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Showing 1 to 20 of 1378 Records
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2024 (2) TMI 1378 - ITAT BANGALORE
Deduction u/s 80P - interest income earned from Scheduled Banks and Co-operative Banks - HELD THAT:- On identical facts, the Bangalore Bench of the Tribunal in the case of Canara Bank Staff Credit Co-operative Societies Ltd [2023 (10) TMI 1350 - ITAT BANGALORE] had restored the matter to the AO to examine whether the amounts invested with the Co-operative Banks are out of compulsion under the Karnataka Co-operative Societies Act and the relevant Rules. It was further held by the Tribunal that if the investments are out of compulsion under the Act and the relevant Rules, the interest income received out of the investment made under such compulsion would be liable to be taxed as ‘income from business’ which would entail the benefit of deduction under section 80P(2)(a)(i) of the Act.
In the event it is found that assessee is not entitled to get the benefit under section 80P(2)(a)(i) of the Act, the AO shall also examine whether it is entitled to deduction u/s 80P(2)(d) of the Act in light of the recent judgment of Kerala State Co-operative Agricultural Rural Development [2023 (9) TMI 761 - SUPREME COURT] - Appeal filed by the assessee is allowed for statistical purposes.
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2024 (2) TMI 1377 - ITAT MUMBAI
TP adjustment on account of payment of fees for time and billing software - TPO held the payment made by the Assessee to its AE is unwarranted and treated the arm's length price (ALP) of the captioned international transaction at NIL - HE;D THAT:- Similar issue was considered by the coordinate bench in the case of assessee’s own case in the AY 2008-09 [2020 (8) TMI 172 - ITAT MUMBAI] as held TPO/AO has arrived at the ALP by not adopting any of the methods prescribed u/s 92C of the Act in respect of (i) payment of license fees for time and billing software, (ii) payment of regional administration and regional co-ordination cost allocation and (iii) payment of information technology cost allocation - we are of the considered view that the ratio laid down in Lever India Exports Ltd [2017 (2) TMI 120 - BOMBAY HIGH COURT], Merck Ltd. [2016 (8) TMI 561 - BOMBAY HIGH COURT] Johnson & Johnson Ltd.[2017 (3) TMI 1520 - BOMBAY HIGH COURT] and Kodak India Pvt .Ltd [2016 (7) TMI 677 - BOMBAY HIGH COURT] mentioned hereinabove is squarely applicable to the facts of the case. Therefore, following the same we are inclined to allow the grounds Nos. 1 and 3 raised by the assessee.
Provisions of regional coordination services - Comparability - assessee has benchmarked this transaction selecting Nine (9) comparables out of which Transfer Pricing Officer has selected four (4) comparables and rejected other comparables in particular Vatika Marketing Limited as this comparable has earned Income from reality Commission which is like broking income. Assessees do not have any such activity - HELD THAT:- As at the time of proceedings before Ld. DRP the assessee has filed annual reports of this comparable substantiating the reasons for selecting this comparable in their study. Since Ld. DRP has not considered the above submissions and not given a clear finding in this regard. In our considered view, this issue may be analysed afresh by the TPO - we remit this issue back to the file of TPO to consider the additional submissions/documents made by the assessee - Ground No. 2 is allowed for statistical purpose.
Short granting interest u/s 244A - HELD THAT:- We observe from the record that identical issue has been considered by the coordinate bench of this Tribunal in the case of M/s. Small Industries [2017 (9) TMI 1971 - ITAT MUMBAI] the issue raised by the assessee is allowed with the direction that the Assessing Officer may consider extending the benefit to the assessee upto the date of actual receipt of refund. Accordingly, Ground No. 5 raised by the assessee is allowed.
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2024 (2) TMI 1376 - RAJASTHAN HIGH COURT
Prayer for stay against demand - second round of petition - order of demand has been stayed subject to depositing 10% of the demand - In the second round of writ petition, petitioner now submits that the authorities have again committed patent illegality and perversity and acted with arbitrariness in deciding the petitioner’s application.
