|
Advanced Search Options
Case Laws
Showing 1 to 20 of 407041 Records
-
2024 (5) TMI 921 - ALLAHABAD HIGH COURT
Rejection of appeal of petitioner - Delay in submission of Appeal - no opportunity of hearing was granted to the petitioner - violation of principles of natural justice - HELD THAT:- From the facts, it is clear that the no opportunity of hearing was granted to the petitioner.
Reliance placed in the case of BBCL INFRASTRUCTURE VERSUS STATE OF U.P. AND 2 OTHERS [2022 (12) TMI 958 - ALLAHABAD HIGH COURT] where it was held that 'The appellate authority should follow the principle of natural justice by affording opportunity of hearing to the assessee before taking any decision. The appeal should not be dismissed without due consideration of the ground taken in the appeal and the delay condonation application'.
The issue involved in the present case is squarely covered by the above judgement and accordingly, this Court quashes and sets aside the impugned order and directs the appellate authority to pass a reasoned order after granting an opportunity of hearing to the petitioner. The entire exercise should be completed within a period of two months from date.
This writ petition is disposed of.
-
2024 (5) TMI 920 - ALLAHABAD HIGH COURT
Imposition of tax and penalty u/s 129(3) of the Uttar Pradesh Goods and Services Act, 2017 - expired e-way bill - e-way bill had expired nine hours and thirty minutes prior to interception - sufficient reason for delay in extending time period of the e-way bill - mens rea to evade tax or not - HELD THAT:- This Court in M/S. HINDUSTAN HERBAL COSMETICS VERSUS STATE OF U.P. AND 2 OTHERS [2024 (1) TMI 282 - ALLAHABAD HIGH COURT] and M/S FALGUNI STEELS VERSUS STATE OF U.P. AND OTHERS [2024 (1) TMI 1150 - ALLAHABAD HIGH COURT] held that mens rea to evade tax is essential for imposition of penalty. The factual aspect in the present case clearly does not indicate any mens rea whatsoever for evasion of tax. The goods were accompanied by the relevant documents and the explanation of the petitioner with regard to slow movement of the goods clearly indicate that the truck had broken down resulting in delay. This factual aspect should have been considered by the authorities below.
The breach committed by the petitioner with respect to not extending time period of the e-way bill is only a technical breach and it cannot be the sole ground for penalty order being passed under Section 129(3) of Act.
The finding of the authorities with regard to intention to evade tax is not supported by the factual matrix of the case, and accordingly, the impugned order dated February 27, 2020 passed by the Assistant Commissioner and the order dated November 27, 2020 passed by the Additional Commissioner are quashed and set aside.
Petition is allowed.
-
2024 (5) TMI 919 - CALCUTTA HIGH COURT
Violation of principles of natural justice - non-application of mind - the learned Judge failed to take into consideration the fact that relevant documents submitted by the appellant had not been considered by the Principal Commissioner, CGST, Bolpur Commissionerate - HELD THAT:- The finding of adjudicating authority clearly demonstrates non-application of mind by the adjudicating authority to the documents submitted by the appellant claiming exemption with regard to the services which were the subject matter of adjudication. This amounts to a manifest error apparent on the face of the records which has rendered the decision making amenable to judicial review. Existence of alternative remedy is a self-imposed restriction and does not divest a Court of its extraordinary powers under Articles 226 of the Constitution of India.
As the documents submitted by the appellant assessee had not been considered, he submits in the event the assessee deposits 7.5% of the tax assessed in the impugned order, the order may remain suspended and the matter be remanded for fresh reconsideration in light of the documents furnished by the assessee.
There is a manifest error on record which has affected the fairness of the decision making process.
It is directed that in the event appellant/assessee deposits 7.5% of the tax assessed in the impugned order within four weeks from date, impugned order shall remain suspended and the matter shall be remanded to the adjudicating authority who shall decide the matter afresh in accordance with law in light of the documents submitted before the authority after giving opportunity of hearing to the appellant.
Appeal disposed off.
-
2024 (5) TMI 918 - ALLAHABAD HIGH COURT
Maintainability of petition - availability of remedy of appeal under Section 107 of the Act denial of opportunity of hearing to the assessee - violation of Section 75(4) of the Act - principles of natural justice - HELD THAT:- It is basic to procedural law under taxing statutes that opportunity of personal hearing must be provided to an assessee before any assessment/adjudication order is passed against him - It transpires from the record, neither the adjudicating authority issued any further notice to the petitioner to show cause or to participate in the oral hearing, nor he granted any opportunity of personal hearing to the petitioner.
