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2022 (12) TMI 198
Validity of reopening of assessment u/s 147 - issuance of notice u/s 143(2) - Period of limitation - non serving statutory notice u/s 143(2) of the Act within statutory period - whether issuance of notice u/s 143(2) of the Act is mandatory after filing of return of income in response to the notice issued u/s 148? - HELD THAT:- We find that the Ld. Commissioner thoroughly considered the factual positions of the case and even examined the assessment record and also called for the comments of the AO and thereafter only came to the conclusion, on which we are having concurrence that no notice u/s 143(2) was served upon the Assessee within the statutory period prescribed in the Act and notice u/s 143(2) issued on dated 12.08.2009 is time barred and no assessment can be made on such notice and consequently the Assessment order held to be null a....... + More
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2022 (12) TMI 197
Permission for withdrawal of petition - it is submitted that the grievance of the petitioner has been redressed as the amount recovered during pendency of the appeal has been reversed - HELD THAT:- In view of the submissions made by learned counsel for the petitioner, writ petition is dismissed as withdrawn.
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2022 (12) TMI 196
Seeking grant of Anticipatory bail - evasion of GST - availment of false input tax credit - bogus sale of goods without payment of GST - bailable offence as per the provisions of Section 132 of GST Act or not - HELD THAT:- In this manner, the accused persons caused loss worth Rs.19219675/- to the Government exchequer. As has been contended by the counsel for the petitioner such type of evasion to the extent of Rs.5 crore under GST Act, amounts to a bailable offence. Further in the present case, the petitioner has cooperated with the police and has handed over his laptop, voice sample and sample of his signatures to the police and is not required by the police for any further investigation. This Court is of the opinion that the petitioner can be granted concession of anticipatory bail - the present petition is allowed and order granting interim bail 27.04.2022 to the petitioner is hereby made absolute subject to the condition envisaged under Section 438(2) Cr.P.C.
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2022 (12) TMI 195
Cancellation of registration of petitioner, with retrospective effect - It is the case of the petitioner that despite following the mandate under the law, it received a show cause notice for cancellation of registration - reasonable opportunity of hearing provided or not - principles of natural justice - HELD THAT:- In the opinion of this Court, it is a settled legal position of law that reasons are heart and soul of the order and noncommunication of the same itself amounts to denial of reasonable opportunity of hearing, resulting in miscarriage of justice. More so, in this case even the appeal order also does not reflect application of mind by the competent authority. In the decision of AGGARWAL DYEING AND PRINTING WORKS VERSUS STATE OF GUJARAT & 2 OTHER (S) [2022 (4) TMI 864 - GUJARAT HIGH COURT], this Court after considering the sc....... + More
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2022 (12) TMI 194
Reimbursement / Compensation with the additional IGST liability - Supplies to BHEL for export - extension of time limit for export under LUT in terms of Rule 96A (1) (a) of CGST Rules, 2017 for the delay caused in export made - violation of of Article 14, Article 19(1)(g) and 300A of the Constitution of India - HELD THAT:- The original dispute for which the petitioner came before us was the incidence of tax liability that had fallen upon the petitioner on account of delay in making export within the specified time in terms of the notification dated 23rd October, 2017. Petitioner had to deposit considerable amount of tax in absence of such extension of time as has been taken note of in the order dated 23rd February, 2022. Since such extension of time has been granted now by the competent authority under CGST in terms of Rule 96A(1) (a) of ....... + More
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2022 (12) TMI 193
Job-work or not - sending of inputs (Naphtha, DM water, Power, Cooling water, service water and instrument air) by the Appellant to M/s. Praxair India Private Limited and receiving back of industrial gases (Hydrogen gas, Nitrogen gas and HP steam) under the lease agreement - levy of GST on all the payments under the lease agreement - HELD THAT:- The job work charges are not mentioned in the invoices raised to the Appellant for the service rendered, During the Personal Hearing, we put this question to the authorized representatives again and again, but the authorized representatives could not clarify the said deficiency properly nor could they produce any agreement or part of the agreement clearly explaining about the job work charges in the invoice. As per Section 2(68) of CGST Act, 2017 read with section 143 of CGST Act, 2017 defines the....... + More
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2022 (12) TMI 192
Supply or not - subsidized canteen service - subsidized deduction made by the applicant from the employees who are availing food in the factory - GST is applicable on the nominal amount being recovered by the Applicant or not - eligibility for ITC of the GST charged by the Service Provider - HELD THAT:- It is an undisputed fact that the applicant is a manufacturer and thus then-activity is covered under Section 2(17)(a) of the CGST Act. Further Section 2(17)(b) stipulates that any activity/transaction in connection with sub-clause (a) i.e. Section 2(17)(a), is included in the business. In the instant case, the applicant is running the canteen in connection with the manufacturing activity. Thus providing canteen facility is incidental to their main activity of manufacture, and therefore covered in the definition of 'business' in te....... + More