HELD THAT:- When the petitioner approached this Court by filing a writ petition earlier, this Court found that there was no proper application of mind and the authority, treating itself to be bound by administrative instructions, abdicated its judicial functions while deciding the matter. That prompted this Court to direct the authorities to re-consider the matter. We have gone through the order which has been passed by the authority while considering and disposing off the prayer for stay. The order refers to the material on record, the case of the petitioner, submissions followed by the order with regard to stay of recovery of demand, subject to payment of 10% of the demand.
In our view, the authority having jurisdiction, has passed a brief order, keeping in view that it is only deciding the stay application and not the merits of the case. The argument of learned counsel for the petitioner that various figures and details which were given by him have not received consideration, does not merit acceptance. At this stage of consideration of stay application, the authority is not expected to go deep into the matter as if it is deciding the appeal finally. We find that the authority has not restricted the relief of 20% but has granted stay subject to deposit of only 10% of the demand. The demand is based on order of assessment. The matter is in appeal. It is a tax matter and a party cannot, as a right, claim that merely because he files an appeal, the demand should be stayed.
It is well settled legal position that while entertaining a writ petition, the writ Court would not reassess the material on record and record its own findings of fact in substitution of what has been recorded. Further, if it is a case arising out of an order on stay application, the scope of judicial review is further restricted. It is not a case where the stay application has been decided without hearing the petitioner.
In the absence of there being any procedural impropriety affecting the order on stay application, we are not inclined to interfere with the order. The grievance that in some other case absolute stay was granted, cannot be accepted. No parity could be claimed in the matter of stay. Every case has its own facts and circumstances.
The petitioner’s claim that even before deciding the stay application, the case ought to be mandatorily referred to High Pitched Scrutiny Assessment Committee, does not impress us. It is always open for the appellate authority to take recourse to the procedure as embodied in circular dated 23.04.2022 and at appropriate stage the step of referring the matter to the High Pitched Scrutiny Assessment Committee could be taken by the appellate authority. We would not say any further on this aspect as the authority is yet to take decision on the merits of the appeal.
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2024 (2) TMI 1375 - CESTAT HYDERABAD
GST regime - Goods for manufacture and export - export obligation - Whether vide impugned Order-in-Appeal the Commissioner (Appeals) have rightly rejected the refund of CVD + SAD paid for regularisation of Advance License (Import License), which have been deposited after 01.07.2017 in relation to imports prior to 01.07.2017 - HELD THAT:- We find that the payment of CVD and SAD subsequently during the GST regime, for the imports made under advance authorisation prior to 30.06.2017 is not disputed. It is also not disputed that the Appellant have paid the CVD and SAD during the period August 2018 to March 2019, by way of regularisation of the shortfall in fulfilment of export obligation. We find that Section 142(3) read with 142(5) of the GST act, provides that every claim for refund by any person before, on or after the appointed day, for refund of any amount of Cenvat credit/duty/tax/interest or any other amount paid under the existing law, shall be disposed of in accordance with the provisions of the existing law and any amount eventually accruing to him, shall be paid in cash, notwithstanding anything to the contrary contained under the provisions of existing law other than the provision of sub-section (2) of section 11B of the Central Excise Act (unjust enrichment).
Further from a conjoint reading of subsection (3) (5) and (8A) of Section 142 of the CGST Act it is evident than that an assessee is entitled to claim refund of CVD and SAD paid after the appointed day, under the existing law, and such claim has to be disposed of according to the provisions of the existing law. As the Appellant was admittedly entitled to Cenvat credit of the said amount of Rs. 3,28,75,733/-, which is now no longer available due to implementation of GST regime, it is held that they are entitled to refund of the said amount.
Thus, we allow this appeal and set aside the impugned order. Appeal allowed
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2024 (2) TMI 1374 - ITAT RAIPUR
Condonation of delay - delay of 39 days days in filling appeal before ITAT - scope of "sufficient cause" for delay - HELD THAT:- In the present case, the delay of 39 days cannot be simply condoned on the basis of the unsubstantiated claim of the assessee. In fact, the conduct of the assessee before the A.O and the CIT(Appeals) clearly evidences his disregard for the process of law, which, we find, he had carried forward before me by preferring the appeal beyond a period of 39 days after the lapse of the stipulated time period.
