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2024 (4) TMI 667
Money Laundering - grant of interim stay of the operation of the impugned summons issued by the petitioner – ED - Section 50 of PMLA - HELD THAT:- From the section it clearly transpires that the concerned officers as mentioned therein, have the power to summon any person whose attendance he considers necessary, either to give evidence or produce any record during the course of investigation or proceeding under the PMLA. Since, the petitioner – ED is conducting the inquiry / investigation under the PMLA, in connection with the four FIRs, and since some of the offences of the said FIRs are scheduled offences under PMLA, the same would be the investigation/proceeding under the PMLA, and the District Collectors or the persons to whom the summons are issued under Section 50(2) of the Act are obliged to respect and respond to the said summons.
The operation and execution of the impugned order is stayed, pending the present SLPs. The District Collectors shall appear and respond to the summons in question issued by the petitioner – ED on the next date, that may be indicated by the ED.
List after four weeks.
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2024 (4) TMI 666
Penal proceedings for misreporting of income u/s 270A - Excess exemption claimed on Gratuity u/s 10(10)(i) and Leave Encashment receipts u/s 10(10AA)(ii) - HELD THAT:- Levy of penalty in this case in our considered view was not warranted for the reasons that; (i) admittedly for part of the service the appellant was State Government employee whose employment by enforcement of electricity Act, 2003 and MSEDCL employee Service Regulation 2005 was converted into nongovernmental service/employment. Therefore, the belief under which full exemption of retirement benefit claimed in the ITR filed was in first not incorrect in its entirety and certainly it was bonafied and not synthetic one (ii) secondly, the explanation offered by the appellant in support of his mistaken but bonafied belief and disclosed all material facts of his service & the circumstance which swayed to claim full exemption in his ITR in our considered view squarely falls within clause (a) of s/s (6) of section 270A of the Act, therefore pardonable (iii) and finally, the imposition of penalty is at the discretion of Ld. AO, since s/s (1) of section 270A of the Act, refers to the word 'may' and not as ‘shall’.
However, the tax authorities below in our considered view were failed to appreciate the facts and circumstance of the present case holistically and further in right spirit of law, but dealt therewith without application of mind and perfunctory imposed / confirmed the penalty @ accelerated rate of 200% u/s 270A of the Act in unwarranted case like this.
As in respect of penalty in fiscal laws the principle followed is more like the principle in criminal cases. That is to say the benefit of doubt is more easily given to the assessee, and this finds expounded in VV. IYER VERSUS COLLECTOR OF CUSTOMS [1972 (9) TMI 52 - SUPREME COURT]. In view of this, we set-aside the impugned order of Ld. NFAC and quashed the order of penalty. Appeal of assessee allowed.
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2024 (4) TMI 665
Reassessment proceedings against company dissolved / insolvent - Jurisdiction or authority to reopen or assess income for any period prior to the approval of the Resolution Plan - petitioner is the corporate debtor and the Resolution Plan in respect of which came to be approved by NCLT - HELD THAT:- The successful resolution applicant cannot be foisted with any liabilities other than those which are specified and factored in the Resolution Plan and which may pertain to a period prior to the resolution plan itself having been approved. See GHANASHYAM MISHRA AND SONS PRIVATE LIMITED [2021 (4) TMI 613 - SUPREME COURT] and COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LIMITED THROUGH AUTHORISED SIGNATORY VERSUS SATISH KUMAR GUPTA & OTHERS [2019 (11) TMI 731 - SUPREME COURT]
We allow the instant writ petition and set aside the impugned order under Section 148A(d). Decided in favour of assessee.
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2024 (4) TMI 664
Service of SCN - Breach of principles of natural justice - intimation and SCN uploaded on the “View Additional Notices and Orders” tab on the GST portal and not communicated to the petitioner through any other mode - HELD THAT:- On perusal of the impugned order, it is clear that the tax proposal was confirmed only because the petitioner failed to reply to the show cause notice by enclosing relevant documents. Therefore, it is just and appropriate that the petitioner be permitted to contest the tax demand on merits, albeit by putting the petitioner on terms - the petitioner submits that the petitioner is willing to remit 10% of the disputed tax demand as a condition for remand.
