business income being advance and deposits written off - CIT(A) deleted addition accepting additional evidences - HELD THAT:- Firstly, this information is available before the AO there cannot be any violation of Rule 46A of the Rules. Secondly, it is a fact that this Rs. 2 crores received on account of capital receipt and it cannot be treated as business asset because the amount was received in connection with sale of hotel assets but inadvertently declared by assessee as business income. Since, such amount represents sale consideration against sale of capital asset, it should be adjusted against capital work in progress and it cannot be held as business income. The CIT(A) has rightly deleted the addition. Hence, we confirm the order of CIT(A) and accordingly, the appeal of Revenue is dismissed.
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2024 (2) TMI 1234
Addition of income declared by assessee under Voluntary Disclosure of Income Scheme, 1997 (VDIS, 1997 ) - Relevant year of assessment - HELD THAT:- The fact that VDIS-97 of the assessee was not considered due to the fact that payment was made beyond the time limit prescribed under the scheme. Question in addition of the investment would arise the year of liability is to be determined included investments/purchases/ expenditure for the financial year 1997-98 relevant to assessment year 1998-99 for invoking the provisions of Section 68 of the Act. We noted none of the authorities below have brought out anywhere in the orders that the investments are made in financial year 1997-98 relevant to assessment year 1998-99, whereas assessee has tried to establish the fact that the investments related to earlier assessment years i.e from 1991-92 to 1997-98. We do not agree with the findings of the lower authorities that investments/ purchases/ expenditure were made in the financial year 1997-98 relevant to assessment year 1998-99 except amount declared under VDIS 97 on 26.12.1997. Assessee already tried to establish the fact that these investments were pertaining to previous assessments years 1991-92 to 1997-98. Hence, in our view addition made in the assessment year 1998- 1999 cannot be sustained and accordingly, we delete the addition. This issue of the assessee is allowed. Assessment of income from house property - ALV determination - CIT(A) has given directions to the assessee as well as the AO to adopt annual letting value on the basis of Municipal valuation adopted by Chennai Corporation for rising the rental value - HELD THAT:- We find no infirmity in the findings of the ld. CIT(A) and further direct the AO to adopt the municipal value adopted by Chennai Corporation for assessing rental value. This issue raised by the assessee is dismissed as per above direction. Charging of interest u/s. 234A, 234B and 234C - We find no infirmity in the order of the ld. CIT(A) and direct the AO to charge interest as per the provisions of the Act. This issue raised by the assessee stands dismissed.
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2024 (2) TMI 1233
Accrual of income in India - royalty income - taxability of income in India or not? - AO treated the supply of software as royalty for use of Industrial, commercial, scientific experience - assessee is a tax resident of China and does not have a PE in India - whether the impugned receipts in the hands of the assessee are in the nature of royalty and hence subject to tax in India or business income not taxable in India in the absence of a PE of the assessee in India? HELD THAT:- MG India merely purchases the licensed software (Software) which are embedded in the head unit and fitted into cars for end use by the buyer of the car. In such cases, EULA is signed with the end user to restrict access to rights in the license. The end user signs EULA for use of the licensed software and has no right to copy (except as permitted by the licensed and the Usages Rules), reverse engineer, disassembled, attempt to derive the source code of, modify or create derivative works of the licensed software, any updates or any part thereof (as accepted and permitted by EULA). From the relevant clause of EULA extracted above, it is amply clear that the end user has limited right to use the application quite akin to use of licensed software. MG India merely purchases the Software and acts as a reseller and it is for this reason that it is not a party to EULA. This would not in our view characterize the impugned receipts from supply of Software as royalty income. The payments received by the assessee is for the supply of Software which is a standardized / off the shelf software and not for the use of the copyright or imparting information concerning industrial, commercial or scientific experience and thus would not fall within the scope of Article 12(3) of the India-China DTAA to be taxed as royalty income. The impugned receipts would thus partake the character of business income in the hands of the assessee which is not taxable in India in the absence of PE of the assessee in India. Accordingly, ground decided in favour of the assessee. Levy of Interest u/s 234A is levied only in cases where the assessee does not furnish its return of income or furnishes it after the due date prescribed under section 139 of the Act. The facts on record reveal that the assessee filed its return of income within the prescribed (extended) due date applicable to the relevant AY under consideration. Hence we deem it fit and proper to restore this issue to the file of the Ld. AO for verification as to the filing of date of return viz-a-viz the due date of filing of return for the AY 2020-21 in the light of the CBDT circular ( No. 93/2020/F. No. 370142/35/2020-TPL) and decide it afresh in accordance with law. Levy of Interest u/s 234B - as submitted proviso inserted in section 209(1)(d) of the Act by the Finance Act, 2012 w.e.f. 01.04.2012 would apply only in a scenario where person responsible for deducting tax has paid or credited such income without deduction of tax - HELD THAT:- As relying on Amadeus case[ 2023 (10) TMI 1138 - ITAT DELHI] levy of interest under section 234B of the Act is not called for. Accordingly, interest levied under section 234B of the Act is hereby deleted.
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2024 (2) TMI 1232
Revision u/s 263 - Taxability of unit linked insurance redemption units - AO had re-opened the assessment on the basis that the assessee had claimed accretion amount on surrender of policy - HELD THAT:- Law is well settled that for invoking the provision of section 263, twin conditions are required to be satisfied i.e. that order should be erroneous and prejudicial to the interest of the Revenue. If AO adopts one of the plausible views, in that event, no prejudice would be caused. In the present case, the assessee redeemed units of Bajaj Alliance and claimed it to be capital gain. A specific provision has been inserted in respect of unit linked insurance in section 45 of the Act, making it amenable to capital gain tax. Therefore, looking to the facts of the present case, no prejudice is caused to Revenue. We therefore, set aside the impugned order and restore the findings of AO. The grounds raised by the assessee in this appeal are allowed.