Also, as observed in the case of Ramlal, Motilal and Chotelal Vs. Rewa Coalfields Ltd. [1961 (5) TMI 54 - SUPREME COURT] that seeker of justice must come with clean hands, therefore, now when in the present appeals the assessee appellant had failed to come forth with any good and sufficient reason that would justify condonation of the delay involved in preferring the captioned appeal, therefore, decline to condone the delay of 39 days and, thus, without adverting to the merits of the case dismiss appeal of the assessee as barred by limitation. Assessee appeal dismissed.
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2024 (2) TMI 1373 - BOMBAY HIGH COURT
Disallowing adjustment u/s 143(1)(a)(iv) r.w.s. 36(1)(va) - delayed remittance of employees' contributions to Employee State Insurance (ESI) and Provident Fund (PF) - ITAT as relying on decision of the Hon'ble Supreme Court in Checkmate Services Pvt. Ltd. [2022 (10) TMI 617 - SUPREME COURT] held that based upon such delayed deposits, no adjustments or deductions could be claimed - assessee submitted that Checkmate Services Pvt. Ltd. (Supra) was a matter where the assessment was made u/s 143(3) of the IT Act and not under Section 143(1)(a) as in the present case.
HELD THAT:- The fact that the assessment order in Checkmate Services Pvt. Ltd. (supra) was incidentally under Section 143(3) and the assessment order in the present case is under Section 143(1)(a) of the IT Act, makes no difference to the principle involved in this matter. The ITAT decision does not discuss why this circumstance constitutes a distinguishing feature based on which the ratio of Checkmate Services Pvt. Ltd. (supra) could be departed from.
Checkmate Services Pvt. Ltd. (Supra) holds that the deductions can be claimed or adjustments can be made under section 141(1)(a)(iv), read with Section 36(1)(va) only when the employer deposits the contributions in the employees' accounts on or before the due date prescribed under the Employees Provident Fund /Employees State Insurance Act. In this case, admittedly, the contributions were deposited in the employees' accounts beyond the due date. The circumstance that the assessment order was made under Section 143(1)(a) of the IT Act can make no difference - Decided against assessee.
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2024 (2) TMI 1372 - ITAT DELHI
Income taxable in India or not - taxability of the salary paid by the Indian company to a non-resident - incomes deemed to accrue or arise in India as assessee is a non-resident - HELD THAT:- As per the provision of Section 9 (1)(ii), the income earned under head “Salaries” is taxable in India “if it is earned” in India. The explanation issued for removal of doubts declares that ‘salaries if it is earned’ meets services rendered in India.
In the instant case the assessee neither had any rest period nor leave period which is preceded and succeeded by the services rendered outside India. Since, the assessee has rendered services outside India, the salary cannot be taxable in India.
As per the definition the salary paid or the advances received are to be included in the total income of the person when the salary becomes due.
From the concurrent reading of Section 5 dealing with scope of total income, Section 15 dealing with computation of total income under the head salary and chargeability thereof and Section 9 dealing with income arising or accruing in India with reference to the salaries and the services rendered in India, we hold that no taxability arises on the salary/allowances received by the assessee since the assessee is a non-resident and has rendered services outside India. Decided in favour of assessee.
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2024 (2) TMI 1371 - ITAT DELHI
Income deemed to accrue or arise in India - Taxability of income in India - salary income earned by the assessee for services rendered in Ireland - assessee being non-resident and covered under Article 15(1) of India - Ireland DTAA - HELD THAT:- Despite the submissions and evidence on record, AO erred in incorrectly holding that the Assessee was based in India and that the salary was taxable in India, where infact the salary was earned from BA PLC, Ireland and the services were rendered outside India.
DRP after perusing the documents submitted by the Assessee erroneously noted that there is a failure on the part of Assessee to provide agreement between Irish and Indian entity. Evidently, the ld. DRP failed to appreciate certificate / letter of reimbursement issued by BA PLC, Ireland substantiates the assessee's submission that during the impugned Assessment Year, the assessee was employed with BA PLC. Ireland and was paid salary in India merely for administrative convenience.
