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Showing 281 to 300 of 1346 Records
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2021 (1) TMI 1068
Assessment u/s 153A - ad-hoc disallowance of various expenses - HELD THAT:- It is well settled principle of law that unless Assessing Officer makes out a case that expenditure debited to profit & loss account is not genuine and which are not supported by necessary evidences, he cannot make ad-hoc disallowance on the ground that assessee has not produced necessary details and vouchers for verification.
In this case, on perusal of assessment order passed by Assessing Officer, we find that Assessing Officer has failed to make out a case for ad-hoc disallowance of expenses, that too in the assessment framed u/s.153A -Considering facts and circumstances of this case and by following the decision of ITAT., Chennai in the case of M/s. Susi Auto Plaza Pvt.Ltd [2010 (1) TMI 975 - ITAT CHENNAI], we are of the considered view that learned CIT(A) was right in deleting additions made towards ad-hoc disallowance of various expenses, hence we are inclined to uphold findings of learned CIT(A) and reject ground taken by Revenue
Addition u/s. 40A(3) - cash payment made to M/s. Kokilam Foundations Pvt.Ltd. with whom assessee entered joint venture - HELD THAT:- We are of the considered view that transactions of investment in joint venture cannot be brought into ambit of provisions of section 40A(3) - CIT(A), after considering relevant facts and by following decision of ITAT., Chennai in the case of M/s. R.K.Powergen Pvt.Ltd.[2016 (6) TMI 1410 - ITAT CHENNAI] has rightly deleted additions made by AO towards disallowance of cash payment u/s. 40A(3) - No error or infirmity in the order of learned CIT(A) and hence, we are inclined to uphold the findings recorded by learned CIT(A) and reject ground taken by Revenue
Addition towards profit and gains from business or profession - admission of revised statement of total income in absence of revised return - HELD THAT:- We find that restriction imposed by Hon’ble Supreme Court in the case of M/s Goetz (India) Ltd. [2006 (3) TMI 75 - SUPREME COURT] is only on the Assessing Officer but not on the appellate authorities.
Appellate authorities are empowered to admit any additional claim or ground, even if, such claim was not before Assessing Officer, but fact relating to such claim should be on record. In this case, facts with regard to claim of loss from business or profession was already on record and no new facts are required to be verified and hence, we are of the considered view that there is no merit in the ground taken by Revenue in light of Hon’ble Supreme Court judgement in the case of M/s Goetz (India) Ltd. Vs. CIT (supra) and hence, the same is rejected.
Declaration of loss from business or profession as against profit in the original return filed for relevant assessment year - CIT(A) has recorded categorical finding in light of revised profit & loss account filed by assessee that after exclusion of purchase of land and stock in trade from books of account, the net profit from business or profession resulted into net loss. The facts of finding recorded by learned CIT(A) has not been controverted by Revenue with any evidences - assessee has filed necessary evidences to prove that transactions between the assessee and M/s. Kokilam Foundations Pvt. Ltd. was an investment transaction which has been regarded as purchase of land and stock in trade by inadvertent error and the same has been rectified by passing necessary entries in books of account.
CIT(A) after considering relevant facts has rightly directed the Assessing Officer to consider revised statement of total income filed by assessee. No infirmity in the findings recorded by learned CIT(A) and hence, we are inclined to uphold the findings of learned CIT(A) and reject ground taken by Revenue.
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2021 (1) TMI 1067
Estimation of income - bogus purchases - CIT-A restricted the addition to 17% of the bogus purchases - HELD THAT:- CIT(A) has based his findings on the decision of the coordinate Bench, rendered in the case of M/s. Hotel Mayfair Pvt. Ltd.,[2015 (7) TMI 1365 - ITAT MUMBAI] a group company of the present assessee in appeal filed by the assessee against the order passed by the Ld. CIT u/s. 263 of the Act, in which the AO had made addition of 17% of the total amount of bogus purchases. Thus we do not find any reason to interfere with the findings of the Ld. CIT(A). - Decided against revenue.