Before any adverse order passed in an adjudication proceeding, personal hearing must be offered to the noticee.
The impugned order cannot be sustained in the eyes of law. It has been passed in gross violation of fundamental principles of natural justice. The self imposed bar of alternative remedy cannot be applied in such facts. If applied, it would be of no real use. In fact, it would be counter productive to the interest of justice. Here, it may be noted, the appeal authority does not have the authority to remand the proceedings.
The matter is remitted to the respondent no.2-Deputy Commissioner, Commercial Tax Department, Sikandrabad, Bulandshahar to pass a fresh order, in accordance with law, after affording due opportunity of hearing to the petitioner - Petition disposed off by way of remand.
-
2024 (5) TMI 917 - ALLAHABAD HIGH COURT
Rejection of appeal filed by the petitioner - time limitation - appeal rejected on the ground that the same were time barred, as the self-certified copy of the decision or order was not made available within time as per proviso to Rule 108 of the Central Goods and Services Tax Rules, 2017 - appeal has been filed electronically within the time frame prescribed - HELD THAT:- Various High Courts have held that when an assessee files a memo of appeal in the GST Portal, non submission of certified copy would be treated as mere technical defect and the appeal should not be dismissed on the sole ground of non submission of certified copy within time.
The Orissa High Court in the case of M/S. ATLAS PVC PIPES LIMITED VERSUS STATE OF ODISHA & OTHERS [2022 (7) TMI 130 - ORISSA HIGH COURT] held 'Since the petitioner has enclosed the copy of impugned order as made available to it in the GST portal while filing Memo of Appeal, non-submission of certified copy, as has rightly been conceded by the Additional Standing Counsel appearing on behalf of CT&GST Organisation, is to be treated as mere technical defect.'
Furthermore, the High Court of Madras in the case of M/S. PKV AGENCIES, REPRESENTED BY ITS PARTNER P. VIGNESH VERSUS THE APPELLATE DEPUTY COMMISSIONER (GST) (APPEALS) , VELLORE, THE STATE TAX OFFICER (CIC) , VELLORE. [2023 (2) TMI 932 - MADRAS HIGH COURT] where it was highlighted that the requirement to furnish a certified copy within seven days of filing an appeal is procedural and can be condoned. The court stressed that failure to submit the certified copy within the stipulated time frame should not automatically result in the dismissal of the appeal.
Keeping in mind the judgments passed by these High Courts and upon examination of Section 107 of the Central Goods and Services Tax Act, 2017 read with Rule 108 of the Central Goods and Service Tax Rules, 2017, mere non filing of the certified copy of the decision within a period of seven days, when the appeal has been filed electronically within the time frame prescribed, that is, three months, the authority should not dismiss the appeal on the ground that the certified copy of the decision was not filed within time.
The impugned order is set aside - petition allowed.
-
2024 (5) TMI 916 - ALLAHABAD HIGH COURT
Seeking grant of bail - claiming fake input tax credits, without actually supplying goods - admission by statements given by applicant, which was subsequently retracted - HELD THAT:- Statement of the applicant is shown to have been recorded on 21st, 22nd, 23rd and 27th March, 2024 and he is shown to have confessed his guilt in the process of issuance of fake invoices to obtain input tax credits without supplying any goods. Initially, the applicant is shown to have confessed his involvement in registration of 20 firms for Deepanshu Srivastava, but during the course of investigation, it was found that the applicant was actively involved in selling of as many as 77 fake firms and creating other 20 firms for Deepanshu Srivastava which have been used by Deepanshu Srivastava for issuing fake invoices to avail illegal input tax credits without supplying any goods. The illegal input tax credits obtained by the applicant for Deepanshu Srivastava amounts to Rs. 144.14 Crore.
The admission of the applicant, which according to learned Senior Advocate appearing for the applicant has been retracted, would show that shelf-companies have been created by the applicant using someone else’s KYC documents and were sold to the main accused- Deepanshu Srivastava at the cost of Rs. 35000-50000 each for a commission of Rs. 2000-3000. The allegations which are emerging in the confessional statements of the applicant are also showing him in close association with the co-accused- Deepanshu Srivastava so as to help him in sharing ID password of the firms and also in issuing fake invoices/bills and creation of supply chain.
