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Showing 101 to 120 of 407097 Records
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2024 (5) TMI 876 - AUTHORITY FOR ADVANCE RULING, WEST BENGAL
Maintainability of advance ruling application - Scope of Advance Ruling - HELD THAT:- In terms of clause (a) of section 95 of the GST Act, an advance ruling means a decision provided by this authority or the appellate authority, as the case may be, on matters or any questions specified in sub section (2) of section 97 or sub section (1) of section 100 of the GST Act in relation to the supply of goods or services or both being undertaken or proposed to be undertaken by the applicant. An application for obtaining an advance ruling is to be made on the common portal in FORM GST ARA-01.
However, in the instant case, no question is found to have been raised by the applicant against the specified column of the application in FORM GST ARA-01. The applicant has enclosed an annexure with the application. The applicant, even in the said document so annexed, has not stated any questions on which the advance ruling is sought. The said document is found to be a statement on “Auditors‟ comments on Emphasis of Matter in Independent Auditors‟ Report for Financial Year 2021-2022 and Management Reply against the comment thereto.”
There cannot be any reason to admit the application. The application, therefore, is rejected.
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2024 (5) TMI 875 - MADRAS HIGH COURT
Validity of assessment order and bank attachment notice - no personal hearing provided - petitioner asserts that the intimation notice and show cause notice did not contain particulars as to how the liability was arrived at - violation of principles of natural justice - HELD THAT:- The documents on record disclose that the petitioner was not heard before the order was issued. It also appears that only the summary of the assessment order was uploaded on the GST portal. In those circumstances, the impugned orders call for interference subject to putting the petitioner on terms.
The impugned assessment order and the consequential attachment notice are quashed subject to the condition that the petitioner remits 10% of the disputed tax demand within a maximum period of two weeks from the date of receipt of a copy of this order. Subject to fulfilment of the said condition, the assessing officer is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh assessment order within a period of two months from the date of receipt of 10% of the disputed tax demand.
The writ petition is disposed of.
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2024 (5) TMI 874 - MADRAS HIGH COURT
Seeking certified copy of the order in original - export proceeds - duty draw back - condition that export proceeds are realized within the prescribed time limit - HELD THAT:- The relief prayed for is limited to a direction to provide a certified copy of the order in original. Even if the respondent had previously served the certified copy on the petitioner, it is always open to the respondents to state that the certified copy was served on the petitioner earlier and provide evidence thereof. This will not stand in the way of the respondents providing another copy thereof to the petitioner.
Therefore, W.P. is disposed of by directing the respondents to provide a certified copy of the order in original dated 26.12.2022 to the petitioner within thirty days from the date of receipt of a copy of this order. No costs.
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2024 (5) TMI 873 - MADRAS HIGH COURT
Import of second hand digital multifunction printing and copying machines - HELD THAT:- Both learned counsel for the petitioner and learned senior standing counsel for the Customs Department submit that a batch of writ petitions pertaining to the same product were disposed of by order dated 23.11.2023 in W.P. Nos. 29673 of 2023 batch.
Thus, W.P. are disposed of on the same lines. Consequently, W.M.P. are closed.
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2024 (5) TMI 872 - ALLAHABAD HIGH COURT
Cancellation of registration of the petitioners' proprietorship concern - Time limitation - unreasoned order - total non application of mind by the authority concerned while cancelling the G.S.T registration of the petitioner - HELD THAT:- The appeal filed against the order has been dismissed on the ground of limitation only.
Bar of limitation may bar the remedy of appeal but it does not bar the petitioner's right to seek his constitutional remedy under Article 226 of the Constitution of India, particularly when the impugned order affects valuable rights of the petitioner and the same has been passed without assigning any reason.
The writ petition is disposed of.
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2024 (5) TMI 871 - SC ORDER
CIRP - parties have compromised and settled the matter in terms of the Deed of Settlement - HELD THAT:- The Corporate Insolvency Resolution Process against respondent no. 2 – M/s. Anjani Realtors Pvt. Ltd. will be treated as closed.
