Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
September 24, 2022
Case Laws in this Newsletter:
GST
Income Tax
Customs
Insolvency & Bankruptcy
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Highlights / Catch Notes
GST
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Classification of goods - rate of GST - Mango Pulp - The orders passed by the Appellate Authority for Advance Ruling imposing GST in respect of ‘mangopulp’ @ 18% is incorrect and it is made clear that the petitioner is liable to pay GST in respect of Mango pulp @ 12%. - HC
Income Tax
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Benefit u/s 80IC - substantial expansion - the assessing officer has missed out one of the categories which have been mentioned in Clause (b) of Section 80IC(2). The assessee would squarely fall within the category of undertakings or enterprises which manufactures or produces any article or thing as specified in the Fourteenth Schedule as the assessee is a mineral based industry which finds place in clause-16 of Part-A of the Fourteenth Schedule - HC
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Applicability of section 269ST to the investments made in cash - section 269ST and the penalty provisions for not complying with the said section as contained in section 271DA are applicable to the receiver of the sum. Considering the facts of the case and the relevant provisions of the Act, we are of the view the action of PCIT invoking section 263 stating that the AO’s order is erroneous to the extent of AO not verifying whether investments are in violation of section 269ST is not tenable. - AT
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Addition u/s 68 - genuineness of share application / share premium received - Once the undisclosed income declared under IDS-2016 have been accepted by the Department including accepting the fact that ultimate amount was taxed, same therefore, cannot be taxed in the hands of assessee-company again. - AT
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Addition of aggregate of cash as well as cheque deposit in the bank account of assessee - the assessee was doing some business activity, though it was not disclosed to the department. In my view, taxing the entire credit is not justified, thus, it would be justified if only profit element in such business activities from where the assessee generated the credit found in the bank account. Therefore, 7% of total addition is considered as profit from such business activities. - AT
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Assessment u/s 153A - CIT(A) allowed the claim that lease rentals income earned by the appellant as income under the Profit or Gains from Business and Profession (Profit and Gain from Business and Profession) as against Income from House Property - CIT(A) has rightly allowed the fresh claim - AT
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Reopening of assessment u/s 147 - Addition u/s 68 - unexplained deposits in bank account - assessee is a small time tea and pakoda seller and he could not have been expected to grasp intricacies of Income Tax Law - As reached the conclusion that the assessee’s case deserves that a sympathetic view may be taken - the assessment order was also passed exparte qua the assessee as the assessee had furnished the reply before the wrong AO. - AT
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Validity of assessment u/s 147 - it is not a return u/s 119(2)(b) albeit it is a return filed in response to notice u/s 148 which has been accepted by the AO. Thus, when return has been filed in response to notice u/s 148 then it was mandatory for AO to issue notice u/s 143(2) before the completion of assessment, in case he wanted to vary the return of income and make addition - additions deleted - AT
Customs
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Extended period of limitation - suppression of facts or mis-declaration or not - lassification of imported goods - Neutral Pellets - only because there was a change of view by the department, the respondent could not have been said to have either mis-declared or suppressed facts in classifying its goods at the time of its import under CTH 1702. - HC
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Restricted goods or not - importation of excess quantity of waste/used Rubber Tyre Scrap over a period of time - there was no violation of the decision arrived at by the Technical Review Committee as to the intended usage of the impugned goods in question, by which it only renders that the excess import during the period in question by the respondent was only irregular and not prohibited. - AT
Indian Laws
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It is the duty of the Court to discover the truth and truth is the foundation of the justice. Section 311 Cr.P.C. is one of the provisions which assist the Court in the discovery of the truth. It is true that the power under section 311 Cr.P.C. has to be exercised judiciously for strong and valid reason with caution to meet the ends of justice. Simultaneously, the Court has the duty to give adequate opportunity to the parties to lead evidence for fair trial. - HC
IBC
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CIRP - If there are two borrowers or if two corporate bodies fall within the ambit of corporate debtors, there is no reason why proceedings under Section 7 of the IBC cannot be initiated against both the Corporate Debtors. Needless to mention, the same amount cannot be realised from both the Corporate Debtors. If the dues are realised in part from one Corporate Debtor, the balance may be realised from the other Corporate Debtor being the co-borrower. However, once the claim of the Financial Creditor is discharged, there can be no question of recovery of the claim twice over. - SC
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Seeking withdrawal of application admitted u/s 7 of IBC - Considering the number of people dependant on the Corporate Debtor for their survival and livelihood, there is no reason why the applicant for the CIRP, should not be allowed to withdraw its application once its disputes have been settled - the settlement cannot be stifled before the constitution of the Committee of Creditors in anticipation of claims against the Corporate Debtor from third persons. The withdrawal of an application for CIRP by the applicant would not prevent any other financial creditor from taking recourse to a proceeding under IBC. The urgency to abide by the timelines for completion of the resolution process is not a reason to stifle the settlement. - SC
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Maintainability of Insolvency Petition against the Guarantor - The OTS is not a novation of the original debt but is only to be construed as Terms of Settlement offered and agreed upon by the Borrower to discharge its liability. The Guarantor is a direct beneficiary of the OTS. Having signed and accepted OTS proposal, the Appellant cannot now turn around and take a stand that the liability is not co-extensive or that the Guarantee was invoked only in 2013. - AT
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Maintainability of application after approval of resolution plan - Application’ on behalf of the ‘Company - Suffice it for this Tribunal to make a pertinent mention that the Role of a Resolution Professional, much less of the Erstwhile Resolution Professional is that he cannot proceed any further, after the Resolution Pla is approved by the Adjudicating Authority. - AT
VAT
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Adjustment of amount of tax paid on inter-state sale transaction, against the tax to be paid to the State of Jharkhand - In the present case the transaction is for the period prior to insertion of Section 22(1B) to the Act 1956 and the impugned order has been passed by the Appellate Authority pre-insertion of Section 22(1B) to the Act 1956. Therefore, as such, it cannot be said that the Appellate Authority has committed any error in not issuing any direction which now is permissible under Section 22(1B) of the Act 1956. - SC
Articles
Notifications
Circulars / Instructions / Orders
News
Case Laws:
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GST
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2022 (9) TMI 1047
Cancellation of registration of petitioner - Taxpayer other than composition taxpayer has not filed returns for a continuous period of six months - petitioner did not have knowledge of the show-cause notice, thus, the reply could not be filed - non-application of mind - HELD THAT:- In the present case from the perusal of the order dated 13.02.2020, it is found that clearly there is no reason ascribed to take such a harsh action of cancellation of registration. In view of the order being without any application of mind, the same does not satisfy the test of Article 14 of the Constitution of India, as such, the impugned order dated 13.02.2020 (Annexure 2) is set aside. The petition is accordingly allowed.
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2022 (9) TMI 1046
Classification of goods - rate of GST - Mango Pulp - classifiable under Chapter Heading 0804 50 40 or not - taxable at 18% or not - HELD THAT:- It is very clear now that on the basis of recommendation of GST Council in its 22nd meeting, the GST rate on Mangoes sliced, dried falling under heading 0804 was reduced from 12% to 5% while GST rate on all forms of dried mangoes (other than sliced and dried mangoes) falling under heading 0804, including mango pulp, was always meant to be at the rate of 12%. Therefore, the petitioner is liable to pay GST on Mango pulp @ 12%. The orders passed by the Appellate Authority for Advance Ruling imposing GST in respect of mangopulp @ 18% is incorrect and it is made clear that the petitioner is liable to pay GST in respect of Mango pulp @ 12%. The Writ Petition is disposed of.
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2022 (9) TMI 1045
Seeking release of seized Conveyance - recovery of the entire amount from sale of the goods which is also confiscated - respondent No.5 is ready and willing to deposit the fine in lieu of conveyance amounting to Rs.3,16,350/- - HELD THAT:- The respondent Nos.3 and 4 are directed to release the conveyance bearing registration No.GJ-06-AV-4708 only to the respondent No.5 on depositing the amount of Rs.3,16,350/- by the respondent No.5 on or before 15th September, 2022. It is clarified that the aforesaid deposit shall be without prejudice to the rights and contentions of the respondent No.5 to be raised in this petition. Stand over to 30th September, 2022.
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2022 (9) TMI 1044
Unable to file TRAN-1 during the time when the portal was open - transitional credit - HELD THAT:- Reliance placed in the case of UNION OF INDIA ANR. VERSUS FILCO TRADE CENTRE PVT. LTD. ANR. [ 2022 (7) TMI 1232 - SC ORDER ] whereby the apex Court in an attempt to resolve the piquant situation prevailing around the nation where assessees were deprived due to technical glitche to avail filing of forms for availing Transitional Credit through TRAN-1 and TRAN-2, directed for opening of the portal from 01.09.2022 to 31.10.2022. In view of the fact that the counsel for the Central GST as well as State GST does not dispute the applicability of the above order of Apex Court to the issue involved herein, this Court directs that the petitioner can avail the said remedy made available by the apex Court between 01.09.2022 to 31.10.2022. Petition disposed off.
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2022 (9) TMI 1043
Attachment of current bank account of petitioner - petitioner was ready to give the bank guarantee of the tax amount - HELD THAT:- The arrears of tax is of Rs. 6,10,511/- plus the interest amount of Rs. 91,526/- and penalty of an amount of Rs. 91,577/- - The court does not find any reasonableness in the submission of learned Assistant Government Pleader that the bank guarantee amount should cover the interest and penalty also, more particularly when the adjudicatory process against the petitioner is yet to complete. It would be just and proper to require the petitioner to submit the bank guarantee in respect of the tax amount of Rs. 6,10,511/-. This would adequately secure the tax amount for the department and further take care the interests of the revenue at this stage. This petition is allowed by setting aside the communication dated 7.5.2022 and the satisfactory note/order dated 6.5.2022 whereby the current the Current Account No. 920020067484110 of the petitioner with the Axis Bank, Shahibaug Branch, Ahmedabad has been attached. The attachment shall be lifted on the condition that the petitioner furnishes to the competent authority of the respondent authority the bank guarantee for the amount equivalent to Rs. 6,10,511/- - Petition allowed.
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2022 (9) TMI 1042
Transfer of Input Tax Credit - alternative prayer is to direct the respondents to permit the petitioners to again file manually the TRAN-1 for declaring and transferring Cenvate credit - Central Goods and Services Tax Act, 2017 (CGST Act ) read with Rule 117 of the Central Goods and Services Tax Rules, 2017 (CGST Rules) - circular No. 39/13/2018 GST dated 3.4.2018 as well as order No. 1/2020 GST dated 7.2.2020 - HELD THAT:- The issue has been answered by the Apex Court in case of UNION OF INDIA ANR. VERSUS FILCO TRADE CENTRE PVT. LTD. ANR. [ 2022 (7) TMI 1232 - SC ORDER] where it was held that Goods and Service Tax Network (GSTN) is directed to open common portal for filing concerned forms for availing Transitional Credit through TRAN-1 and TRAN-2 for two months i.e. w.e.f. 01.09.2022 to 31.10.2022. It goes without saying that the aforesaid decision of the Supreme Court shall govern the right of the parties. Petition disposed off.
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Income Tax
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2022 (9) TMI 1041
Revision u/s 263 against non-existent person - HELD THAT:- The factum of the death of the deceased assessee was brought to the notice of the Principal Commissioner of Income Tax, vide communication dated 07th March, 2016, which was not only acknowledged by hand receipt but also got reflected in the order dated 16th March, 2016 passed under Section 263 of the Act by the Principal Commissioner of Income Tax. It is thus stated that having full knowledge about the factum of the death of the deceased assessee, the authority had proceeded to pass an order against a dead person, which was thus a nullity in law. Since the issue which is now sought to be raised before this Court in the present appeal, was not an issue which was raised or agitated before the Tribunal, but nevertheless has a direct bearing on the controversy, we deem it necessary to remand the matter to the Tribunal for a fresh consideration on this limited issue, keeping all other issues, which have been raised in the present memo of appeal, open.