The role of the instant applicant in the alleged crime is much lesser than the role of co-accused- Deepanshu Srivastava who has already been enlarged on bail by this court. Nothing has been canvassed by the Department before this court which may suggest the necessity of the further detention of applicant in the prison in the background that no request for custodial interrogation has been made by the Department at the time of remand of the applicant, before Magistrate.
Keeping in view the fact that the applicant had appeared before the Department and his statements had been recorded on 21st, 22nd, 23rd and 27th March, 2024 and thereafter he was arrested on 28th March, 2024 and was produced before the Magistrate and no request for custodial interrogation was made by the Department at that point of time and also keeping in view the fact that the applicant is in jail in this case since 29.03.2024 and investigation appears to have reached at an advanced stage and nothing has been shown before this court which may justify the further detention of the applicant in prison, a case of bail is emerging in favour of the applicant - apprehension of the Department pertaining to non-cooperation of the applicant in investigation while on bail may be taken care of by placing adequate conditions upon the applicant.
Let the accused/applicant- Mohit Kumar, involved in above-mentioned case, be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to fulfilment of conditions imposed - bail application allowed.
-
2024 (5) TMI 915 - CALCUTTA HIGH COURT
Detention of goods - time limitation - appeal rejection due to technical glitch - power of appellate authority to condone delay - HELD THAT:- Although, it appears that the appellate authority by placing reliance on section 107 (4) of the said Act observed that the appellate authority is competent to condone the delay in preferring the appeal, provided the same is filed within one of the time prescribed, the said issue had already been decided by the Hon’ble Division Bench of this Court in the case of S.K. Chakraborty and sons v. Union of India & Ors., [2023 (12) TMI 290 - CALCUTTA HIGH COURT]. In the aforesaid judgment this Hon’ble Division Bench while interpreting the provisions of the said Act having regard to Section 29(2) of the Limitation Act, 1963 has held that since there is no expressed or implied exclusion of Section 5 of the Limitation Act, 1963, by virtue of Section 29 (2) of the Limitation Act, 1963, Section 5 of the Limitation Act, 1963 stands attracted.
The present case is, however, still more peculiar. In this case although, the petitioner’s appeal was filed within time, by reasons of technical glitches the same was rejected. When the petitioner preferred the second appeal, as there is no option to seek review of the first appeal, the second appeal was rejected on the ground that there is no provision under Section 107 of the said Act to entertain the second appeal - considering the peculiar facts of the case, the petitioner’s statutory right to challenge the order passed under Section 129 (3) of the said Act cannot be defeated by reason of technical glitches.
The appeal filed by the petitioner is restored by setting aside the orders of rejection dated 30th June, 2023 and 19th September, 2023. The appellate authority is directed to hear out both the appeals by treating the same to be a composite appeal on merit, without insisting for any pre deposit from the petitioner - petition disposed off.
-
2024 (5) TMI 914 - UTTARAKHAND HIGH COURT
Denial of ITC - appellant as the supplier - appellant neither paid the tax nor has filed the returns - the invoices of sale made to the suppliers are with the appellant, and on the basis of the invoices the payments were made - proceedings u/s 74 can be initiated against appellant for availing ITC in a fraudulent manner or not? - HELD THAT:- Keeping in view the provisions of section 107 (6) (d) of the Uttarakhand Goods and Services Tax Act 2017, the order dated is being modified that since the appellant has produced all the invoices from the suppliers, and it was the duty of the suppliers to further file their returns, which they have not done, the order is being modified that appellant will deposit 10% of the amount, which is being demanded by the respondents.
Appeal disposed off.
-
2024 (5) TMI 913 - MADRAS HIGH COURT
Confirmation to tax together with interest under Section 50 of the TNGST Act, 2017 and the penalty under Section 73(9) of the said Act - exemption from GST - health services - difference in the turnover - Tax on testing tax - Tax on RCM towards rent - Tax on other income - Tax on RCM towards professional fees.