Salary income of the Assessee was not exigible in India under Article 15 of the DTAA - AO was not correct in not granting relief under Article 15 of the DTAA and disregarding that income is accrued where employment is exercised. As per the Article 15 of the DTAA between India and Netherlands, the income earned by the person is exempt from tax if following conditions are satisfied - If the person has not stayed for more than 183 days in India, and If the employment is exercised outside India.
In the present case, both the conditions prescribed in the Article 15 are satisfied. The first condition has not been disputed by the Assessing Officer, whereas the second condition has been justified by various evidences furnished by the assessee. The Assessing Officer himself in para 7 of the Assessment Order has accepted that the services were rendered outside India.
Therefore, it is hereby held that the assessee was a residing and exercising employment in Ireland under the complete control of BA PLC, Ireland for the impugned Assessment Year. Further, the salary was also borne by BA PLC, Ireland. Thus, the salary of the assessee derived from BA PLC, India on behalf of BA PLC, Ireland are duly considered exempt from tax in India.
Salary income earned by the assessee for services rendered in Ireland cannot be said to be deemed to accrue or arise in India under section 9 of the Act - if the services are rendered outside India, for which salary has been paid, then the income cannot be said to accrue or arise in India.
The contention of AO that the assessee rendered services from India in incorrect in light of the tax residency certificate for Ireland. The assessee for the year under consideration was a tax resident of Ireland - since the employment was not exercised in India, such income cannot be held to be taxable in India and hence, the addition made by the AO on this issue is hereby directed to be deleted. - Decided in favour of assessee.
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2024 (2) TMI 1370 - MADHYA PRADESH HIGH COURT
Application u/s 197 for issuance of a Lower Deduction of Tax Certificate - bone of contention of petitioner is that the petitioner intended to submit an online document dated 1st April, 2023 and said document was not loaded because message was too large - Criticism is founded upon Rule 28-AA of the Income Tax Rules - HELD THAT:- Delhi High Court in the case of Cloudtail India Private Limited [2021 (8) TMI 1408 - DELHI HIGH COURT] opined that Rule 28AA is a statutory and mandatory provision. The revenue is under a statutory obligation to act in accordance with the mandate of Rule 28-AA. Even otherwise, this is trite that if a statute prescribes a thing to be done in a particular manner, it has to be done in the same manner and other methods are forbidden. [See : Baru Ram v. Prasanni [1958 (9) TMI 85 - SUPREME COURT], Dhanajaya Reddy v. State of Karnataka [2001 (3) TMI 1020 - SUPREME COURT] and judgment of this Court [2011 (2) TMI 1628 - MADHYA PRADESH HIGH COURT] Satyanjay Tripathi v. Banarsi Devi].
A plain reading of Rule 28-AA makes it clear that the 'satisfaction' needs to be recorded/determined by A.O. after taking into consideration the four factors mentioned in sub-rule (2) of Rule 28-AA. Thus, it is not the subjective satisfaction of A.O., but an objective satisfaction which must be based on Clauses (i), (ii), (iii) and (iv) of sub-rule (2) of Rule 28-AA.
If impugned order Annexure P-5 and more particularly Annexure P-7 is examined, it shows that all those four factors have not been taken into account. Pertinently, the factum of receiving Annexure P-3 and P-8 is not in dispute in the instant case.
Since impugned orders are passed in clear violation of Rule 28-AA, we are constrained to hold that decision making process adopted by the respondents runs contrary to the requirement of law, i.e. Rule 28-AA.
The scope of judicial review in a writ petition is limited. Ordinarily, the Court is not obliged to examine the correctness of the decision. Instead, the Court is obliged to examine the correctness of the decision making process. At the cost of repetition, in our opinion, the decision making process is faulty and impugned order Annexure P-5 and P-7 are passed without considering the relevant factors ingrained in Clause (i), (ii), (iii) and (iv) of sub-rule (2) of Rule 28-AA.
Resultantly, both the impugned orders Annexure P-5 and P-7 are set aside. The matter is remitted back to respondent No. 2, who shall consider the claim of petitioner in accordance with law and pass a fresh detailed/speaking order thereupon within 30 days from the date of communication of this order.