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2024 (2) TMI 1231
Unexplained cash credit u/s 68 r.w.s 115BBE - inflated sales pursuant to demonetization - HELD THAT:- Merely because there was a minor variation in the cash sales during the alleged period compared to previous year would not mean that the assessee has inflated its sales to cover up demonetized currency. During the year under consideration, diwali was on 31.10.2016 and it is common knowledge that in our society, festival runs 15 days after diwali and it is also a common fact that once the demonization was declared by the Hon'ble Prime Minister, there was frenzy in the market and people were purchasing goods they never intended to purchase just to get rid of demonetized currency. For the sake of repetition, the assessee had furnished month-wise purchases, month-wise details, stock register, valuation of closing stock, month wise details of cash sales, copies of VAT returns and not a single defect has been pointed out by the Assessing Officer in these clinching evidences. Since the cash sales have already been offered as income, the same cannot be taxed in the garb of inflation sales to cover up demonetization currency. Allegation of non-mentioning of names of the purchasers - It is not only baseless but without any backing of law as the assessee is not required to keep the names of purchasers for cash sales less than Rs. 2 lakhs and not even one instance has been pointed out by the Assessing Officer where cash sales were more than Rs. 2 lakhs. No merit in the impugned addition made by the AO and also we do not find any merit in the part relief given by the ld. CIT(A). Therefore, we direct the AO to delete the addition - Accordingly, Ground No. 2 with all its sub-grounds is allowed. Disallowance on account of business promotion - HELD THAT:- On perusal of record, we find that business promotion expenses include amount incurred on providing free gifts to customers on purchase of large amount of jewellery items as it is general practice in this line of trade. It is a settled proposition of law that the Assessing Officer should not decide how a business man should do his business. Moreover, all the expenses are supported by bills and vouchers, duly recorded in the books of account. We, therefore, do not find any reason to interfere with the findings of the ld. CIT(A). Ground No. 3 is dismissed. Addition on account of depreciation and car running expenses - HELD THAT:- After considering the facts, we are of the considered opinion that depreciation is a statutory allowance available to the assessee and this is not the first year of claim. Therefore, we do not find any merit in the disallowance of depreciation. Car running expenses are fully supported by bills and vouchers and are incurred towards petrol and regular repair and maintenance of the cars used including insurance premium. We do not find any merit in the disallowance and the ld. CIT(A) has rightly deleted the same, which calls for no interference. Unaccounted stock due to difference in valuation of closing stock - typographical error occurred in the figure of stock details of gold bar as mentioned in the tax audit report which was without decimal point - HELD THAT:- The quantitative figures of purchases, consumption and sales of gold bars were mentioned without the decimal point in the tax audit report, due to which the quantity of closing stock of gold bars differed from the actual quantity of closing stock of gold bars appearing in the books of account. Non-mentioning of decimal value of gold was determined at Rs. 2813.95 crores, which has resulted into an absurd figure. The ld. CIT(A), after appreciating typographical error and after considering reconciliation, deleted the impugned addition. We do not find any error or infirmity in the factual findings of the ld. CIT(A). Accordingly, Ground No. 5 raised by the Revenue stands dismissed.
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2024 (2) TMI 1230
Addition u/s 68 r.w. section 115BBE - unexplained cash deposits in the bank account - CIT(A) confirmed addition without disturbing the book results - HELD THAT:- AO did not accept the source of cash deposited in the month of October to November, 2016 on the basis that there was no historical basis for such deposits. Admittedly, the accounts of the assessee have been accepted by the lower authorities. CIT(A) has confirmed the finding of the AO without disturbing the book results. Under these facts and circumstances of the case, it can be safely inferred that the AO has accepted the sales of the assessee. The natural corollary would be that AO accepted the sales made in cash also. Hence, the source of cash deposits ought to have been treated as explained. AO has not commented on purchases. Undisputedly manufacturing and trading activity would be based on sale and purchase. If the purchases are treated as genuine and stock is also accepted then treating the sales as bogus is not logical. CIT(A) did not advert to submission that no error was found in the stock of the assessee. Once the assessee has recorded the sales in its books and there is no adverse finding qua stock and purchases are made. In my considered view, invoking the provision of section 68 would not be justified. It is not case of inflated purchases but AO treated cash sales being bogus without disturbing the book results. We therefore, hold that authorities below have committed error in making impugned addition without bringing any adverse material in respect of purchases and stock of assessee. Appeal of the assessee is allowed.
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2024 (2) TMI 1229
Revision u/s 263 - 56(2)(x)(c)(B) - FMV purchases exceeds the price of shares - Possibility of two views - PCIT observed that as per the provision of Section 56(2) (x)(c)(B) where a person received any previous year, any property other than immovable property the aggregate fair market value of such property has exceed the purchase consideration is liable to be included in the income of the assessee as income from other source HELD THAT:- The option to adopt either NAV or DCF Method for valuing the shares has been given to an Assessee in the statute itself. When the A.O. has appreciated this option availed by the Assessee, his order cannot be construed as erroneous. From the above, it is observed that it is not a case wherein the Assessing Officer failed to conduct enquiry rather it is the case wherein the AO has conducted an elaborate enquiry and adopted one of the two views which was plausible view. The question would be as to whether in such circumstances the power u/s 263 of the Act would be invoked or not. The above said question is no longer res-integra and the said issue is well settled in several decisions. Further, the Hon ble Supreme Court in the case of Pr. CIT vs. Canara Bank Securities Ltd [ 2019 (10) TMI 1512 - SC ORDER] dismissed the Department s appeal affirming the view taken by the Bombay High Court [ 2019 (2) TMI 2020 - BOMBAY HIGH COURT] wherein the High Court held that the question whether the income should be taxed as business income or has arisen from other source was a debatable issue and the Assessing Officer had taken the plausible view that it was a business income after due enquiries and therefore not open for the Commissioner to take such an order in revision. . Therefore, following the ratio laid down in Malabar Industrial Co. Ltd. [ 2000 (2) TMI 10 - SUPREME COURT] we are of the considered opinion that the impugned order of the Ld. PCIT is found to be erroneous, accordingly, order impugned of the Ld. PCIT is hereby quashed.Appeal filed by the Assessee is allowed.