Tax on testing tax - Tax on RCM towards rent - Tax on other income - Tax on RCM towards professional fees - HELD THAT:- Prima facie, the petitioner appears to be entitled for exemption under the Notification No.12/2017-CT (Rate) dated 28.06.2017 insofar these services are concerned and under Notification No.13/2017-CT (Rate) dated 28.06.2017
Difference in the turnover - HELD THAT:- The submission of the learned counsel for the petitioner is reasonable as there was an erroneous consideration of the turnover/income in the profit and loss account for the period in dispute which includes the period covered by pre-GST era under the provisions of the Finance Act, 1994.
Considering the fact that this issue would require a proper and detailed consideration by the respondent and considering the fact that many of the grounds which are canvassed before this Court were not taken up by the petitioner before the respondent which has culminated in the impugned order, the impugned order is set aside and the case is remitted back to the respondent to pass a fresh order on merits and in accordance with law, within a period of 8 weeks from the date of receipt of a copy of this order.
Petition allowed by way of remand.
-
2024 (5) TMI 912 - CALCUTTA HIGH COURT
Validity of reassessment order u/s 147 - Denial of Cross-Examination Opportunity - as argued appellant had not been granted an opportunity to cross-examine person whose statement addition was made - violation of principles of natural justice - HELD THAT:- From the aforesaid order or from the documents relied on by the petitioner, it does not appear that the petitioner had made any specific request before the assessing officer, inter alia, praying for issuance of summons on third party [Amit Kumar Agarwal] for him to be produced for the purpose of cross examining him.
Although, Petitioner has strenuously argued that failure on the part of the authorities to afford opportunity to the petitioner to cross examine the said Amit Kumar Agarwal has the effect of vitiating the order passed u/s 148A (d) of the said Act as also the entire assessment proceeding, petitioner having not approached this Court earlier and having not made any specific prayer for cross examining the said Amit Kumar Agarwal before the assessing officer at the stage of the proceeding under Section 147 of the said Act, the present writ petition cannot be entertained on such ground.
Given the nature of enquiry, mere making of a statement in the response that the order u/s 148A (d) of the said Act was decided without affording the petitioner the right to cross-examine, without applying for issuance of summons for production of third party [Amit Kumar Agarwal] cannot vitiate the entire assessment order on such ground. Admittedly, there is an alternative remedy in the form of appeal, though the petitioner submits that the time to prefer an appeal by reasons of pendency of the writ petition has expired. Taking note of the fact that the writ petition was filed on 1st April 2024, the petitioner should be permitted to approach the appellate authority under the said Act.
If the petitioner approaches the appellate authority within a period of 15 days from date and files appeal along with the server copy of this order with an application under Section 5 of the Limitation Act, 1963 explaining the delay, the appellate authority shall consider the same.
-
2024 (5) TMI 911 - ITAT DELHI
Rectification u/s 154 - AO had not suo-moto initiated rectification proceedings but acted on the application of the assessee - HELD THAT:- Since the AO acted upon the rectification applications filed by the assessee for all these assessment years allowing the request of the assessee, we see no grievance of the assessee in the appeals filed before us. Assessee also did not brought on record as to how he was aggrieved by the 154 order passed by the AO. Hence, we see no infirmity in the order passed by the CIT(A). The grounds raised by the assessee are rejected.
-
2024 (5) TMI 910 - ITAT DELHI
Validity of reopening of assessment u/s 147 - reopening beyond period of four years - cash deposits in assessee’s bank account - assessee has sold agricultural land and believed that this sale is not taxable - HELD THAT:- Assessee has not filed any return of income believing that his income is exempt from tax. Since the AO came to know about the huge cash deposit in assessee’s bank account and capital transaction, he has sought approval to reopen the case even though beyond 4 years.
As noticed from the record that the AO has taken proper approval and the same was approved by the proper authority. Now the assessee has raised several arguments including the approval process. We are not inclined to accept any of the argument put forth by the Ld AR, most of them are based on presumptions that AO should have completed the assessee one way or the other. Approval process is not complicated in the case of the assessee which required proper application of mind, the fact that the assessee has not filed his return of income and deposited huge cash in his bank account, therefore, the approval was granted to the AO to verify the same. Therefore, we are not inclined to adjudicate on the various issues raised by the assessee on reopening of the assessment.