The impugned order dated 23.12.2023 is set aside and the matter is remanded for reconsideration subject to the condition that the petitioner remits 10% of the disputed tax demand as agreed to within a period of three weeks from the date of receipt of a copy of this order. Within the aforesaid period, the petitioner is also permitted to submit a reply to the show cause notice - Petition disposed of by way of remand.
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2024 (4) TMI 663
Validity of order passed by the ITSC - Settlement of a case - Bogus purchases and Accommodation entries - ITSC allowed certain amounts to be capitalized with depreciation - ITSC also granted immunity from penalties and prosecution - scope of intervention by a High court, in its jurisdiction u/Article 226 of the Constitution of India - HELD THAT:- As in Jyotendrasinhji [1993 (4) TMI 1 - SUPREME COURT] Hon’ble Apex Court held that the High Court under Article 226 can interfere with an order of the ITSC only when the order is contrary to provisions of the Act and that such contravention has prejudiced assessee.
ITSC is empowered to pass, after hearing the applicant and the Commissioner, and after examining such further evidence as may be placed before it or obtained by it, such order as it thinks fit on the matters covered by the application and any other matter relating to the case not covered by the application, but referred to in the report of the Commissioner under Sub Section (1) or (3) of Section 245C of the Act.
ITSC also has power to grant immunity from penalty and prosecution, with or without conditions. The ITSC need not give any reasons and even if it gives any reason the scope of enquiry cannot go beyond - The court should be concerned with the legality of procedure followed and not with the validity of the order. The judicial review is concerned not with the decision but with the decision making process.
Even if the interpretation placed by the ITSC on documents is not correct, it would not be a ground for interference since a wrong interpretation of documents cannot be said to be a violation of the provisions of the Act. There are no allegation of bias or fraud or malice alleged in the petition against the Commission.
The Hon’ble Apex Court in Kotak Mahindra Bank Ltd. [2023 (9) TMI 1231 - SUPREME COURT] held that the High Court cannot sit in appeal as to the sufficiency of the material and particulars placed before the Commission, based on which the Commission proceeded to pass its orders.
While discussing the legislative intent on the provisions of Chapter XIX-A, the Hon’ble Apex Court in Kotak Mahindra Bank Ltd. [2023 (9) TMI 1231 - SUPREME COURT] held that frequent interference with the orders or proceedings of the ITSC should be avoided and the High Court should not scrutinize an order or proceeding of the ITSC as an appellate court.
The conspectus of the law therefore would be that the court could not interfere with the order if otherwise proper on the ground that the decision appeared erroneous. Wrong or right decision was binding, if it be reached fairly after giving adequate opportunity to the parties to place their case in the manner provided by the Act. The court should be concerned not with the decision but the decision making process. If grave procedural defect such as violation of the mandatory procedural requirements of the provisions of Chapter XIX-A and/or violation of rules of natural justice is made out or if it is found that there is no nexus between the reasons given and the decision taken only then the court may interfere.
Claim of deduction u/s 80IB(10) - As undisputed the projects carried out by assessee at Vasundhara, Samarpan and Country Park III qualified for deduction u/s 80IB(10) and that disallowance of expenditure by way of bogus purchases and towards business promotion and travelling expenses on Adhoc basis would go to increase the profits of the eligible projects - additional deduction as also noted in the impugned order for A.Y. 2009-10 comprises of additional income arising on account by disallowance of bogus purchases and additional income arising on account of Adhoc disallowance of expenses made by the Revenue for A.Y. 2005-06, 2006-07, 2007-08, 2008-09 in the Assessment Order passed u/s 143(3) r.w.s. 153A of the Act for those years. Detailed working and explanation in respect of the same was already available as a part of the settlement application and submissions made before the ITSC. The issue raised being question of fact as to the quantum of deduction to be allowed under Section 80IB(10) of the Act can never qualify as ground for interference by this court under jurisdiction of Article 226 of the Constitution of India.