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2022 (9) TMI 1040
Benefit u/s 80IC - substantial expansion - revenue s contention is that the assessee having not undertaken any substantial expansion as required under Section 80IC(2)(b) of the Act, they cannot claim exemption u/s 80IC - HELD THAT:- Sub-Section (2) of Section 80IC deals with the undertakings and enterprises to which Section 80IC would apply. Clause (b) of sub-Section (2) of Section 80IC would be relevant to the cases on hand. The said clause (b) of Section 80IC(2) applies to any undertaking or enterprise which has begun or begins to manufacture or produce any article or thing specified in the Fourteenth Schedule or commences any operation specified in that Schedule. The second category of undertakings are those which manufactures or produces any article or thing in the Fourth Schedule; and the third category being undertakings or enterprises which commenced operations specified in the Fourteenth Schedule and undertakes substantial expansion during the relevant period which is on 24th day of December, 1997 and ending before 1st day of April, 2007 in any North-Eastern States. On a reading of the order passed by the assessing officer we find that the assessing officer has missed out one of the categories which have been mentioned in Clause (b) of Section 80IC(2). The assessee would squarely fall within the category of undertakings or enterprises which manufactures or produces any article or thing as specified in the Fourteenth Schedule as the assessee is a mineral based industry which finds place in clause-16 of Part-A of the Fourteenth Schedule. Thus, we are the of the view that the learned tribunal rightly affirmed the conclusion arrived at by the CIT(A). In the result, the appeal filed by the revenue is dismissed and substantial question of law which was common in all the three appeals is answered against the revenue. Addition u/s 14A r.w.r. 8D - Necessity of recording satisfaction - HELD THAT:- The explanation submitted by the assessee while framing the assessment proceedings was rejected by the assessing officer without adducing any reasons nor any defect was pointed out by the assessing officer at the time of assessment and straightway the assessing officer applied the machinery provision under Rule 8D of the Income Tax Rules, 1962. Furthermore, on facts, the learned tribunal found that the assessee had sufficient funds and an inference can be drawn that the investment has been made out from the funds of the assessee. In the case of Kesoram Industries Ltd. [ 2022 (1) TMI 995 - CALCUTTA HIGH COURT ] the Court took into consideration the decision of the Hon ble Supreme Court in Maxopp Investment Ltd. vs. CIT [ 2018 (3) TMI 805 - SUPREME COURT ] The decision of the Hon ble Supreme Court in South Indian Bank Ltd. vs. Commissioner of Income Tax [ 2021 (9) TMI 566 - SUPREME COURT ] is also in aid of the case of the assessee as the tribunal has recorded specific finding that own funds were available with the assessee - Decided in favour of assessee.
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2022 (9) TMI 1039
Validity of Reopening of assessment u/s 147 - disallowance of deduction on reversal of provision - AO disallowed the claim made under Section 10(23G) - HELD THAT:- Undisputed facts of the case are, before passing the Assessment Order on 16.11.2011 under Section 143(3) of the Act, the AO had sent a questionnaire vide his communication dated 04.05.2011 calling for explanation from the assessee. In response, the assessee submitted its reply on 04.07.2011 and 05.10.2011 and explained that provisions were created with regard to the technical fees for the A.Y.2003-04 to 2007-08 and had not deducted the tax during the respective years and the same was disallowed under Section 40(a) of the Act. Further, assessee did not make any payment and reversed the provision during the year ending March 31, 2008. In substance, assessee's case is, the original provision was not allowed as deduction and therefore reversal of the same cannot be taxed again. Revenue is not without remedy and it can invoke power under Section 263 of the Act where an AO incorrectly applies the law or comes to a wrong conclusion and income chargeable to tax had escaped assessment - initiation of reassessment proceedings will be invalid on the ground of change of opinion. A careful perusal of the re-assessment order and the orders passed by the CIT(A) and the ITAT shows that the same are contrary to the law laid down by the Apex Court as the re-assessment is based on 'change of opinion'. Admittedly, the AO has stated that the issue was 'inadvertently' allowed by him without verifying the reversal of provision. This view amounts to change of opinion and therefore, the reassessment proceedings are invalid. Hence, this appeal merits consideration.
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2022 (9) TMI 1038
Disallowance u/s 14A read with Rule 8D - computation of book profit under section 115JB - HELD THAT:- CIT(A) has rightly directed the Assessing Officer to restrict the disallowance u/s 14A of the Act to the extent of exempt income earned. We find no reason to interfere with the order passed by the ld. CIT(A) on this issue and accordingly, the ground raised by the Revenue is dismissed for both the assessment years. Disallowance u/s 14A for the purpose of computation of book profit under section 115JB - As of now, it has been clear that the amendment made by the Finance Act, 2022 to section 14A of the Act will take effect from 1st April, 2022 and will apply in relation to the assessment year 2022-23 and subsequent assessment years. Accordingly, the argument of the ld. DR is rejected. Moreover, we find no infirmity in the order passed by the ld. CIT(A) on this issue. Accordingly, the ground raised by the Revenue is dismissed.
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2022 (9) TMI 1037
Revision u/s 263 - Reopening of assessment u/s 147 - no inquiries were conducted with regard to cash deposits in bank accounts of assessee, no inquiry made by the AO regarding land development charges, assessee has shown unsecured loans from seven persons, there are advances given for land purchase but no confirmation of any those parties are available and the assessee declared short term capital gains on sale of three properties in earlier years, the short term capital gains work out to approximately as stamp duty on purchases not taken into account in the computation of income - HELD THAT:- No reply to the show cause notice was filed by the assessee. We find that Ld PCIT passed the impugned order after detailed discussion and on clearly holding that it was the duty of the AO to investigate the fact in the return of assessee, when circumstances demand to make such inquiries. Thus, in absence of proper inquiry, the assessment order passed by AO is erroneous and prejudicial to the interest of revenue. We find that in absence of proper investigation of the issues the order passed by AO in erroneous, the Revenue suffered loss of due tax. Thus, the assessment order is prejudicial to the interest of Revenue as well. The order passed by the AO is not only erroneous but also in so far as prejudicial to the interest of revenue. Before us, the present appeal was filed on 04.06.2018, no document till date filed by the assessee. Any material or evidence or written submission, we do not find any reason to deviate from the finding of Ld. PCIT, which we affirm. In the result, appeal of the assessee is dismissed.
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2022 (9) TMI 1036
Deduction for ESOP Expenditure - ESOP expenditure allowable revenue expenditure u/s 37 or not? - HELD THAT:- The submission of the assessee has considerable cogency. DRs objections that the payment was made during the next year, assessee has contended that two year amount including the present year, where billed by ITC Ltd. and though the payment was made in the next year, Rs.2.58 Crores thereof belonged to present assessment year. In our considered opinion, both the submission has considerable cogency. Several factual aspects have been mentioned by assessee which need verification at the level of the AO. Hence, the factual aspects that there were employees deputed by ITC Ltd. for working for assessee and that expenditure was actually paid during the next year but it related to current year and financials of current year were duly recasted, are subject to examination by the AO and hence we direct the AO factually verify this issue and thereafter pass order as per our observations hereinabove. Appeal of the assessee is partly allowed for statistical purposes.
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2022 (9) TMI 1035
Suppression of income - Deduction u/s.80IB - as said assessee has shifted profit to get tax benefit - suppression of income at Puducherry unit - difference between price charged by the assessee for own unit at Puducherry and price charged by M/s Aeroaroma Home Care Products, Puducherry - As per AO assessee has shifted profit from Puducherry unit to Guwahati unit to claim higher tax benefit by way of deduction u/s.80IC @ 100% profit which is evident from fact that Puducherry unit is claiming deduction u/s.80IB of the Act @ 25%, whereas Guwahati unit is claiming 100% deduction towards profit derived from the business - HELD THAT:- The assessee has paid Rs.0.77 per unit to product purchased from M/s.Aeroaroma Home Care Products, Puducherry and has carried out secondary operations at Guwahati unit. If you consider additional cost incurred by the assessee for product purchased from third party supplier at Guwahati unit, total cost per unit works out to Rs.0.91 per unit. If you compare both prices, there is minor difference of Rs.0.02 per unit, as against difference worked out by the Assessing Officer, which is on very high. The assessee has explained reasons for small difference in price of similar products purchased from third party supplier and manufactured at its own unit. In our considered view, explanation furnished by the assessee appears to be reasonable and bonafide. As we have already noted in earlier paragraph of this order, pricing of any products cannot be compared on the basis of location alone, because it depends upon various factors, including functions performed, asset employed and risk involved. Since, there is minor difference of Rs.0.02 per unit, which is negligible may happen in any case. Therefore, we are of the considered view that there is no reason for the Assessing Officer to work out under-invoicing of products only on the basis of comparison of price charged by third party to the price charged by the assessee. Under invoicing of products - In this case, central excise authorities have accepted valuation determined by the assessee for products manufactured at Puducherry unit and thus, in our considered view, said facts strengthen case of the assessee that there is no under-invoicing of products supplied by Puducherry unit to Guwahati unit. In this context, it is relevant to refer to the decision of the Hon'ble High Court of Madras in the case of Ananda Metal Corporation [ 2004 (7) TMI 49 - MADRAS HIGH COURT] where the High Court in the context of valuation of closing stock for the purpose of Sales Tax Act held that once there is no dispute from sales tax authorities for valuation of stock declared for the purpose of levy of sales tax, then the Assessing Officer does not have any jurisdiction to go beyond value of closing stock declared by the assessee and accepted by commercial tax department. As per SMT. SAKUNTALA DEVI KHETAN [ 2013 (3) TMI 270 - MADRAS HIGH COURT] unless and until competent authority under Sales Tax Act differs or varies with closing stock of the assessee, return accepted by said authority is binding on the Assessing Officer and in such case, the Assessing Officer has no power to scrutinize return submitted by the assessee. In this case, the assessee has demonstrated with all possible evidences to prove that there is no difference between price charged by Puducherry unit, when compared to price charged by third party supplier on products purchased by Guwahati unit. Further, the assessee has also demonstrated with evidence that Guwahati unit has incurred further cost towards processing of semi-finished goods purchased from Puducherry unit. As we have already sated in earlier part of this order, If you consider total cost incurred for product supplied from Puducherry unit to total cost incurred for products purchased from third party supplier, there is minor difference of Rs.0.02 per unit and said difference may arise for various reasons and thus, in our considered view, the Assessing Officer has completely erred in making additions towards suppression of income. The learned CIT(A), without considering above facts has simply sustained additions made by the AO. Hence, we reverse findings of the learned CIT(A) and direct the Assessing Officer to delete additions made towards suppression of income on account of under valuation of stock supplied to Guwahati unit for the assessment years 2008-09 to 2012-13. Appeals filed by the assessee are allowed.
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2022 (9) TMI 1034
Disallowance of expenditure in respect of employees contribution to Provident Fund and Employee State Insurance ((ESI) - Addition u/s 36(1)(va) - amount paid before the due date of filing return of income and is thereby allowable u/s 43B - HELD THAT:- As decided in GHATGE PATIL TRANSPORTS LTD. [ 2014 (10) TMI 402 - BOMBAY HIGH COURT] the payment of employee s contribution beyond the due date mentioned in the relevant statute but before the due date of filling the return of income u/s 139(1) is allowable expenditure. - Decided in favour of assessee.
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2022 (9) TMI 1033
Deduction u/s 80IB - deduction claim pertains to the assessee s Green Lands residential project at Rahatani, Pune - HELD THAT:- We have gone through the site plan with the able assistance of both the parties. It emerges that the assessee has only completed C to F wings which could hardly be termed as habitable in absence of compound walls, sewage treatment plant, drainage and parking etc. Even a single residential tower could be taken as an eligible housing project and therefore, these four wings ought to be treated as independent housing projects eligible for 80IB(10) deduction on stand-alone basis. All these assessee s arguments failed to evoke our concurrence. We wish to clarify here that recent decisions in Pr.CIT Vs. Wipro Limited[ 2022 (7) TMI 560 - SUPREME COURT] , Commissioner of Customs Vs.M/s. Dilip Kumar and Company [ 2018 (7) TMI 1826 - SUPREME COURT] have settled the law that provisions in a taxing statute; including deductions, ought to be strictly interpreted. We keep in mind this settled proposition and note that their lordships in Vandana Properties [ 2012 (4) TMI 54 - BOMBAY HIGH COURT] had come across an instance wherein all the project amenities had already been completed (in towers A to D) before the said assessee sought 80IB(10) qua E building as the eligible residential project. We reiterate that the factual position is just the opposite before us since this taxpayer has failed to prove that its C to F wings had been completed along with all the foregoing amenities; before the date of part completion certificate dated 29-03-2012 (supra). AR sought to draw support from the Municipal Corporation s subsequent approval to the completed project on 28-07-2014 that the assessee had duly complied with all the requirements of the entire project. We are afraid that this latter completion would hardly help the assessee once he is supposed to complete C to F wings to make them habitable before 29-03-2012 only. We thus find merit in the Revenue s sole substantive grievance seeking to revive this 80IB(10) disallowance pertaining to Green Lands project - It s instant first appeal succeeds.