Additions made u/s 68 and u/s 69A - assessment was reopened after lapse of 6 years - Mandate to reopen the assessment - The reason for reopening the assessment was properly explained by the assessee. AO cannot stretch beyond the mandate. We observe that the assessee has not made proper submissions during the reassessment proceedings and appellate proceedings, it does not matter as long as the information is coming from the proceedings.
In this case, the AO was satisfied that the assessee owned agricultural land and sold the same during this assessment year. Therefore, the mandate to reopen the assessment was completed by bringing on record the relevant documents to prove the sources of cash deposits. Therefore, the AO cannot travel beyond the mandate, he cannot proceed to make any other additions beyond the reasons recorded to reopen the assessment. Therefore, confirming the other additions beyond the mandate is uncalled for.
CIT(A) has proceeded to make the addition u/s 69A instead of section 68, still the sources for cash deposits are already brought on record and Ld CIT(A) has proceeded to sustain the addition due to failure on the part of the assessee to make submission before him and relied on the material available with him. Therefore, in our considered view, once the sources for the cash deposits are brought on record there is no further requirement to go beyond the mandate particularly the assessment was reopened after lapse of 6 years from the relevant assessment year. Accordingly, the appeal filed by the assessee is allowed on the merits.
-
2024 (5) TMI 909 - ITAT BANGALORE
Income deemed to accrue or arise in India - revenue characterization - Taxability of IUC [Interconnect utility charges] as Royalty u/s 9(1)(vi) - DTAA between India and Hongkong was come into effect later - whether payment is made to “use the process” or “an equipment”? - HELD THAT:- Admittedly there is no treaty between India and Hong Kong, the country of which the assessee is a tax resident. Therefore the payment received by assessee has to be analysed under the Income Tax Act alone. We note that the decision relied by the Ld.AR has analysed the taxability of the identical payment received by the assessee therein for similar services, under the provisions of Income Tax Act, having regards to section 9(1)(vi); Explanation 2, 5 and 6 also. And this Tribunal has held that payments made by an Indian telecom company for identical services, as rendered by the present assessee will not fall within the ambit of Royalty under section 9(1)(vi), Explanation 2,5 and 6.
Thus as following the decision of Vodafone Idea Ltd. [2023 (7) TMI 1164 - KARNATAKA HIGH COURT] we hold that the payments received by the assessee cannot be held to be royalty under section 9(1)(vi) of the Act. Further the revenue has not made out a case that there is a permanent establishment of assessee in India in order to tax the receipt by assessee in India as it is arising from extra territorial sources. Accordingly, in our opinion, the payments received by assessee amounts to be business profits of the assessee which is taxable in the recipient country. Decided in favour of assessee.
-
2024 (5) TMI 908 - ITAT INDORE
TDS u/s 194J/195 - whether payment of roaming charges falls within the meaning of “FTS" - ‘assessee-in-default’ for non-deduction of tax at source out of payment of roaming charges - whether the payment of roaming charges constitutes FTS or Royalty? - Whether payment of roaming charges does not amount to royalty u/s 9(1)(vi) red with Explanation 6? - HELD THAT:- After a careful consideration, we find that it is vehemently held in various decisions, that such payment of roaming charges is neither in the nature of ‘FTS’ nor ‘Royalty’ and hence did not require TDS u/s 194J. Therefore, we are of the view that the assessee cannot be held as ‘assessee-in-default’ for non-deduction of tax at source out of payment of roaming charges. See Bharti Airtel Limited [2016 (3) TMI 680 - ITAT DELHI] and M/s Telefonica Depreciation Espana SA [2023 (9) TMI 280 - ITAT BANGALORE]
Since we have already deleted the demand of TDS on merit, the interest levied by AO automatically comes to end - Accordingly, the grounds of assessee are allowed.
-
2024 (5) TMI 907 - ITAT MUMBAI
Addition made u/s. 69/69B - difference between the stamp duty value and the sale consideration with respect to purchase of property - as per assessee impugned transaction which is part of a family settlement does not amount to "transfer"- HELD THAT:- As in the case of Dinesh Jain HUF [2012 (10) TMI 158 - DELHI HIGH COURT] has considered a similar issue of addition under section 69B of the Act where it has been held that the burden of providing satisfactory explanation to the AO by the assessee regarding the amount in excess of what is recorded in the books of accounts would arise after the AO first finds that the assessee has expended more that what is recorded in the books of accounts.