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2024 (2) TMI 1369 - SC ORDER
Maintainability of petition - High Court held that Since the petitioner has a forum of appeal available before the CESTAT, the present writ petition is rejected, reserving the right of the petitioner to avail the remedy of appeal - HELD THAT:- There are no reason to interfere with the impugned judgment passed by the High Court. Hence, the Special Leave Petition is dismissed.
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2024 (2) TMI 1368 - BOMBAY HIGH COURT
Maintainability of appeal - time limitation - Since the Tribunal under Section 112 of the CGST Act, before whom an Appeal would lie against the said Order, has not been constituted, the Petitioner has filed the present Petition - HELD THAT:- The contents of the letter dated 9th September 2022 clearly show that the Petitioner had not received the Order dated 31st March 2022 on 4th April 2022 or on any other date prior to 9th September 2022. By the said letter dated 9th September 2022, the Petitioner has clearly recorded that, despite the earlier Order dated 14th March 2022 of this Court directing the Respondents to decide the issue of cancellation of CGST registration of the Petitioner within four weeks from the date of appearance, and despite the Petitioner appearing on 22nd March 2022, even after a lapse of more than five months, the directions of this Court had not been obeyed and an Order had not been passed - the contents of this letter clearly show that the Petitioner had not received the said Order dated 31st March 2022 by e-mail on 4th April 2022, as contended by the Respondents.
It is an admitted position that the Petitioner had filed the Appeal on 20th December 2022. Since, the Petitioner had filed the Appeal within a period of three months from the date of communication of the said Order on 20th September 2022, by virtue of the provisions of Section 107(1) of the CGST Act, the Appeal filed by the Petitioner is within limitation.
The impugned Order dated 25th October 2023, which holds that the Appeal of the Petitioner is barred by limitation, will have to be set aside, and Respondent No. 2 will have to be directed to decide the Appeal of the Petitioner on merits - Petitioner’s Appeal is restored.
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2024 (2) TMI 1367 - DELHI HIGH COURT
Seizure of cash by respondent no. 2 from the residential premises and office of the petitioner - HELD THAT:- Reference may be had to the judgment of this Court in M/S K.M. FOOD INFRASTRUCTURE PVT LTD THROUGH ITS DIRECTOR MUKESH KAPOOR AND MUKESH KAPOOR AND OTHERS VERSUS THE DIRECTOR GENERAL DGGI HEADQUARTERS, NEW DELHI & ANR. [2024 (2) TMI 762 - DELHI HIGH COURT] wherein in similar circumstances this Court while interpreting provision of Section 67 of the Central Goods and Services Tax Act 2017 has held that ‘cash’ is clearly excluded from the definition of the term ‘goods’ and would fall with the definition of ‘money’ as defined in Section 2 (75) of the Act. This Court has further held that since cash is not goods, it could not have been seized under the provision of the Act, as seizure is limited to the goods liable for confiscation.
The ratio of the said judgment squarely applied to the facts of the present case. Accordingly, there is no justification for resumption of cash and its continued retention by the respondents.
Accordingly, the petition is allowed and respondents are directed to forfeit/remit the said cash seized from the premises of the petitioner to the petitioner along with interest.
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2024 (2) TMI 1366 - MADRAS HIGH COURT
Validity of summons, intimation or SCN - GST liability under applicable GST laws either in respect of only seigniorage fee or both seigniorage fee and mining lease amounts paid by the respective petitioner to the Government - HELD THAT:- The Division Bench Judgment in a batch of cases where the lead case is TVL. A. VENKATACHALAM VERSUS THE ASSISTANT COMMISSIONER (ST) [2024 (2) TMI 488 - MADRAS HIGH COURT] where it was held that Upon receipt of the objections / representations from the writ petitioners, the authority concerned shall proceed with the adjudication, on merits and in accordance with law, after affording reasonable opportunity of being heard to the petitioners. However, the orders of adjudication shall be kept in abeyance until the Nine Judge Constitution Bench decides the issue as to the nature of royalty.