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2022 (9) TMI 1032
Reopening of assessment u/s 147 - Eligibility of reasons to believe - as submitted both the transactions with the parties are bogus and liable to be added u/s. 69/69A as unexplained investments - HELD THAT:- As per Explanation 3 if during the course of these proceedings the Assessing Officer comes to conclusion that some items have escaped assessment, then notwithstanding that those items were not included in the reasons to believe as recorded for initiation of the proceedings and the notice, he would be competent to make assessment of those items. However, the Legislature could not be presumed to have intended to give blanket powers to the AO that on assuming jurisdiction under section 147 regarding assessment or reassessment of escaped income. AO would keep on making roving inquiry and thereby would include different items of income not connected or related with the reasons to believe, on the basis of which he assumed jurisdiction. For every new issue coming before the AO during the course of proceedings of assessment or reassessment of escaped income, and which he intends to take into account. In the instant case, the AO was satisfied with the justifications given by the assessee regarding the items, viz., credit transactions with two parties. During the assessment proceedings, he found the justification of addition U/s 44AD of the Act. He, consequently, while not making additions on transactions, which was supposed to added back with the U/s 69/69A of the Act. The escapement of income was ascertained amount to Rs.79,31,509/-. But the addition was made amount to Rs. 38,10,700/-. The ld. AO was not so justified when the reasons for the initiation of those proceedings ceased to survive. Decided in favour of assessee.
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2022 (9) TMI 1031
Assessment u/s 153A - Scope of unabated assessment proceedings - Proof of incriminating material found during the course of search or not? - HELD THAT:- As there is no incriminating material found during the course of search and therefore the addition made cannot be construed as made using material found during search u/s.132. If the contention of revenue is to be accepted that the material i.e. the show cause notice issued by the DRI can be used as basis for making the addition, then the assessing officer out to have requisitiond for such material u/s.132A which is not the case here. Revenue has not brought on record of having complied with the procedure u/s.132A and therefore we see merit in the argument of the ld AR. Further the document relied on by the AO is a show cause notice alleging the removal of marble slabs into DTA and is not a concluded finding that the marble slabs are sold without recording it in the books. We are unable to appreciate that the AO has not conducted any further enquiry on the allegations contained in the show cause notice of DRI but has proceeded to consider the same as incriminating material warranting the addition. There can be no presumption based on a document has come to the notice of the AO since nothing incriminating is found during the course of search in support of the alleged removal of marble slabs into DTA. We hold that the addition made by the assessing officer towards unaccounted sales is not sustainable and therefore delete the said additions. This issue is allowed in favour of the assessee.
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2022 (9) TMI 1030
Limited Scrutiny under CASS - AO jurisdiction in making huge disallowances on issues which were not the basis for initiating Limited Scrutiny - High ratio of refund to TDS - HELD THAT:- If the arguments of Revenue is sustained that scrutiny for high ratio of refund to TDS entitles even examination of expenditures, which have no relationship with the TDS, then that will in a way give arbitrary powers to the Assessing Officer to do complete scrutiny of all the expenses in a limited scrutiny and thus circumvent the provision of Act which require mandatory approval of competent authority to convert limited scrutiny to complete scrutiny. CIT(A) has tried to justify the act of AO by observing that legal and professional expenses, business promotion expenses, professional expenses for seeking legal opinion would be included under the head of High ratio of refund to TDS. No reason was cited as to how the TDS credit shown in the return has impact on the expenditure and would affect the refund of assessee. Thus, the Bench is of considered opinion that, the very exercise of jurisdiction to examine the disputed expenses under limited scrutiny on ground of High ratio of refund to TDS , was vitiated and that made all the additions illegal. Ground deserves to be allowed. Disallowance of business promotion expenses and disallowance of professional expenses for seeking legal opinion - The Bench is of considered opinion that if that was so then the Ld. CIT(A) had wide powers u/s 250(4) of the Act to call for comments of the AO or make an enquiry himself, as assessee was pressing that it had filed all the document/evidences during assessment. The assessment order shows that AO had taken note of the fact that the payment was being made as a fee for assistance in connection with seeking clarification from RBI on applicability of CIC Guidelines and applicability of FEMA on subscription of RPS and evaluating tax implications of unwinding RPS held by the Assessee. Thus certainly relevant evidence was on record. The Bench is of considered opinion that Redeemable Preferences Shares (RPS) held by the assessee being long term in nature may be capital expenditure but the expenses paid to legal and professionals for an opinion about legal and tax consequences of the prospective investment cannot be considered to be a capital expenditure. The legal expenses were merely to avoid panel provisions and to assure that there is no breach of any regulatory guidelines of investment. These expenses did not added any value to the investment nor would have reduced the risk of investment, but merely made the investment in consonance with the law of the land. Therefore, disallowance by calling them, capital expenditure cannot be sustained. Both grounds deserve to be allowed. Disallowing Legal Professional expenses - No supporting evidence to prove that the expenses claimed were pertaining to relevant A.Y. 2015-16 - as argued CIT deleted the addition taking into evidence of the assessee without calling for any remand report in regard to disallowances - HELD THAT:- When the expenditures are in the nature of professional services they may not have immediate impact or relationship with the revenue and the purpose of this expenditure is more to run the business in a law observant and subject to regulatory measures. The same do not add to the revenue as such but only ensure that no penal liabilities are created out of that business activity. Thus the findings of ld. AO were incorrect and rightly interfered by Ld CIT(A). Thus, there is no force in the ground no 1 raised by the revenue and the ground is disallowed. Disallowing Business Promotion expenses - CIT-A deleted the addition - The assessee had explained that as it had set up business of online Gaming by providing Gaming Gears to Gamers and promoting E-Sports in India. Consequently, the assessee had incurred promotion expenses for the same. The AO has observed that no evidence has been tendered on the other hand, on the basis of submissions dated 20.12.2018 which referred to expenditures in support of submissions were mentioned by the ld. AO and Ld. CIT(A) has considered all this evidence. Accordingly, the ld. CIT(A) has distinguished the findings of Ld AO on same terms as sallowing Legal Professional expenses and for which the Reveune s appeal ground no 1 has been dealt above and there is no distinction. The observations of this Bench as made above apply mutatis mutandis to this ground no 2 as well. Thus the findings of ld. AO were incorrect and rightly interfered by Ld CIT(A). Appeal of assessee is allowed and the appeal of Revenue is dismissed.
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2022 (9) TMI 1029
Reopening of assessment u/s 147 - special information received by the ld. AO regarding investment of appellant as founder in M/s Mars Educational Trust - HELD THAT:- In the assessment proceeding there is no connection in between recorded reason and addition of the income. The entire reasons to believe are itself erroneous and not established on the true fact. Respectfully considered the order of Jet Airways (I) Ltd, [ 2010 (4) TMI 431 - HIGH COURT OF BOMBAY] the basis of issuance of notice u/s 148 is non discloser of primary facts by the assessee. The fact which was ascertained / verified by the AO is itself erroneous. However, if after issuing a notice under section 148, he accepts contention of assessee and holds that income, for which he had initially formed a reason to believe that it had escaped assessment, has, as a matter of fact, not escaped assessment, it is not open to him to independently assess some other income. If the ld. AO intends to do so, a fresh notice under section 148 would be necessary, legality of which would be tested in event of a challenge by assessee.The entire recorded reason is erroneous. The ld AO acted beyond jurisdiction. Accordingly, the order passed u/s 147/143(3) of the Act is non est. We are in opinion that the assessment order passed by the ld. AO is erroneous and bad in law. CIT(A) had not considered the legal point in his order. Decided in favour of assessee.
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2022 (9) TMI 1028
Revision u/s 263 - Additional income towards excess stock - whether the excess stock should be assessed as unexplained expenditure u/s.69C? - HELD THAT:- In the given case, in the statement recorded during the course of search the Shri Anand Kumar, one of the partners in the assessee firm, he has admitted that there is difference in the stock recorded in the books and the physical stock and agreed to offer the same as additional income. PCIT has not brought anything contrary to record to state that the amount admitted towards excess stock is from a difference source. When the additional income is offered towards excess stock, the stock being part of the business of the assessee is offered to tax as business income - PCIT has merely substituted his views to the extent that the AO should have done further enquiry when PCIT himself admits that the additional income is from the excess stock. We are of the considered opinion that the revisionary jurisdiction could not be allowed to be exercised by the PCIT either for substituting his own opinion for that of the AO or for making a fishing and roving enquiry. PCIT in the present case has wrongly invoked the jurisdiction under section 263 and the controversy in the present case is fully covered by the judgment of Gabriel India Ltd.[ 1993 (4) TMI 55 - BOMBAY HIGH COURT] - Accordingly the impugned order of the PCIT with regard to the issue of setting the order of AO u/s.143(3) with regard to this issue is quashed. Applicability of section 269ST to the investments made in cash - Mode of undertaking transactions - A.R. submitted that provisions of Section 269ST of the Act is applicable only to the receiver of the amount and not the payer - HELD THAT:- The facts of the case here as has been noted by the AO is that the assessee has made payments of Rs.4.50 crores to the shareholders of M/s.Lax Bio Feeds Pvt Ltd., apart from the agreed share price. As per the statement recorded u/s.132(4) from the partner of the assessee the source of the amount paid was the inflated purchases and payments made boat owners and that the said payments have not been recorded in the books of accounts. It is also noted by the AO that the amount invested has already been taxed as undisclosed income is already offered to tax in AY 2017-18. Further from the combined reading of the above provisions it is clear that section 269ST and the penalty provisions for not complying with the said section as contained in section 271DA are applicable to the receiver of the sum. Considering the facts of the case and the relevant provisions of the Act, we are of the view the action of PCIT invoking section 263 stating that the AO s order is erroneous to the extent of AO not verifying whether investments are in violation of section 269ST is not tenable. We therefore quash the order of PCIT with regard to this issue. Assessee appeal allowed.
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2022 (9) TMI 1027
Bogus purchases - genuineness of purchase of TMT bars and Steel from three vendors who are allegedly black listed by the Sales tax department, Mumbai - grounds raised are primarily on the basis that revenue have questioned the genuineness of purchase of TMT bars and Steel from three vendors who are allegedly black listed by the Sales tax department, Mumbai - HELD THAT:- What can be concluded is that in spite of AO having been given opportunity, he was unable to lay hand on any material evidence to rebut the submissions of assessee. The order of AO and the examination of facts and circumstances by CIT(A) indicate as if a presumption of truth was attached to all proceedings of VAT department, Mumbai and the onus was on assessee to rebut the same. Rather once CIT(A) had called for specific report from AO then unless there was specific material collected to rebut the submissions of assessee then merely on basis of inference from the circumstances, the purchase could not have been held to be bogus, by the CIT(A). In fact assesse s own accounts stand admitted by revenue which reflect that the work order with Govt of Jharkhand was source of revenue as shown in the balance sheet of assessee, where the Transport Department of Jhankhand is shown as a debtor - Revenue has accepted the income of assessee and relevant is scheduled at 13 available at page no. 63 of the paper book, being part of the copy of ITR of assessee company, wherein income from sales (E-cheque post), for which purchases were made and sub contracted to M/s. Mettler Toledo India (P) Ltd, has been shown to be Rs. 12,33,81,325/-. Thus, it was unfair on the part of Ld. Tax authorities below to consider the purchases of stocks used for earning this revenue by alleging it as bogus. Therefore, grounds raised are sustained and the appeal is allowed.
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2022 (9) TMI 1026
Allowability of employees contribution of ESIC and PF which was deposited beyond time mentioned in the respective Statutes but before filing income tax return u/s 139(1) - HELD THAT:- As decided in GHATGE PATIL TRANSPORTS LTD. [ 2014 (10) TMI 402 - BOMBAY HIGH COURT] the payment of employee s contribution beyond the due date mentioned in the relevant statute but before the due date of filling the return of income u/s 139(1) is allowable expenditure. - Decided in favour of assessee.