From the perusal of the materials, we notice that the AO has not brought on record any evidence to support that the assessee has expended more than what is recorded in the books and has made the addition based on the valuation for stamp duty purposes. Therefore, we are inclined to agree with the contention of the assessee that addition towards the impugned transaction u/s 69B of the Act could not have been made without the AO recording a finding that the assessee has spent more amount towards purchases than what is recorded in the books of accounts.
Addition u/s 56(2)(x) - The section is applicable to individuals and HUF and the assessee being a company the said section is not applicable. The legislature by subsequent amendment in Finance Act, 2017 introduced section 56(2)(x) to bridge this lacuna in the statute covering all types of assessee’s. However, it is relevant to notice that section 56(2)(x) is applicable only from AY 2017-18 and therefore, the addition towards the impugned transaction which happened during the year under consideration could not have been taxed under section 56(2)(x) of the Act.
Revenue's contention that the assessee's name is not appearing in the family settlement agreement -There is merit in the submission the assessee company is part of the settlement agreement though not specifically mentioned in the agreement and that the impugned transaction took place consequent to the family agreement. It is also relevant to notice that in the case of Kay ARR Enterprises & Ors. [2007 (7) TMI 171 - MADRAS HIGH COURT] while considering a similar issue has held that the transaction under a family settlement agreement do not amount to transfer and that the SLP filed by the Department against the said case has been dismissed by the Hon'ble Supreme Court. Therefore, in our considered view on this count also the addition made towards the impugned transaction is not tenable.
Addition towards Income from House Property - AO made the addition based on the information received from the society in response to notice u/s 133(6) of the Act stating that the impugned property could fetch a rent of Rs. 33,000/- per month - contention of the assessee is that for the purpose of deemed income from House Property it is the Municipal Ratable Value that needs to be considered and not the rent which the property is expected to receive by letting out - HELD THAT:- The additional evidence now submitted by the assessee in terms of ratable value fixed by Mumbai Municipal Corporation goes to the root of the issue. For a proper adjudication of the issue and for substantial cause, the additional evidence is admitted and taken on record. Since the lower authority did not have an opportunity to examine the additional evidence now submitted by the assessee we deem it fit to remit the issue back to the AO for fresh consideration. The AO is directed to examine the evidence submitted by the assessee and decide in accordance with law keeping in mind the decision of the Co-ordinate Bench in the case of Abhijit Rajan [2011 (4) TMI 1363 - ITAT MUMBAI]
-
2024 (5) TMI 906 - ITAT HYDERABAD
LTCG - Deduction u/s 54F - Assessment of cost of construction for computing capital gain - valuation mentioned in the registered JDA adopted - AO had calculated the share of the assessee based on the receivable share of the assessee in the built-up area for an amount after reducing the prorate land value - HELD THAT:- AO was required to compute the capital gains on the date of transfer based on the registered JDA, which is in accordance with the decision in the case of Potla Nageswara Rao [2014 (8) TMI 636 - ANDHRA PRADESH HIGH COURT] - The Hon’ble Supreme Court in the case of CIT Vs. Balbir Singh Maini [2017 (10) TMI 323 - SUPREME COURT] had also mentioned that in case the JDA is registered, the date of transfer would be the date of registration of the JDA and the capital gain would arise on the said date of registration.
In the present case, the registered JDA had not only provided the share of the assessee in the built-up area but also provided the estimate value of the property for Rs. 1,80,99,000/-. Therefore, the order passed by the Assessing Officer taking the value mentioned in the registered JDA is in accordance with law. The law is fairly settled that the contents of registered documents are required to be given precedence over the oral evidence unless the contents of the registered documents are rebutted by other contemporaneous evidence. In the present case, no evidence has been brought to my notice showing that the value mentioned in the registered JDA was incorrect. Decided against assessee.
Power of the Tribunal u/s 254 to entertain for the first time a point of law - Assessee not claimed deduction u/s 54F at the time of filing return of income - assessee has raised the claim before the CIT(A) and mentioned that he was entitled to claim deduction u/s 54F - CIT(A) had rejected the claim of the assessee as relying on GOETZE (INDIA) LIMITED [2006 (3) TMI 75 - SUPREME COURT] - HELD THAT:- The impediment to entertain the claim of the assessee is on the power of the Assessing Officer and there is no such impediment on the power of the Tribunal u/s 254 - We deem it appropriate to remand back the issue of entitlement of the claim u/s 54F to the file of AO with a direction to examine the claim of the assessee within the four corners of section 54F and if the Assessing Officer found that the assessee has fulfilled all the conditions, then grant the claim of deduction u/s 54F of the Act to the assessee. Appeal of the assessee is allowed for statistical purposes.
