TMI Tax Updates - e-Newsletter
March 10, 2022

Case Laws in this Newsletter:

GST Income Tax Customs Corporate Laws Insolvency & Bankruptcy PMLA Service Tax Central Excise CST, VAT & Sales Tax Indian Laws

Articles

• MERE REPRESENTATION DOES NOT EXTEND LIMITATION

News

• India and Canada to hold 5th Ministerial Dialogue on Trade and Investment (MDTI)

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• Cabinet approves setting up of National Land Monetization Corporation as a Special Purpose Vehicle (SPV) for undertaking surplus land monetization

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• Prime Minister addresses Plenary Session of Post-Budget webinar on ‘Financing for growth and aspirational economy’

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• Repayment of ‘PLI GOI SPL FRS 2022’

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• ICD Tughlakabad Import, Delhi Customs, dedicates “Drishti se Shristi” Swachhta project as a contribution towards women empowerment and self-dependence of visually challenged and differently-abled young women and men

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Notifications

Customs

• 15/2022 - dated 8-3-2022 - Cus (NT)
  Fixation of Traiff Values - Edible Oils, Brass Scrap, Poppy Seeds, Areca Nut, Gold and Sliver etc, (including Crude Palm Oil, RBD Palm Oil, Others)

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DGFT

• 60/2015-20 - dated 9-3-2022 - FTP
  Amendment in Policy condition of Sl.No. 55 & 57, Chapter 10 Schedule-2, ITC(HS) Export Policy, 2018

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• 59/2015-20 - dated 9-3-2022 - FTP
  Amendment in import policy and insertion of policy condition under Chapter 29 and 38 of ITC (HS), 2022, Schedule – I (Import Policy)

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GST - States

• 22/2021 – State Tax (Rate) - dated 4-3-2022 - Jharkhand SGST
  Seeks to supersede notification 15/2021 – State Tax(Rate), dated the 2nd February, 2022 and amend Notification No 11/2017- State Tax (Rate), dated the 29th June, 2017

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• 21/2021 – State Tax (Rate) - dated 4-3-2022 - Jharkhand SGST
  Seeks to supersede notification 14/2021-State Tax (Rate), dated the 02nd February, 2022 and amend Notification No 01/2017- State Tax (Rate), dated the 29th June, 2017

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• 20/2021 – State Tax (Rate) - dated 4-3-2022 - Jharkhand SGST
  Amendment in Notification No. 21/2018-State Tax (Rate), dated the 17th August, 2018

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• 19/2021-State Tax (Rate) - dated 4-3-2022 - Jharkhand SGST
  Amendment in Notification No. 2/2017- State Tax (Rate), dated the 29th June, 2017

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• 18/2021 – State Tax (Rate) - dated 4-3-2022 - Jharkhand SGST
  Amendment in Notification No. 1/2017-State Tax (Rate), dated the 29th June, 2017

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• 01/2022—State Tax - dated 8-3-2022 - Maharashtra SGST
  Seeks to implement e-invoicing for the taxpayers having aggregate turnover exceeding ₹ 20 Cr from 01st April 2022.

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• 01/2022 State Tax - dated 2-3-2022 - Manipur SGST
  Seeks to implement e-invoicing for the taxpayers having aggregate turnover exceeding ₹ 20 Cr from 01st April 2022.

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• 21/2021 State Tax - dated 23-12-2021 - Manipur SGST
  Seeks to notify 01.01.2022 as the date on which the provisions of section 108, 109 and 113 to 122 of the Finance Act, 2021 shall come into force.

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SEBI

• S.O. 1026 (E) - dated 8-3-2022 - SEBI
  Amendment in Notification No. S.O. 195(E) dated 09.03.1992

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• S.O. 1025 (E) - dated 8-3-2022 - SEBI
  Amendment in Notification No. S.O. 147(E) dated 21.02.1992

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Circulars / Instructions / Orders

GST - States

• 19/2021-GST - dated 24-2-2022
  Clarification in respect of refund of tax specified in section 77(1) of the DGST Act and section 19(1) of the IGST Act

Highlights / Catch Notes

GST

• Seeking grant for regular bail - issuance of invoices only, without any actual supply of goods - The applicant has been arrested on 01.09.2021. - The Commissioner is empower to recover the due amount and propose for abating the proceedings and as the trial will take its own time to conclude, this Court finds this to be a fit case where discretion could be exercised in favour of the applicant - HC
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• Concessional rate of GST - works contracts - execution of works for Telangana State Industrial Infrastructure Corporation Limited (TSIIC) - Government entity or not - the benefit of concessional rate of GST @12% is not available - the supply of this service is taxable at the rate of 9% under CGST & SGST each. - AAR
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Income Tax

• Addition u/s 43B - deduction of payment of electricity duty disallowed - while it may be correct to say that the Assessee ‘paid’ the amount in dispute, it paid it only into an account from which the State Government could not withdraw the amount. - the net result is no different from the kind of payment made by the Assessee in the aforementioned two cases by furnishing bank guarantees in lieu of such disputed payment of duty.- HC
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• Stay of demand - pre-deposit of 20% of the demand - This proceedings issued by the assessing authority is in tune with Section 220(6) of the Act. Therefore, the petitioner need not construe that such insisting of 20% of the demand is a pre-deposit required for entertaining the appeal under Section 246A of the Act, but it is only a condition imposed by the assessing authority for grant of stay for the remaining amount of the demand under Section 220(6) of the Act. Therefore, for that reason the petitioner cannot once again challenge the impugned assessment order before this Court invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. - HC
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• Denial of exemption u/s.11 - the assessee actually pursued only the objects as classified in categories (a) to (c). viz., Medical Relief to the poor patients, Education to the deserving students and Relief to the needy sections of the society and hence shied away from taking up any of the objects in category (d), viz., advancement of any other object of general public utility. Once this is the position, it becomes explicitly clear that the proviso to section 2(15), which attracts only when objects of the category (d) above are pursued, did not trigger in the instant case. - AT
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• Addition of Bad and Doubtful Debts Reserve (BDDR) for earlier years written back in the year under consideration - when there is no deduction claimed in the computation of total income on account of BDDR and its reversal in subsequent year i.e. involving present A.Y. 2014-15 under consideration does not warrant any addition, meaning no tax on the reversal of BDDR in the subsequent year. - AT
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• Disallowing interest u/s. 36(1)(iii) - CIT(A) allowed the claim - AO is drawing adverse inference that assessee has not submitted the utilization of the overdraft in the earlier years. We note that this is not the case, where AO has any power to reopen the case of earlier years or that the AO has stepped into the shoes of ld. CIT and is exercising jurisdiction u/s 263 and that also for earlier year. No cogent rebuttal has been given on behalf of the revenue against the finding given by ld. - AT
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• Income accrued or deemed to accrue or arise in India - Royalty - the BREW Operator Software agreements - an application development platform - The royalty from BREW operator agreement is not chargeable to tax in the hands of the assessee and also the revenue received under the test tools agreement - AT
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Customs

• Entitlement for benefit of exemption Notification - appellants themselves have classified their product under CTH 2711 1300 of the Customs Tariff Act. - While filing the provisional Bills of Entry, no protest was made with regard to classification of their product i.e. LPG. Therefore, at this juncture, the issue of classification cannot be raised to get the benefit of the above cited Notifications. - AT
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• Smuggling - Gold Bars - Gold Biscuits - Admittedly it is a case of town seizure. Out of the 5 gold bars and 1 cut piece seized, there is foreign marking – ‘rand refinery’ only on one gold bar. There is no such foreign marking admittedly on the other pieces recovered and seized. Thus, in absence of any evidence brought on record as to the allegation of smuggling, the provisions of Section 123 of the Act are not attracted in the case of other 4 pieces and the cut piece of the gold bar seized - Section 123 is attracted only in the case of one gold bar having foreign marking - AT
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Central Excise

• CENVAT Credit - transfer of Generator set after use by the appellant to its sister concern where the value has been assigned to that transfer - applicability of Rule 3(5A)(a) of the CCR, 2004 - The question of adjudication stands answered in affirmative i.e. Rule 3(5A) (a) the proviso thereof is applicable to the impugned transaction of the generator set after use by the appellant from one unit to another. - AT
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• Refund of unutilised CENVAT Credit - barred by time limitation or not - appeal filed before wrong forum - The refund claim filed by the appellant is in time - As both the authorities have not dealt with the merits of the claim of refund, in these circumstances, the impugned order is set aside and matter remanded to the adjudicating authority to entertain the claim on merits - AT
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VAT

• Validity of assessment order - rectification of mistake - error apparent on the face of record - The petitioner has not claimed that the original invoice has already been produced before the Revenue. What is stated by the petitioner is that, the petitioner has traced the original invoice and it is readily available with them to produce the same - this Court has no hesitation to hold that the impugned order does not survive under the legal scrutiny. - Matter restored back - HC
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• Rectification of mistake - apparent error on the face of record or not - While the Section 84 application was pending consideration, without deciding the same by passing express order in this regard, the respondent Revenue cannot proceed further to make a demand on the original assessment. Therefore, this Court has no hesitation to hold that the present demand dated 27.02.2019 is infirm and therefore, it is liable to be interfered with. - HC
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Case Laws:

• GST

• 2022 (3) TMI 396
  Seeking grant for regular bail - issuance of invoices only, without any actual supply of goods - receiving and passing of fraudulent ITC to their buyers by way of creating a chain of bogus firms, without physical receipt and supply of goods - compounding of offences - section 138 of NI Act. HELD THAT:- Section 132(1)(i) provides for punishment as that in cases where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken exceeds five hundred lakh rupees, with imprisonment for a term which may extend to five years and with fine; and section 132(2) provides that, where any person convicted of an offence under this section is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to five years and with fine - Section 138 of the Act makes provision for compounding of offences under the Act, even after the institution of prosecution, on payment by the person accused of the offence, such compounding amount in such manner as may be prescribed. The compounding shall be allowed only after making payment of tax, interest and penalty involved in such offences, on payment of compounding amount as may be determined by the commissioner, the criminal proceeding already initiated in respect of the said offence shall stand abated. The Commissioner is empower to recover the due amount and propose for abating the proceedings and as the trial will take its own time to conclude, this Court finds this to be a fit case where discretion could be exercised in favour of the applicant - applicant is ordered to be released on regular bail on executing a personal bond of ₹ 1,00,000/- with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions imposed. Application allowed.