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2021 (1) TMI 1066
Addition under section 36(1)(va) - delay in deposit of employee’s contribution to provident fund - Assessee argued the same amount was duly paid before filing of income tax return and within the time limit specified u/s 139(1) - HELD THAT:- We find that the Ld. CIT(A) following the decision of the Hon’ble Delhi High Court in the case of CIT Vs AIMIL Ltd [2009 (12) TMI 38 - DELHI HIGH COURT] has accepted the claim of the deduction for payments of employees contribution to ESI/PF and accordingly restricted the disallowance for payments made after the date of the filing of the return of income.
The sole issue before us is only of verification whether all the payments of ESI/PF contribution of the employees were made before the date of the filing of the return of income or not. We feel it appropriate to restore this issue to the file of the Ld. CIT(A) for verification of the claim of the assessee and decide accordingly. Appeal of the assessee are accordingly allowed for statistical purposes.
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2021 (1) TMI 1065
Rectification of mistake - in Para 8 of the order the Tribunal inadvertently typed that the Assessing Officer disregarded application for admission for additional evidence submitted by the assessee, and there is no specific comment in the remand report filed by the Assessing Officer before the CIT(A) - HELD THAT:- There is inadvertent mistake in the Para 7 that of typographical and in Para 8 that of mistake regarding the facts of the case. Hence, the present misc. application is allowed and we modify both the paras as follows and the same should be read in the original order dated 23.10.2020 as under:-
“7. We have heard both the parties and perused all the relevant material available on record. During the hearing the Ld. AR submitted that application under Rule 27 filed by the assessee has to be withdrawn. Therefore, we are dismissing the application under Rule 27 as withdrawn by the assessee”
Miscellaneous Application filed by the assessee is allowed.
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2021 (1) TMI 1064
Addition u/s 68 / 69A - While deleting the addition u/s 68 CIT(A) enhanced the resultant assessment by retaining the addition made by the assessing officer u/s 69A - HELD THAT:- CIT(A) has erred in deleting the addition of section 68 of the Act but enhancing the resultant assessment by retaining the addition made by the assessing officer under section 69A of the Act and that also without any notice to the assessee in clear contravention of provisions of section 251(2) of the Act.
Assessee having filed the return of income pursuant to the notice issued to the assessee has discharged the onus. The assessment made by the assessing officer by not commenting anything of the return of income filed but adding the random figure out of the bank deposit under section 68 is not sustainable.
It is settled law that when assessing officer is rejecting the books of account and return of income filed by the assessee the best judgement assessment has to be based upon some reasonable criteria. The same has to be on the basis of rates applicable for earlier income shown by the assessee in the past or that operating in the concerned business. By not adopting any fair rate or estimate of income and adding the bank deposits partly only as undisclosed income or investment is not at all sustainable.
CIT(A) has further erred in making the addition u/s 69A of the Act without giving the assessee any opportunity being heard.
CIT(A) has also quoted a random figure of ₹ 24,38,819/- and held that the same should be treated as undisclosed investment. From the figures of deposits noted by the assessing officer hereinabove it is not discernible as to how this figure has arisen. This shows that authorities below have not applied their mind and considered random figures for addition. CIT(A) has erred in considering the entire submissions of the assessee as an afterthought and summarily rejecting the same.
Thus we set aside the orders of authorities below and delete the addition. - Decided in favour of assessee.
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2021 (1) TMI 1063
Estimation of income - Bogus purchases - assessee has failed to furnish stock register for the relevant period and the assessee has failed to produce the supplier before the AO - CIT-A sustained addition to 25% - HELD THAT:- Hon’ble Gujarat High Court in the case of CIT vs. Simit P. Sheth [2013 (10) TMI 1028 - GUJARAT HIGH COURT] has upheld the addition of 12.5% of the total amount of bogus purchases sustained by the ITAT, holding that, only profit element embedded in such purchases could be added to the income of the assessee.In the present case, the Ld. CIT (A) has sustained the addition of 25%, which is not in consonance with the judgment of the Hon’ble Gujarat High Court.
No merit in the contention of the revenue that the Ld. CIT (A) ought to have sustained the addition made by the AO. The cases relied upon by the Ld. AR are distinguishable on facts and the ratio laid down in the said cases are not applicable to the present case. Hence, in our considered view, the addition of 12.5% is reasonable to meet the ends of justice. We therefore, modify the findings of the Ld. CIT (A) and restrict the addition to 12.5% of the total amount of bogus purchases determined by the AO.