In view of the said judgment, these petitions are liable to be disposed of on the same terms insofar as it relates to either the issue of seigniorage fee or mining lease. Consequently, in all these cases, the respective petitioner is permitted to submit his reply to the intimation, summons or show cause notice, as the case may be, within a maximum period of four weeks from the date of receipt of a copy of this order.
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2024 (2) TMI 1365 - ALLAHABAD HIGH COURT
Levy of penalty u/s 129(3) of the Uttar Pradesh Goods and Services Tax Act, 2017 - expired e-way bill - HELD THAT:- This Court is unable to agree with the findings of the authorities, and accordingly, the impugned orders dated December 11, 2017 and December 22, 2018 are quashed and set aside.
This Court directs the respondents to refund the amount of tax and penalty deposited by the petitioner within a period of four weeks from date - writ petition allowed.
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2024 (2) TMI 1364 - DELHI HIGH COURT
Cancellation of GST registration of the petitioner with retrospective effect - no material on record to show as to why the registration is sought to be cancelled retrospectively - violation of principles of natural justice - HELD THAT:- In terms of Section 29(2) of the Central Goods and Services Tax Act, 2017, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. Registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria.
It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period. Although, it is not considered apposite to examine this aspect but assuming that the respondent’s contention in this regard is correct, it would follow that the proper officer is also required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer’s registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.
It is clear that both the petitioner and the respondent want the GST registration to be cancelled, though for different reasons.
The order of cancellation is modified to the extent that the same shall operate with effect from 11.03.2022, i.e., the date of the application for cancellation of registration - Petition disposed off.
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2024 (2) TMI 1363 - DELHI HIGH COURT
Cancellation of GST registration of the petitioner with retrospective effect - SCN does not give any reasons for cancellation of the registration - HELD THAT:- In terms of Section 29(2) of the Central Goods and Services Tax Act, 2017, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. Registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria.
It is important to note that, according to the respondent, one of the consequences for cancelling a taxpayer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period. Although, it is not considered apposite to examine this aspect but assuming that the respondent’s contention in this regard is correct, it would follow that the proper officer is also required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer’s registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.
The order of cancellation is modified to the extent that the same shall operate with effect from 26.11.2020, i.e., the date of the application for cancellation of registration - Petition disposed off.
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2024 (2) TMI 1362 - DELHI HIGH COURT
Cancellation of GST registration of the petitioner with retrospective effect - notice does not specify any cogent reason - violation of principles of natural justice - HELD THAT:- In terms of Section 29(2) of the Central Goods and Services Tax Act, 2017, the proper officer may cancel the GST registration of a person from such date including any retrospective date, as he may deem fit if the circumstances set out in the said sub-section are satisfied. The registration cannot be cancelled with retrospective effect mechanically. It can be cancelled only if the proper officer deems it fit to do so. Such satisfaction cannot be subjective but must be based on some objective criteria.
It is important to note that, according to the respondent, one of the consequences for cancelling a tax payer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period - the SCN and the impugned order are also bereft of any details and further there is no reasoning in the said show cause notice and in the impugned order as to why the cancellation has been done retrospectively.
The impugned show cause notice dated 07.09.2022, order of cancellation dated 01.05.2023 are accordingly set aside - Petition allowed.
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2024 (2) TMI 1361 - BOMBAY HIGH COURT
Refund of the amount of tax deposited by him on the cancelled (old) registration - inadvertent / bona fide error on the part of the Petitioner’s Chartered Accountant in filing the returns and depositing tax under a cancelled registration number - HELD THAT:- It was required to be considered by the authorities below that an assessee cannot be expected to file his return and deposit any tax under an invalid cancelled registration number. Further, a legitimate and proper return was filed by the Petitioner under the second (new) registration which was a valid registration. Thus, insofar as the tax deposited under the first (cancelled) registration is concerned, the said registration itself being non-existent, the tax return filed thereunder and any tax deposited under such return, could not have been retained by the respondents as it was not a deposit as per law, it also cannot be a deposit received or any collection of tax under authority of law. Insofar as the second registration return is concerned, the same was appropriately filed and similar amount of Rs. 1,22,220/- was deposited.