The appeal is disposed of.
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2024 (5) TMI 870 - SC ORDER
Seeking an interim relief or for final disposal of the matter - Seizure of areca nut - perishable commodity - HELD THAT:- We dispose of this Special Leave Petition reserving liberty to the petitioner herein to seek an early hearing/advance the case/writ petition either for the purpose of seeking an interim relief or for final disposal of the matter.
It is needless to observe that if the petitioner seeks urgent hearing for consideration of the interim prayers, the same shall be considered at the earliest, having regard to the nature of the commodity involved in the writ petition so as to save it from perishing as such.
Thus, the Special Leave Petition is disposed of.
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2024 (5) TMI 869 - ANDHRA PRADESH HIGH COURT
Time Limitation - Rejection of appeal filed by the petitioner - appeal was filed with a delay beyond the condonable period - Physical copies being submitted on 24.04.2023, beyond the condonable period while electronic filing was within the time limit - HELD THAT:- On perusal of the copy of the screen shot filed along with the material papers, there are some force in the submission of learned counsel. Since admittedly the copy of the assessment order dated 20.07.2022 was already placed on the department website, the petitioner gave the reference of the said order while filing the appeal electronically. Therefore, there are force in the submission that the requirement was substantially met. Therefore, the 1st respondent ought to have taken the date of filing of the appeal as 26.09.2022 for all practical purposes. However, the 1st respondent took the date of filing as 24.04.2023, as on the date the appeal was filed along with the documents physically.
This approach of the 1st respondent cannot be accepted. Electronical filing of the appeal is a facilitation given to the assessees. That being so, the copy of the impugned order which was already available on the web can be mentioned for easy reference.
The appeal filed by the petitioner in electronic mode is held as well within time and the matter is remitted back to the 1st respondent to register the appeal and decide the same in accordance with the governing law and rules expeditiously - Petition allowed by way of remand.
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2024 (5) TMI 868 - CESTAT BANGALORE
Non-payment of service tax - Goods Transport Agency (GTA) services - Benefit of N/N. 32/2004/ST dated 03.12.2004 denied on the ground that the appellant failed to produce certificate from M/s. Devi Transports - HELD THAT:- As per the letter furnished by M/s. Devi Transporters, they have certified that they have not availed any credit under Cenvat Credit Rules for providing the Goods Transport Service to the appellant and no deduction is claimed for cost of goods used in the rendering services. Similarly as evidenced from letter issued by M/s. Ayoob & Co., they also have not availed any Cenvat Credit and no deduction was claimed for cost of goods used in rendering the services.
It is found that the claim of the appellant is that once the transporter had paid some amount of service tax, it can be adjusted towards the tax liability of the appellant. The issue was considered by the Tribunal in the matter NAVYUG ALLOYS PVT. LTD. VERSUS CCE & C, VADODARA-II [2008 (8) TMI 100 - CESTAT AHEMDABAD], where on similar facts and circumstances, the Tribunal held that once tax is already paid on the service, it is not open to the department to confirm the same against the appellant.
The appeal is allowed.
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2024 (5) TMI 867 - ALLAHABAD HIGH COURT
Cancellation of registration of petitioner - Time Limitation - non-application of mind - violation of principles of natural justice - HELD THAT:- In the present case, the facts are similar to one in Surendra Bahadur Singh's case [2023 (8) TMI 1262 - ALLAHABAD HIGH COURT], wherein the appeal was barred by time under Section 107 of the Act. However, the Division Bench in Surendra Bahadur Singh's case took into consideration the original order and set aside the same being non-reasoned and allowed the petitioner therein to file reply to the show cause notice.
The orders impugned herein are liable to be set aside - Petition allowed.