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2021 (1) TMI 1062
Dismissal of appeal of the assessee in limine by CIT-A - there was a delay of more than seven year in filing the appeal - AO has made Best judgment assessment with additions - Assessee submitted that CIT-A overlooked additional evidences filed in the course of appellate proceedings - HELD THAT:- We found strength in submissions of the Ld. AR and the Ld CIT(A) has only referred to the facts in respect of receipt of the assessment order by the assessee and no discussion of the additional evidences and affidavit filed by the assessee and passed the order on 16.11.2018. Prima facie, the material filed by the assessee goes to the root of the case.
Accordingly, we set aside the order of the CIT(A) and restore the entire disputed issues to the file of the CIT(A) to adjudicate afresh considering the material, affidavit and details filed in the course of appellate proceedings and the assessee should be provided an opportunity to explain the delay in filing the appeal. The assessee should cooperate in submitting the information for early disposal of the appeal and allow the grounds of appeal for statistical purposes.
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2021 (1) TMI 1061
Denial of deduction u/s 35AC on the basis of statement of Trustee - Assessee argued that opportunity to cross examine the Trustee was not provided to the assessee - HELD THAT:- It is a well settled law that a statement cannot be used against the assessee unless an opportunity is granted to the assessee to cross examine the person who has made such statement. Apex Court in the case of ICDS Ltd. [2020 (2) TMI 1424 - SUPREME COURT] held that where opportunity to cross-examine witness relied upon by the Assessing Officer is not extended to the assessee, the entire issue has to be adjudicated fresh by giving fair opportunity to both the sides.
Nowhere it is emanating from perusal of assessment order that the statement recorded by the Department that was used to disallow assessee’s claim was provided to the assessee or the opportunity to cross- examine the person whose statement was used against the assessee was afforded to the assessee. AO ought to have provided material used against the assessee apart from providing an opportunity to cross examine deponent whose statement was used against the assessee. Besides the said statement there is no substantive material to disbelieve the claim of assessee.
The request of the assessee to cross-examine the person whose statement was used by the Revenue for making the addition was also declined by the CIT(A) - We restore the issue to the file of Assessing Officer for fresh adjudication after affording opportunity of cross examination to the assessee - Appeal of the assessee is allowed for statistical purposes.
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2021 (1) TMI 1060
Valuation of imported goods - related party transaction - Jurisdiction - power of Commissioner to interfere with the order and pass an order in review - HELD THAT:- In respect of valuation of imported goods, the price at which the foreign supplier sells the goods to the importers in other countries is not at all relevant. It is not open for the reviewing authority or Commissioner (Appeals) to conduct a fishing expedition and to raise questions without giving sufficient and enough reasons for entertaining such a reasonable belief. Neither the reviewing authority nor the Commissioner (Appeals) has cited proof whatsoever to indicate either that the prices declared by the appellants were influenced by their relation or that there was a certain amount of flow back to the foreign supplier in the one form or the other. In the absence of the above, no amount of questioning, though seemingly logical, would be of any help to the Revenue. It is a settled principle of law that the authority making the allegations has to prove with sufficient evidence. In the instant case, leaving alone the evidence, even reasons to entertain such a belief have not been properly brought forth or established.
It is found that neither the reviewing authority nor the Commissioner (Appeals) has made out a case for striking down the order of the original authority. Therefore, the impugned order does not stand the scrutiny of law. The declared prices cannot be reviewed without any evidence to the effect that the relation between the appellant and the foreign supplier has influenced the declared price or to the effect that there was a flow back of money from the importer to the related foreign supplier. There are nothing to sustain the impugned order.
Appeal allowed - decided in favor of appellant.