In these circumstances, it was not correct for the original authority to furnish the reasons, as noted, so as to deny the refund claim of the Petitioner. Further, the appellate authority on a purely technical reason that the Petitioner’s appeal was barred by limitation under Sections 107 (1) and (4) rejected the Petitioner’s appeal.
It is observed that, in such circumstances, any deficiency in filing the appeal / application like failure to file physical documents, cannot make the appeal, which was registered on the online portal within the prescribed period of limitation, to be labelled and/or held to be barred by limitation. Once the appeal was filed (albeit under the Online method) within the prescribed limitation, any deficiency in the appeal certainly could be removed later on, as the law does not provide, that the proceeding be strictly filed sans deficiency, and only then, the proceedings would be held to be validly filed. If such proposition is to be recognized as the correct position, it would not only tantamount to a patent absurdity, but also would result in a gross injustice, prejudicially affecting the legitimate rights of persons to a legal remedy (access to justice).
Impugned order dated 8th June 2022, as confirmed by the order dated 27th February 2023 passed by the Assistant Commissioner, CGST and Central Excise, Division-I, Navi Mumbai, Commissionerate are quashed and set aside - Petitioner is entitled to refund of the amounts which was deposited by him under the erroneous return filed under the cancelled registration No. 27AQEPM6029PIZA being an amount of Rs. 1,22,220/- - petition allowed.
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2024 (2) TMI 1360 - ALLAHABAD HIGH COURT
Violation of principles of natural justice - no opportunity of personal hearing was granted to the petitioner - case of petitioner is that in spite of seeking the Special Investigation Branch Report (SIB report), no SIB report was provided to the petitioner - HELD THAT:- The impugned orders are liable to be quashed and set aside.
This Court issues a writ of certiorari quashing the orders dated December 16, 2021 and November 8, 2023 with a direction upon the officer concerned to provide a copy of the SIB report to the petitioner within three weeks from date and subsequent to providing the SIB report, opportunity of hearing must be afforded to the petitioner before passing final order under Section 74 of the Act - the writ petition is allowed.
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2024 (2) TMI 1359 - ALLAHABAD HIGH COURT
Condonation of delay in filing appeal - appeal dismissed on the ground of limitation, as the same was filed approximately 73 days beyond the date of limitation - HELD THAT:- Section 107 of the GST Act prescribes a specific limitation period within which appeals against certain decisions must be filed. This limitation period is integral to the functioning of the appellate mechanism under the GST Act and reflects the legislative intent to expedite the resolution of tax disputes. By imposing a time limit on the filling of appeals, Section 107 aims to prevent undue delayed in the adjudication process and promote the efficient administration of the GST regime. On the other hand, Section 5 of the Limitation Act provides for the extension of prescribed periods in certain exceptional circumstances, such as when sufficient cause is shown for the delay.
In analyzing the conflicting interpretations concerning the exclusion of Section 5 of the Limitation Act as far as Section 107 of the GST Act is concerned, it is essential to consider the rationale behind the exclusion of the Limitation Act in certain special statues, particularly in the context of taxation. Tax laws are often characterized by strict procedural requirements and time-bound deadlines, reflecting the need for expeditious resolution of tax disputes to ensure revenue certainty and fiscal stability.
The judgment rendered by the Calcutta High Court in the matter of S.K. Chakraborty & Sons [2023 (12) TMI 290 - CALCUTTA HIGH COURT] fails to adequately consider the authoritative pronouncements of the Supreme Court in the cases of Singh Enterprises [2007 (12) TMI 11 - SUPREME COURT] and Hongo India [2009 (3) TMI 31 - SUPREME COURT] and hence the said judgment is of no precedented value, and accordingly, the view expressed therein is not accepted by this Court.
Taxing statutes like the GST Act embody a comprehensive framework with specific limitation provisions tailored to expedite the resolution of tax-related matters. Section 107 of the GST Act, operates as a complete code in itself, explicitly delineating limitation periods for filing appeals and implicitly excluding the application of general limitation provisions such as Section 5 of the Limitation Act.
The present writ petition is without any merit and is dismissed.
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