-
2024 (5) TMI 905 - ITAT DELHI
Validity of Assessment u/s 153C - Requirement of satisfaction note for initiating proceedings u/s 153C - date from which the six year period was to be reckoned, in respect of which the returns were to be filed by the third party (whose premises are not searched) - as argued based on the date of recording of satisfaction, the Assessment made u/s 144 r.w.s. 142(1) is outside the scope of said Section u/s 144 r.w.s. 142(1) and the assessment ought to have been made u/s 153C
HELD THAT:- As decided in RRJ Securities Ltd. [2015 (11) TMI 19 - DELHI HIGH COURT] the recording of a satisfaction that the assets/documents seized belong to a person other than the person searched is necessarily the first step towards initiation of proceedings under Section 153C of the Act. In the case where the AO of the searched person as well as the other person is one and the same, the date on which such satisfaction is recorded would be the date on which the AO assumes possession of the seized assets/documents in his capacity as an AO of the person other than the one searched.
The rationale appears to be that whereas in the case of a searched person the AO of the searched person assumes possession of seized assets/documents on search of the Assessee; the seized assets/documents belonging to a person other than a searched person come into possession of the AO of that person only after the AO of the searched person is satisfied that the assets/documents do not belong to the searched person. Thus, the date on which the AO of the person other than the one searched assumes the possession of the seized assets would be the relevant date for applying the provisions of Section 153A of the Act. We, therefore, accept the contention that in any view of the matter, assessment for AY 2003-04 and AY 2004-05 were outside the scope of Section 153C of the Act and the AO had no jurisdiction to make an assessment of the Assessee's income for that year. Also see Jasjit Singh [2023 (10) TMI 572 - SUPREME COURT]
Thus no hesitation to hold that the Assessments made for A.Y. 2012-13 u/s 144 r.w.s. 142(1), consequent to the satisfaction note recorded on 18.11.2013 (A.Y. 2014-15), ought to have been made u/s 153C of the Income Tax Act, 1961. Since, the provisions of Section 153C have not been invoked and since, the proceedings u/s 153C have not been initiated, the assessment made u/s 144 r.w.s. 142(1) is treated as void ab initio.
-
2024 (5) TMI 904 - CESTAT NEW DELHI
Levy of Penalty u/s 112 - Scope of the show cause notice - Mis-declaration and re-classification of imported goods - re-classification done on the basis of visual inspection and no evidence produced by the department - Onus to prove the classification - Voluntariness and retraction of the statement made by the appellant - duty paid ‘under protest’ - clearance of the goods declared as “Copper Clad Laminates-AL grade” classified under CTH 7474102100 - HELD THAT:- The goods were put under preventive check and on examination were found to be mis-declared in terms of the description of the classification as they appeared to be “Aluminium Paste Copper Clad Laminates” classifiable under CTH 76061200. Hence the goods were seized u/s 110 of the Act on the reasonable belief that the same are liable to confiscation under section 111 of the Act.
It is evident that the appellant has voluntarily accepted and admitted that the goods have been mis-classified due to mistake and, therefore, paid the differential customs duty. The principle settled by judicial pronouncements is clear that once the party admits, the same need not be proved by the department.
Issue of retraction - The statement was made on 25.03.2021 and the retraction was made vide communication dated 16.04.2021, which is nothing but afterthought and belated action and hence no reliance can be placed thereon. Also no other material has been placed on record to corroborate the fact that the statement were recorded under the exhortation and duress.
Duty paid ‘under protest’ - The statement dated April 16, 2021 that they paid the differential duty amount under protest is just an afterthought and has no evidential value and, therefore, the plea needs to be rejected.
Penalty u/s 112 - No show cause notice has been issued proposing the demand of differential duty or the penalty. On adjudication, the penalty was imposed only under section 114A of the Act and there was no reference at all to the provisions of section 112 of the Act. Once the appellant has challenged the said order in original, it was incumbent upon the appellate authority to decide the issues under challenge which was the differential duty amount and the penalty u/s 114A.