Capitalization - According to Revenue, the ITSC, before allowing capitalization of the expenditure incurred by assessee on acquisition of fixed assets by way of civil work, furniture and air conditioning system at its office premises on the 10th floor at Atrium benefits the assessee ought to have conducted an enquiry or investigation on the issue as these factual issues required verification to ascertain whether the amount was spent on the assets as stated, its actual cost, year of purchase, etc. - It does not appear that any such request for verification of these aspects were made by the Revenue in the reports or statements that were filed before the Commission. Moreover, the discretionary power under Section 245D(3) discussed above will apply here also. Further, the Revenue had accepted that the seized diary discloses the correct facts in respect of the cash generated by assessee on account of bogus purchases. In view thereof, Revenue should also accept utilization of such cash as narrated in the said diary/document seized at the time of search. It is assessee’s case that assessee has its office on 10th Floor at Atrium and the expenses have been incurred on civil work, furniture and air conditioning system at the said office and the said office premises has been used in the previous year relevant to A.Y. 2011-12. Assessee has been allowed deduction by way of depreciation on the other capital expenditure incurred with respect to the said office premises. The ITSC has accepted the issue of capitalization of expenditure incurred and granted the relief.
Seized diary showed that part of the cash generated by the company from bogus purchases was utilized for the purposes of incurring capital expenditure at its office premises on the 10th Floor in Atrium - Such expenses incurred on civil work, furniture and air conditioning system. Further enquiry or investigation on the utilization of the amount need not be entertained because Revenue has, relying upon the same documents, accepted the fact of generation of cash by way of bogus purchases. Therefore, the manner of utilization of the cash as noted in the seized diary also has to be accepted as correct. This is the position prevailing as per Section 132 (4A) and 292C of the Act which mandates that the contents of seized documents are true.
The enquiry under Section 245D(3) of the Act was subjected to discretion of the ITSC as it relates to question of fact and is not amenable to the jurisdiction of this court.
ITSC was entitled to exercise discretion and has rightly exercised its discretion. We find nothing wrong in the judicial decision making process of the Commission. When the department relies on the seized records for estimating the undisclosed income, we see no reason why the expenditure stated therein should be disbelieved. We find support in P. D. Abraham Alias Appachan And Another [2014 (6) TMI 15 - KERALA HIGH COURT] Moreover there was no justification for doubting the entries found in seized records pertaining to expenditure while accepting the income found recorded therein.
There is neither violation of any mandatory procedure prescribed under any of the sections of Chapter XIX-A of the Act nor any violation of any of the Rules of natural justice. Further, it cannot be said that the reasons assigned by the ITSC for granting relief sought for by assessee have no nexus to the decision taken.
Apex Court in Kotak Mahindra Bank Ltd. [2023 (9) TMI 1231 - SUPREME COURT] interference with the orders of the ITSC should be avoided, keeping in mind the legislative intent. The scope of interference is very narrow and certainly the High Court should not scrutinize an order of the ITSC as an appellate court. Rule discharged. Petition dismissed
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2024 (4) TMI 662
Deduction u/s 10 B - New Undertaking or The units were formed by the transfer of previously used machinery - Assessee company is engaged in the business of garlic powder, ginger powder, madras curry powder including pickles and spices, etc. and also claimed deduction u/s 10B - Whether the assessee is entitled to deduction u/s 10 B of the income tax act with respect to the eligible profits of eligible units at the Nasik and Ratlam? - whether the assessee manufacturing pickles by purchasing raw fruits and vegetables, using masala and different process can be said to engaged in manufacturing activity or not ? - HELD THAT:- Identical issue arose in case of Sterling Agro Products Processing (P.) Ltd [2011 (8) TMI 460 - ITAT CHENNAI] wherein as held assessee is entitled to the deduction under section 10B of the Act as the assessee is manufacturing gherkin pickles from gherkin for the purpose of deduction u/s 10B.
No reason to hold that the assessee is not engaged in manufacturing activities. Thus, we hold that the process of manufacturing pickles from raw vegetables and fruits, masala and other ingredients has different marketable commodities than the raw materials which are a different value addition, and a new product emerges therefrom.