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• 2022 (3) TMI 395
  Constitutional validity of Section 16(2)(c) of Central Goods and Service Tax Act, 2017 and Rule 86A of the Central Goods and Service Tax Rules, 2017 - validity of SCN - HELD THAT:- This petition so far as to relates to challenge to validity of notice (Annexure P/3) has rendered infructuous. So far as constitutional validity of Section 16(2)(c) of Central Goods and Service Tax Act, 2017 and Rule 86A of the Central Goods and Service Tax Rules, 2017 is concerned, same is already under challenge before other High Courts. In view of the aforesaid, no cause survives now - Petition disposed off.

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• 2022 (3) TMI 394
  Concessional rate of GST - works contracts - execution of works for Telangana State Industrial Infrastructure Corporation Limited (TSIIC) - Government entity or not - GST at 12% as prescribed in of S. No. 3 (vi) of the Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017, as amended or not - appropriate rate and classification of GST - HELD THAT:- TSIIC being wholly owned by Government of Telangana qualifies to be a Government entity under this definition. The Memorandum of Association of TSIIC at clause III(a)(3) clearly states that the company pursues the objectives to implement the schemes of incentives, subsidies and the like formulated by the Government of Telangana or Government of India or other authorities or institutions and to administer such schemes of incentives from time to time in the interest of establishments and development of industries. Thus TSIIC organization works to further the policies of the State Government, Central Government and Local Government for development of industries in the State of Telangana - the works contract executed by the applicant for construction of IT towers for TSIIC falls under exception to Sr No. 3(vi) of Notification No. 11/2017-CT (Rate) wherein the civil structure is meant for commerce/industry or any other business and therefore the supply of this service is taxable at the rate of 9% under CGST SGST each.

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• 2022 (3) TMI 393
  Classification of supply - supply of goods or supply of services or supply of goods and services - applicability of Entry No 2 of the N/N. 12/2017‐ Central Tax Rate dated 28.06.2017 - HELD THAT:- In terms of clause (a) of section 95 of the GST Act, an advance ruling means a decision provided by this Authority or the Appellate Authority, as the case may be, on matters or on questions specified in sub-section (2) of section 97 or sub-section (1) of section 100 of the GST Act in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant. In the instant case, the questions on which the applicant seeks advance ruling are not in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant rather it is found to be in relation to supply being received by him. This Authority cannot provide a decision to the applicant in the form of an advance ruling and the instant application is, therefore, liable for rejection - application is rejected in terms of sub-section (2) of section 98 of the GST Act.

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• 2022 (3) TMI 392
  Seeking grant of Bail - Ineligible/fake Input Tax Credit - conspiracy with the firms for the purpose of availing and passing on ineligible ITC - different transactions taking place without any actual supply of goods/services - HELD THAT:- In this case, Ld. SPP for CGST has not disputed the grant of bail to the other co-accused as argued by Ld. Defence counsel. The involvement of accused has not been shown directly in the firms, who were involved in the availment of fraudulent ITC claims. Moreover, the person who availed the entire ITC is already on anticipatory bail. Accused is already in custody since 09.02.2022, his statement u/s 70 already been recorded, investigation qua him is no more pending against him. Co-accused who were arrested and having the direct involvement in commission of the offence already been enlarged on bail. No purpose would be served to keep the accused behind bar, accordingly accused Mukesh Gupta is admitted on bail on furnishing personal bond in the sum of ₹ 5,00,000/- alongwith one surety in the like amount to the satisfaction of Ld. MM/Duty MM concerned subject to satisfaction of conditions imposed - application allowed.

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• Income Tax

• 2022 (3) TMI 391
  Valuation of mark-to-market loss as on 31st March, 2008 - HELD THAT:- A Division Bench of this Court in Commissioner of Income Tax 16, Mumbai vs. D. Chetan Co. [ 2016 (10) TMI 629 - BOMBAY HIGH COURT] has held that so long as it is not a case of speculative transaction and the loss incurred was of forward contract in the regular course of business, the loss incurred as forward contract should be allowed as business loss. Addition u/s 14A r.w.r. 8D - investment of shares and securities held as stock in trade - HELD THAT:- Tribunal has followed a judgment of this Court in Commissioner of Income Tax - 9 vs. India Advantage Securities Ltd. [ 2015 (6) TMI 140 - BOMBAY HIGH COURT] to hold that the provisions of Section 14A read with Rule 8D will not be applicable to investment of shares and securities held as stock in trade. Nothing is placed to indicate, as to why this judgment of the Bombay High Court was not applicable to the facts in hand. No interest is disallowable under Rule 8D2(ii) as assessee has more interest free funds than the investments - ITAT has accepted that the assessee has demonstrated that the interest income earned during the relevant previous years far exceeds the interest expenditure. The ITAT has also relied upon a judgment of this Court in Commissioner of Income Tax 2, MumbaI vs. HDFC Bank Ltd. [ 2014 (8) TMI 119 - BOMBAY HIGH COURT] where the Court held that where assessee s own funds and other interest bearing funds were more than investment in tax free securities, order passed by Assessing Officer disallowing a part of interest demand under Section 14A has to be set aside. There is nothing to indicate why this judgment is not applicable to the facts and circumstances of the case. Tribunal has not committed any perversity or applied incorrect principles to the given facts and when the facts and circumstances are properly analysed and correct test is applied to decide the issue at hand, then, we do not think that questions as pressed raise any substantial question of law

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• 2022 (3) TMI 390
  Addition u/s 43B - deduction of payment of electricity duty disallowed - the Assessee paid the amount in dispute, it paid it only into an account from which the State Government could not withdraw the amount. - as argued the said sum is a crystallized liability and deposited in a no lien account pursuant to the directions of the Hon ble Orissa High Court - HELD THAT:- In the present case, while the Assessee may not have furnished a bank guarantee, its deposit of the disputed electricity duty amount in a no-lien/escrow account was only to ensure that during the pendency of the litigation the said disputed amount is not in fact paid directly to the State Government. Therefore, the net result is no different from the kind of payment made by the Assessee in the aforementioned two cases by furnishing bank guarantees in lieu of such disputed payment of duty. In all three instances, therefore, the requirement of Section 43 B of the Act is not satisfied. - Decided against assessee. Expenditure incurred on foreign travel of Directors of the Appellant disallowed - whether same has been undertaken wholly and exclusively for the business of Appellant Company? - HELD THAT:- While the names of the cities, the names of the Directors and the amount spent on each of them were specified there were no further details furnished to indicate that the expense was for purely business purposes. The AO was not, in the considered view of this Court, acting unreasonably in concluding that in the absence of better particulars to substantiate the claim that it was only for business purposes, it could not be wholly allowed. In the circumstances, disallowing 20% thereof cannot be held to be improper or legally impermissible. Since the claim of the Assessee was that the expenses of wholly and exclusively for the business of the Assessee, and for no other purpose, it was incumbent on the Assessee to discharge the burden of substantiating that fact. In the considered view of the Court, the Assessee cannot be said to have discharged said burden satisfactorily.- Decided against assessee.

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• 2022 (3) TMI 389
  Deduction u/s 80IB - ownership of the land - As per revenue assessee was not the owner of the land when development work took place, assessee is not entitled to the benefits of Section 80IB(10) - HELD THAT:- Whether the proviso to Section 80IB of the Act requires that ownership of the land would be a condition precedent for developing housing project has been considered by the Hon ble Gujarat High Court in Commissioner of Income Tax vs. Radhe Developers [ 2011 (12) TMI 248 - GUJARAT HIGH COURT ] wherein as rejected the argument of Revenue that in order to receive benefit under Section 80IB(10) of the Act requirement of ownership of the land must be read into the statute. - No substantial question of law.

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• 2022 (3) TMI 388
  Issuance of 'Lower / Nil Deduction Certificate' u/s 197 - due to some technical issues on TRACES Portal, approval could not be uploaded on the Portal - HELD THAT:- Respondents further states on instruction that approval is likely to be uploaded on TRACES Portal today itself, latest by Friday. Appellant submits that in view of categorical statement made by the Respondents in the counter affidavit and submission by learned counsel for the Respondent on instructions, grievances of the petitioner appear to have been redressed. Let the e-mail containing instruction be taken on record. Having regard to the specific stand of the Respondent relating to issuance of 'Lower Deduction Certificate' u/s 197 of Income Tax Act, 1961, it appears that the grievances of the petitioner have been satisfied. Writ petition is accordingly disposed of.

