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- 2021 (5) TMI 334 - BOMBAY HIGH COURT
Grant of Bail - Constitutional Validity of section 132 (1)(b) of the Central Goods and Services Act, 2017 - power of arrest under Section 69 of the Central Goods and Services Act, 2017 to be exercised only after the proper assessment/ determination of liability - de-attachment of Bank Accounts of petitioner - Fraudulent availment of ITC - HELD THAT:- The concerned officer has on the basis of the information given so far by the Petitioner is in the process of identifying other key conspirators/ master mind in the fraudulent availment of ITC, the concerned officer has recorded her reasons to believe that Petitioner has floated the two firms with the core objective to defraud the Government Ex-chequer; that Petitioner is only doing paper transactions involving 66 Crores of revenue which is huge by any standards and, has authorized his arrest....... + More
- 2021 (5) TMI 333 - DELHI HIGH COURT
Refund of CGST alongwith interest - period from April, 2020 to May, 2020 - HELD THAT:- The concerned respondent authorities are directed to decide the claim of the petitioner for refund as stated in the memo of this writ petition, in accordance with law, rules, regulations and Government policies applicable to the facts of the case. Petition disposed off.
- 2021 (5) TMI 332 - MADRAS HIGH COURT
Validity of the application filed u/s 245(C) - consequential order passed by the Settlement Commission - maintainability of the writ petition filed by the Commissioner of Income Tax, challenging the order passed by the Settlement Commission - As contended that in the eventuality of no pendency of case during the relevant assessment year, the application under Section 245(C) of the Act is not maintainable before the Settlement Commission - HELD THAT:- In the instant case, the power of the Settlement Commission is well enumerated under Section 245C and 245D of the Act. The manner in which settlement is to be arrived is also contemplated under the Act. Certain preconditions are also stipulated. Thus, the Settlement Commission cannot enter into the venture of assessment, which is the power of an Assessing Officer under Section 153A. Therefore....... + More
- 2021 (5) TMI 331 - MADRAS HIGH COURT
Maintainability of appeal - availability of efficacious alternative remedy of appeal - Classification of goods - Herbal Sherbat Granules - whether classified under subheading No. 2101 2090? - HELD THAT:- Undoubtedly, the High Court may pass an order of remand in the event of non-consideration of certain vital issues raised by the parties concerned. However, if an efficacious Appellate Remedy is available before the Appellate Tribunal, then the High Court need not go into those facts unnecessarily and the institutional respects are to be maintained and the statutory appeals are to be exhausted in all circumstances. The Tribunal has got powers to adjudicate all the factual as well as the legal grounds raised by the respective parties. More so, the Tribunal is empowered to consider the merits with reference to the documents as well as the ev....... + More
- 2021 (5) TMI 330 - MADRAS HIGH COURT
Reopening of assessment u/s 147 - Claim of deduction under Section 80-IA - assessee is eligible only for 30% pay of the deduction claim and remaining 70% is to be taxed - HELD THAT:- As there is a definite 'reason to believe' that the deduction of ₹ 61,10,78,973/- is excess deduction to the tune of income chargeable to tax as escaped assessment. When it is categorically stated that on account of certain informations provided by the assessee, a wrong assessment has been made and the excess deduction was made, so as to cause loss to the Revenue, then it is to be construed that the assessee has not disclosed fully and truly all material facts. Facts regarding the deduction claim u/s 80-IA, all would have stated by the assessee in the return of income. However, during the scrutiny and while passing that the final order of assess....... + More
- 2021 (5) TMI 329 - MADRAS HIGH COURT
Refund of ITC - Export Sales - case of Revenue is that the petitioner should have applied for refund under Section 18(3) of the TNVAT Act, within 180 days by filing Form W under Rule 11(2), since the ITC represents ITC towards exports - HELD THAT:- In the present case, a revision is provided under Section 54 of the TNVAT Act - Admittedly, the petitioner approached this Court without exhausting the revisional remedy contemplated under the Act. The Principles of Law expects that an aggrieved person has to exhaust the statutory remedies available and the writ petition is to be filed only after exhausting the remedies contemplated. Moreover, there are certain disputed facts and circumstances raised. The High Court cannot conduct the roving enquiry with reference to the disputed facts and circumstances, which is to be done based on the documen....... + More
- 2021 (5) TMI 328 - MADRAS HIGH COURT
Violation of principles of Natural Justice - opportunity of hearing not granted - works contract - HELD THAT:- In the present case there has been no personal hearing afforded to the petitioner, which is violation of principles of natural justice and also the statutory mandate under Section 27 of the Act to afford an effective hearing prior to finalisation of assessment. The petitioner has sought some time to respond. Thereafter, notice dated 25.02.2021 was issued, to which a written reply was filed enclosing documentary evidence. It was incumbent upon the Assessing Authority to hear the petitioner thereafter which has not been done - Since no personal hearing has, admittedly, been afforded, the impugned order is set aside. The petitioner will appear before the Assessing Authority on Thursday, the 6th of May, 2021 at 10.30 a.m. along with all/any materials in support of its contention, without expecting any further notice in this regard. Appeal allowed by way of remand.