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2024 (5) TMI 866 - ALLAHABAD HIGH COURT
Cancellation of registration of petitioner - non-application of mind - time limitation - HELD THAT:- In the present case, the facts are similar to one in Surendra Bahadur Singh's case [2023 (8) TMI 1262 - ALLAHABAD HIGH COURT], wherein the appeal was barred by time under Section 107 of the Act. However, the Division Bench in Surendra Bahadur Singh's case took into consideration the original order and set aside the same being non-reasoned and allowed the petitioner therein to file reply to the show cause notice.
The orders impugned herein are liable to be set aside. Accordingly, the order in original dated March 2, 2022 and the appellate order dated April 1, 2024 are quashed and set aside - The writ petition is allowed.
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2024 (5) TMI 865 - ALLAHABAD HIGH COURT
Cancellation of registration of petitioner - order for cancellation of registration has been passed without any application of mind - violation of principles of natural justice - HELD THAT:- In the present case, the facts are similar to one in Surendra Bahadur Singh's case [2023 (8) TMI 1262 - ALLAHABAD HIGH COURT], wherein the appeal was barred by time under Section 107 of the Act. However, the Division Bench in Surendra Bahadur Singh's case took into consideration the original order and set aside the same being non-reasoned and allowed the petitioner therein to file reply to the show cause notice.
The orders impugned herein are liable to be set aside. Accordingly, the order in original dated February 22, 2023 and the appellate order dated April 4, 2024 are quashed and set aside - the writ petition is allowed.
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2024 (5) TMI 864 - ITAT AMRITSAR
Penalty proceedings u/s 271(1)(c) r.w.s. 274 - additional income declared in the return filed in response to notice u/s 153A as compared to original returned filed u/s 139(1) - CIT(A) rejected the contention of the assessee only on the basis that additional income has been offered in the return of income filed u/s 153A, and the extra income declared in the return represent concealment income
HELD THAT:- As per the provision of the Act, the penalty shall be levied if the assessee has been found to be the owner of any money, bullion, jewellery or other valuable article or thing or there is some income based on the entry in the books of accounts/ documents during the course of search u/s 132 or requisition u/s 132A of the Act, and then only it shall be presumed that the assessee has concealed the particulars of income or furnished inaccurate particulars of income. However, in the instant case there is no such allegation made either by the Ld. AO or by the Ld. CIT(A). From the record, it is apparently clear that the assessee has disclosed additional income in the return filed u/s 153A of the Act voluntarily and without having found any income by the revenue in the manner provided under explanation (5A) to section 271(1)(c) of the Act.
As there were no incriminating material either found or seized or referred by the AO, in the assessment order as well as penalty order while imposing penalty u/s 271(1)(c) read with explanation (5A) of the Act. Thus, we hold that the decision of the Ld. CIT(A) is infirm and perverse to the facts on record. Assessee appeal allowed.
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2024 (5) TMI 863 - CALCUTTA HIGH COURT
AO jurisdiction to pass the assessment order - file was transferred to ACIT, Central Circle 2(3), Chennai pursuant to an order passed by the CIT u/s 127 - HELD THAT:- As evidently clear that on and after the order passed by the CIT transferring the files to the jurisdiction at Chennai by order dated 15.03.2013, the Assessing Officer here in Kolkata has no jurisdiction to deal with the matter. This aspect has been rightly noted by the learned Tribunal. The learned Tribunal also took note of the decision of Ramshila Enterprises Private Limited [2016 (5) TMI 17 - CALCUTTA HIGH COURT] In the said decision, the Court took note of the judgment of the Pandurang & Ors. Versus State of Maharashtra [1986 (9) TMI 415 - SUPREME COURT] for the proposition that even a right order by a wrong forum is a nullity.
Reference was also made to the decision of Ashoke Glass Works [1979 (7) TMI 28 - CALCUTTA HIGH COURT] wherein it was held that when the jurisdiction is validly removed by a competent authority under the provisions of a statute, the original court or any Tribunal or authority in such event will be incompetent, as having ceased to have jurisdiction, to proceed further with the pending proceeding or proceeding which may be instituted after such removal of jurisdiction.