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2022 (12) TMI 191
Seeking grant of anticipatory bail - fraudulent availment of ITC without receipt of goods in contravention of provision Section 16 of CGST Act - issuance of invoices without supplying of goods - HELD THAT:- As the accused has been summoned by the department therefore there is apprehension to accused of arrest and in view of the judgment of Hon’ble High Court of Delhi in SATISH KUMAR SHARMA VERSUS DELHI ADMINISTRATION AND ORS. [1990 (9) TMI 363 - DELHI HIGH COURT], Delhi courts has jurisdiction to deal with the matter. As per submissions of Ld. Counsel for department the accused has joined investigation during interim protection and has handed over documents, main accused. Vimal Alawadhi has already been granted bail on 15.10.2022 and he has already deposited the amount of 10% as per order dated 15.10.2022 as informed by Ld. Counsel ....... + More
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2022 (12) TMI 190
Nature of expenditure - expenditure in connection with the development of new products / software - revenue or capital expenditure - question of larger context of business necessity or expediency - HELD THAT:- The issue as to whether a particular expenditure incurred was of capital or revenue in nature has been the subject matter of legal debate before various Courts in the Country. As held by the Apex Court in the case of Empire Jute Co. Ltd. [1980 (5) TMI 1 - SUPREME COURT] since there does not exist an all-embracing formula which can provide a ready solution to the problem; no touchstone has been devised and that every case has to be decided on its own facts keeping in mind the broad picture of the whole operation in respect of which the expenditure has been incurred. The appellant is admittedly in the business of development of softwa....... + More
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2022 (12) TMI 189
Validity of faceless assessment u/s 144B - denial of the principles of natural justice to the Petitioner by not affording her a hearing through video conferencing - HELD THAT:- We are of the opinion that the Respondent has not afforded to the Petitioner a fair hearing in the matter. Respondents ought to have either responded to the Petitioner’s request for extension of time till 25.02.2022 for filing her reply, by rejecting her request or at least responded to the Petitioner’s request on 19.02.2022 for an online hearing of her case by video conferencing. Having not given to the Petitioner an opportunity of personal hearing as was required to be done under the provisions of Section 144B of the Act as specified in the show-cause notice dated 03.02.2022 itself, we find that the Respondents have acted in arbitrary manner. Conseque....... + More
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2022 (12) TMI 188
Reopening of assessment u/s 147 - notice issued to the Petitioner-Assessees u/s 148-A(1)(b) - ‘personal hearing’ was not given to the Assessee prior to the passing of the said order - HELD THAT:- Having carefully examined the said decisions in light of the order passed by the Supreme Court in Anshul Jain v. Principal Commissioner of Income Tax [2022 (10) TMI 3 - SC ORDER] this Court is of the considered view that the above order cannot be considered to be one which does not decide any issue or which has been passed without considering the issue involved in the case. This Court is unable to agree with the submission that the aforementioned order of the Supreme Court is not a binding precedent as far as this Court is concerned. Petitioners have also assailed both the notice u/s 148-A(1)(b) as well as the consequential order u/s ....... + More
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2022 (12) TMI 187
Reopening of assessment u/s 147 - Capital gain on sale of property - year of assessment - crux of the objections of the assessee to the proposed reopening was that firstly the transaction was not of the sale, but was an agreement for development. Secondly, the transfer did not take place in the previous year corresponding to the assessment year 2015-16, but the transfer took place during previous year 2015-16, that is, relevant to assessment year 2016-17 and it was the case that the gain arising out of the transaction was offered to tax for the assessment year 2016-17 and that no tax had thus escaped assessment - HELD THAT:- When the amount received by the petitioner assessee by way of cash was pursuant to development agreement and the transfer had not taken place in the year of receipt, when the sale deed was executed in the subsequent y....... + More
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2022 (12) TMI 186
Reopening of assessment u/s 147 - Scope of new provision section 148A - conducting of enquiries or issuance of show-cause notice or passing of order u/s 148A - Scope of amendment by the Finance Act, 2021 which has amended Income Tax Act by introducing new provisions i.e. sections 147 to 151 w.e.f. 1st April, 2021 - violation of the judgment passed by Hon’ble Supreme Court in the case of Union of India and others vs. Ashish Agarwal [2022 (5) TMI 240 - SUPREME COURT] - HELD THAT:- The Section 246 of the Income Tax Act, 1961 provides an appeal. Therefore, the petitioner is having a remedy to challenge the order/notice by way of filing an appeal and the ground raised by him with respect to jurisdiction of the authorities can always be considered by the authorities. Even otherwise, a writ petition against a show cause notice is not maint....... + More
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2022 (12) TMI 185
Stay of demand - petitioner submitted that this Court may direct the first respondent to pass the final order in the aforesaid appeal without any further delay and serve the copy of the order on the petitioner - HELD THAT:- Considering the facts and circumstances of the case and the final order passed nothing survives in this writ petition for further adjudication. Hence, this writ petition stands dismissed with a liberty to the petitioner to work out the remedy in the manner known to law.
