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2022 (12) TMI 411
Refund of GST paid on notice pay received from the erstwhile employees - non-constitution of GST Appellate Tribunal - It is the case of the petitioner that since the GST Appellate Tribunal has not been constituted, the petitioner has no other remedy other than to approach this Court under Article 226 of the Constitution of India - HELD THAT:- The petitioner is entitled to succeed. The terms of Ext.P8 Circular specifically deal with the question arising for consideration in this case. The relevant portion of the Circular, which has been extracted hereinabove, clarifies that the amount of money received by the petitioner as notice pay from erstwhile employees is not a taxable transaction for the purposes of the GST laws. As rightly contended by the learned senior counsel, the decisions of the Supreme Court in NAVNIT LAL C. JAVERI VERSUS KK........ + More
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2022 (12) TMI 410
Cancellation of registration of petitioner - appeal rejected on the ground that the counsel for the petitioner on three dates has not appeared and pressed the appeal and in view of Section 107(9) of the Act of 2017 only three adjournments can be granted and thereafter the First Appellate Authority proceeded to pass an ex parte order rejecting the application - HELD THAT:- This Court finds that by ex parte order the first appeal filed by the petitioner has been dismissed as he has failed to appear before the authority on 6.4.2021, 24.9.2021 and 2.11.2021. Taking a lenient view, this Court directs the Appellate Authority to reconsider the appeal of the petitioner on merits after hearing the counsel for the petitioner and decide the same within a period of one month from the date of production of certified copy of this order. This Court furt....... + More
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2022 (12) TMI 409
Jurisdiction of the respondent no. 3 to proceed under Section 74 of U.P. GST/CGST Act, 2017 on the basis of a survey/SIB survey - blocking ITC under Rule 86-A of U.P. GST/CGST Rules 2017 - confiscation of seized goods under Section 130 of the Act - HELD THAT:- The petitioner herein has come up against the show cause notice. All issues raised herein are still open to agitate before the Assessing Officer. We, therefore, do not find any good ground to entertain the writ petition. The present writ petition is being disposed of with the observation that all the issues raised by the petitioner herein, especially the issue with regard to the jurisdiction of the Assessing Officer to proceed under Section 74, in view of the order of the appellate authority dated 19.7.2022, shall be raised before the Assessing Officer in reply to the show cause notice, the subject matter of challenge herein. Application disposed off.
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2022 (12) TMI 408
Territorial Jurisdiction - investigation against the assessee at different locations - Seeking forbearance from proceeding with the investigation with regard to Goods and Services Tax under the provisions of Central Goods and Service Tax Act, 2017 - territorial nexus between the appellant and the respondent Officers at Coimbatore or Madurai - HELD THAT:- Though the officer from the Intelligence Department of Directorate General of Goods and Services Tax Intelligence is competent to investigate into the affairs of the appellant, the officer, who would be competent to investigate would be the officer, who is stationed in Chennai within whose jurisdiction the appellant is located. The writ appeal stands allowed with a direction to the respondents to depute an officer in Chennai to investigate into the affairs of the appellant and issue summons as to whether there is any evasion of tax under the provisions of respective GST enactments, 2017 - Appeal allowed.
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2022 (12) TMI 407
Direction for issuance of F-Forms to the petitioner for the year 2017-18 - Central Sales Tax Act, 1956 - HELD THAT:- The writ petition is disposed of with a direction that the respondents/revenue will issue F-Forms to the petitioner qua the year in issue i.e., 2017-2018, subject to the verification of entitlement on merits, without being burdened with the issue concerning limitation, which is in line with the direction issued in other cases, including the judgment of the coordinate bench in M/S SAMSUNG C & T PVT. LTD. VERSUS THE COMMISSIONER, TRADE & TAXES, & ANR. [ 2019 (2) TMI 1772 - DELHI HIGH COURT]. It is made clear that the direction issued hereinabove in paragraph 6 will remain suspended till the civil appeals pending in the Supreme Court, as noticed in the matter of Samsung C&T Pvt. Ltd., are adjudicated. Appeal disposed off.
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2022 (12) TMI 406
Cancellation of registration granted to the petitioner - It is a specific case of the petitioner that no such notice was issued and the only notice issued to the petitioner was one regarding the suspension of his registration in Form REG-31 - HELD THAT:- The matter is remitted to the 1st respondent to complete the proceedings against the petitioner in accordance with law. As a consequence of this order, the registration of the petitioner which was canceled by Ext.P4 order will stand restored till a fresh decision is taken by the 1st respondent. This writ petition is allowed.