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2021 (1) TMI 1059
Maintainability of application - initiation of CIRP - Scope of the term 'Deposit' - Financial Debt under section 5(8)(a) and Section 5(8)(f) of the ‘I&B’ Code - stand of the Appellant is that his claim is that of a ‘Deposit’ and not of a ‘Financial Debt’ was never brought out by either the Respondent or the Adjudicating Authority as such, the Appellant never got an opportunity to respond to the said issue and was shocked by the impugned order - HELD THAT:- It must be borne in mind that a ‘Financial Creditor’ is a person to whom the financial debt is owed. A ‘Financial Creditor’ is a person who has a right to financial debt. A ‘Financial Creditor’ can be either a secured creditor or an unsecured creditor - A ‘Corporate Debtor’ is a person who owes a debt to any person. The term ‘debt’ means a liability or an obligation in respect of a claim due from any person and includes (i) a Financial Debt (ii) An Operational Debt. As a matter of fact, Section 3(6) of the Code speaks of ‘Definition of Claim’ meaning (a) a right to payment, whether or not such right is reduced to judgement, fixed, disputed, undisputed, legal, equitable, secured or unsecured.
It cannot be gainsaid that the term ‘deposit’ includes any receipt of money by a company either as deposit or loan or in any other form by it. Under the Companies (acceptance of deposits) Rules, 2014 the term ‘Deposit’ is defined under Rule 2(1)(c) in an inclusive manner. The meaning of ‘Deposit’ is enlarged by covering receipts of money in any other form. After all, a deposit is something more than a mere loan of money - For invoking the jurisdiction of the Tribunal as per Section 74(2) under the Companies Act, 2013, even a partial failure by the Company to repay the deposit was sufficient. In fact, Section 2(31) of the Companies Act speaks of the meaning of deposit. Also, that the Tribunal has vide discretionary powers regarding the repayment of ‘Deposit’(s) but it must exercise its discretion objectively taking into consideration all the relevant aspects in a conspectus judicial manner. In reality, the distinction between deposit and loan may not be a relevant factor for interpreting the term ‘Deposit’. To put it succinctly, under the new Companies Act, 2013, the definition of the term ‘Deposit’ is of wider amplitude, as opined by this Tribunal.
In view of the fact that the Respondent / Corporate Debtor had accepted certain amounts from the Appellant and credited the interest in a consistent manner against such amounts for a continuous period of five years, as pleaded by the Appellant and also that the ‘Corporate Debtor’ had accepted money from the Appellant against the payment of interest and bearing in mind the payment of interest on the amounts borrowed by the Respondent Company is nothing but a consideration for the time value of money and in as much as the ‘interest’ is the compensation paid by the borrower to the lender for using the lender’s money over a period of time, this Tribunal comes to an inevitable and inescapable conclusion that the Appellant’s status is that of a ‘Financial Creditor’ as per Section 5(7) read with Section 5(8) of the Code and that there is a default in payment of the accepted amounts by the Respondent/CD and in short, the Respondent / Corporate Debtor comes within the purview of the definition of ‘Financial Debt’ - the contra view taken by the Adjudicating Authority in coming to the conclusion that the application filed by the Appellant / Financial Creditor is not maintainable for initiation of Section 7 of the Code is clearly unsustainable in the eye of law, as held by this Tribunal, to prevent an aberration of justice.
Appeal allowed.
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2021 (1) TMI 1058
Approval of Resolution Plan - Seeking extinguishment of demand - Considering the claims not lodged before the approval of the Resolution Plan - HELD THAT:- After the Judgement of the Hon’ble Supreme Court on COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LIMITED THROUGH AUTHORISED SIGNATORY VERSUS SATISH KUMAR GUPTA & OTHERS [2019 (11) TMI 731 - SUPREME COURT] on the issue we are of the considered view that the claims filed by the Respondents after the Resolution Plan is approved, is not tenable. Notice of CIRP / Moratorium of the CD was published in the News Paper as per the provisions of the IBC asking the stakeholders to lodge their claims, if any. Hence Prayer made by the Resolution Applicant/CD in this IA No.19 of 2020 [in CPIB No.20/GB/2017] is accepted to the following extent:
(1) Claims of the Respondent not lodged before the approval of the Resolution Plan, including the claims filed on 10.09.2020 for ₹ 12.24,29,371.00 cannot be entertained and hence, the claims made by the Respondent are hereby set aside.
(2) The Resolution Applicant / the Petitioner is hereby directed to strictly implement the Resolution Plan as approved in time without any violation.
(3) The Petitioner is further directed to file a compliance report within 15 days of this order before the Registry stating that the Company has been paying all current statutory dues especially EPF, Income Tax, GST, CGST etc. in time.