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• 2022 (3) TMI 387
  Assessment u/s 144B - HELD THAT:- On going through the impugned order of respondent No.1 dated 16.12.2021, we are of the view that the said order is devoid of reasons. Petitioner was required to be heard, and there should be due application of mind before a decision is taken on the prayer for stay. Impugned order dated 16.12.2021 does not indicate or disclose any application of mind on the part of respondent No.1 in considering the prayer of the petitioner. It is well settled that recording of reasons is essential while dealing with such prayers made by an assessee. We set aside the order dated 16.12.2021 and remand the matter back to respondent No.1 for taking a fresh decision within a period of thirty (30) days from the date of receipt of a copy of this order in accordance with law by affording an opportunity of hearing to the petitioner. Since we have set aside the order of respondent No.1 dated 16.12.2021, we direct respondent No.5 and respondent No.6 to withdraw the attachment of bank accounts and APT Online account respectively of the petitioner forthwith. We make it clear that we have not expressed any opinion on merit as well as on the prayer for stay. All contentions are kept open.

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• 2022 (3) TMI 386
  Stay of demand - Whether there is any pre-condition insisting the petitioner to make a pre-deposit of 20% of the demand, as that condition has not been imposed under Section 246-A? - HELD THAT:- Once the appeal is filed, during the pendency of the appeal, it is open to the assessing authority to make a demand. In order to avoid to make the payment of the demand, one provision is available under the Act ie., Section 220(6) of the Act, under which the assessee can approach the assessing authority where he can seek for stay of the demand. If any such application is filed, the same shall be decided by the assessing authority at his discretion, of course imposing certain conditions, depending upon the facts and circumstances of the case. Here in the case in hand, though such an application is not filed by the petitioner, the assessing authority, suo-motu issued the communication dated 30.12.2021 directing the petitioner to pay 20% of the demand and further directed the petitioner to file application to seek stay of the remaining 80% of the demand. This proceedings issued by the assessing authority is in tune with Section 220(6) of the Act. Therefore, the petitioner need not construe that such insisting of 20% of the demand is a pre-deposit required for entertaining the appeal under Section 246A of the Act, but it is only a condition imposed by the assessing authority for grant of stay for the remaining amount of the demand under Section 220(6) of the Act. Therefore, for that reason the petitioner cannot once again challenge the impugned assessment order before this Court invoking the extraordinary jurisdiction under Article 226 of the Constitution of India. Therefore for all these reasons, this Court is not inclined to accept the prayer as sought for in this writ petition. Accordingly, the writ petition fails and it is dismissed. This dismissal shall not preclude the petitioner to make an application under Section 220(6) of the Act to the assessing authority in tune with the communication dated 30.12.2021 and if any such application is filed, the assessing authority shall consider the same and decide it at his discretion by imposing any condition, by taking into account the financial condition and other aspects of the petitioner being a Cooperative Society and pass orders thereon.

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• 2022 (3) TMI 385
  Reopening of assessment u/s 147 - operation of Section 148A - Effect of COVID pandemic and lock down - Extension of provisions of Section 148 which was prevailing prior to the amendment of Finance Act, 2021 - whether notice issued to the petitioner on 30.03.2021 under Section 148 without following the procedure under Section 148A without giving an opportunity of hearing would be illegal and contrary to the provisions of Section 148A and it cannot be sustained? - application of old provisions of Section 148 of the Income Tax Act was extended initially uptill 30th April, 2021 and thereafter was further extended uptill 30th day of June, 2021 - HELD THAT:- Under the circumstances by the notifications the operation of Section 148 of the Income Tax Act was extended, thereby deferment of Section 148A was done. It was done by the Ministry of Finance by way of conditional legislation in the peculiar circumstances which arose during the pandemic and lock down and Central Government can not be said to have encroached upon turf of Parliament. Notifications would show that they were issued in exercise of power conferred under the Taxation and other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 and time for issuance of notice under Section 148, the end date was initially extended uptill on 30th day of April 2021 and subsequently again by notification dated 27th April, 2021 the time limit of 30th day of April 2021 was further extended up till 30th day of June, 2021. By effect of such notification, the individual identity of Section 148, which was prevailing prior to amendment and insertion of section 148A was insulated and saved uptill 30.06.2021. The pandemic and lock down prevailed all over India. The people could not file their returns or comply with the various mandates of Income Tax Act. Considering such situation for the benefit of the assessee and to facilitate the individual to come out of woods the time limit framed under Income Tax Act was extended. Likewise certain right which was reserved in favour of the Income Tax Department was also preserved and was extended at parity. Consequently the provisions of Section 148 which was prevailing prior to the amendment of Finance Act, 2021 was also extended. Here in this case, the power to issue notice under Section 148 which was prior to the amendment was also saved and the time was extended. In a result, the notice issued on 31.03.2021 (Annexure P-1) would also be saved. Therefore, no interference is required to be made in the said issuance of notice and accordingly the petition is dismissed.

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• 2022 (3) TMI 384
  Disallowance u/s 40A2)(b) - Addition of excess interest paid to the related parties - difference between the rate of interest on loan received and paid - HELD THAT:- It is settled proposition of law that in order to make a disallowance u/s 40A(2)(b), the AO has to first determine the fair market value/price and then compare the same with the actual expenditure incurred and payment made by the assessee to the specified person. In case, the payment made by the assessee to the specified person is excessive and unreasonable having regard to the fair market value/price, the amount found to be excess or unreasonable is liable to be disallowed u/s 40A(2) of the Income-tax Act. Therefore it is precondition for making the disallowance u/s 40A (2) that the AO has to arrive to the conclusion that the amount paid by the assessee is excessive or unreasonable in comparison to the fair market value/price. In the case in hand, the AO has not carried out such exercise to first determine the fair value of interest rate in question by bringing any comparable instance/case So, naturally and undisputedly it would be for the business purpose only. Therefore, in our considered opinion that lower interest received on loan given to related party for business purpose cannot be subjected to provisions of section 40A(2)(b) of the Act. In the present case, having regard to the facts and circumstances referred to hereinabove, the we have arrived to a conclusion that the Assessing Officer has failed to prove by any comparable case or comparison by market rate that the amount paid by the assessee was excessive or unreasonable. Accordingly, we direct the assessing officer to delete the addition made under section 40A (2) (b) - Decided in favour of assessee.

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• 2022 (3) TMI 383
  Addition on account of cessation of liability for purchase of immovable property, when in fact the payment of liability was not proved and established - CIT-A deleted the addition - HELD THAT:- Both the parties confirmed outstanding amount. Therefore, Seller has confirmed the amount receivable and the buyer has also accepted its liability for payment of the above sum. Further for the applicability of the provisions of section 41(1) of the Act there is no benefit arising in favour of the assessee. It is merely an outstanding payable to Sundry Creditors for purchase of stock in trade. On looking at the balance sheet of the assessee, it is also seen that there are some land owned by the assessee at Alibaug. Therefore it cannot be said that the explanation for the above outstanding sum is also false. The learned CIT(A) also asked for the remand report from the Assessing Officer which clearly showed that the only payment made by the assessee was of ₹ 10 lacs and the cheques mentioned in the sale deed were not enchased - we find that the liability still exists and the manner of discharge of above liability has also been agreed by the parties. There is no cessation of liability in the hands of the assessee as the liability is live and existing. Therefore, the ld CIT (A) has deleted the addition made by the learned Assessing Officer under section 41(1) - Further in absence of any contrary evidence, the Assessing Officer is not correct in stating that assessee might have paid the above sum out of its unaccounted income. To reach at such conclusion, no evidences are shown before us. Therefore, we do not find any infirmity in the order of the learned CIT (A). in deleting the above addition. - Decided against revenue.

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• 2022 (3) TMI 382
  Employees share of contribution to ESI to the extent not paid on or before the due date as mentioned in Sec 36(1)(va) - payments made beyond the due date prescribed under respective statutes, but before the due date prescribed u/s 139(1) - Scope of amendment by Finance Act, 2021, to section 36[1][va] and 43B - HELD THAT:- As in Bangalore Bench of the Tribunal in the case of M/s. Shakuntala Agarbathi Company [ 2021 (10) TMI 1196 - ITAT BANGALORE] by following the dictum laid down in the case of Essae Teraoka Pvt. Ltd [ 2014 (3) TMI 386 - KARNATAKA HIGH COURT] held that the assessee would be entitled to deduction of employees contribution to PF and ESI provided that the payments were made prior to the due date of filing of the return of income u/s 139(1) - Also further held by the ITAT that amendment by Finance Act, 2021, to section 36[1][va] and 43B of the Act is not clarificatory. Therefore, the amended provisions of section 43B as well as 36(1)(va) of the I.T.Act are not applicable for the assessment years under consideration. By following the binding decision of the Hon ble jurisdictional High Court in the case of Essae Teraoka Pvt. Ltd Vs. DCIT (supra), the employees contribution paid by the assessee before the due date of filing of return of income u/s 139(1) of the I.T.Act is an allowable deduction - Decided in favour of assessee.

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• 2022 (3) TMI 381
  Double taxation - Addition of capital gain or income from other sources - assessee received a sum on signing as a consenting party in a sale transaction of land and offered long term capital gain by deducting the remaining amount as indexed cost of acquisition - AO observed that the assessee was not the owner of the above property as per the Sale deed and also did not have any share in the land transferred AND treated the entire amount of ₹ 10 lakhs as Income from other sources‟ and made an addition for differential amount - HELD THAT:- Here is a case in which the assessee inadvertently suo motu offered ₹ 5.39 lakhs as long term capital gain and the AO made further addition of ₹ 4.61 lakhs. In view of the fact that the assessee was not at all chargeable to tax in respect of receipt of ₹ 10 lakhs for acting as a consenting party and the entire sale consideration has already been taxed in the hands of Mrs. Anuradha Ashok Satbhai, his mother, as a sole owner, we hold that the amount of long term capital gain of ₹ 5.39 lakhs wrongly offered by the assessee is also not chargeable to tax in the same manner in which the addition of ₹ 4.61 lakhs was wrongly made by the AO. It is trite that no income can be taxed merely because the assessee wrongly offered it in his return. I am reminded of the mandate of Art. 265 of the Constitution of India, which states that : `No tax shall be levied or collected except by authority of law‟. It is, therefore, held that full amount of ₹ 10 lakhs should be deleted from the assessee‟s computation of total income. Assessee appeal allowed.