Tribunal has examined the facts and has found that on the date when the AO completed the assessment, he had no jurisdiction over the matter.
Advocate appearing for the respondent assessee placed reliance on the decision of the Division Bench of High Court of Judicature at Bombay in The Pr. Commissioner of Income Tax-1, Pune Versus M/s Capstone Securities Analysis Pvt. Ltd. 2022 (12) TMI 1428 - BOMBAY HIGH COURT]. In the said case, the factual position is more or less identical to that of the case on hand. In the said case, it was contended by the Revenue that the Assessing Officer would continue to exercise jurisdiction in the case of the assessee in as much as the PAN of the assessee came to be transferred only subsequently.
This argument was rejected by the Division Bench and held that the transfer of PAN is consequential to the transfer of jurisdiction and it is the PAN which follows the jurisdiction and not vice versa.
Revenue has canvassed that the files as well as the PAN was still lying within the jurisdiction of the Income Tax Officer Ward 1(4) Kolkata. The transfer of the files is a ministerial or an administrative act to be done by the department for which the assessee cannot be held responsible.
That apart, the transfer of the PAN was only a consequential proceeding to the transfer of jurisdiction and therefore the same cannot be a ground to hold that the AO had jurisdiction over the matter despite the order of transfer passed by the Commissioner on 15.03.2013.
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2024 (5) TMI 862 - ALLAHABAD HIGH COURT
Ex parte scrutiny assessment order u/s 143(3) r.w.s. 144B - specific request to grant opportunity of personal hearing - HELD THAT:- As decided in Satish Kumar Bansal Huf [2024 (5) TMI 786 - ALLAHABAD HIGH COURT] in absence of power to remit the matter to the assessing authority to make a fresh assessment, in the case of an ex parte order wrongly drawn on ex parte basis, the appeal power would remain seriously restricted. The appeal authority would be forced to entertain the appeal on all merit issues and exercise the powers of the AO.
While it is not in doubt that the appeal authority has all powers of AO, at the same time, it is not the Scheme of the Act to require the job of the Assessing Authority to be routinely performed by the First Appeal Authority. If the opportunity of personal hearing is to be declined by the AO by way of a normal practice, we foresee such situations are bound to arise in the normal course of things. In any case, the assessee would have lost one opportunity and tier of appeal, for no fault on its part.
Therefore, the word "request" used under Section 144B(6)(vii) and (viii) only imply, where an assessee may furnish his written reply to the show-cause notice but not opt to avail opportunity of personal hearing, it may not be mandatory for the Assessing Officer to grant such opportunity of personal hearing if he intends to accept the explanation furnished. He may pass appropriate ex parte order accepting the explanation furnished by the assessee. If however, on reading the explanation furnished, the Assessing Officer maintains his tentative opinion to pass the assessment order as proposed, that may be adverse to the assessee, he would necessarily fix a date for personal hearing and communicate the same to the assessee, through electronic mode (as provided under the Act). Thereafter, it would be for the assessee to avail that opportunity. If the assessee fails to avail that opportunity, the Assessing Officer may proceed in accordance with law.
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2024 (5) TMI 861 - DELHI HIGH COURT
Applicability of duty element in determining the threshold limit for filing an appeal - Monetary limit prescribed by the Board for filing an appeal before the High Court - HELD THAT:- In the instant case, the determinative factor being the duty element is Rs. 86,34,821/-. Thus, the appeal is clearly covered by the circulars prescribing minimum monetary limit for filing an appeal. The example cited in the circulars as noticed clearly negates the argument of learned counsel for the appellant that cumulatively the amount being more than the threshold limit, the appeal would be maintainable. Hence the same has no merit and cannot be accepted.
For the purposes of determining the threshold limit, it would only be the duty element which would be taken into account and the same could not be clubbed with penalty and redemption fine.