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2024 (2) TMI 1228
Disallowance u/s 14A - Expenditure incurred on earning exempt income - exempt income earned or not? - HELD THAT:-There was no exempt income was earned during the year, THUS in the absence of exempt income, no disallowance u/s 14A can be made, we find merit on the Ground No. 1. MAT computation - adjustment of rent/lease equalization reserve u/s 115JB of the Act - HELD THAT:- As in the case of CIT Vs. ICIC Venture Funds Management Company Ltd. [ 2015 (1) TMI 1504 - KARNATAKA HIGH COURT] held that lease equalization charges are not covered under any of the Clauses Explanation to Section 115JA (2). Also see M/S. MGF INDIA LTD. [ 2018 (2) TMI 1535 - DELHI HIGH COURT] Lease equalization charges are not to be treated as adjustments needing to be added back while computing book profits, u/s 115JA on account of explanation 1, we allow the Ground No. 2.
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2024 (2) TMI 1227
Penalty u/s. 271(1)(c) for under reporting income - defective notice - as alleged AO has failed to identify whether the proceeding was initiated for concealment or for furnishing inaccurate particulars of income . HELD THAT:- The charge framed by AO to reach at a satisfaction that there is under reporting but not for, either concealment of income or furnishing of inaccurate particulars of income. The argument made by the ld. Senior DR that this is only a terminology to denote concealment, cannot be accepted because the legislature in its wisdom has made amendment in the provisions and instead of provisions of section 271(1)(c) of the Act, now brought in the statute book the provision of section 270A of the Act as introduced by the Finance Act, 2016 w.e.f. 01.04.2017 and applicable for and from 2017-18 i.e., penalty for underreporting or misreporting of income. It means that the AO has not at all applied his mind while initiating penalty and the specific charge is not framed for initiating penalty and hence, the argument of Senior DR that the notice issued u/s. 274 or show-cause notice u/s. 274 of the Act is not a statutory notice but it is a printed format. We cannot agree with the argument of the ld. Senior DR AO has not at all applied his mind or he is in a confused state of mind for that the penalty u/s. 271(1)(c) of the Act for concealment of income or may be furnishing of inaccurate particulars of income because no case is made out for that. Hence, we delete the penalty in all these assessment years. Decided in favour of assessee.
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2024 (2) TMI 1226
Revision u/s 263 - unexplained cash deposits - As per CIT cash deposits in the bank account of the assessee not having been examined by the AO with respect to its source - HELD THAT:- As the assessee had furnished an explanation regarding the source of cash deposit of Rs. 30 lakhs as being out of opening cash balance and out of cash withdrawals made in the month of April and May 2016, evidenced with necessary documentary evidences. What transpires thereafter from the order of the ld. PCIT is that he inferred that the Assessing Officer could not have been satisfied with the reply of the assessee and was not satisfied with the reply of the assessee, but by mistake had failed to make addition on account of this cash deposits AO s view of the cash deposits being duly explained not being a plausible view - We are unable to agree with the above findings of the ld. PCIT. That there were sufficient cash withdrawals for the deposits of Rs. 30 lakhs is not disputed. The judicial view in such circumstances has consistently been that where the cash deposits is explained out of cash withdrawals and there is no case of the Revenue of the cash withdrawn as having been utilized elsewhere, there is no reason for doubting the explanation of the assessee. It is not the case of the ld. PCIT that the cash withdrawn has been utilized elsewhere. Therefore, the acceptance of the explanation offered by the assessee to the Assessing Officer cannot be faulted or for that matter doubted. Onus of explaining the source of cash deposits was not discharged by the assessee - We are not in agreement with the same. The ld. PCIT has himself noted the deposits to have been made by banking channels. There arises, therefore, no question of any doubt regarding their sources which is through transparent sources only. Even otherwise, we failed to understand how the source of these deposits would in any way affect the genuineness of their withdrawals and subsequent re-deposits. Neither has the ld. PCIT demonstrated as to how the source of these deposits effect the genuineness of the subsequent deposits. Therefore, we are not in agreement with this finding of the ld. PCIT. AO by mistake failed to make this addition - There is no basis we find for the same. The assessment order has to be read as it is and there is no scope for drawing any inference or reading between the lines of an assessment order. Once an issue has been shown to be examined during the assessment proceedings and the assessment order does not reveal any addition made on account of the same, it is to be treated as having been accepted by the AO. Nothing can be added or subtracted from a detailed assessment order passed. Further, if it was a mistake by the AO and not having made addition of Rs. 30 lakhs, the AO could very well have exercised his power of rectification of mistake u/s 154 of the Act which has not been done in the present case. Thus we hold that the issue of cash deposits has been duly examined during the assessment proceedings and the AO has arrived at a plausible view of the source of the same having been duly explained from cash withdrawals and opening cash balance duly evidenced with documents, and there is, therefore, we hold that that no error in the assessment order - Decided in favour of assessee.
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2024 (2) TMI 1225
Deduction u/s 80-IA - contracts entered with non- government entities - admission of additional evidences submitted by the assessee - HELD THAT:- As we have admitted the additional evidences, without going into the merits of the additional evidences, we restore the issue before the learned CIT (A) to examine these evidences and decide the issue of allowability of claim of deduction u/s 80IA of the Act with respect to the additional evidences. This is also so for the reason that the disallowance is confirmed for one of the reasons being non-production of the contracts. Disallowance u/s 36(1)(va) - delay in depositing employee s contribution beyond the due dates prescribed under the respective Act - HELD THAT:- This ground is already decided by the learned CIT (A) against the assessee relying on the decision of the Hon'ble Supreme Court in CHECKMATE SERVICES P. LTD.[ 2022 (10) TMI 617 - SUPREME COURT] . In absence of any argument by the learned Authorized Representative, same is dismissed. Levy of Dividend distribution tax (DDT) at the rate of 20.36% u/s 115O - claim of assessee that it should have been levied at the rate of 15% in terms of Article 10 of DTAA between India and Thailand - HELD THAT:- As AR fairly admitted that this issue is decided against the assessee by the Special Bench in case of Total Oil Limited [ 2023 (4) TMI 988 - ITAT MUMBAI (SB) ] where it is held that dividend distribution tax is an additional tax charged on the distributed profits of the company and not on the shareholder. The learned Departmental Representative also agreed with the same. As decision of Total oil Limited [SB] has held that shareholders have nothing to do with the levy of DDT on distributed profits of the company. List of shareholders, their beneficial interest in the dividend and residential status of the shareholder as per DTAA are not produced before us. It has also not been established before us that even otherwise the claim is in time or not and further whether the sources country [India] has to cede its right of taxation or not. Therefore, all these issues remain unexamined at all stages.