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• 2022 (3) TMI 380
  Revision u/s 263 by CIT - whether the Assessing Officer carried out enquiry or verification on the issue of applicability of provisions of section 56(2)(vii)(b) in respect of purchase of lands during the course of assessment proceedings or not? - HELD THAT:- In the present case, no doubt, the AO had examined the issue of applicability of section 56(2)(vii)(b) in respect of purchase of subject-lands, but merely accepted the valuation report furnished by the appellant without adhering to the provisions of section 50C - AO without going into the correctness of the valuation report merely accepted the valuation report furnished by the appellant. When the assessee objects the value as per the stamp duty valuation purpose, the only option available with the Assessing Officer is to refer the matter to the DVO as stipulated u/s 50C of the Act. In-fact, the Hon ble Jurisdictional High Court in the case of CIT vs. Prabhu Steel IndustriesLtd., [ 2013 (7) TMI 204 - BOMBAY HIGH COURT] has clearly held that where the assessee objects the value adopted for stamp duty purpose, the only course available with the Assessing Officer is to refer the matter to the DVO. In the present case, the Assessing Officer without complying with the requirements of law had simply accepted the valuation report as furnished by the appellant. The Assessing Officer not following the mandatory provisions of law would render the assessment order erroneous which is amenable to the jurisdiction u/s 263 Without delving into the issue whether the agricultural lands come within the purview of section 56(2)(vii)(b), suffice to hold that the decision of the Co-ordinate Bench of this Tribunal in the case Mubarak Gafur Korabu [ 2019 (4) TMI 1877 - ITAT PUNE] and the decision of Jaipur Bench of the Tribunal in the case of Yogesh Maheshwari [ 2021 (1) TMI 832 - ITAT JAIPUR] do not come to the rescue of the assessee. In the light of the above discussion, we are of the considered opinion that the ld. PCIT was justified in assuming the jurisdiction u/s 263 of the Act by setting aside the assessment order. Thus, the issue raised in the grounds of appeal stands dismissed.

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• 2022 (3) TMI 379
  Denial of exemption u/s.11 - assessee is registered as a Public Charitable Trust under the BPT Act, 1950 - denial of exemption by the AO on merits is based on the fact that the assessee was mainly pursuing objects of general public utility by getting engaged in letting out its building and halls and was hence hit by the proviso to section 2(15) - HELD THAT:- Assessee was genuinely pursuing activities in the nature of Medical help to the patients, Education expenses of the deserving students and Relief to the poor. It is discernible that albeit the assessee has the objects of advancement of any other object of general public utility in its trust-deed, but none of such objects was actually pursued during the year under consideration. Whereas the objects and activities of the trust are germane at the time of grant of registration u/s 12AA of the Act, what becomes relevant for consideration at the time of assessment is to see which of the objects, having charitable purpose, were actually carried out so as to decide the question of exemption. The above discussion makes it graphically clear that the assessee actually pursued only the objects as classified in categories (a) to (c). viz., Medical Relief to the poor patients, Education to the deserving students and Relief to the needy sections of the society and hence shied away from taking up any of the objects in category (d), viz., advancement of any other object of general public utility. Once this is the position, it becomes explicitly clear that the proviso to section 2(15), which attracts only when objects of the category (d) above are pursued, did not trigger in the instant case. The sequitur is that the assessee is entitled to exemption. It is pertinent to mention that the AO did not dispute the fulfillment of any other requirements for claiming exemption u/s 11 of the Act. We, therefore, hold that the assessee is entitled to exemption. The impugned order is, therefore, set-aside. - Decided in favour of assessee.

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• 2022 (3) TMI 378
  Entitlement of interest on the belated payment of interest as per section 244A - HELD THAT:- We find that, there is no dispute that the Assessee was due and entitled for grant of interest for the period 01/04/2003 to 24/03/2003 (36 months), which has been directed to be granted to the Assessee by this Tribunal [ 2018 (1) TMI 86 - ITAT DELHI ] In compliance with the above direction of the Tribunal, the AO has granted interest w.e.f 01/04/2003 to 24/03/2006 to the assessee on 04- 05-2018 u/s. 244A at the rate of 6% p.a - AO has fully complied with directions of the Tribunal issued and there was no direction to compute interest on the interest or to pay compensation on account of belated payment of the interest as claimed by the Assessee in the present Appeal. AO had complied with the direction of the Tribunal in toto, therefore we cannot find fault with the Order passed by the AO. Tribunal vide Order [ 2019 (11) TMI 86 - ITAT DELHI ] specifically directed AO to compute the interest on late payment of the interest, but in the Order dated 29-12-2017 [ 2018 (1) TMI 86 - ITAT DELHI ] the Tribunal has directed the AO to grant interest to the Assessee under Section 244A of the Income Tax Act w.e.f. 01/04/2003 to 24/03/2006 . There was no direction to pay either interest on interest or to pay composition for late payment of interest and the said Order of the Tribunal reached finality. Therefore the Order of the Tribunal in Assessee s own case [ 2018 (1) TMI 86 - ITAT DELHI ] is not applicable to the facts and circumstances of the present Appeal. - Decided against assessee

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• 2022 (3) TMI 377
  Addition of Bad and Doubtful Debts Reserve (BDDR) for earlier years written back in the year under consideration - assessee is a Co-operative Society conducts its banking business - assessee submitted that there was excess provision for earlier year and made reversal in the year under consideration - As contended that such amount should not be added in the computation of income as there was no deduction claimed at the time of creation of BDDR provision in the earlier year - HELD THAT:- The assessee shown profit of ₹ 6,73,27,193/- in the computation of total income as net profit which is inclusive of ₹ 8,54,42,557/- and reversed the same amount, meaning thereby that the assessee claimed no deduction on account of provision for bad and doubtful debts made in the year under consideration nor offered any income on account of written back of the said provision for bad and doubtful debts for the earlier year in the computation of total income. Thus, when there is no deduction claimed in the computation of total income on account of BDDR and its reversal in subsequent year i.e. involving present A.Y. 2014-15 under consideration does not warrant any addition, meaning no tax on the reversal of BDDR in the subsequent year. A similar issue on same identical facts, the Co-ordinate Bench in assessee‟s own case [ 2020 (10) TMI 658 - ITAT PUNE] whether it is case of the period when the assessee was eligible for deduction u/s.80P or thereafter when the benefit of section 36(1)(viia) came to be conferred, the creation of BDDR and its simultaneous addition in the computation of total income has made it clear that, in fact, no deduction was claimed by the assessee in this regard. Once the assessee did not claim any deduction in respect of BDDR, there can be no question of taxing the reversal of BDDR in a subsequent year, as has been the case under consideration. We, therefore, overturn the impugned order on this score and hold that the ld. CIT(A) was not justified in upholding the addition - Decided in favour of assessee.

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• 2022 (3) TMI 376
  Deduction u/s 80IC/80IE - delay in filing of return of income both the authorities below declined the deduction as claimed - HELD THAT:- In this case that the Assessee before the filing the return of income on dated 03.09.2013 filed its audit report on dated 31.10.2013 which was before the stipulated period or due date of filing of return on 30.11.2013 and from the judgments referred above it is clear that even return of income filed belatedly u/s 139(4) of the Act also cannot be denied for claiming the deduction u/s 80IC/ 80IE - The Hon ble Jurisdictional High Court in Fiberfill Engineers case [ 2016 (4) TMI 562 - ITAT DELHI] categorically held that when the deduction u/s 80IC of the Act has not been questioned by the department on merits there is no justification for not viewing the delay of 46 days in filing the return to be bona fide. In this case there is nothing contrary on record on merit qua deduction of claim. Hence, on the basis of aforesaid analyzations and respectfully following the judgments referred above, we are inclined to allow the claim of the Assessee. Consequently, the addition made by the AO and sustained by the ld. Commissioner is deleted. - Decided in favour of assessee.

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• 2022 (3) TMI 375
  Validity of Revised return u/s 139(5) - Benefit of carry forward of loss to the assessee as per the revised return, treating the first return filed without Tax Audit Report as valid return of income - HELD THAT:- As decided in assessee s own case for assessment year 2003-04 where the Tribunal after considering relevant facts has rightly held that when the assessee has filed revised return within due date prescribed u/s.139(5) of the Act, then revised return filed, would be valid return and on that basis the Assessing Officer should allow set off of carry forward losses of earlier year. As consistent with the view taken by the co-ordinate Bench in the assessee s own case for earlier assessment year, we are of the considered view that there is no error in the reasons given by the learned CIT(A) and direct the Assessing Officer to accept revised return filed by the assessee u/s.139(5) of the Act, and allow set off of brought forward losses of earlier years against current year income - Decided against revenue.