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2022 (12) TMI 405
Reopening of assessment u/s 147 - non-issue of a notice u/s 143(2) - assumption of jurisdiction by an officer commences with, and is triggered by, the issuance of a notice under Section 143(2) and failure to do so, would compromise the proceedings fatally - HELD THAT:- There is complete uniformity in the conclusion of Courts on the issue as to whether non-issue of notice under Section 143(2) would vitiate the assessment, answering the issue in the affirmative. CBDT Instruction No.3 of 2003 elucidates upon and explains the provisions relating to Transfer Pricing, as contained in Sections 92 and 92F of the Act that had come into force, with effect from assessment year 2002-03 onwards. The Circular reinforces the position that it is sine qua non for the Assessing Officer to assume jurisdiction prior to taking any steps in the matter of asses....... + More
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2022 (12) TMI 404
Validity of reopening of assessment - reopening as initiated beyond 4 years - Reasons to believe - HELD THAT:- It is settled that if notice under Section 148 of IT Act is to be issued after expiry of four years or before expiry of six years, the assessee should have failed to disclose the ‘material facts’. ITAT on consideration of the material on record has held that AO has not even stated or alleged that there was failure on the part of assessee to disclose fully and truly all the material facts necessary for the said assessment years. Nothing contrary to the findings of the ITAT is demonstrated or urged by the Revenue. In view of the settled position of law and the AO not stating that there was failure on the part of the assessee to disclose material facts, no exception can be taken to the order passed by the ITAT. Resultantly, these appeals must fail.
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2022 (12) TMI 403
Upfront premium amortization - land has been given on long lease/license for 30 years - Entitlement to amortize and offer 1/30th of the amount received as income every year - Whether consideration amount received in respect of an immovable property, either while conveying property or granting long license/lease shall be a capital receipt? - whether tribunal is justified in holding that the entire upfront premium constituted the income for the current year? - HELD THAT:- The issue involved in "Sindhurani Chaudharani" [1957 (4) TMI 3 - SUPREME COURT] is payment of 'Salami' and in this case it is upfront premium which non refundable. Therefore the matter requires reconsideration in the hands of the Assessing Officer referring to relevant facts and law. According to Shri.A.Shankar, if the accounting is as per AS-19 and even ....... + More
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2022 (12) TMI 402
Reopening of assessment u/s 147 or assessment u/s 153C - HELD THAT:- Undisputed facts of the case are, based on the agreement found during the search in the premises of M/s Davanam Jewellers Pvt. Ltd., the assessment was reopened for A.Y.2006-07. The assessment order does not indicate the procedure followed in re-opening the assessment. In addition protective assessment for A.Y.2007-08 has also been completed. As perused the agreement. Shri Chandrashekar is right in his submission that though the agreement is undated, the stamp paper bears the date of purchase as October 9th, 2009. The details of the payments are shown. In agreement, it is stated that the possession of the land shall be handed over after execution of the sale deed. In the facts of this case, in the absence of details in the assessment order with regard to the procedure fo....... + More
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2022 (12) TMI 401
Exemption u/s 10(22) denied - objects of the Trust include commercial activity - appellant's Trust was registered with the primary object to impart education - AO did not allow exemption on the ground that that the assessee-Trust was not solely for the educational purposes, but the trust was making profits - as per AO Trust Deed provided for payment of Honorarium to the Trustees prohibited u/s 13(2), Trust collects abnormally high fees, for acquiring luxury vehicles, using the Trust funds for activities other than education and unexplained cash credit - HELD THAT:- AO has not accepted the explanation on the ground that only upon the Department raising a query, the assessee had shifted the figures of Building and Development Fund to Income and Expenditure Account, as an after thought. The assessee was called upon to produce the details....... + More
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2022 (12) TMI 400
Stay of demand - AO directing the appellant to deposit 20% of the tax as determined in the order of assessment - HELD THAT:- Admittedly, the assessments are high pitched assessments and when such high pitched assessments are appealed against and an order of stay is sought for either before the assessing officer by filing an application under Section 220(6) of the Income Tax Act, orders are passed by the assessing officer either keeping the notice of recovery in abeyance and not treating the assessee as an assessee in default till the appeal is disposed of. There are yet another set of cases where the assessing officer for reasons to be recorded imposes certain conditions as a condition for grant of stay. The appellant’s case falls under the second category where the assessing officer has directed 20% of the demand to be paid by the ....... + More
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2022 (12) TMI 399
Unexplained money - Assessee had deposited the amount in his bank after receiving the same from his father-in-law - lower authorities were in error in confirming the assessment on the ground that the WILL was not properly notarized or registered and on the further ground that creditworthiness of the father-in-law is not established in view of undisputed fact that there was no cash credits - HELD THAT:- It is settled that tax authorities cannot record any findings with regard to validity of the Will. They may look into any Will for satisfying themselves with regard any transaction. In view of the authority in Daulat ram Rawatmull and the fact that another sum of Rs.25 Lakhs has been paid to assessee's co-brother under the very same Will and there has been no enquiry in that regard, we are of the view that the findings recorded by the C....... + More