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2024 (2) TMI 1224
Additions towards cash deposits u/s. 69A r.w.s. 115BBE in demonetized currency - Addition based on report received from the ADIT (Investigation), Trichy - HELD THAT:- Since, the assessee could able to furnish necessary evidences, including cash book, sales bills and also explained source for cash deposits into bank account in new currency notes, in our considered view, AO is completely erred in making addition towards balance cash deposits u/s. 69A of the Act. Sole basis for the AO to reject cash book filed by the assessee during the course of assessment proceedings, is difference in opening cash in hand as on 27.11.2016 in the cash book maintained by the Cashier and cash book submitted by the assessee during the course of assessment proceedings - Assessee has explained difference in cash balance between two cash books and argued that cash book considered by the Survey Team on 27.11.2016, is a rough cash book maintained by the Cashier at Factory premise, whereas, the cash book submitted by the assessee, is a computer generated cash book which contain total transactions of the assessee. The explanation given by the assessee to explain difference in cash balance as per two cash books is reasonable and acceptable. Decided against revenue. Estimation of returned income - Since, the sales declared by the assessee to the tune of Rs. 1,10,30,000/- has been excluded and made additions under the head income from other sources as unexplained money u/s. 69A of the Act, in our considered view, the cost of purchase to said sales also needs to be excluded. If you exclude sales and corresponding cost of sales from the net profit declared by the assessee, the net profit computed by the CIT(A) by excluding a sum of Rs. 83,94,933/- from net profit declared by the assessee at Rs. 1,98,55,779/-, in our considered view, the net profit computed by the CIT(A) at Rs. 1,14,60,846/- is in accordance with accepted principles of accounting. Therefore, no error in the findings recorded by the CIT(A) to re-compute net profit from business and to be taxable under normal rate of tax, and thus, we are inclined to uphold the findings of the CIT(A) and reject the ground taken by the Revenue.
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2024 (2) TMI 1223
Disallowance u/s 14A r.w.r. 8D - Addition of interest expenditure - assessee has earned exempt income by way of dividend - assessee did not make any suo motu disallowance under section 14A read with Rule 8D - HELD THAT:- When the AO called upon the assessee to explain, why the disallowance u/s 14A r.w.r. 8D should not be made, the submissions of the assessee was that the investments made in subsidiaries and joint ventures are in the nature of strategic investments and not with an intendment to earn exempt income. On a perusal of assessment order, it is very much clear that the AO has recorded reasons/satisfaction, why assessee s explanation is not acceptable and disallowance has to be made under section 14A read with Rule 8D. As fairly well settled that strategic investment in group entities cannot escape the rigours of section 14A read with Rule 8D. It is not a case where the assessee has made any suo motu disallowance, which could have shifted the burden to the AO to record satisfaction to establish that the disallowance made by the assessee is incorrect, having regard to the entries made in the books of account. Therefore, decision in case of Coforge Ltd [ 2021 (7) TMI 346 - DELHI HIGH COURT] would not be apply to the facts of the present appeal. Thus, we are unable to accept assessee s contention that the AO has not recorded any satisfaction, which invalidates the disallowance u/s 14A read with Rule 8D. We find substantial merit in the alternative contention of learned counsel for the assessee that the disallowance under Rule 8D(2)(iii) should be computed with reference to investments giving rise to exempt income during the year and not the entire investment, which might give rise to exempt income in further. AO is directed to recompute the disallowance under Rule 8D(2)(ii) accordingly. Grounds are partly allowed. Disallowance of depreciation on leasehold property claimed as amortization - HELD THAT:- We find, while deciding identical issue in assessee s case in as held as unable to appreciate arguments advanced by that these advances paid are towards advance rent. Even from the terms of agreements, it is not clear as to whether advances paid has been adjusted against future rent or whether these are in the nature of security deposits which are refundable in nature on termination of agreements. Both parties before us have expressed their intention regarding issue being re-adjudicated by assessing officer de novo. Accordingly, we are inclined to set aside this issue to Ld. AO for fresh adjudication. Ld. AO shall investigate upon and take all necessary steps to ascertain true nature of alleged lease premium paid by assessee in the three agreement made as per law. Thus restore the issue to the Assessing Officer for fresh adjudication after providing due and reasonable opportunity of being heard to the assessee. Grounds are allowed for statistical purposes. Disallowance towards static creditors - Commissioner (Appeals), having factually verified that certain creditors have been written off and amounts have been added back to the income in subsequent years and in respect of certain creditors payments have been made, deleted the addition - HELD THAT:- Before us, learned Departmental Representative has failed to bring any material on record to controvert the aforesaid factual finding of learned first appellant authority. That being the case, we decline to interfere with the decision of learned first appellate authority. Ground raised is dismissed. TDS u/s 194J - Disallowance u/s 40(a)(ia) - assessee has paid custody and listing fees to NSE, BSE, NSDL and CDSL - HELD THAT:- The issue is squarely covered by the decision of the Tribunal in assessee s own case in assessment years 2010-11 to 2012-13 wherein the Hon ble Supreme Court concluded that transaction charges paid to BSE by its members does not fall under the category of technical services, and therefore, no TDS is following the ratio laid down by the Hon ble Apex Court in the case of CIT Vs. Kotak Securities [ 2016 (3) TMI 1026 - SUPREME COURT] we hold that the aforesaid nature of payment does not fall within the category of Technical and Managerial fee and accordingly assessee was not required to deduct TDS u/s. 194J. Disallowance on delayed payment of employees contribution to Provident Fund (PF) and Employees State Insurance - HELD THAT:- As fairly submitted by learned counsel appearing for the assessee, the issue is squarely covered against the assessee in view of the decision of Hon ble Supreme Court in case of Checkmate Services Pvt. Ltd. [ 2022 (10) TMI 617 - SUPREME COURT] - Thus, following the ratio laid down by Hon ble Supreme Court in the aforesaid decision, we uphold the disallowance made by the Assessing Officer.