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• 2022 (3) TMI 374
  Penalty u/s. 271(1)(c) - Defective notice u/s 274 - validity of notice issued u/s 274 - Non striking of irrelevant portions - mere failure to tick mark the applicable grounds - As argued AO had not struck off the specific limb or had not specified the specific offence committed by the assessee as to whether the assessee had concealed the particulars of income or furnished inaccurate particulars of income or whether the assessee had committed both the offences - HELD THAT:- Penalty notice u/s. 274 r.w.s. 271(1)(c) is placed on record wherein we find that the ld. AO had not struck off the specific limb or had not specified the specific offence committed by the assessee as to whether the assessee had concealed the particulars of income or furnished inaccurate particulars of income or whether the assessee had committed both the offences. Hence, the penalty notice issued by the ld. AO becomes a defective notice. We find that the Full Bench of the Hon'ble Jurisdictional High Court in the case of Mohd. Farhan A. Shaikh vs. DCIT [ 2021 (3) TMI 608 - BOMBAY HIGH COURT ] had categorically held that not striking off irrelevant portion in the penalty notice would vitiate the penalty proceedings. Accordingly, the Hon'ble Jurisdictional High Court had cancelled the penalty We hereby direct the ld. AO to cancel the penalty levied in the case of the assessee. Accordingly, the grounds raised by the assessee are allowed.

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• 2022 (3) TMI 373
  Disallowing interest u/s. 36(1)(iii) - assessee has failed to prove that the interest of OD charges for the purpose of business - AO was of the view that OD account was also used for advancing to family members and also for making investment in subsidiary companies - CIT-A deleted the addition - HELD THAT:- That no disallowance has been made in the earlier years on this account. This submission has been accepted by the ld. CIT(A) - no infirmity in the decision by the ld. CIT(A). It is settled law that unless, there is change in law or facts and circumstances of the case, contrary view cannot be taken on the issue that has attained finality in earlier assessment years and the fundamental aspect permeates in different years. It is duly supported by the decision of Hon'ble Supreme court in the case of Radha Swami Sastry [ 1991 (11) TMI 2 - SUPREME COURT] AO is drawing adverse inference that assessee has not submitted the utilization of the overdraft in the earlier years. We note that this is not the case, where AO has any power to reopen the case of earlier years or that the AO has stepped into the shoes of ld. CIT and is exercising jurisdiction u/s 263 and that also for earlier year. No cogent rebuttal has been given on behalf of the revenue against the finding given by ld. CIT. In this view of the matter ld. CIT(A) has taken the correct view of the mater. We do not find any infirmity in the same and accordingly we uphold the same. Disallowance u/s. 37(1) - assessee has failed to prove that the penal charges paid for business expenditure - CIT-A deleted the addition - HELD THAT:- The facts recorded by ld. CIT(A) are that this was paid by the assessee in terms of the commercial agreement to another party, where assessee was obliged to remit the toll collection within a particular period and in case of default amount was to be paid for the default styled as penal charges. In substance, the penalty charges are interest charges payable, when there is delay in remitting the toll collection to the other party as per the contract. It is settled law that it is the substance that counts and not the form given to in the accounts of the party. The cases referred by the AO are in connection with payments under the penal provisions contained in a statutory provision. It is not at all the case here that the amount paid in the present case is due to any infringement of law. In this view of the matter, the decision of ld. CIT(A) is correct. Disallowing interest u/s. 24(b) - assessee has failed to prove the genuineness of interest on borrowed capitals - as per AO bank statement furnished by the assessee is not clear whether the loan was for acquisition of the said flat and how the total interest component was arrived at - CIT-A deleted the addition - HELD THAT:- CIT(A) has given the finding that assessee has duly submitted the statement of the bank, copies of possession certificates and ledger copy of housing loan. These evidences were found by the ld. CIT(A) to be justifying that the loan was utilized for the housing purposes. Ld. CIT(A) has also noted that it is also not the case of the AO that loan utilized have been utilized for any other purpose. In the paper book submitted before us statement of bank account has been attached which confirmed the view taken by the ld. CIT(A). The ld. DR could not rebut the aforesaid finding. In this view of the matter, we do not find any infirmity in the order of ld. CIT(A). Accordingly, we uphold the same. Revenue appeal dismissed.

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• 2022 (3) TMI 372
  Income accrued or deemed to accrue or arise in India - Royalty - the BREW Operator Software agreements - an application development platform - Treating revenue received by the assessee under the BREW agreement as taxable under the provisions of article of India-US DTAA - Treating revenue received by the assessee under the test tool agreements as income of the assessee - HELD THAT:- Considering the assessment order of the Assessing Officer wherein he has followed the findings given in earlier assessment years and considering the fact that the same agreement is being carried on since assessment year 2005-06, we do not find any reason in differing with the view taken by this Tribunal [ 2015 (3) TMI 364 - ITAT DELHI] therefore, respectfully following the finding of the co-ordinate Bench we hold that the royalty from BREW operator agreement is not chargeable to tax in the hands of the assessee and also the revenue received under the test tools agreement. We direct the Assessing Officer to delete the impugned additions. - Decided in favour of assessee.

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• Customs

• 2022 (3) TMI 371
  Seeking to issue a detention certificate recommending waiver of demurrage and detention charges - Regulation 6(1)(l) of the Handing of Cargo in Customs Areas Regulations, 2009 - HELD THAT:- The facts on record indicate that the petitioner had imported the goods on 19.06.2020 and had filed a bill of entry No.796361. While filing the bill of entry, the petitioner appears to have claimed the benefit of exemption under custom Notification No.20 of 2020-Cus, dated 09.04.2020. Whether the petitioner was indeed eligible for the above exemption or not, is now a matter of appeal before the Appellate Commissioner, pursuant to adjudication order passed by Joint Commissioner on 29.06.20221. The question further that remains to be answered whether the petitioner is entitled to a detention and demurrage certificate to produce the same to the respective service providers, namely, M/s.CWC (Nhavasheva) CFS, Tuticorin and the liner to waive demurrage and dentention charges for the period starting during the period when the goods were under seizure - Regulation 6 (1) (l) indicates that no rent or demurrage shall be charged on the seized or detained goods. Thus, during for the period when the imported goods were under seizure and/or no demurrage charges can be levied. The goods were seized on 26.06.2020. They were eventually, ordered to be released provisionally on 17.07.2020. Therefore, for the aforesaid date the petitioner cannot be mulcted to bear such charges. The goods were eventually cleared on 21.08.2020 after the petitioner complied with the requirements of letter, dated 17.07.2020 on 19.08.2020. This writ petition is partly allowed by directing the respondents to issue appropriate detention and demurrage certificate to the petitioner for the period between 26.06.2020 and 17.07.2020 inasmuch as during the aforesaid period, the petitioner could not have cleared the imported goods as the goods under seizure - appeal allowed in part.

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• 2022 (3) TMI 370
  Rejection of plaint - Order 7 Rule 11 of the Code of Civil Procedure, 1908 invoking Section 155 of the Customs Act, 1962 - HELD THAT:- Ordinarily, being conscious of the amount involved in the suit proceedings and the cost of litigation thereof, perhaps this Court would not have entertained the revision petition given that the suit was filed way back in the year, 2017 and despite lapse of almost five years, it has not proceeded any further. However, having perused the provisions contained under Section 7 of the Customs Act, 1962, it is opined that allowing the civil Courts to entertain suits challenging the levy of customs duty, even if wrongly levied, would set up a bad precedent. The Act ibid is self- contained code in itself and the remedy, if any against the so-called illegal order is by way of an appeal provided therein - there are no manner of doubt that Civil Court s jurisdiction is barred in the matters of levy of customs duty, which is the case given herein. The impugned order dated 09.09.2019 (Annexure P-3) passed by the Court below is set aside. As a consequence thereof, the plaint filed by the plaintiff is directed to be returned to the plaintiff with liberty to approach the Appellate Authority under the Act ibid - given the inordinate delay already caused in the disposal of the grievance of the petitioner, it is expected of the Appellate Authority that in case, an appeal is filed, the same shall be disposed of within a period of three months thereof. Appeal disposed off.

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• 2022 (3) TMI 369
  Seeking to reconsider the non-imposition of penalty under sec. 114 and 114AA of the Customs Act, 1962 - smuggling - red sanders - HELD THAT:- The findings arrived by the adjudicating authority as to whether there is any involvement of the appellant who is a Customs Broker has already been reproduced. The adjudicating authority has categorically held that the appellant has not done any act of omission or commission which has made the goods liable for confiscation. Further, in the Show Cause Notice, there is no allegation that the appellant had done any act facilitating the attempt to smuggle red sanders. The statement of Shri Mahimai David shows that he had collected the documents from the exporter and the same were submitted to the appellant to file the shipping bill. Nothing is brought out in the nature of evidence to establish that the appellant had done or omitted to do any act intentionally. The alleged contraventions come within the CBLR, 2013 only - When there is no evidence to establish any overt act or mens rea to facilitate the commission of offence, the finding of the Commissioner (Appeals) that the appellant has facilitated the attempt to smuggle red sanders is without any factual and legal basis and cannot sustain. The order passed by the Commissioner (Appeals) is without correctly appreciating the facts or the provisions of the law - Appeal allowed - decided in favor of appellant.