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2022 (9) TMI 1025
Addition u/s 68 - genuineness of share application / share premium received - declaration made IDS-2016 by director s / family members - CIT- deleted the addition - AR submits that the investment made by the assessee-company was undisclosed income of various directors / family-members of the directors of the assessee-company, which has been accepted by them in IDS-2016 on which due penalty has been paid, once the amount has been taxed, same cannot be taxed in the hands of assessee again - HELD THAT:- We find that Hon'ble jurisdictional High Court in the case of M.R. Shah Logistic (P) Ltd. [ 2018 (8) TMI 1434 - GUJARAT HIGH COURT] on almost similar set of facts and on similar question of law allowed the appeal of that assessee by holding that where Assessing Officer held share application money received by assessee-firm from (GL) as undisclosed by the said (GL) under IDS-2016, which was accepted by the Department, pursuant to which that assessee had paid penalty, assessing the same amount in the hands of assessee would amount to double taxation and deleted the entire addition. As in similar case in Peninsula Builders P Ltd, Shree Laxmi Fashions Private Limited and in Prime Embroideries Private Limited similar additions were made by assessing officer on account of share premium. Later on their directors accepted by filing application under IDS-16 and paid due tax of their own money, which was also infused through same modus operandi, and the ld CIT(A) deleted the addition, but no appeal is filed in such cases. We find that no contrary material is filed or shown to us by ld SR DR for the revenue that any further appeal is filed in all such similar cases by the revenue. Thus, in our considered view, the revenue cannot treat the similar situated assessee on similar additions in different way. So far as the objection of ld Sr DR for the revenue is concerned that undisclosed income declared in IDS-16, not to affect finality of completed assessment. We may note that the appeal is continuation of its original proceedings and the assessee cannot be deprived of the benefit, if it was available at the time of assessment, if the appeal of assessee is pending adjudication either at first or second appeal stage. We find that once the undisclosed income declared under IDS-2016 have been accepted by the Department including accepting the fact that ultimate amount was taxed, same therefore, cannot be taxed in the hands of assessee-company again. Thus, with these additional observation, we affirm the order of Ld. CIT(A).Grounds of appeal raised by the revenue are dismissed.
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2022 (9) TMI 1024
Levying Late filing fees u/s 234E and consequentially interest u/s 220(2) - whether late filing fee u/s 234E of the Act could be levied for TDS returns filed for the period pertaining to the period prior to 1.6.2015 - Diversified views on matter - HELD THAT:- Respectfully following the decision of Hon ble Supreme Court in the case of CIT vs Vegetable Products Ltd [ 1973 (1) TMI 1 - SUPREME COURT] we prefer to follow the decision in the case of Fatehraj Singhvi [ 2016 (9) TMI 964 - KARNATAKA HIGH COURT] and cancel the levy of late filing fees u/s 234E of the Act for both the quarters for both Form 24Q and 26Q TDS statements. - Decided in favour of assessee.
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2022 (9) TMI 1023
Reopening of assessment u/s 147 - addition of aggregate of cash as well as cheque deposit in the bank account of assessee - assessee vehemently submitted that assessee was doing a business of Lapsi on very small scale and family of assessee is in this traditional business, inherited from his predecessors and that the deposits made in the bank accounts are part of sale proceed or transaction of family business of Lapsi - HELD THAT:- Entire amount of deposits cannot be considered for addition. The frequent deposit and withdrawal shows that the bank account in dispute was used for unreported bossiness transactions. As recorded above the assessee before us claimed that the assessee was doing a small traditional business of lapsi, which the assessee inherited and the surname of the assessee is also derived from their traditional business. We find merit in his submission that the assessee was doing some business activity, though it was not disclosed to the department. In my view, taxing the entire credit is not justified, thus, it would be justified if only profit element in such business activities from where the assessee generated the credit found in the bank account. Therefore, 7% of total addition is considered as profit from such business activities. Accordingly, the AO is directed to consider 7% of total deposit. Coordinate Bench of this Tribunal in Smt. Krushangi Keyur Bhagat [ 2018 (9) TMI 2093 - ITAT SURAT] almost on similar set of facts wherein cash credit was found credited in the bank account of that assessee, the assessee took plea before lower authorities that transaction in bank account pertained to her textile business. Assessee claimed that only peak credit appearing in the bank account should be considered which was not accepted and the amount after reducing the cheque deposits, remaining was treated as unexplained. On appeal before Tribunal, the plea of assessee that amount credited in the bank was a part of textile business and only profit element @ 5% of total deposit including of credit by way of cheque was considered as a profit element on the total deposits. Considering the fact of the case and the legal view taken by Hon ble High Court as well as by Coordinate Bench of this Tribunal, WE direct the AO to restrict the addition @ 7% of credit in the bank account of assessee.Ground raised by assessee are allowed.
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2022 (9) TMI 1022
Assessment u/s 153A - CIT(A) allowed the claim that lease rentals income earned by the appellant as income under the Profit or Gains from Business and Profession (Profit and Gain from Business and Profession) as against Income from House Property as claimed in its Return of Income filed u/s 139(1) - HELD THAT:- We observe that the assessee is earning income from the let of out of the premises situated in the SEZs and offered to tax in the original return of income filed by the assessee under the head income from House property. Subsequent to the Search, while filing the return u/s 153A, it changed the head of income to declare the income from let out of premises under the head Income from Business and Profession. This action of the assessee was rejected by the AO that the assessee cannot claim new benefit in the revised proceedings u/s 153A of the Act. CIT(A) decided the issue in favour of the assessee considering the fact on record that the assessment years under consideration are abated, therefore, the assessee can claim fresh or modified claim. After considering the submissions of both counsels, we observe that this issue is well settled and held in the case of B.G. Shirke Construction Technology P Ltd [ 2017 (3) TMI 879 - BOMBAY HIGH COURT] that in the case of abated assessments the return filed u/s 153A replaces the return filed u/s 139. It held that the stand of the revenue is misplaced as the issue is relating to the assessment u/s.147/148 the same cannot be applied for the issue under consideration. Therefore, the submissions made by the DR are substantially answered. Appeals filed by the Revenue are dismissed.
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2022 (9) TMI 1021
Disallowance u/s 40A(3) - payments otherwise than by way of account payee cheques/bank drafts in relation to the expenses incurred - where seller of agricultural land insisted on payment in cash? - HELD THAT:- No disallowances under section 40A(3) can be made where seller of agricultural land insisted on payment in cash. Thus, applying the legal principles enunciated in the judicial precedents cited before us, we hold that the disallowance made under section 40A(3) of the Act is unsustainable. Accordingly, we delete it. - Decided in favour of assessee. Disallowance of provision of bad debts - HELD THAT:- The facts emanating on record indicate that the assessee had actually written off the amount in dispute in its books of account. As evident, the bad debt written off pertains to the debtor to whom maintenance services were provided and maintenance charge on account of such services were accounted in the books of account in past assessment years and were offered to tax. The apprehension of the AO appears to be unfounded. In any case of the matter, after amendment of section 36(1)(vii) w.e.f. 01.04.1989, the condition precedent for allowance of deduction is actual writing off of the bad debts in the books of account. This is the ratio laid down in case of TRF Ltd. [ 2010 (2) TMI 211 - SUPREME COURT] - That being the position in law, we do not find any deficiency in the decision of the learned Commissioner (Appeals). Accordingly, ground raised is dismissed. Expenditure under the head property maintenance and under the head Miscellaneous Expenses - HELD THAT:- Disallowance on purely ad-hoc basis without any valid reasoning. As could be seen from the facts on record, the assessee is engaged in three business segments viz. electricity supply, estate management services and real estate division. The maintenance division is known as Sunrise Management Estate Services. As observed that the assessee has adopted this practice of raising bills in the name of Sunrise Management and Estate Services from past years and continuing with the same. As rightly observed by Commissioner (Appeals), all the details relating to the expenses were furnished before the AO and further, the payments were made through banking channel. In fact, the assessee has deducted tax at source wherever applicable. It is also a fact on record that in the preceding assessment years, such expenditure incurred by the assessee have been accepted by the AO - AO has not pointed out any specific deficiency in the documentary evidences furnished by the assessee. Thus, ad-hoc disallowance made by the AO without any valid reason cannot be sustained. Accordingly, we uphold the decision of Commissioner (Appeals) by dismissing the ground.
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2022 (9) TMI 1020
Reopening of assessment u/s 147 - Addition u/s 68 - unexplained deposits in bank account - HELD THAT:- This is a case where, although, the assessee did not file any kind of confirmation nor could explain, with evidence, the source of entries appearing in his bank statement, his case requires a sympathetic view. Accordingly, without going into the question of the validity of the reopening or the question of the legality of the impugned addition u/s 68 on peculiar facts of the case, hold that the impugned addition is not sustainable. While reaching this conclusion, the consideration which has weighed in favour of the assessee is the fact that he is a small time tea and pakoda seller and he could not have been expected to grasp intricacies of Income Tax Law. The deposits in the bank account are also on two dates only, as is evident from the assessment order, and it also lends credence to the version of the assessee that the amount had been deposited with a purpose to deposit the same towards margin money for the auction. Amounts were also withdrawn immediately within a short period of time in cash, apparently, when the auction did not took place. Next, is the impossibility of obtaining confirmation of Mr. Diwakar Chaurdhary at this stage as he has already passed away. As reached the conclusion that the assessee s case deserves that a sympathetic view may be taken - the assessment order was also passed exparte qua the assessee as the assessee had furnished the reply before the wrong AO. Restoring, the issue back either to the CIT(A) or the AO also would not serve any purpose as Mr. Diwakar Chaudhary, who would have been in a position to confirm the transaction, has already passed away. Therefore, looking into smallness of amount, the status of the assessee as well as the various facts as mentioned in the preceding paragraphs and without going into question of legality of reopening or legality of addition made under section 68, purely on facts, we set aside the order of the Ld. CIT(A) and direct the AO to delete the addition. Appeal of the Assessee is allowed.
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2022 (9) TMI 1019
Rectification of mistake u/s 154 - late fee levied u/s. 234E - delay in filing the above TDS statement - intimation u/s 200A - assessee filed application u/s.154 before the AO pointing out that the provisions of section 234E of the Act was inserted by the Finance Act, 2012 w.e.f. 1.7.2012 - HELD THAT:- We are satisfied that the mention of 200A in sub column of column 4.1 of Form 35 cannot be basis to hold that the appeal filed by the assessee is an appeal against the original intimation under section 200A of the Act and not against the order under section 154 - In the given facts and circumstances of the case, we are of the view that there is no delay in filing appeal by the assessee before CIT(A) and the view taken by the CIT(A) is purely technical and on a wrong reading of Form No.35 filed by the assessee before the CIT(A). CIT(A) having held that the appeal filed by the assessee is an appeal against the original intimation under section 200A dated 06.07.2018 has also observed that the issue sought to be raised by the assessee in the application under section 154 is a highly debatable issue. By doing so, in our view, CIT(A) has also construed the appeal of the assessee as one against the order u/s 154 - This inference is supported from the observations made by the CIT(A) on the debatable nature of the issue raised by the assessee in the application u/s.154 of the Act. It is not in dispute that if the ratio laid down by the Hon ble Karnataka High Court in the case of Fateeraj Singhvi [ 2016 (9) TMI 964 - KARNATAKA HIGH COURT] if applied then the levy of interest u/s.234-E of the Act would be illegal for returns of TDS in respect of the period prior to 1.6.2015. The present appeals of the assessee relate to TDS returns filed prior to 1.6.2015. The decision of Fateeraj Singhvi (supra)was rendered on 26.8.2016. As rightly contended by assessee, there is no ambiguity in the non applicability of the provisions of section 200A of the Act for the period prior to 01.06.2015 as interpreted in the case of Fateeraj Singhvi (supra). Therefore the issue before the AO in the application under section 154 of the Act cannot be said to be a debatable issue on which two views are possible. It cannot also be said that the mistake is not obvious and patent. The law is well settled that the decision of the Jurisdictional High Court is binding on the authorities functioning under its jurisdiction. AO as well as the CIT(A) ought to have allowed the application of the assessee under section 154 of the Act by following law laid down in the case of Fateeraj Singhvi (supra). We, therefore, allow these appeals filed by the assessee and hold that the levy of interest under section 234E of the Act as detailed below cannot be sustained - Decided in favour of assessee.