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2024 (2) TMI 1222
Assessment of trust - addition made u/s 115BBC on account of anonymous donations - AO has disallowed the donations of more than Rs. 50,000/- for want of PAN and Bank account statements of donors - HELD THAT:- As it is clear from section 115BBC(3) that the statute does not require the assessee to keep PAN and bank account statement of the donors but requires only maintaining record of identity indicating name and address of the person making contribution/donation. In the case in hand the assessee has furnished the list of donors giving name and address but the AO was not satisfied with the detail furnished by the assessee and asked the assessee to furnish the PAN and bank account statement of the some of the donors where the assessee has not furnished. Thus when section 115BBC(3) does not require specific documents to be maintained by the assessee except maintaining record of identity maintaining name and address then the addition made by the AO is not in accordance with the provisions of section 115BBC of the Act. Thus the addition made by the AO is not sustainable and the same is deleted.- Decided in favour of assessee. Addition u/s 68 on account of unsecured loans - consequential denial of benefit of section 11 - assessee has now contended that entire receipt including the loan in question has been applied for charitable purpose and therefore, no addition can be made on account of unsecured loans - HELD THAT:- As we note that the authorities below have not considered this aspect of the matter as to whether the assessee has applied this amount of loan for charitable purpose and consequently the benefit of section 11 would be available to the assessee of not. Thus we set aside this issue to the record of the AO for proper verification of the relevant fact regarding the utilization of the loan amount as well as details and evidences to be produced by the assessee to satisfy the identity and creditworthiness of the creditors as well as genuineness of the transactions. Decided in favour of assessee for statistical purposes.
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2024 (2) TMI 1221
TDS u/s 194I and 194A - non deduction of TDS payment to New Okhla Industrial Development Authority ( NOIDA ) on account of lease rent and on account of interest on lease rent - HELD THAT:- We observe that the same issue came up for consideration before the Co-ordinate Bench of the Tribunal in own case for AY 2011-12 to 2014-15 which followed the decision of Rajesh Projects (India) Pvt. Ltd.[ 2017 (2) TMI 1109 - DELHI HIGH COURT] of which decision, in turn, has been affirmed by Supreme Court in New Okhla Industrial Development Authority . [ 2018 (8) TMI 1374 - SUPREME COURT] as directed that where result of the amounts have been paid by the petitioners, towards TDS as o coercive process used by the Revenue, the GNOIDA shall make appropri orders to credit/reimburse such payments. It is clarified that GNOIDA shall ensure that reimbursement is made to compensate the petitioners' excess payments; the income tax authorities shall not pursue any coercive methods for recovery of the amounts, or penalty, once the basic liability (with interest, to be paid by GNOIDA) is satisfied. The impugned orders are quashed; the Revenue shall make consequential orders, to give effect to this judgment, after duly hearing the petitioners and those likely to be affected, within 12 weeks from today. Respectfully following the decision of Tribunal (supra), we set aside the matter and restore it to the file of the Ld. AO to follow the directions of the Hon ble Delhi High Court in the decision (supra) and decide it afresh in the light thereof.
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Customs
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2024 (2) TMI 1243
Customs officials claim to have received illicit gratification - Clearance of restricted goods without following proper procedures - improper finalization of provisional assessment - For clearance of goods belonging to the syndicate - cross-fire between importers of mixed hydrocarbon oil and customs administration - Imposition of penalty - confiscation - disciplinary proceedings tantamount to double jeopardy - HELD THAT:- we find that the case for confiscation of the imported goods rests upon mixed hydrocarbon oil having been high speed oil and, it being nobody s case that substitution had taken place at some stage after arrival in India, the finding of the adjudicating authority that the goods were, indeed, high speed diesel would attend upon the goods from the moment of import; consequently, the cause for liability to confiscate was present even upon declaration in the bill of entry that mixed hydrocarbon oil had been imported well before any act, if any, on the bills of entry and assessment thereto by customs officials. In the light of intent of section 112 of Customs Act, 1962, the respondents could not have been charged with contributing, by act of omission or commission, to confiscation of the impugned goods owing to crystallization of liability on the goods with the declaration. As the finding of the adjudicating authority remains unchallenged except to the extent that review has contended that illicit gratification should have sufficed as reason enough to fasten the finding of abetment, we turn to that aspect first. We have perused the relevant portions of the show cause notice comprising the depositions of Mr Kishan Pote and Mr Manish Thakkar, who did admit to some payment having been made over for each container to different levels in the customs hierarchy, but these are general allegations which do not name the respondent-officials as recipients. The other statements, too, are as deficient in specifics though it does appear that payment, if at all, was not made for finalization of provisional assessment. The appeal of the Principal Commissioner of Customs deputed for the purpose by the review committee is glaringly deficient in any factual submission that links the general averments in the depositions to the respondent-officials. The ground now pleaded does not add to the available records but seeks to widen the charge framed in the notice issued to the respondent-individuals. We, therefore, are in full accord with the findings of the adjudicating authority that there is no evidence of any illicit gratification having been received by the respondent-officials for any decision of theirs. We also hold that the attempt to insinuate padding, by invoking of appellate remedies, to a failed proposal is neither legally condonable nor procedurally validated. We do believe that the notice issuing authority would not have been callow enough to confuse section 110A of Customs Act, 1962, operating to enable conditions that permit imposition of redemption fine, with section 18 of Customs Act, 1962 that operates to remove goods from reach of availability for confiscation at the stage of provisional assessment. Therefore, we fail to see any role of the respondent-officials in not retaining the goods to enable collection of redemption fine; the law had already operated to alienate physical confiscation. It does not surprise us that the adjudicating authority found even less cause to consider imposition of penalty on the respondent-officials from such flimsy, and superficial, proposition in the show cause notice. The plea of protection of section 155 of Customs Act, 1962 and double jeopardy had been raised by the officials in their response to the notice and it was incumbent on an adjudicating authority to dispose of all pleas. That he did so is not a fault. That he did so in a manner which has aggrieved the committee of review sufficiently to plead for re-determination in remand proceedings is to accord it gravity beyond that evident from a reading of that portion of the impugned order. The adjudicating authority has not decided on the outcome on such preferential progression and has not concluded therefrom that only this would suffice for dropping of proceedings. As we have premised in relation to plea for statutory protection, the adjudicating authority was obliged to dispose of this plea too. That such disposal may have evinced his sympathy over the initiation of multiple proceedings, or even his conviction that they should not have been, does not alter the lack of any effect on the findings on merit that remain unimpeached for reason of absence of valid challenge in appeal and our own observations supra on the deficiencies in the notice issued to respondent-officials. That the impugned order referred to, and held forth, on the plea of double jeopardy claimed by the respondent-officials without acting upon it is not the deficiency, of not being legal and proper , contemplated in section 129A of Customs Act, 1962 warranting remedial action. Thus , we find no reason to accede to the prayer for the notice to be re-determined in remand proceedings. We also do not find any reasons in the grounds of appeal to modify the order of the adjudicating authority. Appeals are dismissed.