- 2021 (5) TMI 327 - GUJARAT HIGH COURT
Validity of detention and seizure of goods - allegation is that scraps in different forms seized from the premises were found to be imported without payment of appropriate customs duty - classification of goods - discarded and non-serviceable semi-broken/broken motor under CTH 7204 49 00 under the Other Ferrous Waste and scrap or not - jurisdiction to entertain this petition in wake of the availability of the alternative efficacious remedy - HELD THAT:- The law on the point if is regarded, it is quite clear that jurisdiction under Article 226 of the Constitution of India is not to be resorted to ordinarily when the alternative and efficacious remedy is available, unless of course the very issuance of notice is not sustainable under the law - The writ jurisdiction under Article 226 is not to be entertained against the show cause notice whe....... + More
- 2021 (5) TMI 326 - MADRAS HIGH COURT
Release of imported goods - used ventilators - non-hazardous goods - HELD THAT:- The petitioner has relied upon a certificate of the chartered engineer in support of its contention that the used ventilators imported constitute non-hazardous goods. In my view, the appropriate authority to confirm the nature of goods would not be the chartered engineer. Thus, in the course of adjudication, the assessing authority shall make a reference to the competent authority either under the Hazardous Substance Management Division/R1 or any other authority competent for this purpose, to determine whether the used ventilators imported by the petitioner would constitute hazardous material, bearing in mind the definition of the term in the Hazardous Waste Management Rules 2016. Petition dismissed as withdrawn.
- 2021 (5) TMI 325 - MADRAS HIGH COURT
Validity of assessment order - recovery action - non-compliance of the condition stipulated while granting interim order - HELD THAT:- This Court had made it clear that if the petitioners failed to pay 25% of the demand amount, interim stay shall stand automatically vacated and petition shall stand automatically dismissed - Therefore, the consequence of non-compliance of the condition stipulated while granting interim order will be only on the interim application. It will not cast any cloud for availing relief that may be finally claimed by the writ petitioners. I will not non-suit the petitioners on the ground of non-fulfilment of the condition imposed while granting interim relief. Going into the merits of the matter, it is seen that there are two assessment years involved. The petitioners had challenged only the assessment order dated ....... + More
- 2021 (5) TMI 324 - GUJARAT HIGH COURT
Reopening of assessment u/s 147 - Bogus LTCG - Assessee earned long term capital gain on shares and claimed it as ‘exempt income’ under Section 10(38) - whether the revenue is justified in reopening the assessment for the year under consideration? - HELD THAT:- At the stage of issuing the notice, the court cannot investigate into adequacy or sufficiency of the reasons. When no scrutiny assessment made under section 143(1) of the Act, the requirement for reopening is only reason to believe. Considering the facts of the present case, the Assessing Officer has caused of justification that, the alleged transaction of penny stock, claiming amount of long term capital gain has escaped assessment - the word “reason” in the phrase “reason to believe” in Section 147, would means cause or justification. If the as....... + More
- 2021 (5) TMI 323 - ITAT HYDERABAD
Disallowance u/s 14A - dividend amount received - HELD THAT:- It is a settled position that disallowance of expenditure u/s. 14A read with Rule 8D shall not exceed exempt income earned for the year as per case law Cheminvest Ltd. [2015 (9) TMI 238 - DELHI HIGH COURT], Chettinad Logistics Private Limited [2017 (4) TMI 298 - MADRAS HIGH COURT] and CIT vs. Corrteck Engineering Pvt. Ltd. [2014 (3) TMI 856 - GUJARAT HIGH COURT]. Therefore, we direct the AO to restrict the disallowance u/s 14A rwr 8D to ₹ 4,99,674/- in AY 2013-14 and ₹ 4,28,292 in AY 2014-15.
- 2021 (5) TMI 322 - NATIONAL COMPANY LAW TRIBUNAL , KOLKATA BENCH
Approval of Resolution Plan - RP has filed an application alleging preferential, undervalued and fraudulent transactions - alleged transactions in favour of related parties - HELD THAT:- To file an application alleging preferential, undervalued and fraudulent transactions, the RP has to adhere to sections 43 and 46 of the Code read with regulation 35A of the CIRP Regulations. Section 43 and 46 envisage that the alleged transactions in favour of related parties should be within two preceding years, while in the case of non-related parties it should be within one year. Further, under regulation 35A the RP has to form an opinion whether there has been any avoidable transaction in the Corporate Debtor company on or before seventy-fifth day of the CIRP commencement date. Thereafter, on or before one hundred and fifteenth day of forming such op....... + More
- 2021 (5) TMI 321 - NATIONAL COMPANY LAW TRIBUNAL , MUMBAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- It is an admitted liability and that the documents submitted by the operational creditor are enough to establish the debt upon the corporate debtor and hence the contentions made by the corporate debtor cannot be relied upon. Also, they defaulted in repaying the debt amount which is more than the threshold of ₹ 1,00,000/- to each individual operational creditor. Hence, all the requisite conditions for admission of a petition under Section 9 have been found to be fulfilled and therefore, this petition deserves to be admitted. Application admitted - moratorium declared - petition allowed.