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• 2022 (3) TMI 368
  Valuation of imported goods - Import of Liquified Petroleum Gas or LPG - internationally, LPG sold as Commercial Butane, Commercial Propane or Commercial Propane-Butane Mixture - demurrage charges are includible in the assessable value or not? - entitlement for benefit of exemption Notification No. 82/2004 dated 18/08/2004 and Notification No. 37/2005 dated 02/05/2005. Inclusion of demurrage charges in the assessable value - HELD THAT:- As the issue whether the demurrage charges are includible in the assessable value or not, has been settled by the Hon ble Apex Court in the case of C.C.E., MANGALORE VERSUS MANGALORE REFINERY PETROCHEMICALS LTD. [ 2016 (1) TMI 325 - SUPREME COURT] wherein it has been held that the demurrage charges are not includible in the assessable value - thus, the demurrage charges are not includible in the assessable value as the same are essentially post importation charges that are incurred after the goods reached the Indian ports - the demands on account of inclusion of demurrage charges in the assessable value are set aside. Entitlement for benefit of exemption Notification No. 82/2004 dated 18/08/2004 and Notification No. 37/2005 dated 02/05/2005 or not? - HELD THAT:- While filing the provisional Bills of Entry, no protest was made with regard to classification of their product i.e. LPG. Therefore, at this juncture, the issue of classification cannot be raised to get the benefit of the above cited Notifications. Similar view was taken by this Tribunal in the case of M/S HINDUSTAN PETROLEUM CORPN. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-I [ 2020 (9) TMI 561 - CESTAT MUMBAI] and M/S H.P.C.L. VERSUS COMMR. OF CUSTOMS, KOLKATA [ 2019 (4) TMI 1277 - CESTAT KOLKATA] - Therefore, the appellants are not entitled for benefit of exemption Notification No. 82/2004-Cus. dated 18/08/2004 and Exemption Notification No. 37/2005 dated 02/05/2005. Appeal allowed in part.

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• 2022 (3) TMI 367
  Smuggling - Gold Bars - Gold Biscuits - allegations in the SCN are only based on the statement - reliable statements or not - foreign origin of the seized gold, proved or not - burden to prove - confiscation - penalty - HELD THAT:- It is found that other than the incriminating statement of Mr. Sanjay Soni there is no other worthwhile evidence against these appellants. These appellants and Mr. Vishwanath Soni have given cogent explanation, they being related and known to each other and being in the same line of business had been talking regarding rates etc. with each other. Thus, the call details records relied upon by the Revenue does not support the allegations of Revenue, in absence of transcription of the conversation between these persons. So far the WhatsApp message is concerned, which is retrieved from the phone of Mr. Sanjay Soni, alleged to have been received from Mr. Ashok Soni, the same is not reliable for non-compliance of the provisions of Section 138C of the Customs Act. Further, the message is also vague and incomplete. Penalty u/s 112 of Customs Act - HELD THAT:- It is found that these appellants have not violated any of the provisions of the Customs Act including Section 111, and thus I hold that penalty under Section 112 of the Act is not attracted. Penalty cannot be imposed only on the basis of heresay evidence, or the incriminating statement of one of the co-accused in absence of other corroborative evidence, as has been held by Hon ble Supreme Court in the case of VINOD SOLANKI VERSUS UNION OF INDIA ANR. [ 2008 (12) TMI 31 - SUPREME COURT] - penalty imposed on all the three appellants are set aside. Admittedly it is a case of town seizure. Out of the 5 gold bars and 1 cut piece seized from Mr. Sanjay Soni, there is foreign marking rand refinery only on one gold bar. There is no such foreign marking admittedly on the other pieces recovered and seized. Thus, in absence of any evidence brought on record as to the allegation of smuggling, the provisions of Section 123 of the Act are not attracted in the case of other 4 pieces and the cut piece of the gold bar seized - Section 123 is attracted only in the case of one gold bar having foreign marking, as the person- Mr. Sanjay Soni from whom the foreign marked gold was recovered, have not been able to explain the licit source and have also stated that this gold may have arisen by way of smuggling into India through Bangladesh. Accordingly, modifying the order of Commissioner (Appeals), the absolute confiscation is upheld with respect to one piece of gold having the marking rand refinery weighing 998.600 gram valued at ₹ 31,95,520/-, as per the valuation report. Four pieces of gold bars having no foreign marking weighing 998.700 grams (3 bars) and 1 bar weighing 998.600 grams and the cut piece weighing 200.900 gms - Penalty u/s 112(b) of Customs Act - HELD THAT:- These are not liable to confiscation, as admittedly it is the case of town seizure. It is further held that the provisions of Section 123 of the Customs Act are not attracted. Accordingly, the order of confiscation is set aside with respect to these four gold bars and the cut piece and further order that the same is to be released to the person from whom they were recovered Mr. Sanjay Soni. The penalty imposed under Section 112(b) is reduced to ₹ 5,00,000/-. Revenue has not been able to substantiate the charge of smuggling save and accept the statement under Section 108 recorded from Mr. Sanjay Soni. Such statement also loses its evidentiary value as Revenue has failed to examine Mr. Sanjay Sony in the course of adjudication proceedings - appeal disposed off.

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• Corporate Laws

• 2022 (3) TMI 366
  Maintainability of petition - time limitation - false and frivolous complaint or not - appointing the persons as Directors of the company by submitting a forged document - Section 241 to 246 of Companies Act, 2013 - HELD THAT:- It is settled principal of law that the power under Section 482 Cr.P.C. is to be exercised sparingly not to smother the legitimate prosecution. The power has to be exercised with circumspection in the rarest of rare cases. The power of the police to investigate into a cognizable offence is ordinarily not to be interfered by the judiciary. The High Court should be extremely cautious and slow to interfere with the investigation/trial of criminal cases and should not stall the investigation or prosecution except when it is convinced beyond doubt that the FIR or charge sheet does not disclose commission of offence or prosecution is barred by law or it is necessary to interfere to prevent the abuse of process of the Court. The charge sheet would disclose that the police collected the evidence as per the record of Registrar of Companies, which was a statutory record. They also collected the e-mail given by A3 to the complainant wherein he admitted that he acted upon the instructions of A1. Thus, there was prima facie evidence collected by the investigating officer to prove the offences against the petitioners under Sections 406 and 420 IPC. The statements of the witnesses recorded also would prima facie prove the other offences. The truth or otherwise of these allegations can be decided only after a full-fledged trial. This Court ordinarily would not embark upon an enquiry whether the evidence in question is reliable or not or whether the accusations would be sustained or not. It was the function of the trial court. The inherent power under Section 482 Cr.P.C. should not be exercised to stifle a legitimate prosecution. Hence, it is considered not fit to quash the charge sheet against the petitioners. The petition is dismissed.

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• 2022 (3) TMI 365
  Sanction of Composite Scheme of Arrangement - section 230-232 of Companies Act - HELD THAT:- Various directions with regard to holding, convening and dispensing with various meetings issued - directions with regard to issuance of various notices also issued. The scheme is approved - application allowed.

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• Insolvency & Bankruptcy

• 2022 (3) TMI 364
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - time limitation - whether the Application which was filed by the Financial Creditor against the Corporate Debtor was within limitation or beyond limitation? - HELD THAT:- It is the settled law that Application under Section 7 of the IBC is covered by Article 137 of the Limitation Act, 1963 according to which the Application under Section 7 is to be filed within three years from the date when right to sue occurs. The first submission of Learned Counsel for the Respondent No. 2 is based on One Time Settlement offer given by Principal Borrower on 11.02.2014 and 04.03.2016. Before we proceed to consider the above submission, it is relevant to find out what was the case of the Respondent No. 2 before the Adjudicating Authority on the question of limitation, the Application under Section 7 filed by the Financial Creditor against the Corporate Debtor is filed as Annexure A-18 of the Appeal Paper Book. Under Part-IV of the Application in Item No. 2 the date of first occurrence of default is mentioned 13.03.1989 and under Part-V Particulars of an Order of a Court, Tribunal or Arbitral Panel Adjudicating on the default, if any (attach a copy of the order), reference to Order passed by Tribunal as Annexure 17 of the Appeal Paper Book has been made. It is clear that in the pleadings and submissions which was raised by Financial Creditor-Respondent No. 2 before the Adjudicating Authority regarding the question of limitation was claiming limitation of 12 years. The Adjudicating Authority did not return any finding or recorded any reason on the objection regarding limitation and without answering the objection and recording any findings, has admitted the Application. When objection was raised before the Adjudicating Authority that Application was barred by time it was incumbent on the Adjudicating Authority to consider and answer the question of limitation - it is mandate of law to dismiss the Application which is barred by limitation. The Adjudicating Authority committed error in not adverting to the objection of Limitation and proceeded to admit the Application. Whether the Respondent No. 2 can claim One Time Settlement Offer which was given by Principal Borrower to the IDBI Bank for the purpose of extension of limitation period of the Application filed against the Corporate Guarantor i.e. Corporate Debtor? - HELD THAT:- When the Application under Section 7 against the Principal Borrower has already been dismissed by this Tribunal and confirmed by the Hon ble Supreme Court, we need not entertain any submissions of the Learned Counsel for Respondent No. 2 that Principal Borrower was entitled for extension of limitation under Section 18 by virtue of One Time Settlement Offer dated 11.02.2014 and 04.03.2016 - there is no need to consider the above submissions of Learned Counsel for Respondent No. 2 quo the Application of Principal Borrower within time by virtue of extension of limitation on the basis of aforesaid the proposal of One Time Settlement. The fresh cause of action which arose to the Financial Creditor on the basis of Decree dated 06.05.2011 and the Recovery Certificates dated 22nd December, 2011 of Debt Recovery Tribunal came to an end in the year 2014 itself and the Application under Section 7 filed on 10th July, 2018 was beyond the period of Limitation. Application under Section 7 filed by the Financial Creditor against the Corporate Debtor was beyond the period of limitation and could not have been admitted by the Adjudicating Authority - Appeal allowed.