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2022 (9) TMI 1018
Validity of assessment u/s 147 - no notice u/s 143(2) was issued in response to the return filed by the assessee subsequent to the issuance of notice u/s 148 - Addition of cash deposit as alleged unexplained cash deposited in the bank account of the assessee u/s 69A - Revenue submitted AO has categorically mentioned that the return was not filed in response to notice u/s 148 but u/s 119(2)(b) - whether return has been stated to be filed u/s 119(2)(b) and, therefore, this return could not be considered as valid ITR and accordingly, there was no requirement of issuance of notice u/s 143(2)? HELD THAT:- Pre-requisite condition is that, firstly, the assessee has to file application for a claim for any exemption, deduction, refund or any other relief to the Board; and secondly, Board if considered it desirable or expedient for avoiding any general hardship may authorize any income-tax authorities to accept this application. Nowhere in the record which is even admitted by the AO in his remand report that the assessee has ever made any application before the CBDT. Not only that, there is no claim for any exemption, refund or any other relief by the assessee. It is not understandable, how and under what circumstances the return of income for AY 2012-13 filed on 19.11.2019 can be stated to be u/s 119(2)(b) as shown in e-filing portal submitted by the AO. On the contrary screen-shot of filing of the return by the assessee is shown as filed in response to the notice u/s 148. Once there is no application filed by the assessee, then there cannot be any return u/s 119 (2)(b). CBDT Circular No.9/2015 dated 09.06.2015 had clearly instructed that no condonation application for claim of refund/loss within the scope of section 119(2)(b) shall be entertained beyond six years from the end of the assessment year for which such application/claim is made. Here in this case, six years had expired on 31.03.2019, whereas the assessee had filed the return on 19.11.2019. Even as per the CBDT Instruction/Circular (supra), such a return could not have been entertained u/s 119(2)(b). Accordingly, I hold that it is not a return u/s 119(2)(b) albeit it is a return filed in response to notice u/s 148 which has been accepted by the AO. Thus, when return has been filed in response to notice u/s 148 then it was mandatory for AO to issue notice u/s 143(2) before the completion of assessment, in case he wanted to vary the return of income and make addition. Accordingly, the additions made by the AO are deleted on the ground that the statutory requirement of issuance of notice u/s 143(2) is not complied. Accordingly, the additions are deleted. Assessee appeal allowed.
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2022 (9) TMI 1017
Estimation of income - NP/GP estimation - estimation the income of the assessee by adopting the net profit rate at 8% as provided under section 44AD - HELD THAT:- AO has not disputed the fact that books of accounts of the assessee have been audited and audit report was available with the AO - The adoption of net profit without bringing any comparable case of net profit as prevailing in the same trade / business is highly arbitrary and excessive. CIT(A) has accepted and confirmed the addition made by the AO based on net profit of 8%. AR has referred to the net profit declared by the assessee for the subsequent year i.e. assessment year 2017-18 at 4.5% and pointed out that the net profit declared by the assessee for the year under consideration in the line with the net profit prevailing business / trade as well as net profit declared by the assessee in the subsequent year. AO has adopted the net profit of 8% without any reasonable and proper basis however, the assessee has also not brought on record any comparable cases in respect of the net profit declared by the assessee at 4.37%. Hence where neither the AO nor the assessee has brought on record a reasonable and proper basis for estimation of the income after rejection of books of accounts the Income of the assessee is estimated to bring to the end of the litigation by adopting the net profit of 5.5%. As clarified that the estimation of the income being reasonable and proper is made in the peculiar facts and circumstances of the case for the year under consideration and therefore, the same would not apply as precedent for the other assessment years of the assessee or in any other case. Hence the AO is directed to re-compute the income of the assessee on the basis of the net profit @ 5.5%. Appeal of the assessee is partly allowed.
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2022 (9) TMI 1016
Undisclosed investment u/s 69B - additions made solely on the basis of DVO Report - HELD THAT:- We find that this Tribunal in the case of M/s. Golden Realities Ors. [ 2021 (11) TMI 561 - ITAT INDORE] has already held that the additions made solely on the basis of DVO Report are not sustainable especially in a circumstance when the assessee had clearly demonstrated various discrepancies in the DVO s report. We further find that in the aforesaid decision, this Tribunal, after considering the various decisions on the issue, had allowed a rebate of 35% (being 25% on account of CPWD/PWD rates and 10% on account of self-supervision charges) against the total valuation made by the DVO. We note that in the instant case, the ld. CIT(A), after considering the earlier decisions on this issue, has allowed a margin of 30% from the DVO s report. In such eventuality, we do not find any infirmity in the order of the ld. CIT(A) giving relief to the assessee on this count. Therefore, the finding of the ld. CIT(A) in deleting the additions so made by the AO is confirmed. Accordingly, the ground No. 1 raised by the Revenue on this issue raised for the Assessment Years 2010-11 to A.Y.2012-13 under appeal are hereby dismissed. Unaccounted cash expenditure u/s. 69C - Addition on the basis of some jottings found made in a diary seized during the course of search from the residence one of the partners of the assessee firm - HELD THAT:- We are of the considered view that the impugned addition for unaccounted cash expenditure has rightly been deleted by the Ld. CIT(A) as they were merely based on the rough jottings on the alleged seized loose papers which do not convey either receipt/ payment, mode thereof, nature of transaction etc.. Undisputedly, neither during the course of the assessment proceedings nor during the course of submission of remand report before the ld. CIT(A), the AO was able to bring any single cogent material or evidence on record to justify the addition made on the basis of uncorroborated jottings in the diary. Therefore, the alleged seized loose papers are only Dumb documents and no addition could have been made on such dumb documents. We therefore, do not find any reason to interfere in the findings of the ld. CIT(A) deleting the addition made in the assessee s income for A.Y. 201011. Accordingly, the ground No. 2 of the Revenue for A.Y. 201011 is dismissed. Unaccounted cash payments to Partner on the basis of jottings made in a diary seized during the course of search from the residence - HELD THAT:- We find that the AO despite giving a finding that certain jottings were containing transactions of cheques, could not bring on record any single instance to establish any correlation with the transactions of the assessee firm. We find that the AO had not conducted any independent enquiry from the partners of the assessee firm. We also noted that during the course of search, none of the partners had admitted that the jottings made in the said diary are pertaining to the transactions of the assessee firm. Such fact has duly been conceded by the ld. CIT(DR) before us. We observe that except relying upon the jottings made on page no. 13 to 20 of the diary LPS-12, the AO has not brought any cogent material on record to substantiate that any unaccounted cash payment was made by the assessee to its partners. We find that the AO neither during the course of the assessment proceedings nor during the course of submission of his Remand Report before the ld. CIT(A) could bring any corroborative evidence to justify his action for making the impugned addition in the hands of the assessee firm. We are of the considered opinion that the jottings made in the diary are only rough jottings which do not convey either receipt/ payment, mode thereof, nature of transaction, amount of transaction whether in hundreds, thousands or lakhs etc.. Thus, the said diary could only be termed as a dumb document. We also consciously uphold the findings of the ld. CIT(A) in deleting the additions made by the AO on account of unaccounted cash payments to Partners Smt. Sunita Maheshwari and Shri Suresh Kumar Maheshwari. Accordingly, the Ground are hereby dismissed. Unaccounted cash payments to Shri Sushil Kumar Bajpai - HELD THAT:- As there is sufficient merit in the contention of the assessee that the AO, except solely relying upon the uncorroborated draft agreement, had not conducted any independent enquiry from the persons whose names were found noted in such agreement by issuing summons u/s. 131 or letters u/s. 133(6) to such persons. ld. CIT(A),of his Order, had given a finding that upon verification from online land revenue records, it was found by him that no such joint venture actually executed for construction of duplex bungalows and the lands bearing khasra were still owned by Shri Sushil Kumar Bajpai, Shri Vaibhav Sharma and Shri Upendra Singh. We are thus in agreement with the findings of the ld. CIT(A) to the effect that the onus of proof lies upon him who affirms and not upon him who denies. We find that the Ld.AO grossly failed to bring on record any cogent material to establish the execution of the proposed Joint Venture Agreement and has merely ventured into making the impugned addition in the hands of the assessee. In such circumstances, we find sufficient force in the contention of the ld. counsel for the assessee that the said loose papers inventorized are not legally admissible documents and therefore, the same could not have been used against the assessee. Thus, considering the facts and circumstances of the case, we do not find any infirmity in the findings of the ld. CIT(A) in deleting the addition for A.Y. 2009-10, made by the AO on account of unaccounted cash payments to Shri Sushil Kumar Bajpai. Accordingly, the Ground No. 1 of the Revenue for A.Y. 200910 is hereby dismissed. Addition on substantive basis, on account of unaccounted cash loans given - HELD THAT:- We consider it appropriate to hold that there is no evidentiary value of the impugned loan agreement especially in a circumstance when the AO had neither brought any corroborative material on record nor made any independent enquiry from Shri Bhav Singh Rajput to whom the loan has allegedly been given. Thus, considering the facts and circumstances of the case, we do not find any infirmity in the findings of the ld. CIT(A) in deleting the additions made by the AO, on substantive basis, on account of unaccounted cash loans given to Shri Bhav Singh Rajput. Accordingly, the Ground No. 2 of the Revenue is hereby dismissed. Once it has been held that the assessee did not give any cash loan, there does not arise any question of earning any unaccounted interest income thereon by the assessee. In such eventuality, the additions respectively for A.Y. 2012-13 and A.Y. 2013-14, made by the AO, on substantive basis, on account of unaccounted interest income on the cash loans given to Shri Bhav Singh Rajput has rightly deleted by Ld. CIT(A). Accordingly, the Ground No. 3 of the Revenue for A.Ys. 2012-13 and 2013-14 is also dismissed. Unaccounted investment in construction of hostel building u/s. 69B - HELD THAT:- We find that the assessee had constructed a hostel building in the city of Bhopal, Madhya Pradesh. During the course of assessment proceedings, the AO referred the matter to the DVO who submitted his report to the AO. The assessee filed her detailed objections before the AO pointing out the various discrepancies in the DVO s report. The AO neither sent the objections to the DVO for his comments nor the AO himself controverted the objections of the assessee and instead, the AO relied upon the DVO s report and accordingly made the addition to the total income of the assessee on account of undisclosed investment in construction of hostel building. Assessment u/s 153A - Whether the impugned addition has been made by the AO without having recourse to any incriminating material? - We find that the impugned addition made by the AO on account of unaccounted investment in construction of hostel building in a completed assessment year without having recourse to any incriminating material found during the course of the search. Such fact has also been fairly admitted by the ld. CIT (DR). Therefore, in light of the findings of the decision of Hon'ble Delhi High Court in case of CIT vs. Kabul Chawla[ 2015 (9) TMI 80 - DELHI HIGH COURT] we are of the considered view that proceedings initiated u/s 153A of the Act for A.Y. 2009-10 being non-abated and completed assessments deserved to be quashed since no incriminating material was found during the course of search thereby warranting initiation of proceedings u/s 153A of the Act for these years.
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2022 (9) TMI 991
Addition on account of credit in the bank account - addition of entire credit entries reflected in the savings bank account - HELD THAT:- We find that there are frequent debit and credit entries by way of cheque as well as cash, thus the entire credit entry cannot be considered as income of assessee. Considering the various decisions of Tribunal including the Hon ble Jurisdictional High Court either peak credit or presumption income from unaccounted business can be added. Considering the overall facts and circumstances of the case, we are of the view that 8% of credit entry would meet the possibility of revenue leakage. Accordingly, the Assessing Officer is directed to restrict the addition to the extent of 8% of credit entries in the savings bank account maintained by the assessee. In the result, ground No.2 of the appeal is partly allowed. Levy of penalty under Section 271(1)(c) - Since we have restricted the addition to the extent of 8% of credit entries thereby granting substantial relief to the assessee in quantum assessment. It is a matter of fact that we have restricted the addition on ad hoc basis, therefore, the penalty levied on entire credit entry addition would not survive. Further, it is settled position of law that no penalty is leviable on the addition made on ad hoc basis, therefore, we direct the Assessing Officer to delete the entire addition.
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Customs
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2022 (9) TMI 1014
Extended period of limitation - suppression of facts or mis-declaration or not - unreasoned and non-speaking order or not - classification of imported goods - Neutral Pellets - to be classified under Custom Tariff Heading (CTH) 17029090 or not - HELD THAT:- Section 28 of the Customs Act envisages that where any duty has not been levied or not paid, inter-alia, has been short-levied or short-paid by reasons of (a) collusion; (b) any willful misstatement and, (c) or suppression of facts, by the importer or the exporter, or the agent or employee, the proper officer shall, within five years from the relevant date, to serve notice on the person chargeable with duty or interest requiring him to show cause why he should not pay the amount specified in the notice. The principle laid down in the judgment in M/S. UNIWORTH TEXTILES LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE. RAIPUR [ 2013 (1) TMI 616 - SUPREME COURT ] which essentially is that with a view to invoke the extended period of limitation, there ought to be a positive act and not merely a failure to pay duty which is not on account of any fraud, collusion or willful misstatement or suppression of facts. The CESTAT, in the present case, has clearly held that the respondent had been importing the goods under CTH 1702, which the learned counsel for the parties agree, attracted the same rate of duty, as the goods imported and falling under CTH 1704 and held that the department was very well aware of the said classification and that in the past, assessments were completed based thereupon. It was, thus, held that only because there was a change of view by the department, the respondent could not have been said to have either mis-declared or suppressed facts in classifying its goods at the time of its import under CTH 1702. Thus, it appears that had it been a case of a deliberate and willful attempt on the part of the respondent to suppress the facts or make any willful misstatement for purposes of evading the payment of duty, then it would have in the past, perhaps claimed the benefits by classifying it under CTH 1701, when it attracted a lower rate of duty or was completely exempt. Appeal dismissed.