- 2021 (5) TMI 320 - ITAT SURAT
Capital gain on sale of land - Nature of land - capital asset u/s 2(14) or agricultural land - whether land is used solely for agricultural purposes? - HELD THAT:- We note that during the course of assessment proceedings, the Assessing Officer noted that the assessee has sold agricultural land bearing R. S. No. 12/1, B 17/1 located at village Nava Gam. Tal. Kamrej. Dist. Surat during the year under assessment, for sale consideration of ₹ 4,41,00,000/-. The population of village Navagam is less than 10,000 therefore, one of the conditions of section 2(14) of the Act, has failed, and hence such land is not a Capital Asset, consequently capital gains provisions are not attracted. Based on the other conditions, as mentioned by the ld Counsel in his arguments, the said land is an agricultural land. The assessee, right from the beginning,....... + More
- 2021 (5) TMI 319 - NATIONAL COMPANY LAW TRIBUNAL , HYDERABAD BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- It is a fact that the Financial Creditor has supplied the material as per the purchase order issued by the Corporate Debtor. Due to non-payment as per the terms of the invoice, the Financial Creditor herein has converted the due amount into a loan and accordingly the Loan Agreement has been entered into between the parties on 05.03.2018 to repay the amount claimed to be in default in twelve (12) equal instalments commencing from 05.03.2018. The present Financial Creditor has supplied the goods as per the purchase order issued by the Corporate Debtor. However, the amount due under the purchase order issued by the Corporate Debtor was not paid even though the g....... + More
- 2021 (5) TMI 318 - NATIONAL COMPANY LAW TRIBUNAL , AHMEDABAD BENCH
Classification of applicant - unsecured creditors or not - Direction to opponent to rectify the erroneous classification of claim of Applicant as 'Unsecure' and categorize the same as 'Secured' - time limitation - HELD THAT:- On perusal of the record, it is found that on 5th July 2019, the liquidator classified the Applicant as Unsecured Financial Creditor in the liquidation process of the Corporate Debtor and in view of Section 42 of the Insolvency and Bankruptcy Code, the creditor may appeal before the Adjudicating Authority against the decision of the liquidator within 14 days on receipt of such decision. However, the present application is filed after around 551 days - The instant application is admittedly filed in much belated stage. In view of such express provisions of section 77(3) of the companies Act, 2013 and Re....... + More
- 2021 (5) TMI 317 - NATIONAL COMPANY LAW TRIBUNAL , HYDERABAD BENCH
Seeking of hearing - unsuccessful Resolution Applicant claims that they are not only a necessary party but also a proper party and is required to be heard while disposing of application for approval of Resolution Plan - HELD THAT:- The Supreme Court in various judgments has noted that a view has to be taken on a liberal side. This Adjudicating Authority is not hesitant to say that the unsuccessful Resolution Applicant i.e. Applicant is not only a necessary party but also a proper party for adjudication of the lis involved between the parties. It is not out of place to mention that this Bench has a doubt on the legal point whether an Asset Reconstruction Company can be a Resolution Applicant or not. This aspect of question of law can also be cleared by the unsuccessful Resolution Applicant or any person once they are impleaded as a party a....... + More
- 2021 (5) TMI 316 - CESTAT AHMEDABAD
Determination of Annual Production capacity - reduced annual production capacity on the basis of reduction of parameters in their mills - Rule 5 of Hot Re-Rolling Steel Mills Annual Capacity Determination Rules, 1997 - HELD THAT:- On the plain reading of the Rule 5 of Hot Re-Rolling Steel Mills Annual Capacity Determination Rules, 1997, it is clear that even if the parameter is changed the APC should be fixed based on the annual production of the year 1996-1997. However, the vires of Rule 5 is pending before the Hon’ble Supreme Court in M/S. BHUWALKA STEEL INDUSTRIES LTD. & ANOTHER VERSUS UNION OF INDIA & OTHERS [2017 (3) TMI 1357 - SUPREME COURT]. Therefore, in the interest of justice, as regard the issue of determination of APC and demand of duty it should be decided only after the Hon’ble Supreme Court judgment. The....... + More
- 2021 (5) TMI 315 - NATIONAL COMPANY LAW TRIBUNAL , CHENNAI BENCH
Condonation of delay of 796 days delay in filing the claim before the Liquidator - Regulation 39 of the IBBI (Liquidation Process) Regulations, 2016 read with Section 60(5) of the Insolvency and Bankruptcy Code - HELD THAT:- Section 40 of the I&B Code, 2016 mandates the Liquidator to record the reason in writing for rejection of the claim and the same is also required to be communicated to the Applicant. In relation to his decision of admission or rejection, the Liquidator is required to communicate to both the creditors and the Corporate Debtor within seven days of such admission or rejection of the claim. As against the rejection of the claim, Section 42 of I&B Code, 2016 provides for a time window of 14 days upon receipt of such decision to the creditor to file an appeal to the Adjudicating Authority against the said decision o....... + More