With respect to the realization of the export proceeds it has been stated that the assessee has produced bank realization certificates, bank certified statement of the Forex receipt, and certificate of the auditor, therefore we do not find any infirmity in the order of the CIT – A in allowing the claim of the assessee u/s 10 B to the extent of foreign exchange received during the specified period.
With respect to the conversion of the firm into a company and use of plant and machinery, it is a fact that both the units of the assessee became hundred percent export-oriented units in 2001 – 01. The first year of claim of deduction under section 10 B was assessment year 2001 – 02. With respect to the use of plants and machinery the CIT – A gave a categorical finding about acquisition of the machinery in different years. This is held after the obtaining of the remand report. Thus, the finding of the learned assessing officer was in consequence of nonproduction of detail by the assessee. When the assessee has produced the details before the learned CIT – A, the remand report is obtained; there is no reason to sustain the disallowance.
Difference of stock submitted to the banker and book stock - AO has noted that there was a difference of stock shown in the books of account in the statement shown to the banks and that the difference to the total income of the assessee of ₹ 21,909,800 - CIT – A held that a similar issue arose in the case of the assessee for assessment year 2003 – 04 and on the basis of reconciliation the addition was deleted as difference to explained - HELD THAT:- We do not find any infirmity in the order of the CIT – A because addition could not be made on the basis of difference between the closing stock declared in the statement submitted by the banker is less than the book stock. Accordingly, we dismiss this ground of appeal of the AO also.
Allowability of loss in trading and spices - assessee explained that it was on account of trading operations however the learned assessing officer without verifying the details filed is held that the trading activities nothing but a speculation loss which the appellant is not entitled to get set of against the normal business income - HELD THAT:- On careful consideration of the argument of the parties it was found that that it is a loss arising from the sale of goods and high seas. Therefore, it cannot be said to be a speculation loss. Accordingly, the order of the learned CIT – A holding it to be a regular trading loss is upheld. Ground of the appeal is dismissed.
Addition on account of difference in closing stock which could not be reconciled by the assessee and therefore rejecting the books of accounts estimated the profit at the rate of 26% - HELD THAT:- We find that when the assessee has shown higher stock in books of accounts and shown lesser stock to the bank, we do not find any reason to make any addition in the hence of the assessee. Thus, the order of the learned CIT – A is reversed to the extent of confirmation of the addition.
Disallowance in respect of provident fund and ESIC payment - When the matter reached before the learned CIT – A the assessee submitted that there is a double disallowance of the same amount - CIT – A rejected the same holding that the learned assessing officer has started the computation from the net profit as per profit and loss account and thereafter made the disallowance. Before us also the same argument was advanced - HELD THAT:- We do not find any infirmity in the order of the learned CIT – A as the computation by the learned assessing officer started from the net profit as per profit and loss account there cannot be any question of double disallowance. Thus, ground of the appeal of the assessee is dismissed.
Suppression of profit by rejecting the books of accounts - CIT- A considering the average gross profit shown by the assessee held that by showing the valuation of the closing stock of inventory at higher amount by ₹ 1 20 crores the appellant has offered higher gross profit/net profit for taxation and not vice versa. The charge regarding the suppression of profit by the AO was without pointing out any defect in the books of account maintained by the assessee company. Further the manner of making an addition was also not correct - HELD THAT:- On careful consideration of the rival arguments, we find no infirmity in the order of the CIT – A wherein the addition was deleted. We do not find any reason to sustain the rejection of the books of accounts by invoking the provisions of section 145 (3) of the act when the assessee has maintained the details of the accounts and the gross profit and net profit are also comparable. The rejection of the book profit and the books of accounts which are audited without pointing out latent, patents and glaring defects are not sustainable. Accordingly ground of the appeal of the AO is dismissed.