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2021 (1) TMI 1057
Levy of Excise Duty - lime sludge obtained as residue - Department was of the view that appellant is liable to pay excise duty on the lime sludge as it is classifiable under CETH 3825 - HELD THAT:- The issue is with regard to demand of excise duty on lime sludge sold by the appellants. It is not the case of the department that the appellant has manufactured lime sludge. It is only generated in the process of manufacture of paper. The decision in the appellant’s own case, SESHASAYEE PAPER AND BOARDS LTD. VERSUS COMMISSIONER OF C. EX., SALEM [2016 (12) TMI 1690 - CESTAT CHENNAI], has held that lime sludge is not subject to excise.
The demand cannot sustain - Appeal allowed - decided in favor of appellant.
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2021 (1) TMI 1056
Concessional benefit of tax - purchase of High Speed Diesel from suppliers in other States - difficulty in obtaining C-Form - respondent fairly submits that the issue involved in this Writ Petition is squarely covered by a decision of this Court in the case of M/s. Dhandapani Cement Private Limited Vs. The State of Tamil Nadu, [2019 (2) TMI 1850 - MADRAS HIGH COURT] wherein on identical issue it was held that Petitioner in these Writ Petitions has stated on affidavit that it is unable to download the ‘C’ forms from the websites as the same stand blocked from use. Upon enquiry with the Assessing Authorities, they have been informed that the benefit of the decision in M/S. THE RAMCO CEMENTS LTD. VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE ADDITIONAL COMMISSIONER (CT) [2018 (10) TMI 1529 - MADRAS HIGH COURT] Ltd can be extended only to those dealers in that are party to the decision. This stand is unacceptable in so far as the decision of this Court as well as other High Courts, one of which has been confirmed by the Supreme Court, are decisions in rem, applicable to all dealers that seek benefit thereunder, of course, in accordance with law.
HELD THAT:- The State has, after the date of the above order, filed a Writ Appeal challenging the decision in the case of Ramco Cements that has been considered and dismissed by a Division Bench of this Court in THE COMMISSIONER OF COMMERCIAL TAXES, CHEPAUK, CHENNAI, THE ADDITIONAL COMMISSIONER (CT) VERSUS THE RAMCO CEMENTS LTD. AND THE STATE TAX OFFICER, THE JOINT COMMISSIONER (CS) (SYSTEMS) VERSUS SUNDARAM FASTENERS LIMITED [2020 (3) TMI 450 - MADRAS HIGH COURT] and it was held that Appellant State and the Revenue Authorities are directed not to restrict the use of 'C' Forms for the inter-State purchases of six commodities by the Respondent/Assessees and other registered Dealers at concessional rate of tax and they are further directed to permit Online downloading of such Declaration in 'C' Forms to such Dealers.
Petition allowed.
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2021 (1) TMI 1055
Exemption from wealth tax - whether 28 Acres of ‘urban land’ comes under the ambit of the exemption clause of Section 2(ea) of the Wealth Tax Act, 1957? - person to be the ‘owner’ - protective assessment - HELD THAT:- Leave granted.
Pending further consideration, the effect and operation of the following observation made by the High Court in Para 78 of the judgment under challenge shall remain stayed:
“The Assessing Authority would be free to now proceed to make substantive assessments in the hands of the Respondent-Assessees."
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2021 (1) TMI 1054
Maintainability of application - prosecution to draw second sample from the recovered case property - Smuggling - Heroin - HELD THAT:- The impugned order cannot be sustained and is bound to be set aside, since the case in hand is squarely covered by the judgments referred to by the learned counsel for the petitioner and in Amarjit Singh's case [2011 (3) TMI 1805 - PUNJAB AND HARYANA HIGH COURT], this eventuality has been dealt with holding that re-drawing of sample cannot be got done by the prosecution simply because it is not satisfied by the report received with regard to the first sample sent to the FSL.
Petition allowed.