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2024 (2) TMI 1220
Provisional Release of seized of vehicle - Vehicle sold by the diplomat in breach of conditions of import - bona fide purchaser - liability of paying the entire differential duty and executing a bank guarantee - HELD THAT:- Since the importer appears to be from the Embassy of the Lao People's Democratic Republic, and is currently not in India, it is highly unlikely that the Customs Department would be in a position to recover the duty from the original importer. In those circumstances, I am not inclined to accede to the request that the petitioner be permitted provisional release against payment of 50% duty. At the same time, it appears prima facie that the petitioner was a bona fide purchaser who purchased the vehicle not directly from the diplomat who imported it, but after it was transferred to other individuals in India. In those circumstances, it would be onerous and unreasonable to impose the requirement of the execution of a bank guarantee for a sum of Rupees one crore. Thus, W.P. is disposed of by modifying the conditions imposed under the impugned order by deleting the requirement under serial No.3 thereof pertaining to the provision of a bank guarantee for a sum of Rupees one crore. Subject to fulfilment of the two subsisting conditions in the impugned order, the vehicle shall be provisionally released within a period of one week.
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Insolvency & Bankruptcy
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2024 (2) TMI 1219
Approval of Resolution Plan - homebuyers are waiting their units to be given possession for the last several years and by appeal filed by promoters/directors, process is being delayed. First judgment delivered by the Hon ble Supreme Court in respect to CIRP of the Corporate Debtor is the Judgment of the Hon ble Supreme Court in Chitra Sharma Vs. Union of India [ 2018 (8) TMI 661 - SUPREME COURT] - HELD THAT:- In this case, Hon ble Supreme Court exercised its jurisdiction under Article 142 in reviving the CIRP of the Corporate Debtor. Judgment of the Hon ble Supreme Court in Jayprakash Associates Limited Vs. IDBI Bank [ 2019 (11) TMI 316 - SUPREME COURT] - HELD THAT:- Hon ble Supreme Court exercised its jurisdiction under Article 142 of the Constitution of India directing that 90 days extended period be reckoned from the date of the Judgment - Another direction issued in the above case was that the IRP to complete the CIRP process within 90 days and it will be open to the IRP to invite revised resolution plan only from Suraksha Realty and NBCC respectively who were finally bidders and had submitted resolution plan on the earlier occasion. Judgment of Hon ble Supreme Court in Jaypee Infratech Limited Vs. Axis Bank Ltd. [ 2020 (2) TMI 1259 - SUPREME COURT] - HELD THAT:- Hon ble Supreme Court held that approval of the Resolution Plan is exclusively in the domain of the commercial wisdom of the CoC, the scope of judicial review is circumscribed. After noticing the Judgments of the Hon ble Supreme Court which was delivered in the CIRP of the Corporate Debtor and certain background facts, now the question which have been framed are now considered. Whether Appellants have locus to challenge the order dated 07.03.2023 passed by the Adjudicating Authority approving the Resolution Plan of Suraksha Realty? - HELD THAT:- The main reasons for dismissing the appeal has been contained in paragraph 48. The main reason, where the court has observed that one who does not come to a court with clean hand may not get any relief. It was held that conduct of the Appellant in both the appeals is not transparent. In the present case, there are several other facts which need to be noticed. For example, the Appellants were permitted to file objections before the Adjudicating Authority against the resolution plan and their objections were heard on merits, promoter and director was also impleaded as one of the parties in appeal of NBCC, objections of appellants were also noticed by Hon ble Supreme Court in earlier round of litigation that is while deciding Jaypee Kensington Case [ 2021 (3) TMI 1143 - SUPREME COURT] - the appeals of appellant cannot be thrown out on the ground of locus. The limited ground to challenge approval of the resolution plan is that the same is not in conformity with Section 30(2) - the objection of the respondent on the locus is rejected and it is proceeded to examine the submissions raised by the Appellant. Whether the treatment of Income Tax dues in the Resolution Plan where they have been treated as Operational Creditor and offered only Rs. 10 Lacs violates the provision of sub-section (2) of Section 30? - HELD THAT:- The income tax department has itself filed an appeal being C.A.(AT) Ins. No. 549 of 2023 which has been decided on 26.09.2023 where this Tribunal came to the conclusion that there is no violation of provision of Section 30(2)(b) in so far as treatment of the claim of the income tax department is concerned and the order of the Adjudicating Authority not being interfered with in the Appeal, Appellant is not entitled to raise any further issues regarding the dues of the income tax department which has been concluded in the Appeal filed by the Income Tax Department itself. This Tribunal having held that there is no non-compliance of section 30(2)(b) with regard to treatment of claim of the income tax department who is operational creditor, we cannot accept the submission of the Appellant that there is any violation of section 30(2) of the Code with respect to claim of income tax department - there is no violation of provisions of subsection (2) of Section 30 of the Code with regard to dues of the Income Tax Department. Whether the treatment of claim of YEIDA towards farmers' compensation and other claims of the YEIDA being treated as Operational Creditor and having offered only Rs. 10 lacs towards satisfaction of their dues violates provision of subsection (2) of Section 30 of the Code and the Resolution Plan deserves to be set aside on this ground alone? - Whether YEIDA is a Secured Creditor of the Corporate Debtor? - HELD THAT:- The issues pertaining to the claim of YEIDA and their ground to challenge the impugned order approving Resolution Plan are best suited to be examined and decided in the appeal filed by YEIDA where impugned order is under challenge and grounds have been raised - the issues raised by the Appellant need to be examined and considered in the appeal filed by YEIDA and there is no necessity to consider those issues in this appeal which