In cases involving duty, fine, penalty and interest, the decisive element would only be duty. However, in cases where duty is not in issue and only fine and penalty are in issue then they would cumulatively be the decisive factor for determining the applicability of threshold limit.
Since the duty element involved in the subject appeal is less than the threshold limit, we are of the view that the appeal would not lie in view of the said instructions. The same is accordingly dismissed on the ground of low tax effect.
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2024 (5) TMI 860 - CESTAT NEW DELHI
Service or not - providing advisory/consultancy to M/s ACCSL and various other clients against receiving a commission from them - Business Auxiliary Service - intent to evade - Benefit of SSI exemption - extended period of limitation - penalty - HELD THAT:- The admitted activity of the appellant in the present case is providing advisory/consultancy to M/s ACCSL and various other clients against receiving a commission from them. Section 66D does not cover this activity. It becomes clear that the service rendered by the appellant is taxable service. The Notification No. 7/2003-ST dated 20.06.2003 as brought to our notice introduced levy of service tax on the commission received. Seen from both these angles it stands clear on record that the appellant was liable to pay service tax on the amount of commission received during the impugned period (2014-2015 to 2017-2018).
Benefit of SSI exemption - calculation of tax demand was objected by the appellant on the ground of benefit of N/N. 33/2012-ST dated 20.06.2012 granting SSI exemption, appropriate rate of service tax during the impugned period as the service tax rate has changed many times and eligibility of the appellant of cum tax benefit for calculation of proposed demands - HELD THAT:- It is observed that three of these contentions have duly been considered by the original adjudicating authority itself and the demand is confirmed for Rs. 12,96,358/- instead of Rs. 16,10,317/- as was proposed. There are no infirmity in the said order on three of the above quoted pleas as were taken by the appellant.
Extended period of limitation - HELD THAT:- The show cause notice in the present case was served on 11.11.2019 covering the period from April 2014 to June 2017. The time limit for issuing the show cause notice during the relevant period was 13 months from the relevant dates (the date of filing of return for the period April 2014 to September 2014) i.e. 14.11.2014. The impugned show cause notice has been issued after 30 months from 14.11.2014. The reason quoted for invoking extended period is that the appellant has deliberately intentionally not paid the service tax in lieu of providing advisory services - Failure to get themselves registered despite the said notification is held to positive act of the appellant proving its intention to not to discharge its tax liability and to evade the same - it is observed that the said non-payment had come to the notice of the department only subsequent to the impugned investigation. Hence, the extended period has rightly been invoked by the department while issuing the impugned show cause notice.
Penalty - HELD THAT:- There are no infirmity when the penalty has been imposed on the appellant.
The appeal is accordingly dismissed.
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2024 (5) TMI 859 - ITAT DELHI
Admission of additional evidence by CIT(A) - Exemption u/s 11 - Poof of investment of accumulated income of the assessee trust in instruments prescribed under section 11(5) - Whether action of the CIT(A) is in violation of Rule 46A of the Income Tax Rules, 1962? - HELD THAT:- As observed that in the case before the Hon’ble Delhi High Court MANISH BUILD WELL PVT. LTD. [2011 (11) TMI 35 - DELHI HIGH COURT] CIT(A) had admitted the additional evidence as the case of the assessee fell within the ambit of clause (c) of sub- rule (1) of Rule 46A and the requirement of sub-rule (2) i.e. recording of reason for admittance of additional evidence was also met.
In the case before us requirement of clause (a) or (b) or (c) of sub-rule (1) and sub rule (2) have not been complied with. Further in the case despite the requirement of sub-rule (1) and (2) having been satisfied the Hon’ble Delhi High Court held that the action of CIT(A) was vitiated as he violated the mandate of sub–rule (3) of Rule 46A which is an indispensable requirement. Sub-rule (3) specifically prohibits the CIT(A) from taking into account any evidence produced for the first time before him unless the AO has been given reasonable opportunity of examining the evidence and rebut the same. This has not been complied with by the Ld. CIT(A) in the case of the assessee under consideration by us.