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2021 (1) TMI 1053
Smuggling - contraband narcotics - compliance of Section 50 of the Act or not? - HELD THAT:- Admittedly, the said contraband narcotic was recovered from personal search of appellant Munnan, concealed in his belly region below kurta and lunghi, worn by him. In addition to above, consent memo (Ex.Ka.4) was prepared in presence of police party and appellant Munnan. According to prosecution, the said recovery was made by S.I. Narendra Singh Yadav (PW-4) in presence of S.I. Kripa Shankar Dixit, S.I. Mukhram Yadav (PW-3), Constable 194 Chandrika Prasad and Constable Kamlesh Mishra (PW-2) who have put their signatures on recovery memo (Ex.Ka.5) but the consent memo (Ex.Ka.4), prepared by S.I. Kripa Shankar Dixit does not show the signature either of S.I. Mukhram Yadav (PW-3) or Const. Chandrika Prasad or Const. Kamlesh Mishra (PW-2).
Mukhram Yadav (PW-3) has stated that the said consent memo (Ex.Ka.4) was prepared by S.I. Kripa Shankar Dixit which was read over to the appellant and thereafter the appellant put his thumb impression and S.I. Kripa Shankar Dixit had also put his signature. This witness has not stated that Narendra Singh Yadav (PW-4) had also put his signature on this consent memo (Ex.Ka.4), whereas, Narendra Singh Yadav has stated that on consent memo (Ex.Ka.4), prepared by S.I. Kripa Shankar Dixit, he had also put his signature - Admittedly, S.I. Kripa Shankar Dixit, who was star witness of the prosecution, who prepared the consent memo (Ex.Ka.4) and recovery memo (Ex.Ka.5) and the said recovery was made in his presence has not been examined by the prosecution and the prosecution has also not given any explanation, as to why, this important witness was not examined. Thus, in view of the above, the consent for search, given by the appellant, before his personal search as well as the preparation of consent memo is also doubtful.
The prosecution has failed to prove the compliance of mandatory provision of Section 50 of the Act, whereby the prosecution story as well as said recovery, becomes doubtful.
The prosecution has miserably failed to prove its case beyond reasonable doubt, against the appellant. The trial Court, without considering, the compliance of mandatory provision of N.D.P.S Act, has passed the said impugned judgment and order in cursory manner which is liable to be set aside - appellant is on bail. His bail bonds are cancelled and sureties are discharged - Appellant is acquitted and the appeal is allowed.
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2021 (1) TMI 1052
Profiteering - Kiwi Shoe Polish Black – 40 gm PSP - vires of Section 171 of the CGST Act read with Rule 126 of the CGST Rules - HELD THAT:- Mr.Ravi Prakash, learned standing counsel accepts notice on behalf of the Revenue. He prays for and is permitted to file a counter-affidavit within two weeks. Rejoinder-affidavit, if any, be filed before the next date of hearing.
List on 04th January, 2021 along with connected matters.
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2021 (1) TMI 1051
Service of notice - Validity of assessment order - recovery of arrears of tax and penalty - also, order of assessment dated 10.09.2015, which was impugned in the writ petition, has been returned with a postal endorsement “returned” - HELD THAT:- Taking note of the fact that the order of assessment was refused to be received, the learned Writ Court rightly held that the service of the notice was complete. Since the appellant had insisted that the business was not functioning, the Writ Court had directed the Revenue to make a visit to the business premises and file a report. Pursuant to such direction, the Assessing Officer, viz., the first respondent had made a visit to the business premises and filed a report through e-mail dated 07.10.2020, annexing photographs, which showed that the entity was functioning and carrying on business in the same address. Therefore, the learned Writ Court held that there is no jurisdiction whatsoever to entertain the writ petition, as the delay between 2015 and the date of passing the order in the writ petition remained unexplained. That apart, the learned Writ Court found that the explanation, given by the appellant with regard to the delay, was factually incorrect.