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• 2022 (3) TMI 363
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - real estate allottee - third proviso in section 7(1) of the IBC after the enactment of the amendment to IBC on 28.12.2019 - HELD THAT:- The third proviso to Section 7 (1) of IBC which lays down that if the applicant does not modify his application to comply with the requirements of the first or second proviso within 30 days of the commencement of the said Amendment Act to IBC, which came into effect on 28.12.2019, the application shall be deemed to be withdrawn before its admission. This statutory provision is quite clear and makes it obligatory on the part of their real estate allottee to modify his application in accordance with the first and second proviso of Section 7 (1). As facts of the case, and the arguments advanced by the parties, show that it was not done by the real estate allottee/applicant. This is a basic infirmity which strikes at the very root of the maintainability of Section 7 application. The issue of non-satisfaction of statutory provision of third proviso to section 7(1) was not considered adequately and dealt with in the Impugned Order, we set it aside and remand the case to the Adjudicating Authority to consider the objection about maintainability as required under third proviso of Section 7(1) and any other objection/issues raised by the parties and pass a speaking order regarding admission/rejection of the section 7 application. The appeal is disposed of.

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• 2022 (3) TMI 362
  Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- The Adjudicating Authority in the Impugned Judgment after noticing that claim of the Appellant arises out of a License Agreement under which Respondent has right to use immovable property, held that the claim arising out of grant of licence to use immovable property does not fall in the category of goods and services - the agreement clearly proves that immovable property was taken on license by the Corporate Debtor with effect from 1st June, 2017 for payment of license fee of ₹ 4 Lacs per month. The premises were obtained by the Corporate Debtor for commercial purposes for running an Educational Institute. The Application was filed by the Appellant due to outstanding dues arising out of License Agreement dated 15th April, 2017. Apart from the part payment for license fee for few months, the Corporate Debtor defaulted in making the payment of license fee. Tow cheques which were issued 20 Lacs each by the Corporate Debtor on 07th May, 2018 and 08th October, 2018 were dishonoured. The Adjudicating Authority in its Order had stated that since the Appellant has allowed the Respondent to use its immovable property to carry out business, it does not fall in the category of goods and services including employment. The claim of the Appellant under Section 9 of the Code arising out of liability which fell on the Corporate Debtor to make the payment of License Fee as agreement dated 15th April, 2017 when the License Fee having not been paid it was clearly debt which was in default. There being two divergent opinions of this Tribunal, it is necessary that an authoritative pronouncement be made with regard to the issues which has been raised i.e. whether License Fee pertaining to immovable premises taken by Licensee from Licensor for running commercial activity i.e. Educational Institute fall within the definition of Operational Debt - the matter needs to be placed before the Hon ble Chairperson on administrative side for constitution of a Larger Bench to resolve the conflict. Let the matter be placed before the Hon ble Chairperson on administrative side to constitute a Larger Bench for an authoritative Pronouncement - following two questions are framed for consideration before the Larger Bench : i. Whether the Judgment of this Tribunal in Company Appeal (AT) (Ins.) No. 331 of 2019 in the matter of Mr. M. Ravindranath Reddy Vs. Mr. G. Kishan Ors. Lays down the correct law. ii. Whether claim of the Licensor for payment of License Fee for use and occupation of Immovable Premises for commercial purposes is a claim of Operational Debt within the meaning of Section 5(21) of the Code.

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• PMLA

• 2022 (3) TMI 361
  Money Laundering - furnishing of un-relied documents by the prosecution such as statements or objects/documents, seized during the course of investigation - HELD THAT:- The supply of documents to the accused persons is covered by the provisions under Sections 207 and 208 Cr.P.C. Though Section 173 Cr.P.C. was not having any direct bearing on the issue of supply of documents to the accused, it says that on completion of investigation, the officer in-charge of the police station shall forward to the Magistrate empowered to take cognizance of the offence on a police report and as per Section 173(5) Cr.P.C. - Section 208 Cr.P.C. is pertaining to supply of copies of statements and documents to accused in cases instituted otherwise than on a police report. The said Section is not relevant to the facts of the case at present. On perusal of Section 207 Cr.P.C., while the first proviso empowers the court to exclude from the copies to be furnished to the accused, such portion as covered by Section 173 (6) Cr.P,.C., the second proviso empowers the court to direct the accused to inspect the documents which in the opinion of the court are not practicable to furnish to the accused, because of the voluminous record thereof. In V.K. SASIKALA VERSUS STATE REP. BY SUPERINTENDENT OF POLICE [ 2012 (9) TMI 1133 - SUPREME COURT ], the accused in her application before the trial Court furnished specific details of the documents which were unmarked and un-exhibited which were in the custody of the court required by her with specific reference to the seizure list prepared by the investigating agency while filing a petition to supply the copies of the said documents. But, in the present case, the petitioner without specifying any documents which he required was contending in a vague manner and seeking a direction to the 2nd respondent to supply all the documents and statements collected by it during the course of investigation, though the 2nd respondent was contending that they had supplied all the documents available with them. The petition being vague without any details of the documents sought by the petitioner, which were seized by the predicate offence agency or the 2nd respondent, is rightly rejected by the learned Principal Sessions Judge for CBI Cases, Hyderabad vide the impugned order. This Court does not find any illegality or perversity in the order of the learned Principal Sessions Judge which seeks interference by this Court considering it as an abuse of process of law - Petition dismissed.

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• Service Tax

• 2022 (3) TMI 360
  Levy of Service tax - Site Formation and clearance, excavation and earth moving and demolition Services - service tax on such services with effect from 16.06.2005 or thereafter - HELD THAT:- It is observed that the Learned Adjudicating Authority concluded that the services were provided after 16.06.2005 on the basis of RA- Bills - the Adjudicating Authority has not considered the Measurement Sheet as well as the affidavit which of course is not available before the Adjudicating Authority. The matter needs to be re-considered as regard the actual date of service provided - Appeal is allowed by way of remand to the Adjudicating Authority.

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• Central Excise

• 2022 (3) TMI 359
  CENVAT Credit - transfer of Generator set after use by the appellant to its sister concern where the value has been assigned to that transfer - applicability of Rule 3(5A)(a) of the CCR, 2004 - time limitation - HELD THAT:- The manufacturer buys the capital goods in order to use it for the manufacture of final products. The manufacturer avails the credit of excise duty on such inputs / capital goods which are utilised while making the final product as per Rule 4 of CCR, 2004. In manufacturing industry, it is a common practice to remove the goods (inputs /capital goods) from the factory place either as such or after use. It is in the later case that Rule 3(5A)(a) of CCR, 2004, comes into picture. When the inputs/ capital goods are no longer required by the manufacturer, the manufacturer disposes of them. In the present case, apparently and admittedly it is not the case of the appellant because the appellant has transferred the capital goods/ generator set from one of its unit to its another unit. If such a generator set would have been cleared by the appellant to any other unit, appellant definitely would have to reverse the proportionate credit on the depreciated value after deducting 2.5% of credit for each quarter or part of the use of machine from the date of taking of such credit as is apparent from Rule 3 - Also the proviso to Rule 3(5A)(a) of CCR, 2004, provides that if the amount so calculated by the above method is less than the amount equal to the duty leviable on transaction value, the amount to be paid shall be equal to the duty leviable on transaction value. The question of adjudication stands answered in affirmative i.e. Rule 3(5A) (a) the proviso thereof is applicable to the impugned transaction of the generator set after use by the appellant from one unit to another. Since the appellant has given the value of ₹ 6,14,322/- in the invoice while making the said transfer, thus, the said value has to be considered for calculating the reversal amount. Time Limitation - HELD THAT:- The plea of the learned Counsel that it was an interpretational error is not acceptable. It is a settled law that what is stated in the plain language in the statute has to be understood as it is. It is not permissible to assume any different intention or a different governing purpose than what has been mentioned in the statute - no error has been committed by the Department while invoking the extended period of limitation. Penalty has also been rightly imposed. Appeal dismissed.

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• 2022 (3) TMI 358
  Reversal of proportionate credit - common inputs and input services consumed in by-product while manufacturing the final goods - credit on the invoices issued prior to 01/09/2014 within six months after the issuance of the Notification No. 21/2014 CE (NT) dated 11/07/2014. CENVAT Credit on common inputs and input services consumed in by-product - HELD THAT:- The said issue has been settled by the Tribunal in the case of M/S ANIL PRODUCTS LTD. VERSUS CCE AHMEDABAD [ 2011 (4) TMI 796 - CESTAT, AHMEDABAD] and the said order has been affirmed by the Hon ble Gujarat High Court in COMMISSIONER CENTRAL EXCISE AND CUSTOMS VERSUS ANIL PRODUCTS LTD. [ 2013 (10) TMI 798 - GUJARAT HIGH COURT] where it was held that As per RALLIS INDIA LTD. Versus UNION OF INDIA [2008 (12) TMI 46 - HIGH COURT BOMBAY] it is held that where common inputs are used in the manufacture of dutiable and exempted product, liability to pay amount under erstwhile Rule 57CC of Central Excise Rules, 1944 arises only for product and not for waste/byproduct. As find from the impugned order that the exempted products are admittedly in the nature of byproduct/ waste/residue arising during the course of manufacture of dutiable final product, the ratio of above decision of Mumbai High Court would squarely apply to the same. Thus, the provisions of Rule 6 are not applicable to the appellants in these cases. Therefore, the appellants are not required to reverse the proportionate cenvat credit used in by-product while manufacturing their final product. Accordingly, the demand on the said count is set aside. Whether the appellant can avail cenvat credit on the invoices issued prior to 01/09/2014 within six months after the issuance of the Notification No. 21/2014 CE (NT) dated 11/07/2014 or not? - HELD THAT:- The issue has already been settled and no more res integra in the case of BHARAT ALUMINIUM COMPANY LIMITED VERSUS JOINT COMMISSIONER OF CENTRAL TAX, GOODS SERVICE TAX [ 2019 (7) TMI 1084 - CESTAT NEW DELHI] where it was held that the six month limitation provided with effect from 01/09/2014 would not apply to the cenvatable invoices issued prior to said date - thus the appellants have correctly taken the cenvat credit on 18/09/2014 for the invoices issued prior to 01/09/2014. Appeal allowed - decided in favor of appellant.