Thus, Commissioner (Appeals) travelled beyond the jurisdiction in the matter of imposing penalty u/s 112 of the Act and, therefore, the same is set aside. To the extent the impugned order stands modified.
The appeal is, accordingly, partially allowed.
-
2024 (5) TMI 903 - CESTAT AHMEDABAD
Classification of imported goods - Whether the imported insulated boxes designed for carrying vaccines and blood should be classified under Chapter Tariff Heading 39231030 (insulated ware) or under Heading 9018 (instruments and appliances used in medical, surgical, dental, or veterinary sciences) - HELD THAT:- It is apparent from the case of Becton Dickinson 1998 (6) TMI 162 - CEGAT, MADRAS that it has consistent stand of the Tribunal and courts that if the items are specifically designed for medicinal use, the classification under heading 9018 should be preferred over any other classification given to similar products not used for medicinal purposes. In this regard, the Note 2(u) of the Chapter 39 also becomes relevant which also confirms the same view. The goods in the instant case are specifically designed for medical use and supplied to actual users.
From the Note Note I(L), it is apparent that the special blood storage bottles are specifically excluded from Chapter 90 and Heading 9018. This also implies that ordinarily such bottles could have been classified under Chapter heading 9018 but the HSN has specifically excluded and take it to heading 7010. There is no such heading excluding the boxes made for vaccine from Chapter heading 9018. Moreover this note also holds that containers of plastic for carrying blood would be classifiable under Chapter Tariff Heading 9018. Thus, the argument of Revenue does not hold any merit.
Revenue has relied on the assertion that the Commissioner has ignored Interpretative Rule 3(a) before applying Interpretative Rule 3(c) of the Interpretative Rules for classification of the Customs Tariff. We find no mention of these Rules in the orders of the Commissioner. We find that Commissioner has specifically come to the conclusion that goods are more specifically classifiable under heading 9018 as medical equipment and therefore, there is no application of Rule 3(c) in the order of the Commissioner.
Thus, we do not find any merit in the appeal filed by the Revenue, the same is dismissed.
-
2024 (5) TMI 902 - CESTAT HYDERABAD
Refund claim - unjust enrichment - Initially claim filed without challenging the self-assessed Bills of Entry - Whether appellant has passed on the burden of differential duty to its buyers or not - HELD THAT:- During pendency of the present appeal, the Appellant assessee had sought amendment of the same 136 self-assessed Bills of Entry, against which refund was rejected. Appellant contends that this amendment was sought pursuant to the judgment of the Hon’ble Supreme Court in ITC Ltd., Vs Commissioner of Central Excise [2015 (4) TMI 561 - SUPREME COURT] wherein it was held that refund u/s 27 of the Customs Act would only be permissible when the Bills of Entry has been amended or modified under the provisions of the Customs Act; and so appellant submitted letter dated 22.11.2019 before the Customs Department requesting to amend the 136 Bills of Entry u/s 149 of the Customs Act, to reassess the Bills of Entry and for grant subsequent refund. This request of the appellant was rejected against which appellant moved before Hon’ble High Court of Telangana.
The Hon’ble Telangana High Court by its judgment dated 12.08.2021 in Writ Petition in 2021 (8) TMI 622 - TELANGANA HIGH COURT have been pleased to allow the Writ Petition to the effect that the Appellant is entitled to amendment of their Bill of Entries and consequential benefits u/s 149 of the Act. The Hon’ble High Court observed that the appellant cannot be penalized for what the authority out to have done correctly by himself. The Hon’ble High Court also observed that appellant was entitled to avail the benefit of the reduced rate of 1% under the relevant Notification but EDI system used for filing the Bills of Entry was not updated to make available the benefit of lower rate of CVD 1% and was forced to pay CVD @ 6%
Pursuant to Order of Hon’ble High Court, Adjudicating Authority vide Order-in-Original No. 2/2023-ACC(R) dated 25.01.2023 have granted the consequential refund of excess duty paid by the appellant and gave following finding to hold that there is no unjust enrichment.
Thus, as Original Adjudicating Authority has subsequently held that there is no unjust enrichment, the dispute in this appeal no longer survives. Accordingly, this appeal is disposed as infructuous.
........
|