The order of assessment, which was impugned in the writ petition, was sent to two addresses and in respect of one of the addresses, the order of assessment was returned with the endorsement “refused”, which would mean that the order of assessment has been served in accordance with law and the Department cannot be faulted. That apart, due to the insistence of the appellant contending that the business was not carried on any longer ever since 2015, the learned Writ Court issued direction to the Assessing Officer to inspect the business premises and file a report. This direction was complied with by the Assessing Officer and an inspection was conducted and a report dated 07.10.2020, was filed before the learned Writ Court duly supported by photographs. The report clearly showed that the appellant was carrying on business in the very same premises. Therefore, the stand taken by the appellant that he has nothing to do with the business was found to be a false submission. Even before us, the delay from the year 2015 has not been explained - the Department was not intimated about the alleged closure of business by the appellant's father. The Registration Certificate, granted to the dealer, continued to remain valid and part payment was made by the dealer, which was given credit to in the assessment order. As could be seen from the computation given in the assessment order dated 10.09.2015, as against the total tax demand of ₹ 10,54,509/-, a sum of ₹ 1,53,943/- has been paid and the balance amount payable is ₹ 9,00,566/-. The penalty was calculated at ₹ 15,81,763/- at 150% of the tax due of which, a sum of ₹ 2,30,915/- was paid and the balance payable is ₹ 13,50,848/-. Therefore, the case, as projected by the appellant, having been found to be false by the learned Writ Court, after directing an inspection to be conducted, we find there is no justifiable ground made out by the appellant to interfere with the order passed by the learned Writ Court.
The pre-assessment notice was received by the dealer, the order of assessment was communicated to the dealer in the manner known to law. Further, the stand taken by the dealer that they are not carrying on business was found to be false, as could be seen from the inspection report submitted by the Assessing Officer pursuant to the interim direction granted by the learned Writ Court - there are absolutely no ground made out by the appellant to interfere with the order passed in the writ petition.
Appeal dismissed.
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2021 (1) TMI 1050
Levy of Penalty - levy on the basis of the retracted statement without any independent corroborative - acquitting the appellant from all charges, valid or not - Whether on the facts and in the circumstances of the case the honourable Tribunal was right in sustaining the penalty on the appellant and the co-accused were discharged from all charges and in the adjudication proceedings? - HELD THAT:- Upon examination of the evidence, the Adjudicating Authority found that the confessional statement is true. Furthermore, the appellant could not establish that the statement recorded from him on 11.03.1998 was obtained by threat, duress or promise. The burden of proof to show that the statement was recorded under threat, duress was on the appellant, which he had failed to discharge. Therefore, the Adjudicating Authority, having done a proper exercise in examining the statements and all other evidences, which were available before him, adjudicated the case and held the appellant's statement dated 11.03.1998 to be true. Furthermore, the appellant was present when the search and seizure operations were conducted. The statement of the other two persons, who were employed by the appellant clearly implicate the appellant with regard to the attempt to export prohibited items. Furthermore, it has been established that the appellant was aware of the fact that sandalwood is a prohibited item for export - there is no procedural error committed by the Adjudicating Authority and the Adjudicating Authority, after analysing the statement recorded from the independent witnesses, has rightly held that the appellant is guilty.
Considering the facts and circumstances of the present case, more particularly, when the present case arises under the provisions of the Act, the appellant cannot place reliance on the decision in the case of CAPT. M. PAUL ANTHONY VERSUS BHARAT GOLD MINES LTD. & ANR. [1999 (3) TMI 625 - SUPREME COURT] which was the matter concerning the service condition of the appellant therein. The said decision is wholly inapplicable to the case on hand. The Tribunal, which is the last fact finding forum, has re-appreciated the factual matrix and rendered a finding that on the date when the officers of the Department conducted search operations in the godown at Tuticorin, the appellant was present and the cartons, which were lying in the godown, when opened, were found to contain sandalwood concealed along with Mangalore Roofing Tiles.
Further, the admissibility of the statement recorded under Section 108 of the Act from the appellant on 11.03.1998, was considered by the Tribunal and it was held that the said statement is admissible and the belated retraction was rightly rejected by the Adjudicating Authority. Furthermore, the Tribunal found, on facts, that the role of the appellant has been clearly brought out by the fact that the appellant was present in the godown, at the time of search, when the officers detected the concealment of the sandalwood along with the Mangalore Roofing Tiles.
There are no hesitation to hold that there is no question of law, much less any substantial question of law arising for consideration in this appeal - appeal dismissed.
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2021 (1) TMI 1049
Disallowance of interest expenses u/s 14A read with Rule 8D(ii) - Tribunal deleted addition - HELD THAT:- Findings recorded is that, the interest income received during the year was more than interest paid by the assessee for all three assessment years. The Tribunal has concurred with the CIT(A) on the question of deletion of disallowance for interest under Rule 8(2)(ii) of the Rules.
This appeal stands dismissed so far as the first question of law as proposed by the Revenue is concerned.
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9911796707