is filed by the Suspended Promoter and Director of the Corporate Debtor. Answer to both the questions is recorded accordingly. Whether the Resolution Plan violates provision of Section 30(2)(e) of the Code in removing the right of subrogation to the guarantors whereas under Indian Contract Act a surety or guarantor has right to subrogation and further upon discharge of principal debtor to repay the debt the liability of surety also gets extinguished? - HELD THAT:- In the facts of the present case, it is not the case of the Appellant that the Corporate Guarantor and Personal Guarantor have paid the dues of the creditor and thus they are entitled to get in the shoes of the principal creditor. On this single ground claim of Section 140, does not subsist. In the present case, debt of the Principal Borrower is being discharged consequent to the Resolution Plan under the IBC - Clause 34.50 is already noticed which expressly takes away the right of subrogation to the Guarantors. The Hon ble Supreme Court had occasion to consider the right to Guarantors consequent to approval of Resolution Plan in IBC in Lalit Kumar Jain vs. Union of India, [ 2021 (5) TMI 743 - SUPREME COURT] . Submission was advanced before the Hon ble Supreme Court that once a resolution plan is accepted, the corporate debtor is discharged of liability. As a consequence, the guarantor whose liability is co-extensive with the principal debtor i.e. the corporate debtor, too is discharged of all liabilities - The Hon ble Supreme Court noted relevant provisions of the Contract Act including Section 141 of the Contract Act. The Hon ble Supreme Court laid down that approval of Resolution Plan and finality imparted to it does not per se operate as a discharge of the guarantor s liability. The law is thus well settled that after approval of the Resolution Plan, the Personal Guarantors and Corporate Guarantors have no right of subrogation especially when in the facts of the present case under Clause 34.50 of the Resolution Plan, right of subrogation is expressly extinguished. The debt against the Corporate Debtor might have extinguished after approval of the Resolution Plan but said consequence shall not be with regard to the Corporate Guarantors and the Personal Guarantors. The same shall be as per the express provisions of the Resolution Plan - there are no substance in submission of the Appellant that debt is extinguished under Section 135 and they have right of subrogation under Section 140 and to receive provision of securities under Section 141, cannot be accepted. Whether the Adjudicating Authority having denied several reliefs and concessions which clearly means that those provisions of Resolution Plan have been disapproved, the Adjudicating Authority ought not to have been approved the Resolution Plan and only course available for the Adjudicating Authority was to send the plan back to the CoC for reconsideration? - Whether the Adjudicating Authority in granting various reliefs and concessions has exceeded the jurisdiction vested in the Adjudicating Authority and by issuing various directions, Adjudicating Authority travelled beyond its jurisdiction and further no direction could have been given to statutory authority as has been directed in the impugned order, which is impermissible? - HELD THAT:- The SRA has prayed for issuance of necessary directions to SEBI, relevant stock exchanges and MCA for expediting the delisting of shares and take necessary actions in a time bound manner as applicable under the prevailing laws in order to implement the Resolution Plan. The above direction is only for the purpose of implementing the Resolution Plan and does not violate any statutory provisions. The use of expression as applicable under the prevailing laws clearly indicate that the SRA is not seeking any relief and concession in violation of any applicable law. The objection raised by the Appellant thus has no merit - The above direction is only to relevant RERA Authority to expeditiously make the appropriate changes in its records qua Projects, in accordance with the Resolution Plan. The said action is necessary consequence to the approval of Resolution Plan. The SRA is not asking any direction which is in violation of any applicable law. Thus, there is no error in granting the above relief by the Adjudicating Authority. The Successful Resolution Applicant has clearly contemplated that the Successful Resolution Applicant will implement the plan whether or not reliefs and concessions are granted - there are no infirmity in the reliefs and concessions granted by the Adjudicating Authority. As noted above, the fact that certain reliefs and concessions have not been granted could have not adverse effect on validity of the Resolution Plan or it can be said that any illegality has been crept in the Resolution Plan on the above ground. Whether Resolution Plan take into consideration 758 acres of land which became available to the Corporate Debtor consequent to allowing the avoidance application and subsequent to the judgment of the Hon'ble Supreme Court [ 2020 (2) TMI 1259 - SUPREME COURT] ? - HELD THAT:- The judgment of Hon ble Supreme Court in Anuj Jain Vs Axis Bank Ltd. [ 2020 (2) TMI 1700 - SUPREME COURT] was delivered before approval of the Resolution Plan on 03.03.2020. From judgment of Jaypee Kensington of the Hon ble Supreme Court it is noticeable that even in NBCC s plan relief was sought with regard to 858 acres of land. Both the Resolution Applicants were thus well aware about order of the Hon ble Supreme Court dated 26.02.2020 and there was no occasion for not including the said land which was available for the kitty of the Corporate Debtor after release of encumbrances - there are no substance in submission of the Appellant that 758 acres of land has not been included in the plan submitted by Suraksha Realty. Whether applicants who have been permitted to intervene in the appeal are entitled for any relief? - HELD THAT:- It is well settled that interveners by the I.A. cannot claim any relief for themselves. Interveners are either to support the order which is subject matter of challenge or support the Appellant in their challenge. The Applicants who have filed their claims before the IRP and whose claims are reflected are fully entitled to approach the SRA/Monitoring and Implementation Committee for their entitlement, for which they are entitled as per the Resolution Plan. There are no ground in these appeals to interfere with the impugned order dated 07.03.2023 passed by the Adjudicating Authority at the instance of the Appellants - appeal dismissed.