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2022 (9) TMI 1013
Waiver of redemption fine and reduction in penalty under Section 112 ibid - Rubber Tyre Scrap - Restricted goods or not - importation of excess quantity of waste/used Rubber Tyre Scrap over a period of time - HELD THAT:- The Adjudicating Authority has discussed about the instructions/import policy of the DGFT to inter alia hold that the excess import by the respondent was in violation of the statutory policies. The Adjudicating Authority has also referred to the Decisions of 57th meeting of the Technical Review Committee (TRC) under the Hazardous Waste (Management, Handling and Trans-boundary Movement) Rules, 2008 held on 18th and 19th October, 2016 , wherein the said Committee has decided that its intention was not to allow used tyres for use as such . In view of the above, therefore, it is incumbent upon the Adjudicating Authority to deliberate / adjudicate as to whether the importer has used the imported waste/used tyres as such or not. The Adjudicating Authority has accepted the plea of the respondent that the respondent had debited the licence for single-cut bead tyres that did not require DGFT licence, has also observed at paragraph 26 of his order that he has found nothing adverse with regard to the intended use (outcome of investigation of the concerned Revenue authorities) nor was there any evidence to even suggest the same from the communication issued by the Office of the Principal Commissioner of Customs, Hyderabad - By this, it is clear that there was no violation of the decision arrived at by the Technical Review Committee as to the intended usage of the impugned goods in question, by which it only renders that the excess import during the period in question by the respondent was only irregular and not prohibited. At no stretch of imagination could it be held to be prohibited since there are sufficient materials available on record, including the licence issued by the appropriate authority for import of a particular quantity of the goods, and hence, it cannot be held that a part of the same import is prohibited while the other part is permitted. The Revenue has not satisfied the conditions laid down under Section 112 (a) or (b) ibid. to justify its challenge to the findings arrived at by the First Appellate Authority - appeal dismissed - decided against Revenue.
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Insolvency & Bankruptcy
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2022 (9) TMI 1012
Initiation of CIRP against two corporate debtors - Joint Liability - co-borrower/guarantor under the Loan-cum-Pledge Agreement - existence of two borrowers or two corporate bodies - scope of Financial Debt - existence of debt and dispute or not - HELD THAT:- It is not in dispute that the Financial Creditor disbursed loan to the tune of Rs.6,00,00,000/- to Premier pursuant to the Loan-cum-Pledge Agreements, executed both by Premier and by Doshi Holdings. Doshi Holdings has been referred to in the agreement as borrower and pledgor. Prima facie, it appears that Doshi Holdings was a party to the Loan-cum-Pledge Agreement in its dual capacity of borrower and pledgor of shares. The Appellate Authority has arrived at the factual finding that Doshi Holdings is also a borrower under the Loan-cum-Pledge Agreement. The factual finding of the Appellate Authority which was the final fact finding authority ought not to be interfered in this appeal. The finding of the Appellate Authority that Doshi Holdings is a borrower, is based on its interpretation of the Loan-cum-Pledge Agreements and supporting documents. The interpretation given by the Appellate Authority is definitely a possible interpretation. The interpretation is a plausible interpretation which cannot be interfered with in an appeal under Section 62 of the IBC. If there are two borrowers or if two corporate bodies fall within the ambit of corporate debtors, there is no reason why proceedings under Section 7 of the IBC cannot be initiated against both the Corporate Debtors. Needless to mention, the same amount cannot be realised from both the Corporate Debtors. If the dues are realised in part from one Corporate Debtor, the balance may be realised from the other Corporate Debtor being the co-borrower. However, once the claim of the Financial Creditor is discharged, there can be no question of recovery of the claim twice over. Appeal dismissed.
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2022 (9) TMI 1011
Seeking withdrawal of application admitted u/s 7 of IBC - Seeking restraint on IRP from constituting a Committee of Creditors (CoC) till the next date of hearing - Section 12A of the IBC read with Rule 11 of the National Company Law Tribunal Rules, 2016 (NCLT Rules) - HELD THAT:- Section 12A of the IBC clearly permits withdrawal of an application under Section 7 of the IBC that has been admitted on an application made by the applicant. The question of approval of the Committee of Creditors by the requisite percentage of votes, can only arise after the Committee of Creditors is constituted. Before the Committee of Creditors is constituted, there is no bar to withdrawal by the applicant of an application admitted under Section 7 of the IBC. The object of the IBC is to consolidate and amend the laws relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximisation of value of assets of such persons, to promote entrepreneurship, availability of credit and balance of interests of all stakeholders including alteration in the order of priority of payment of Government dues and to establish an Insolvency and Bankruptcy Board of India and matters connected therewith or thereto - A reading of the statement of objects and reasons with the statutory Rule 11 of the NCLT Rules enables the NCLT to pass orders for the ends of justice including order permitting an applicant for CIRP to withdraw its application and to enable a corporate body to carry on business with ease, free of any impediment. Considering the number of people dependant on the Corporate Debtor for their survival and livelihood, there is no reason why the applicant for the CIRP, should not be allowed to withdraw its application once its disputes have been settled - the settlement cannot be stifled before the constitution of the Committee of Creditors in anticipation of claims against the Corporate Debtor from third persons. The withdrawal of an application for CIRP by the applicant would not prevent any other financial creditor from taking recourse to a proceeding under IBC. The urgency to abide by the timelines for completion of the resolution process is not a reason to stifle the settlement. The application for settlement under Section 12A of the IBC is pending before the Adjudicating Authority (NCLT). The NCLAT has stayed the constitution of the Committee of Creditors. The order impugned is only an interim order which does not call for interference. In an appeal under Section 62 of the IBC, there is no question of law which requires determination by this Court - appeal dismissed.
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2022 (9) TMI 1010
Maintainability of Insolvency Petition against the Guarantor - novation in a contract of Guarantee - novation made without any reference to the Guarantor Company - discharge of the Guarantor or not - whether the Appellant/Guarantor is liable to pay the amount when the Guarantee was initially invoked on 03.03.2015? - whether the Learned Adjudicating Authority was justified in admitting the Section 7 Application? - time limitation. HELD THAT:- The OTS has been signed by the Appellant, Clause 3 of the Deed of Guarantee, and also Clauses 5, 9 10 of the Deed of Guarantee, having invoked the Guarantee on 03.03.2015, the question of invoking the Guarantee again, as per law, does not arise. Addressing the question of Limitation, reliance placed on the Judgement of the Hon ble Supreme Court in Dena Bank (now Bank of Baroda) Vs. C. Shivkumar Reddy Anr., [ 2021 (8) TMI 315 - SUPREME COURT] , in which the Hon ble Supreme Court has clearly laid down that on issuance of a Recovery Certificate, fresh cause of action would arise to initiate proceedings under Section 7 of the Code. Further Clauses 9 10 of the Deed of Guarantee specify that the Guarantee is a continuing one. It a fit case to consider the Recovery Certificate which has been issued by the Hon ble DRT, Mumbai on 25.04.2016 and the second OTS dated 12.03.2018 and the part payment which has been made on 28.03.2018 read together with the warrant of attachment dated 20.06.2019 and the date of filing of the Petition dated 17.03.2022 we observe that the Section 7 Petition is not barred by Limitation. The OTS is not a novation of the original debt but is only to be construed as Terms of Settlement offered and agreed upon by the Borrower to discharge its liability. The Guarantor is a direct beneficiary of the OTS. Having signed and accepted OTS proposal, the Appellant cannot now turn around and take a stand that the liability is not co-extensive or that the Guarantee was invoked only in 2013. This argument is not tenable as it is held that (a) it is a continuing Guarantee and (b) that it is not required for a continuing Guarantee to be invoked twice in these facts of the matter when the liability is co-extensive. Appeal dismissed.
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2022 (9) TMI 1009
Maintainability of application - Resolution plan approved - Fraudulent Trading / Wrongful Trading - Section 66 of the Insolvency Bankruptcy Code, 2016 - HELD THAT:- It must be borne in mind that CIRP in the instant case had attained finality and that the Resolution Professional became functus officio and he cannot file / prefer / pursue any Application on behalf of the Company. It is only be to the new Management of the Corporate Debtor, which is responsible to file such an Application - It cannot be brushed aside that Section 23 of the Insolvency Bankruptcy Code, 2016 clearly envisages the Role of a Resolution Professional in managing the affairs of the Corporate Debtor, during the Resolution Process and not, thereafter. It is an established fact that the Interim Resolution Professionals / Resolution Professionals are required to play their part, as per the ingredients of the Insolvency Bankruptcy Code, 2016. They are to provide for a mechanism in aid to benefit of the Corporate Debtor not only during the interregnum period of Insolvency but also till the Resolution Process is completed - Suffice it for this Tribunal to make a pertinent mention that the Role of a Resolution Professional, much less of the Erstwhile Resolution Professional is that he cannot proceed any further, after the Resolution Pla is approved by the Adjudicating Authority. This Tribunal comes to an inevitable, inescapable, and irresistible conclusion that the view arrived at by the Adjudicating Authority (National Company Law Tribunal, Division Bench II, Chennai) in dismissing the application on the basis of the Appellant / Applicant lacking locus standi to prefer the said Interlocutory Application, does not suffer from material irregularity or patent illegality in the eye of Law. Application dismissed.
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2022 (9) TMI 1008
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - Pre-existing dispute or not - jural relationship between the parties - HELD THAT:- The Hon ble Supreme Court in MOBILOX INNOVATIONS PRIVATE LIMITED VERSUS KIRUSA SOFTWARE PRIVATE LIMITED [ 2017 (9) TMI 1270 - SUPREME COURT] has observed that all that the Adjudicating Authority has to see at the stage of Admission is whether there is a plausible contention which requires further investigation and that the Dispute is not a patently feeble legal argument or an assertion of fact or a moonshine defence unsupported by tangible materials/evidence. Since, the pre-existing dispute has been established, other issue is not touched upon. Petition dismissed.
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2022 (9) TMI 1007
Maintainability of application - Suspension of initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - Section 10A of IBC - HELD THAT:- Going into the legislative intent and the proviso to Section 10A of the code, which stipulates that no application shall ever be filed for the initiation of the CIRP for the said default occurring during the said period, we are of the considered view that the expression shall ever be filed is a clear indicator that the intent of the legislature is to bar the institution of any application for the commencement of the CIRP in respect of a default which has occurred on or after 25 March 2020 for a period of six months, extendable up to one year as notified. On a perusal of the provision of section 10A of the Code, it is apparent that the provision bars the filing of an application in a situation, where the default has occurred during the period from 25.03.2020 to 24.03.2021 - There is no dispute that even a notice for curing the said default and to submit fresh security was also given, but the same was also not complied with or cured on behalf of the respondent. Therefore, there was specific default on the part of the respondent for not providing the security against the loan facility availed. The said default cure notice was given on 20.10.2020, but the said impairment of security was not cured in due time. Thereafter, the recall notice dated 15.12.2020 was issued, calling upon the corporate debtor to repay the loan amount within 7 days of receipt of this notice. Thus, the default on the part of corporate debtor was not only committed on 20.10.2020, but also subsequently, after 7 days of the receipt of the loan recall notice dated 15.12.2020. On a conjoint reading and meticulous perusal of the clause 12.1 (Events of Default) and clause 12.2 (consequences of event of default) of loan agreement dated March 31, 2020, Cure Notice dated October 20, 2020, Loan Recall Notice dated December 15, 2020, Cheques Dishonored Communication from the bank and the Notice dated 08.04.2021 issued to the corporate debtor, the impairment of security comes within the preview of 'Event of Default', which was not cured by the corporate debtor even after the issuance of the cure notice dated 20.10.2020 by the applicant to either perfect the security or provide an alternative security, consequent to which a loan recall notice dated 15.12.2020 was issued by the applicant calling upon the corporate debtor to repay the entire loan amount due as on 12.2.2020 amounting Rs. 224,63,86,228/-. Since, the instant petition is not maintainable in view of the provision of Section 10A of the Code, 2016, this Adjudicating Authority is not willing to go into the merits of the present case - Petition dismissed.