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2024 (4) TMI 661
Denial of exemption u/s 11 & 12 - Assessment of trust - Rate of Tax - Maximum Marginal Rate (MMR) - Charging the assessee as per the provisions of section 164(1) or 164(2) - assessee argued that beneficiary are the general public so there is no share of beneficiaries whether known or unknown as the assessee is trust so charging the assessee as per the provisions of section 164(1) as held by the CIT(A) is incorrect and the relevant facts has not been appreciated - HELD THAT:- Section 13(1)(c) deals where the money spent for the related party and 13(1)(d) deals religious trust or institution. The ld. AR of the assessee submitted that the assessee subsequently already registered u/s. 12A with effect from 22.03.2022 and thus it does not come under the provision of section 13(1)(c) and (d) of the Act and therefore, based on that set of facts the assessee trust shall be charged to tax u/s. 164(2) at the rate as applicable to Individual and AOP.
The decision of the ld. CIT(A) to charge the assessee u/s. 164(1) is not correct it should be charged based on the specific provision of the Act u/s. 164(2) of the Act and the tax rate as applicable to that 164(2) will apply to the rate of the AOP/Individual and the initial exemption is also available to such assessee. Ground no. 2 raised by the assessee is allowed.
Amount claimed to had been used for the purposes of the trust - CIT(A) has not granted the benefit of deduction of expenditure only on the reason that the assessee is not registered u/s. 12 A of the Act. Assessee placed on record the registration certificate issued to the trust on 22.03.2022 and therefore, considering that aspect of the matter we direct the ld. AO to grant the benefit of the deduction of the expenditure claimed by the as per object of the trust. Based on these observation ground no. 1 raised by the assessee is allowed.
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2024 (4) TMI 660
Validity of SAFEMA proceedings - petitioners submitted that the detention order have been quashed - HELD THAT:- As respondent No. 1 does not dispute the fact, that the detention order quashed by the Delhi High Court has attained finality, inasmuch as, the Apex Court has confirmed the quashing of the detention order passed by the Delhi High Court. Also does not dispute that in view of the aforesaid, the attachment of the properties under SAFEMA, will not survive.
ORDER - The impugned order passed by the Competent Authority under Sections 7 and 19 of the SAFEMA as well as the order passed by the ATFP, are quashed and set aside - SAFEMA authorities to release the attachments and handover the monies attached by them to the petitioners, at the earliest and in any event within four weeks from today.
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2024 (4) TMI 659
Rectification petition - Validity Of Order passed - discrepancy between the GSTR 3B return - belated filing of GSTR 1 by the Supplier - Petitioner unable to upload the reply on the portal - HELD THAT:- The petitioner has placed on record a certificate dated 31.10.2023 from Fivestar Impex India Private Limited stating that the supply was made under invoice dated 01.11.2017. A certificate from Prabhakaran & Associates, Chartered Accountant is also on record. The said certificate provides the details of invoice dated 01.11.2017 for a total value of Rs. 18,82,000/-. The e-mail dated 18.10.2023 is also on record. These documents were not taken into account while issuing the impugned order. For such reason, the order impugned herein calls for interference.
Therefore, the order dated 29.12.2023 is set aside and the matter is remanded to the respondent for reconsideration. The petitioner is permitted to submit a reply to the show cause notice within 15 days from the date of receipt of a copy of this order by enclosing all relevant documents. Upon receipt thereof, the respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order within two months from the date of receipt of the petitioner's reply.
The writ petition is disposed of on the above terms without any order as to costs.
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2024 (4) TMI 658
Validity Of assessment order - No opportunity of personal hearing - breach of principles of natural justice - difference in outward turnover between the books of account and various returns - HELD THAT:- From the impugned order, it appears that this request was not entertained and the order was issued on 31.12.2023. Although the order refers to a personal hearing notice issued on 31.12.2023, there is nothing on record to indicate that such personal hearing notice was issued. On examining the impugned order with regard to turnover discrepancy as between the different returns, it is noticeable that the petitioner explained the difference in its reply dated 28.07.2023 by pointing out that the lower amount was inadvertently reported in the GSTR 1 statement, which was subsequently rectified by filing the annual return. This aspect has not been noticed in the impugned order.