For the reasons set out above, we deem it fit to restore the matter back to the file of the Ld. AO to verify the additional evidence filed by the assessee before the Ld. CIT(A) and decide the matter afresh
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2024 (5) TMI 858 - GUJARAT HIGH COURT
Wavier of demurrage/storage charges - Detention of the goods - Seeking release the goods for export - re-export of party quantity of “Denatured Ethyl Alcohol” - Penalty - HELD THAT:- From record, it is clear that the CESTAT has allowed the appeal of the petitioner by setting aside the detention order/seizure order as well as the levy of penalty and fine in lieu of confiscation of the goods. The CESTAT has also passed an order with all consequential reliefs. Therefore, the detention of the goods in question was not valid and legal from the day of detention/seizure of the subject goods.
The Rule Section 6 (1) (L) of the Regulation 2009 provides for issuance of waiver of certificate by the customs authorities subject to any other law for the time being prohibiting such charging of any rent or demurrage on the goods seized or detained or confiscated by the [Superintendent of Customs or Appraiser of Inspector of Customs or Preventive officer or examining officer, as the case may be] Therefore, when the goods were not required to be detained and the same has continued till today, no demurrage or other charges would be chargeable as per regulations 6 (1) (L) of the Regulations 2009.
Thus, no cause of action will survive so far as Special Civil Application is concerned. Accordingly, both the petition stand disposed of.
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2024 (5) TMI 857 - CESTAT NEW DELHI
Adjudication of show cause notice (SCN) after several year - Non/short payment of central excise duty - clearance of resin - exemption under N/N. 03/2005 dated 24.02.2005 or not - HELD THAT:- The product of the appellant was exempted from the payment of central excise duty vide Notification No. 03/2005 dated 24.02.2005 up to 28.02.2006 where after the subsequent Notification No. 07/2006 dated 01.03.2006 had withdrawn the said notification. The later notification was challenged by others involved in manufacture of the impugned resins before the Hon’ble High Court of Uttarakhand.
The Division Bench of Hon’ble Uttarakhand High Court in Commissioner Central Excise & Customs Versus M/s Dujodwala Resins & Terpenes Ltd. & another, Anil Kumar Sud, Pooran Chandra Dalakoti, M/s Sud Pines Pvt. Ltd., Rakhsh Pal Shastri [2019 (7) TMI 1692 - UTTARAKHAND HIGH COURT] allowed the special appeals filed by the department holding that central excise duty is payable on extraction of raw pine resin. These particular facts makes it abundantly clear that initially in the Year 2006 as per appellant’s own notification, the payment of excise duty on clearance of resins was exempted. It remained exempted till 28.02.2006.
No doubt subsequent to 10.07.2019, appellant is liable to pay the excise duty on clearance of resins but for the period prior the said date (the date of order of judgment by the Division Bench of Hon’ble Uttarakhand High Court). It is very much apparent on record that except for the period from 18.09.2006 to 09.11.2006, the order confirming demand was in existence, however, the order got sub juticed w.e.f. November 2006 itself and got finally decided only on 10.07.2019 - The amount of duty as was collected by the appellants during the impugned period, apparently and admittedly stand released to its buyers. Thus, present becomes a case where no excise duty was collected from the buyers, question of discharging any liability towards excise becomes redundant.
It is observed that even department could not proceed upon the show cause notices due to the ongoing litigation with respect to the impugned issue resulting into a late decision with respect to these show cause notices. The show cause notices as old as of the Year 2007, 2008, 2013 and 2014 got decided by the impugned order dated 21.09.2020. As per the statutory mandate, the central excise officer has to determine the amount of duty within 6 months of issuing a show cause notice in terms of Section 11A(11) of Central Excise Act. The adjudication in the present case, apparently is beyond several years. The show cause notices are not sustainable on this ground itself.
The order under challenge is hereby set aside - Appeal allowed.
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