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2022 (12) TMI 184
Reopening of assessment u/s 147 - notice against dead assessee - no notice issued to legal representative - asseessee had expired about 6 years back. - HELD THAT:- he assessment order was passed taking into account the fact that the assessee had expired. - The plea of the respondent authorities that they were not intimated regarding the death of the assessee Smt. Shobha Mehta, is factually incorrect. It is not in dispute that the notice of re-assessment u/s 148 was issued to the assessee Smt. Shobha Mehta who had expired about 6 years back. No notice whatsoever was issued to the legal representative/s of the assessee before undertaking the reassessment proceedings. Thus, the impugned re-assessment and the assessment order having been passed against the dead assessee, is invalid and the same cannot be sustained in the eyes of law. WP allowed.
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2022 (12) TMI 183
Validity of reopening of assessment u/s 147 - violating principles of natural justice - sufficient opportunity was not granted to object to the proposed assessment - HELD THAT:- This Court has been noticing a disturbing pattern on the part of the Income Tax department by granting minimal time to assessees to explain or answer showcause notices. The principles of natural justice mandate reasonable time to be given to the assessees to reply to showcause or other notices issued under the statute. The purpose of a showcause notice is to provide an opportunity to explain the allegations in the notice. Several steps precede the reply noticecollection of materials, verification of documents, appreciation of the allegations raised in the showcause notice, consultation with professionals etc. The aforesaid attributes that precede the preparation o....... + More
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2022 (12) TMI 182
Addition on account of unexplained money u/s 69A - unaccounted cash - assessee vehemently argued that the assessee has withdrawn the cash from the bank and accumulated the same to the total tune of Rs. 1 crore which has been carried by the employee of the assessee - HELD THAT:- Assessee has not made available of any documentary proof before Lower Authorities such as bank statement withdrawing such huge sum. Further at no point of time such transactions of cash through imprest account has taken place in the past in the cash book which can prove cash purchase of raw material, wheat straw. The assessee has only relied on the cash book which cannot be believed in the absence of corroborative evidence such as bank statement, audited balance sheet, profit and loss account along with tax audit report for the year under consideration. When the ca....... + More
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2022 (12) TMI 181
Penalty u/s 271C - TDS was not made on payment of External Development Charges (EDC) - Assessee argued provisions of section 194C were not applicable on payment, of EDC because the payment was made to the Government and not to the HUDA - HELD THAT:- As decided in own case for the Assessment Year 2014-15 [2022 (7) TMI 737 - ITAT DELHI] as relying on TDI Infrastructure [2022 (7) TMI 388 - ITAT DELHI] clarification memo no DTCP/ACCFTS/AO(AQ) /CAO/2894/2018 dated 19.06.18 issued by the Directorate of Town and Country Planning, Haryana which made it very obvious that receipts on account of EDC are being deposited in the Consolidated Fund of the State, accordingly directions were issued to colonizer like present assessee, to not deduct TDS. Once the fact of receipt of amounts received by HUDA being deposited in Consolidated Fund of State is est....... + More
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2022 (12) TMI 180
Addition u/s. 56(2)(viib) - premium on issue of shares of the company - receiving consideration against share issued in excess of fair market value - As per assessee valuation report has been obtained from registered valuer on 14.03.2018 which justifies the share premium charged by the assessee on the issue of equity share capital and preference share capital - Revenue has pointed out the fact that the assessee company was incorporated on 07.11.2012 and the cut off date for the valuation of share was 16.11.2012 - HELD THAT:- Since the input needed for preparing the valuation report dated 14.03.2018 were not supplied correctly to the expert (CA), the results arrived at in the said valuation report dated 14.03.2018 cannot be accepted. Under these given facts and circumstances of the case we are of the considered view that since the company ....... + More
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2022 (12) TMI 179
Disallowance of interest expenses as well as disallowance of proportionate interest rate on the interest free loan given - AO made disallowance of interest expenses by taking a view that the assessee could furnish copy of ledger and bank statement to prove that the transactions were genuine - HELD THAT:- Once the transaction of loan is considered as genuine, the interest on such loan cannot be disallowed. CIT(A) further held that P.K. Enterprises was not part of 19 parties and the assessee had explained the genuineness of said loan during the assessment. Thus, the interest cannot be disallowed. Considering the facts that on similar interest disallowance in A.Y. 2017-18 and similar deletion of interest disallowance was upheld by this Bench in A.Y. 2017-18 - Therefore, we do not find any illegality or irregularity in the order passed by the....... + More