Thus, the impugned order dated 28.12.2023 is set aside and the matter is remanded for reconsideration. The petitioner is permitted to submit additional documents in support of its reply within 15 days from the date of receipt of a copy of this order. Upon receipt thereof, the respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order within two months from the date of receipt of additional documents from the petitioner.
The writ petition is disposed of on the above terms without any order as to costs.
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2024 (4) TMI 657
Validity Of Order Passed - documents submitted by the petitioner were disregarded - manufacture of alcoholic beverages - show cause notice issued - non payment of GST - limitation period - HELD THAT:- The operative portion of the impugned order, extract reveals that the assessing officer took into account the evidence placed on record, including the licence issued by the Excise Commissioner, the licence cum manufacturing agreement and the statements of Smt.N.Nalini and Shri.R.V.Ravikumar. Upon appraisal of such evidence, materiality and weight was assigned to such evidence while drawing conclusions. In exercise of discretionary jurisdiction under Article 226, I am not inclined to interfere with the impugned order in these facts and circumstances.
The impugned order is dated 11.12.2023 and this writ petition was filed in January 2024. As of the date of filing, the limitation period had not expired. As on date, the condonation period is on the verge of expiry. Thus, it is just and appropriate that the petitioner be permitted to present a statutory appeal.
Therefore, W.P.No. is disposed of by permitting the petitioner to present a statutory appeal within ten days from the date of receipt of a copy of this order. If such statutory appeal is presented within the aforesaid period, the appellate authority is directed to receive and dispose of the same on merits without going into the question of limitation. No costs. Consequently, W.M.P.No.10388 of 2024 is closed.
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2024 (4) TMI 656
Validity of assessment order - Violation of Stay Order against the operation of a notification extending the period of limitation - Jurisdiction of Central GST authorities since the petitioner is assessed to the State Tax Authorities - Cross Empowerment - HELD THAT:- The issue regarding cross-empowerment and the jurisdiction of the counterparts to initiate proceedings when an assessee has been allocated either to Central Tax Authorities or to the State Tax Authorities was examined in detail by this Court in Tvl.Vardhan Infraastructure's case [2024 (3) TMI 1216 - MADRAS HIGH COURT].
After examining the provisions, this Court has concluded that in the absence of notification issued for cross-empowerment, the authorities from the counterpart Department cannot initiate proceedings where an assessee is assigned to the counterpart. Therefore, the impugned Order-in-Original No.24/2023-GST, dated 26.12.2023 passed by the respondent is quashed.
However, liberty is given the State authorities to proceed against the petitioner in terms of the observations contained in the order passed by this Court in Tvl.Vardhan Infraastructure's case [cited supra].
Petition allowed.
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2024 (4) TMI 655
Denial of Input Tax Credit (ITC) - Proof of movement of Goods (E-way bill) not produced - Validity of Order passed - No reasonable opportunity to contest the tax demand - show cause notice issued alleging that the petitioner had wrongly availed of Input Tax Credit (ITC) - HELD THAT:- On perusal of the petitioner's reply, it appears that the petitioner submitted original tax invoices, the ledger account pertaining to the supplier concerned, bank statement and relevant GSTR returns. The petitioner does not appear to have submitted e-way bills, lorry receipts, weighment slips and the like to establish actual movement of goods. On examining the impugned order, it appears that the tax proposal was confirmed largely on the ground that there was no proof of actual movement of goods. By taking into account the nature of documents submitted by the petitioner, which include the bank statement showing payments made to the supplier, the GSTR 2A indicating the availability of ITC, it is just and appropriate that the petitioner be provided an opportunity to produce relevant documents to prove actual movement of goods. As a condition for remand, however, it is also necessary to put the petitioner on terms.
Thus, the impugned order dated 30.08.2023 is set aside and the matter is remanded for reconsideration on condition that the petitioner remits 20% of the disputed tax demand as agreed to within a period of two weeks from the date of receipt of a copy of this order. The petitioner is also permitted to submit additional documents within the aforesaid period to establish actual movement of goods. Upon receipt of additional documents from the petitioner and on being satisfied that 20% of the disputed tax demand was received, the 1st respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order within two months from the date of additional documents from the petitioner. As a consequence of the impugned order being set aside, the order of attachment is raised.