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Service Tax
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2022 (9) TMI 1006
Recovery of service tax directly from Senior Advocates for the legal services - relationship between a Senior Advocate and an advocate / firm as that of a client and counsel - effect of N/N.18/2016-ST dated 1.3.2016 (Annexure-3) and N/N. 9/2016-ST dated 1.3.2016 (Annexure-4) - HELD THAT:- It is evident that the Central Government, vide Notification No.25/2012 dated 20.06.2012 exempted certain services from the ambit of Section 66B of the Finance Act, 1994. Serial No.6 of the said notification exempted services provided by an individual as an advocate or a partnership firm of advocates by way of legal services to an advocate or partnership firm of advocates providing legal services, any person other than a business entity or a business entity with a turnover up to Rupees ten lakh in the preceding financial year. It is evident that both the amendments, i.e., amendment dated 01.03.2016 and 06.06.2016, are by way of substitution. Since both the amendments are by way of substitution and the amendment by way of substitution relates back to the original document, as has been held by Hon'ble Apex Court in ZILE SINGH VERSUS STATE OF HARYANA AND OTHERS [ 2004 (10) TMI 553 - SUPREME COURT] and GOVERNMENT OF INDIA VERSUS INDIAN TOBACCO ASSOCIATION [ 2005 (8) TMI 113 - SUPREME COURT] , both the amendments by way of substitution of the provision as contained in the original notification will be deemed to have applicable with effect from the date of notification dated 20.06.2012 - Since both the amendments relate back to the original document, the demand notice issued by the authority concerned for payment of service tax on legal services provided by a Senior Advocate for the period from 01.04.2016 to 05.06.2016 is held to be not sustainable in the eyes of law. Petition allowed.
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2022 (9) TMI 1005
Levy of service tax - charges collected by the appellant towards penalty/late delivery charges - deduction of contractual value - section 66E (e) of the Finance Act, 1994 - appellant is a Central Government Public Sector Undertaking - HELD THAT:- This issue as to whether the amount collected towards liquidated charges can be subjected to service tax under section 66E (e) of the Finance Act has been decided by a Division Bench of the Tribunal in M/s South Eastern Coal Fields Ltd. Vs. Commissioner of Central Excise And Service Tax, Raipur [ 2020 (12) TMI 912 - CESTAT NEW DELHI ] which was subsequently followed by the Tribunal in M.P. Poorva Kshetra Vidyut Vitran Co. Ltd. Vs. Principal Commissioner, CGST And Central Excise, Bhopal [ 2021 (2) TMI 821 - CESTAT NEW DELHI ], where it was held that It is, therefore, not possible to sustain the view taken by the Principal Commissioner that penalty amount, forfeiture of earnest money deposit and liquidated damages have been received by the appellant towards consideration for tolerating an act leviable to service tax under section 66E(e) of the Finance Act. The liquidated damages collected by the appellant as penalty/late delivery charges cannot be subjected to service tax under section 66E (e) of the Finance Act. Appeal allowed - decided in favor of appellant.
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2022 (9) TMI 1004
Levy of Service tax - commissioning and installation services - composite works contract - separate species of contracts known to trade or not - HELD THAT:- It is undisputed that the contracts which the respondent had entered into involved both rendering of services and supply/ deemed supply of goods while rendering the services. Such services are composite contracts and are classifiable as works contract which, according to Gannon Dunkerley Co. [ 1992 (11) TMI 254 - SUPREME COURT ] is a subject species of contract. Revenue s objection that Gannon Dunkerley Co. judgment was rendered in a matter dealing with sales tax and, hence, should not apply to decide whether a service is a works contract service cannot be accepted. Whether it is a question of sales tax or service tax, the nature of the contract, i.e., whether it is for supply of goods or for rendering services or a combination of both does not change. Wherever there is a composite contract it is a works contract service. Such services can be classified only under the head of works contract service w.e.f. 01.07.2012 under section 65 (105) (zzzza) and were not taxable prior to this date as per the judgment of Supreme Court in Commissioner of Central Excise Customs, Kerala versus Larsen Toubro Ltd. [ 2015 (8) TMI 749 - SUPREME COURT ] Since the entire period in this case was prior to 01.07.2012, the services rendered by the respondent were not taxable. The contention of the Revenue that even works contract should be classified as ECIS because it is a most specific service cannot be accepted for the simple reason works contracts cannot be treated as services simplicitor which are classifiable under various sub-clauses of clause 105 of section 65. The respondent was not liable to pay service tax on the services in dispute and the impugned order is correct and proper and calls for no interference - Appeal of Revenue dismissed.
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Central Excise
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2022 (9) TMI 1015
CENVAT Credit - duty paying documents - credit denied on the ground that any of the documents mentioned in sub-rule (1) of Rule 9 of the CCR, 2004 does not contain all the particulars required to be contained therein under these rules - correctness of overlooking the mandatory provisions of sub-rule (1) of Rule 9 of the CCR, 2004 - recipient of the service, shipper of the goods/documents and not the appellant? - Appellant is Agent or not - HELD THAT:- It is trite law that the show cause notice is the foundation in the matter of levy and recovery of duty penalty and interest and since the grounds on which the appeal was preferred before the Tribunal did not find any basis in the show cause-cum-demand notice, the appeal on that basis could not have been entertained or allowed. Appeal dismissed.
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2022 (9) TMI 1003
Application for settlement of disputes under the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Schemes for settlement of legacy arrears, notified both under Direct and Indirect Tax statutes - seeking extension of time to remit the amount - HELD THAT:- The Schemes for settlement of legacy arrears had been notified both under Direct and Indirect Tax statutes. However, there had been a variation between the final dates for receipt of payments under the two Schemes. While the Scheme in the context of Income Tax, permitted remittance till 30.09.2020, the Scheme under the Indirect Tax Laws permitted settlement only till 30.06.2020. The Court was persuaded to observe that the time limit should be on par for both Schemes. If this were so, it would enable an assessee who expresses readiness to make the payment prior to 30.09.2020, to avail the benefit of the Scheme under Indirect Taxes as well - the Court directed that delay would require the payment of interest and has directed those appellants to remit interest @ 15% from 01.07.2020 till the date of remittance, which was fixed at three weeks from the date of order, i.e., on or before 17.09.2021. Since the petitioner has admittedly approached the respondents and expressed its readiness to remit the amount on 31.07.2020, it is entitled to extension of time and is permitted to make the remittance along with interest @ 15% from 01.07.2020 to date of remittance, that must be within a period of four weeks from the date of receipt of this order, for which purpose, the website shall be enabled forthwith - Petition disposed off.
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2022 (9) TMI 1002
CENVAT Credit - input services - Outdoor Catering Services - period from January 2010 to April 2015 - levy of penalty - HELD THAT:- The amendment was brought forth in the definition of input services with effect from 01.04.2011 which excluded services in the nature of outdoor catering services. Further, the Hon ble Supreme Court in the case of TOYOTA KIRLOSKAR MOTOR PRIVATE LIMITED VERSUS THE COMMISSIONER OF CENTRAL TAX [ 2021 (12) TMI 420 - SC ORDER] had held that credit is not eligible after 01.04.2011. From the foregoing, it is held that appellant is not eligible for credit after 01.04.2011. Further, for the period prior to 01.04.2011, the appellant is eligible for credit. Levy of penalty - HELD THAT:- The issue is interpretational in nature as the same had travelled upto the Apex Court wherein the Apex Court has held that after 01.04.2011 the credit is not eligible. Further, there is no positive evidence adduced by the department that the appellant intentionally suppressed facts to evade payment of duty - Penalty is set aside. The impugned order is modified to the extent of allowing credit for the period prior to 01.04.2011. The demand for the period after 01.04.2011 is upheld. The appellant is eligible for adjusting the amount that has already been paid. Penalty imposed is set aside - Appeal allowed in part.
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2022 (9) TMI 1001
CENVAT Credit - input services - outward GTA in case the sale is on FOR basis - HELD THAT:- It is not disputed that the sale is on FOR basis. On the identical facts, in the appellant s own case SCHAEFFLER INDIA LTD. VERSUS C.C.E. S.T. -VADODARA-I [ 2022 (4) TMI 514 - CESTAT AHMEDABAD] , this Tribunal has decided the issue in hand, where it was held that in case of FOR sale, the cenvat credit on outward transportation is admissible. Therefore, as per the facts of the present case, the sale being FOR sale and freight is inclusive in the price of the goods and the same was not charged separately to the customers, the cenvat credit in respect of outward transportation is admissible. Appeal allowed - decided in favor of appellant.
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CST, VAT & Sales Tax
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2022 (9) TMI 1000
Adjustment of amount of tax paid on inter-state sale transaction, against the tax to be paid to the State of Jharkhand - HELD THAT:- The appellant Tata Motors Limited was liable to pay central sales tax to the State of Jharkhand. However, treating the sale as stock transfer, the appellant/its representative had paid the tax on the aforesaid transaction to the State of Andhra Pradesh which is not leviable by the State of Andhra Pradesh. Therefore, the amount of central sales tax recovered by the State of Andhra Pradesh is required to be transferred to the State of Jharkhand and the same is required to be adjusted towards the amount of tax to be paid to the State of Jharkhand. In the present case the transaction is for the period prior to insertion of Section 22(1B) to the Act 1956 and the impugned order has been passed by the Appellate Authority pre-insertion of Section 22(1B) to the Act 1956. Therefore, as such, it cannot be said that the Appellate Authority has committed any error in not issuing any direction which now is permissible under Section 22(1B) of the Act 1956. However, at the same time, the State of Andhra Pradesh cannot retain the amount of central sales tax paid by the appellant on the transaction of sale effected through RSO, Vijayawada with respect to vehicles/buses sold to APSRTC. Therefore, in line with Section 22(1B) of the Act 1956, the State of Andhra Pradesh is directed to transfer to the State of Jharkhand the amount of central sales tax deposited by the appellant with the State of Andhra Pradesh with respect to transaction in question, however, subject to the appellant submitting the proof of the amount of central sales tax already paid on the transaction in question, namely, sales effected through RSO, Vijayawada with respect to vehicles/buses sold to APSRTC treating the same as stock transfer sale. Appeal disposed off.
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2022 (9) TMI 999
Validity of assessment order - concessional rate of tax - computation of the turnover refers to Form 'C' - time limitation - Section 18 of Central Sales Tax Act - HELD THAT:- Section 18 sets out a limitation of five years from the expiry of the year to which the assessment relates, for assessment of escaped turnover. Thus, for determination of the turnover that has allegedly escaped assessment for the period 2003-04, the period of five years would expire by 31.03.2009 whereas the impugned notice has been issued only on 04.12.2020. The re-computation of turnover under notice dated 04.12.2020 and the consequent denial of exemption under the provisions of the Central Sales Tax Act are set aside - the purpose of re-determination of the turnover and denial of exemption is only to proceed as aginst the petitioner under the provisions of Section 49 of the Act which provides for offences and penalties as well as the relevant provisions of the Central Sales Tax Act providing for penalties. Section 468(2) sets out the periods of limitation, based on the category of punishment to be imposed, as six months, one year or three years, in the case of offences punishable with (i) fine (ii) imprisonment for a term not exceeding one year or (iii) imprisonment a for term within one month but less than three years, respectively - The critical word used therein is offence that postulates that the escapement of turnover ought to have been determined , and validly so, as a pre-condition for the limitation under Section 468(2) to stand triggered. Such determination of escapement of turnover, ought to have been made within the time period set out under Section 18 of the Act which has not been done in this case. The impugned notice is thus, also mis-conceived as it proceeds to contemplate a criminal liability in respect of an offence that is incapable of determination, being barred by law. Petition allowed.
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2022 (9) TMI 998
Maintainability of application - Existence of Authority for Clarification and Advance Ruling, with the enacting of the TNGST Act, 2018 - Section 174 of the TNGST Act - HELD THAT:- In view of the stand taken by the petitioner, I need hardly address the defence taken by the respondents, as I accede to the submissions made by the petitioner, concluding that, both the application and the impugned order would survive no longer. It is brought to my notice that the assessments for various years have been kept pending by the Authority awaiting disposal of this writ petition and in light of an interim order passed by this Court on 04.11.2019 directing the respondents to maintain status quo. This order has been interpreted by the respondents to mean that all assessment should be kept pending. Seeing as the assessments relate to the periods 2014-15, 2017-18, a period of 16 weeks is granted to the parties to complete all pending assessments in accordance with law. Petition disposed off.