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• 2022 (3) TMI 357
  100% EOU - refund of unutilised CENVAT Credit - barred by time limitation or not - appeal filed before wrong forum - initially appellant filed refund claim in time, but the same was returned holding that the same has been filed before wrong forum after the expiry of due date of filing refund claim - HELD THAT:- The appellant filed refund claim before the Assistant Commissioner of Service Tax on 04/02/2013 which was well within the time and the Assistant Commissioner of Service Tax returned the refund claim on 03/04/2013 after the last date of filing of refund claim. In fact, the learned Assistant Commissioner of Service Tax could have transferred the application of refund claim to the Assistant Commissioner of Central Excise itself, if that could have been done, the refund claim would not have been held time barred. Relying on the decision in the case of M/S ANURAG ENTERPRISES VERSUS COMMISSIONER OF CGST, GHAZIABAD [ 2019 (8) TMI 1299 - CESTAT ALLAHABAD] wherein this Tribunal held that appellant having filed the refund claims with their jurisdictional Service Tax Authorities under a bona fide belief that the claims have to be dealt with by him, and if the concerned office was not having jurisdiction, the reasonable course of action on th part of the officer was to transfer the claim to the relevant office having jurisdiction to decide the same, under intimation to the assessee. Also, Hon ble High Court of Gujarat in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS AIA ENGINEERING LTD. [ 2010 (9) TMI 555 - GUJARAT HIGH COURT] , was of the view that the application of refund was filed within time limit and which was returned by the authorities and the respondent filed the same after a lapse of time and as such, it is not barred by limitation . The refund claim filed by the appellant is in time - As both the authorities have not dealt with the merits of the claim of refund, in these circumstances, the impugned order is set aside and matter remanded to the adjudicating authority to entertain the claim on merits - appeal is allowed by way of remand.

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• CST, VAT & Sales Tax

• 2022 (3) TMI 356
  Initiation of assessment proceedings - It is the case of the writ-applicant that although no proceedings were pending, yet on the basis of the objections of the AG Audit, the impugned notice dated 26.07.2019 came to be issued under Section-34(8A) of the VAT Act read with Section-9(2) of the Central Sales Tax Act, 1956 proposing to initiate the assessment proceedings for the F.Y. 2009-10 - HELD THAT:- The issue raised in the present writ-application is no longer res-integra in view of the judgment and order passed by a Coordinate Bench of this Court in the case of RAAJRATNA METAL INDUSTRIES LTD. AND 1 OTHER (S) VERSUS STATE OF GUJARAT AND 1 OTHER (S) [ 2019 (7) TMI 468 - GUJARAT HIGH COURT] where it was held that the powers under sub-section (8A) of Section 34 of the VAT Act would be available when a certain claim or a transaction has not been subjected to audit assessment under sub-section (2) of Section 34 of the VAT Act. It is also clear that to invoke the provision of sub-section (8A) of Section 34 of the VAT Act, some proceedings must be pending. The Sub-section (8A)(a) can be invoked during the course of any proceedings under the Act, 2003. To put it in other words, it is only in the course of any proceedings pending against the dealer under the Act, if it comes to the notice of the authority that the tax has been evaded or the tax liability has not been disclosed correctly or excess tax credit has been claimed in respect of any period or periods, then the authority can initiate assessment of the dealer in respect of such transaction or claim - In the case on hand, the Commercial Tax Officer-(3), Unit-9, Ahmedabad wants to reopen the assessment for the F.Y.2009-10. The authority wants to undertake the assessment under Section- 34(8A) of the Act on the strength of the AG Audit. The impugned notice issued by the authority is without jurisdiction. This writ-application succeeds and is hereby allowed.

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• 2022 (3) TMI 355
  Seeking release of detained goods - levy of composition fee - certain documents which are to be carried by the conveyance were not available - HELD THAT:- After the order was passed by this Court in the earlier round of litigation, where, direction was given to the petitioner to pay the disputed tax, the tax was paid, accordingly the vehicle in question was released, thereafter, the learned Judge has made it clear that, insofar as composition fee is concerned, the authorities will proceed in accordance with law with the provisions of Section 72 of the TNVAT Act - In order to proceed with regard to the composition fee, the Adjudication Authority i.e., the Revenue issued the second adjudication notice dated 19.07.2015. Having receipt of the same, the petitioner replied for the same by reply letter dated 29.08.2015 and the same was received by the respondent. This Court has no hesitation to hold that, the reply given by the petitioner has not been considered in proper perspective, without which, since the order was passed confirming the proposal already made with regard to the composition fee by the order impugned and the copy of the same also since has not been served, as claimed by the petitioner, the said order in the legal scrutiny may not stand and therefore, this Court is inclined to dispose of this writ petition - Petition disposed off.

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• 2022 (3) TMI 354
  Validity of assessment order - rectification of mistake - error apparent on the face of record - time limitation for making such rectification of error - HELD THAT:- It is the case of the petitioner that the original invoice has been traced out only subsequently with a number and date and the same since has been readily available with the petitioner, an opportunity was sought for by way of personal hearing, for which application under Section 84 of the TNVAT Act has been made. When such an application has been made under Section 84, which can be made at any point of time or at any stage of the assessment either before the original assessing authority or the appellate authority or even the revisional authority, and if any such application under Section 84 is filed, the same shall be decided as to whether any rectification sought for by the assessee is to be made or not and accordingly, the order on merits shall be passed by disposing of the application under Section 84 of the TNVAT Act. On reading of the the reasons stated by the respondent in the impugned communication, it can easily found out that the respondent has not in fact considered the application of the petitioner under Section 84 of the TNVAT Act in a proper perspective and what has been stated and asked for or requested by the petitioner has not been considered by the respondent and they have given a different reason as if the petitioner has presumed that they had already filed the original invoice before the undersigned, i.e. the Officer who passes the impugned communication. The petitioner has not claimed that the original invoice has already been produced before the Revenue. What is stated by the petitioner is that, the petitioner has traced the original invoice and it is readily available with them to produce the same - this Court has no hesitation to hold that the impugned order does not survive under the legal scrutiny. The matter is remitted back to the respondent for reconsideration. By considering the same, application filed under Section 84 of the TNVAT Act for rectification by the petitioner shall be considered by giving an opportunity of personal hearing to the petitioner - Petition allowed by way of remand.

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• 2022 (3) TMI 353
  Raising Demand while the application for Rectification of mistake is pending - apparent error on the face of record or not - time limitation for rectification of mistake from date of making assessment - HELD THAT:- Section 84 of the TNVAT Act makes it clear that, within six years from the date of order of assessment made by either the assessing authority or appellate authority or revising authority, including appellate Tribunal, if the dealer / assessee finds certain error apparent on the face of the record, in order to rectify the same, a rectification application can be made. If such application is made, that shall be considered and decided by either of these authorities before whom such application has been made under Section 84 and it shall be decided as to whether the rectification sought for by the dealer has to be made or such a request has to be rejected on merits - Here in the case in hand, admittedly there has been an application under Section 84 of the Act on 08.10.2018 and even though some rectification order has been passed on 04.02.2019, it has been specifically mentioned that, the said rectification under Section 84(1) of the Act is for the assessment year 2010-11. While the Section 84 application was pending consideration, without deciding the same by passing express order in this regard, the respondent Revenue cannot proceed further to make a demand on the original assessment. Therefore, this Court has no hesitation to hold that the present demand dated 27.02.2019 is infirm and therefore, it is liable to be interfered with. The matter is remitted back to the respondent, who shall consider the rectification application submitted by the petitioner dated 08.10.2018 for all the five years from 2009-10 to 2013-14 and pass orders thereon on merits and in accordance with law - Petition allowed by way of remand.

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• Indian Laws

• 2022 (3) TMI 352
  Delay in approaching the court of law - Seeking a direction to respondent to allot an alternative shop in lieu of the shop that was occupied by the petitioner on public land which was demolished in the year 1975 - It is contended that repeatedly, petitioner has been writing representations over the years but has not received any response from the respondent - HELD THAT:- It is an admitted position that after the shop was demolished in 1975 and the formulation of policy in 1977 and even after petitioner was communicated by letter dated 02.06.2010 that his representation has been considered by the competent authority and his request could not be acceded to, petitioner has not approached any Court of law seeking to enforce rights, if any - this is a case where the petition is liable to be dismissed on the ground of gross delay and latches in approaching the court of law. Shop of the petitioner was demolished as far back as 1975 and petitioner has waited for over 46 years in approaching this court. The seemingly innocuous prayer of the petitioner, of seeking a direction to respondents to dispose of his representation, appears to be an attempt, on part of the petitioner, to seek to create a fresh a cause of action so that he can overcome delay and latches - there are no merit in the petition - petition dismissed.

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