The writ petition is disposed of on the above terms without any order as to costs. Consequently, connected miscellaneous petitions are closed.
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2024 (4) TMI 654
Validity Of Order passed u/s 73 of the Central Goods and Services Tax Act, 2017 [“the Act”] - Demand - show cause notice issued proposing to cancel the GST registration - HELD THAT:- Since no show cause notice was issued prior to passing of impugned order, on the said technical ground alone, this order is liable to be set aside. The same is accordingly quashed.
It is clarified that it would be open to the respondents to pass an appropriate order after giving a proper show cause notice and an opportunity of personal hearing to the petitioner.
It is clarified that this Court has neither considered nor commented on the merits of contentions of either party and the impugned order has been set aside solely on the ground of infraction of principles of natural justice. All rights and contentions of the parties are reserved
Petition is accordingly disposed of in the above terms.
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2024 (4) TMI 653
Validity Of assessment order passed - SEZ unit - Supply of services without charging GST since it was a zero rated supply - turnover inadvertently reported under the column taxable value in GSTR-1 - HELD THAT:- The petitioner has placed on record the relevant tax invoice. Such tax invoice indicates prima facie that the supply was made to a SEZ unit and that it consequently qualifies as a zero rated supply. The GSTR-3B return of the petitioner is in line with the supply being zero rated. It is also noticeable from the invoice and returns that the supply pertained to the July quarter of assessment period 2017-18. This was during the nascent stage of GST implementation.
Thus, I am of the view that this is an appropriate case to provide an opportunity to the petitioner. Consequently, the impugned assessment order is quashed and the matter is remanded for re-consideration by the assessing officer.
The petitioner is permitted to submit a reply to the show cause notice within a maximum period of fifteen days from the date of receipt of a copy of this order by enclosing all relevant documents.
W.P. is disposed of on the above terms.
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2024 (4) TMI 652
Maintainability of Writ Petition since GST Appellate Tribunal not constituted - Order Appealable u/s 112 of the CGST/OGST Act, 2017 - Statutory benefit of stay - Non-constitution of the Appellate Tribunal as required u/s 109 - HELD THAT:- Taking into account the aforesaid Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 dated 03.12.2019 issued by the Government of India and subsequent clarification issued by the Central Board of Indirect Taxes and Customs (GST Policy Wing) vide Circular No.132/2/2020 dated 18th March, 2020, we deem it proper in the interest of justice to dispose of this writ petition in the following terms, with the consent of the parties:-
(i) Subject to verification of the fact of deposit of a sum equal to 20 percent of the remaining amount of tax in dispute, or deposit of the same, if not already deposited, in addition to the amount deposited earlier under Sub Section (6) of Section 107 of the CGST/OGST Act, the petitioner must be extended the statutory benefit of stay under Sub-Section (9) of Section 112 of the CGST/OGST Act, for the petitioner cannot be deprived of the benefit, due to non-constitution of the Tribunal by the respondents themselves. The recovery of balance amount, and any steps that may have been taken in this regard will thus be deemed to be stayed.
(ii) The statutory relief of stay on deposit of the statutory amount, in the opinion of this Court, cannot be open ended. For balancing the equities, therefore, the Court is of the opinion that since order is being passed due to non-constitution of the Tribunal by the respondent-Authorities, the petitioner would be required to present/file his appeal u/s 112 of the CGST/OGST Act, once the Tribunal is constituted and made functional and the President or the State President may enter office. The appeal would be required to be filed observing the statutory requirements after coming into existence of the Tribunal, for facilitating consideration of the appeal.
(iii) In case the petitioner chooses not to avail the remedy of appeal by filing any appeal u/s 112 of the CGST/OGST Act before the Tribunal within the period which may be specified upon constitution of the Tribunal, the respondent-Authorities would be at liberty to proceed further in the matter, in accordance with law.
With the above liberty, observation and directions, the writ petition stands disposed of.