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Indian Laws
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2022 (9) TMI 997
Levy of anchorage charges claimed by the Port Trust - sale of vessel - levy of Light Dues Charges and/or Anchorage Charges from the date on which physical possession of the vessel was made over to NKD, i.e., 11th November 2020 - HELD THAT:- The Division Bench rightly held that the argument was without merit. As held by the Division Bench, it is far-fetched to suggest that prior anchorage was of the Vessel under sale and the rate that it attracts as a result of such prior anchorage are in the nature of encumbrances for the purposes of anchorage fees to be applied after the date of Bill of Sale and till the Vessel sells at the instance of the purchaser. As held by the Division Bench, NKD purchased the Vessel on as is, where is basis free from encumbrances in the instant case, anchorage charges have been levied from the date of the sale. The rates were payable on the basis of the number of days for which the Vessel was docked. NKD, in its cross objection, contended that anchorage charges fall within the expression port dues under Section 50-B of the Port Trusts Act. Under Section 50-B, when a Vessel enters a port but does not discharge or take in any cargo or passengers, she is charged with port dues at a rate to be determined by the Authority, which, in any event, should not exceed half the rate with which she otherwise would be chargeable. The Division Bench rightly allowed the appeal and set aside the order of the Single Bench - Appeal dismissed.
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2022 (9) TMI 996
Dishonor of Cheque - existence of legally enforceable debt or not - impugned orders challenged on the grounds that the same were passed in a mechanical manner without due application of mind and without considering that the documents sought to be exhibited - principles of natural justice - HELD THAT:- The object underlying Section 311 CrPC is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The significant expression that occurs is at any stage of any inquiry or trial or other proceeding under this Code . It is, however, to be borne in mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said wider the power, greater is the necessity of caution while exercise of judicious discretion. It is the duty of the Court to discover the truth and truth is the foundation of the justice. Section 311 Cr.P.C. is one of the provisions which assist the Court in the discovery of the truth. It is true that the power under section 311 Cr.P.C. has to be exercised judiciously for strong and valid reason with caution to meet the ends of justice. Simultaneously, the Court has the duty to give adequate opportunity to the parties to lead evidence for fair trial. After considering all facts, the petitioner is given liberty to file additional affidavit of CW-2 Anil Rajput in evidence and to place on record the documents as mentioned in the application under section 311 Cr.P.C. and to lead evidence as per the direction to be given by the concerned Trial Court - Petition disposed off.
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2022 (9) TMI 995
Dishonor of Cheque - legally enforceable debt or not - ingredients of section 138 of NI Act complied with or not - Unlawful consideration - allegation is that the agreement alleged to have been entered into between the parties is a void contract as the consideration alleged was unlawful and the agreement itself was against public policy - it is also alleged that the cheque in dispute had been issued only as a security for the debt incurred by the petitioner's partner Ganesha Kannan - HELD THAT:-Section 23 of Indian Contract Act says that the consideration or object of the agreement is unlawful if it is fraudulent. To put it in other way, in order to bring the case within the purview of Section 23, it is necessary to show that the object of the contract or consideration of the agreement or the agreement itself is unlawful - In the case on hand, though the petitioner has alleged that the agreement is void and that the consideration is illegal, immoral and against public policy, he has not elaborated anything further. Moreover, whether the cheque allegedly issued in pursuance of the compromise agreement can be considered as the same was given for discharging the legally enforceable debt. In the case on hand, the question as to whether there was a dispute as contemplated in the compromise agreement, which obviated the obligation of the petitioner to honour the cheque which was issued in pursuance of the agreement cannot be gone into at this stage and that too in the proceedings under Section 482 Cr.P.C., and it is a matter for trial. Whether the cheque in dispute has been issued as a security? - HELD THAT:- In the case on hand, the petitioner himself has specifically stated in the quash petition that the cheque in dispute was given only as a security. If that be the case of the petitioner, then it cannot be stated that no offence is made out, since the cheque issued by him has been dishonoured. Even otherwise, the question whether the petitioner had issued the cheque in dispute as security, pursuant to the compromise agreement entered into between the parties and whether at the time when the cheque was presented, it was not for discharge of any debt or other liability cannot be gone into by this Court in these proceedings and the same can only be determined during the trial of the case - This Court has no hesitation to hold that the contention of the petitioner that the prosecution initiated by the respondent is not maintainable as the cheque was issued as a security cannot legally be entertained. A perusal of the complaint and other records available, makes out a prima facie case against the petitioner at this stage and there appear to be sufficient ground for proceeding against the petitioner. Hence, this Court concludes that the Criminal Original Petition is devoid of merits and the same is liable to be dismissed - Criminal Original Petition is dismissed.
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2022 (9) TMI 994
Dishonor of Cheque - existence of legally enforceable debt or not - post-dated cheque issued as security for further extension of lease period - section 138 of NI Act - HELD THAT:- It is clear that the post-dated cheque issued after it has been covered and the cheque issued towards security are very much covered under Section 138 of Negotiable Instruments Act and the issues as to whether the cheque was issued as post-dated one or whether the cheque was issued as security are the matter of defence and as such, the disputed question cannot be resolved in the proceedings under Section 482 Cr.P.C. Even assuming for arguments sake that the case putforth by the respondent is absurd or improbable even then, since the same touches upon the facts of the case, the same cannot be gone into at this stage as they are the matters which are required to be established by way of the evidence and this Court, exercising its powers under Section 482 Cr.P.C. will not be justified to try these factual aspects - It is also settled law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 Cr.P.C., for quashing the criminal proceedings. A perusal of the complaint and other records available, makes out a prima facie case against the petitioner at this stage and there appear to be sufficient ground for proceeding against the petitioner. Hence, this Court concludes that the above Criminal Original Petition is devoid of merits and the same is liable to be dismissed - this Criminal Original Petition is dismissed.
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2022 (9) TMI 993
Recovery of sum from the date of suit till the date of realization towards royalty - seeking permanent injunction to restrain Ramesh from interfering with Suresh Prabhu's peaceful possession and operation of business - owner of the business centres - contributions to run the business centers - establishment of materials that there was a contractual obligation on the part of the defendant to make the payments to the plaintiff - recovery of profit share as per the memorandum of agreement - recovery of money from the defendant as per the terms and conditions of the Franchise Agreement - money for the amounts borrowed by the defendant under various promissory notes executed by the defendant. Whether Suresh Prabhu is entitled to recover the sum of Rs.1.4 crores allegedly borrowed by Ramesh under various promissory notes allegedly executed by Ramesh? - HELD THAT:- As in the case of all statutory presumptions, the presumption is rebuttable. The Hon'ble Supreme Court instructs in Bharat Barrel and Drum Mfg.Co. v. Amin Chand Pyarelal [ 1999 (2) TMI 627 - SUPREME COURT ] that the presumption would stand rebutted if the existence of consideration is so improbable that a prudent person would not accept the fact that there is consideration. The oral evidence of Suresh Prabhu is that the loan was given in three tranches on 28.11.2018 (Rs.40,00,000/-), 10.01.2019 (Rs.50,00,000/-) and 25.02.2019 (Rs.45,00,000/-). Across the two bank statements, the aggregate withdrawal in January 2019 is Rs.4,50,000/-. As against this, the claim is that a sum of Rs.50,00,000/- was loaned in cash in January 2019 - the only reasonable inference is that the existence of consideration for the promissory notes is highly improbable. In spite of permitting Suresh Prabhu to re-open the evidence so as to enable him to adduce additional evidence in the course of final arguments in the suit, Suresh Prabhu completely failed to establish the probability of consideration - decided in favour of Ramesh and against Suresh Prabhu. Whether Ramesh is the owner of the two business centres and handed over the same to Suresh Prabhu for maintenance? - whether Ramesh made any contributions to run the business centres? - HELD THAT:- The documentary and oral evidence placed on record establishes that Ramesh contributed a sum of Rs.1,88,69,000/- and additional amounts towards purchase of equipment and interior work. the installation reports in relation to the purchase of equipment for the gym contain the name, telephone number, email address and signature of Ramesh. When the admitted remittance of Rs.1,88,69,000/- is considered along with the evidence on installation of equipment and bank statements evidencing payments towards purchase of equipments and interior work, the only reasonable conclusion that can be drawn is that Ramesh was an important stakeholder in the fitness centres and, therefore, made significant contributions to the operation thereof. However, Suresh Prabhu exhibited in the suit filed by him, lease deeds(Exs.P9 and P10), rental invoices(Exs.P11 and P13 series) and invoices relating to purchase of equipment for the Vepery and Kilpauk centres(Exs.P50 and P51). Therefore, it cannot be concluded that Ramesh was the sole owner thereof and that he handed over the fitness centres to Suresh Prabhu only for purposes of operating and maintaining the same. Whether Ramesh has substantiated the claim of Rs.3,11,58,000/- against Suresh Prabhu, whether Suresh Prabhu is liable to make payments to Ramesh and Ramesh's entitlement thereto? - HELD THAT:- Based on the evidence on record, it is not possible to conclude that Suresh Prabhu agreed to pay a sum of Rs.2,55,00,000/- to Ramesh as consideration for Ramesh exiting from joint ownership and management of the C3 Fitness Science Centres at Vepery and Kilpauk. The limited evidence on record indicates that four cheques were issued for Rs.5,00,000/- each and that one cheque was honoured, whereas the others were not. Thus, it appears that Suresh Prabhu agreed to pay certain amounts to Ramesh but the evidence on record is insufficient to draw any rational conclusions with regard to the aggregate settlement amount. In the absence of such evidence, these issues are decided in favour of Suresh Prabhu and against Ramesh. Interest in relation to the loan of Rs.40,00,000/- extended under the MoA - HELD THAT:- While Ramesh contends that Suresh Prabhu adjusted this amount from and out of the revenues of the fitness centres, in the absence of evidence, the said contention cannot be accepted. Suresh Prabhu claimed interest at 18% per annum on the claim of Rs.39,59,550 from the date of plaint until realisation. In effect, interest is claimed on an interest claim. Ordinarily, interest liability is specified at an agreed rate and not at a specified and quantified sum per month. In this case, however, the interest liability is quantified and expressed in a lump-sum per month. This lumpsum per month is at a rate that exceeds 36% per annum and the MoA does not provide for further interest. By considering these aspects, no further interest is granted on this claim. Whether Suresh Prabhu is entitled to receive payments under the Franchise Agreement? - HELD THAT:- There is no documentary evidence on record that royalty payments were demanded before the suit was filed. In the absence of any evidence that the agreements were acted upon by the parties, Suresh Prabhu is not entitled to this amount. Accordingly, Issue No.5 is decided against Suresh Prabhu and in favour of Ramesh. The evidence on record leads to the inference that the two parties were joint stakeholders in the C3 Fitness Science Centres at Vepery and Kilpauk. The evidence further discloses that substantial amounts were invested by Ramesh in such regard. However, Ramesh failed to prove that Suresh Prabhu agreed to purchase Ramesh's stake in the business for a sum of Rs.2,55,00,000/-. Consequently, both Ramesh and Suresh Prabhu are entitled to jointly manage the two centres - the injunctive relief claimed by Ramesh extends to non-interference in the operation of the business. Even as regards access for such purpose, as the co-stakeholder, Ramesh is entitled to use the premises and Suresh Prabhu cannot deny or impede access to the C3 Fitness Science Centres at Vepery and Kilpauk. Consequently, neither party is entitled to an injunction restraining the other from interfering with possession or the business. Application disposed off.
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2022 (9) TMI 992
Dishonor of Cheque - existence of debt payable by the accused or not - allegation is that subject cheque given as security was misused by the complainant after two years - Section 138 of NI Act - HELD THAT:- This Court finds that the complainant firm M/s Rishaba Poly Packs is owned by one M.Kalaiselvi Ramanikanth. She through her power agent S.Rajesh has filed the complaint. The power of attorney deed is Ex.P-1. He has deposed before the Court and has marked Ex.P-1 to Ex.P-8, to prove that the cheque Ex.P2 was issued for the debt payable as per the ledger account Ex.P-8. The revision petitioner herein though received statutory notice has not replied to it. He has not filed any document to rebut the evidence relied by the complainant. The grounds of revision does not disclose any error or illegality to interfere the judgment of the Courts below under the revisional jurisdiction. In this case, Ex.P-8 the ledger accounts extract maintained in the course of business proves the debt payable by the accused to the complainant. Therefore, this Court finds no merit in this revision petition. This Criminal Revision Case is dismissed.
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