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Service Tax
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2024 (2) TMI 1218
Rejection of the application filed by the petitioner, claiming the benefit of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - application rejected, essentially, on the ground that as on the cut-off date, that is, 30.06.2019, the investigation was pending and the amount of duty involved was not quantified - whether the service tax payable by the petitioner had been quantified in terms of Section 121(r) of the Finance Act (No. 2), 2019 prior to 30.06.2019? - HELD THAT:- This Court in HANSUTTAM FINANCE LIMITED VERSUS PRINCIPAL COMMISSIONER OF CENTRAL EXCISE, GOODS AND SERVICE TAX, DELHI SOUTH COMMISSIONERATE ORS. [ 2023 (5) TMI 812 - DELHI HIGH COURT] had analysed the object of the Scheme and held The impugned order rejecting the petitioner s declaration on the ground that investigation has not been concluded and hence the demand has not been estimated or concluded on or before the stipulated date is unsustainable. The Scheme does not exclude taxpayers in respect of whom investigations have not been concluded; it expressly includes taxpayers in respect of whom investigation, enquiry or audit is pending. This court held that in cases where an inquiry, audit or investigation is pending, the quantification of the tax dues can be ascertained from the written communication. It is not necessary that the written communication, in which the amount of duty payable is quantified must emanate from the concerned tax department. The said amount of tax dues can be ascertained from the written communication emanating from the taxpayer as well subject to the same being part of the record. The unilateral communication, which is disputed and is not accepted by the department, however, cannot be considered as quantification of tax due. On 15.03.2019, the petitioner had provided the computation sheet which quantified the tax dues payable by the petitioner for the concerned period. In terms of the law laid down by this Court, the said communication qualifies as written communication quantifying the tax dues, albeit emanating from the petitioner. There is no material dispute as to this quantification. The Revenue has, in fact, accepted the calculation of the tax dues furnished by the petitioner. Thus, for the purposes of Section 123(c) read with Section 121(r) of the Act, the tax dues stand quantified in terms of a written communication of the amount of duty payable under the indirect tax enactment; as an admission of liability in a written communication for the purpose of Section 123(c) read with Section 121(r) of the Scheme in the Finance Act (No. 2), 2019. This is not a case where the department is not in agreement with the quantification as provided by the petitioner - the demand made in the Show Cause Notice is based on the documents provided by the petitioner, which includes the revised calculations. The said calculations have not been questioned. The legislative intent underlying the enactment of the Scheme was to include all taxpayers for offloading the baggage of disputes. All taxpayers, except those which were specifically excluded, were entitled to avail the benefit of the said Scheme. The Scheme also covered cases where no disputes were pending and enabled the taxpayers to voluntarily pay taxes and avail amnesty under the Scheme - it is clear that the tax dues had been quantified as required under Section 121(r) of the Finance Act (No. 2), 2019. The Division Bench of Bombay High Court in the case of THOUGHT BLURB VERSUS UNION OF INDIA AND ORS. [ 2020 (10) TMI 1135 - BOMBAY HIGH COURT] had examined the legislative intent of the Scheme and had held that a summary rejection of an application without affording an opportunity of being heard would fall foul of the principles of natural justice. The respondents are directed to consider the declaration of the petitioner in terms of the Scheme as a valid declaration under the category of investigation, enquiry and audit and grant the consequential reliefs to the petitioner. While doing so, the respondents shall provide an opportunity of hearing to the petitioner and thereafter, pass a speaking order with due communication to the petitioner - Petition allowed.
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CST, VAT & Sales Tax
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2024 (2) TMI 1217
Validity of recovery certificate dated 12.6.2019 issued by the respondent No. 3 - refund the amount of advertisement tax paid in advance by the petitioner - HELD THAT:- The interest of justice would be subserved if the interim order dated 05.08.2019 is continued till the disposal of the writ petition. Since the matter is remanded to the High Court, the parties are directed who are represented by their respective counsel to appear before the High Court on 11.03.2024 without expecting any separate notices from the High Court and bring to the notice of the concerned Roster Bench the remand of the matter so that it could be considered and disposed of expeditiously as possible. With the cooperation of the parties it is expected that the High Court will dispose of the matter as expeditiously as possible. Appeal disposed off.
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2024 (2) TMI 1216
Seeking review - error apparent on the face of record or not - rate of tax on Bar attached Hotels and shops - HELD THAT:- Review jurisdiction is to be exercised in a very limited manner where there is an error apparent on the face of the record. This Court has considered each and every document and the submissions while rendering the Judgment in SREEVALSAM RESIDENCY, M/S. SNEHA REGENCY, A UNIT OF KOLLENGODE HERITAGE HOTELS TOURISM PVT. LTD., M/S HOTEL JEENA AND UDAYA BAR, HOTEL ZODIAZ INTERNATIONAL, SAMS PROPERTY DEVELOPERS AND HOTELS P LTD, DAHLIA TOURIST HOME, VERSUS STATE OF KERALA, STATE TAX OFFICER, COMMISSIONER, KERALA STATE GST DEPARTMENT, STATE TAX OFFICER (ARREAR RECOVERY) AND OTHERS [ 2023 (12) TMI 109 - KERALA HIGH COURT] . Furthermore, these documents were not part of the pleadings. Review does not mean rehearing or appeal. There has to be finality to a litigation. This Court, based on the submissions, documents and evidences, has rendered the Judgment sought to be reviewed. There are no error apparent on the face of the record which warrants this Court to reconsider this Judgment under review. There is no substance in these review petitions - petition dismissed.
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