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2024 (4) TMI 651
Adjusting or attempting to adjust any portion of the refunds receivable by the petitioner against the stayed outstanding demand - condoned revised ITRs were submitted in respect of each of the Assessment years but refunds have not been received - petition may be disposed of directing respondent No. 4 to consider and decide his aforesaid representation expeditiously within the stipulated period fixed by this Court - HELD THAT:- Having considered the facts and circumstances of the case and considering the limited prayer made by the learned counsel for the petitioner, this petition is disposed of directing the respondent No. 4 to consider and decide the representation dated 18-8-2023 (Annexure P-2) and Annexure P-23 dated 8-12-2023 filed by the petitioner within a period of 60 days from receipt /submission of copy of this order.
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2024 (4) TMI 650
Reopening of assessment u/s 147 - as argued documents submitted by the petitioner were not taken into consideration while drawing up the assessment order - HELD THAT:- Findings were recorded that the assessee failed to submit export bills, proof of customs clearance, remittance proof, copy of purchase bills and confirmation of payment made to agriculturists. Out of these, export bills were certainly attached with the petitioner's reply on 15.02.2024. As regards purchase bills, the purchase ledger and the GSTR annual returns were filed. It is likely that much of the information requested for would be contained in these documents. However, it should be recognised that the petitioner does not appear to have submitted all necessary documents. Nonetheless, since the documents submitted by the petitioner were not discussed and no reasons are recorded for confirming the proposed variations, the impugned order calls for interference. Besides, it should be noticed that tax was imposed not only on deposits but also on withdrawals.
For reasons set out above, the impugned order is set aside and the matter is remanded to the 1st respondent for reconsideration. The petitioner is permitted to submit any additional documents within a maximum period of 15 days from the date of receipt of a copy of this order. Upon receipt thereof, the 1st respondent is directed to provide a hearing through video-conference to the petitioner and issue a fresh assessment order within a maximum period of two months from the date of receipt of additional documents from the petitioner.
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2024 (4) TMI 649
Rectification u/s 154 - disallowance of carrying forward of the loss - HELD THAT:- Since on account of disallowance of carrying forward of the loss for the financial year 2016-17 the petitioner would be denied to carry forward the said loss any further. By implication, the petitioner would suffer a loss and therefore, it is in that situation Sub-Section (3) of Section 154 stipulates issuance of notice and an opportunity of hearing. The said Sub-Section (3) otherwise has a mandatory force of law and it is this statutory requirement which has not been complied with as would be evident from the contents of paragraph No. 12 of the counter-affidavit (extracted above).
Thus, we are of the firm view that the impugned order of rectification passed by the 1st respondent is in violation of the statutory provision of Section 15393) of the Act, and therefore, the same is unsustainable. Accordingly, the same is set aside. The Writ Petition stands allowed.
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2024 (4) TMI 648
Determining the jurisdiction of appellate forum - jurisdiction of this Tribunal - HELD THAT:- Although certain benches of the Tribunal exercise its jurisdiction over more than one state, the explanation 4 to Standing Order dt. 01/10/1197 issued under rule 4(1) of Income Tax Appellate Tribunal Rules, 1963 prescribes that; the ordinary jurisdiction of the Tribunal should be based on the location of the Assessing Officer. The Hon’ble Supreme court’s decision in ‘PCIT Vs ABC Papers Ltd.’ [2022 (8) TMI 863 - SUPREME COURT], has put the issue of jurisdiction of appellate forum to rest by holding that, the ‘situs of the assessing officer’ is the only key factor for determining the jurisdiction of appellate forum irrespective of any administrative order passed u/s 127 of the Act in relation to transfer of cases.
Thus since the situs of the AO who framed the assessment is beyond the territorial jurisdiction of this Tribunal, therefore without offering our comments on threefold issue dilated at para 3 hereinbefore, we deem it fit to dismiss the present appeal of the Revenue and the cross objection of the assessee as are not maintainable, however with leave to file them before appropriate bench of the Tribunal which exercises the jurisdiction over the Ld. AO who framed the assessment. Appeal of the Revenue and Cross-Objection of the assessee stands DISMISSED.
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