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2022 (12) TMI 398
TDS u/s 40 (a)(ia) - additions made towards disallowance of interest paid on partners capital account - assessee is following mercantile system of accounting, income and expenditure pertains to relevant accounting period is required to be accounted whether or not such expenditure/income is received by the assessee - HELD THAT:- When it comes to deductibility of any expenditure, it is subject to provisions of section 40(a)(ia) of the Act and as per said provision, expenditure debited to profit and loss account cannot be allowed as deduction, in case the assessee has not deducted TDS on said expenditure. The provisio provided to section 40(a)(ia) further states that said expenditure can be allowed as deduction in the year in which the assessee has deducted TDS and remits to Government account. Assuming for a moment, the assessee has made a ....... + More
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2022 (12) TMI 397
Exemption u/s 11 - assessee is a registered society u/s 12A since past more than 25 years - Charitable activity u/s 2(15) - HELD THAT:- As assessee has established that the income generated from this activity is not applied for any individual benefit or transfer to the benefit of any particular person, entity or group of persons but the application is for the benefit of public at large. This amply proves that the AO accepted the claim of the assessee that the assessee is a charitable society. It was in the backdrop of such a finding of the AO that the CIT(A) arrived at the conclusion that the income of the assessee has to be computed in accordance with the provisions of section 11 to 13 which would include accumulations as per section 11(1)(a) and section 11(2). He, then directed the Ld. AO to re-compute the income after giving benefit of....... + More
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2022 (12) TMI 396
Set off loss against addition of undisclosed income - losses in share transaction in derivative segment and in cash delivery segment - CIT(A) upheld the addition to the extent of peak investment - CIT(A) held that such claim cannot be entertained at this stage - HELD THAT:- Though the Assessing Officer is not entitled to admit or entertain additional claim during the assessment proceedings, however the appellate authority has such jurisdiction to admit such additional claim as has been held by Hon'ble jurisdictional High Court in the case of CIT Vs. Mitesh Impex 2014 (4) TMI 484 - GUJARAT HIGH COURT Thus,admit the additional plea of set off of loss of current year against the income of assessee in the impugned year. So far as merit is concerned, the Hon'ble jurisdictional High Court in the case of Shilpa Dyeing & Printing Mill....... + More
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2022 (12) TMI 395
Denial of foreign tax credit u/s 91 - delay in filing Form no.67 - HELD THAT:- As in Anuj Bhagwati [2022 (9) TMI 1397 - ITAT MUMBAI] while deciding a similar issue held that section 90/91 of the Act has not been amended insofar as grant of foreign tax credit is concerned and Rules cannot override the Act and therefore filing of Form No. 67 is not mandatory but it is directory. Mere delay in filing Form No. 67 as per the provisions of Rule 128(9), as they stood during the year under consideration, will not preclude the assessee from claiming the benefit of foreign tax credit in respect of tax paid outside India. Since in the present case, the claim of the assessee was denied on this technical aspect without going into the merits, therefore, we deem it appropriate to direct the jurisdictional AO to decide the claim of the foreign tax credit....... + More
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2022 (12) TMI 394
Penalty u/s 271(1)(c) - expenditure which was claimed by the assessee as exceptional item in the profit & loss a/c - HELD THAT:- The penalty imposed by the AO and confirmed by the CIT(A) is not correct as further reason that the assessee has disclosed all the facts in the tax return filed by the assessee and thus all the facts were available before AO and nothing was concealed. Even if, the assessee has made a claim which is not correct or not as per provisions of the Act or which the AO considered to be not correct even then the penalty cannot be levied as the full facts were before the AO in the return of income. The facts of the assessee finds that in the case of CIT vs Reliance Petro Products (P) Ltd. [2010 (3) TMI 80 - SUPREME COURT] has held that making of claim which is not sustainable in law and claim made in the return cannot....... + More
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2022 (12) TMI 393
Rectification of mistake u/s 154 - Set-off of Losses of 10A Unit against the adjustment u/s 92CA and 40(a)(i) - As per AO set off of business loss being the loss of Chennai and Gurgoan undertakings, which was directed by CIT(A) to be set off, resulted into business loss being set off against the income from other sources and therefore, there is a mistake apparent from the record which needs to be rectified - Whether TP adjustment and the disallowance is question in altogether a separate adjustment/disallowance, which cannot be apportioned to a specific unit? - HELD THAT:- We have carefully considered the rival contentions and orders of the lower authorities. Fact shows that order giving effect to the order of the ld.CIT(A) was passed on 08.03.2012. According to that order, the loss incurred by the assessee was set off against other busine....... + More
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2022 (12) TMI 392
Revision u/s 263 - additions made by the A.O. as commission received after allowing 50% expenses against the impugned commission - HELD THAT:- We are of the considered opinion that the assessee even during the second round of litigation has failed to substantiate its claim for allowing 95% of the expenses alleged to be incurred in earning the commission income received by the assessee from MSEDCL. The assessee neither before us, nor before the lower authorities have filed any additional evidences pertaining to its claim. We are of the considered view that the assessee has been given sufficient relief by the lower authorities in allowing 50% of the expenses claimed by the assessee in earning the impugned commission received from MSEDCL. Assessee has failed to prove that the said expenses were incurred wholly and exclusively for the purpose....... + More
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