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Showing 21 to 40 of 1456 Records
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2024 (1) TMI 1440
Offence punishable u/s 276B - TDS (Tax Deducted at Source) was collected by the company but not deposited into the Central Government account in time - delay of payment on 39 occasions as per the online data available - HELD THAT:- The entire amount of TDS along with interest was paid to the income tax department. The delay occurred on 39 occasions and since the payments were delayed, the interest component was collected.
The petitioners had clarified that the delay in crediting TDS amount to the Central Government account, was on account of crisis in the company. In the said circumstanes, it cannot be said that company entertained any fraudulent intention to avoid the TDS collected. No useful purpose would be served at this length of time to criminally prosecute the petitioners.
In the peculiar facts and circumstances of the present case, when the entire amount of TDS along with interest was paid even prior to the first communication from the Department and the balance interest amount was paid after the notice, this Court deems it appropriate to quash the proceedings against the petitioners.
Proceedings against the petitioners on the file of Special Judge for Economic Offences at Hyderabad, are hereby quashed. Criminal Petition is allowed.
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2024 (1) TMI 1439
Prohibition of Benami Property Transactions - Attachment order passed u/s 24(3) of the Benami Transactions (Prohibition) Amendment Act - As decided by [2022 (9) TMI 524 - GUJARAT HIGH COURT] as held authorities cannot initiate or continue criminal prosecution or confiscation proceedings for transactions entered into prior to the coming into force of the 2016 Act, viz., 25.10.2016 and as a consequence thereof, all such prosecutions and confiscation proceedings which had been initiated came to be quashed.
Prosecution and initiation of proceedings in the instant case being pursuant to the Amendment Act impugned attachment order stan
HELD THAT:- There is a gross delay of 359 days in filing the Special Leave Petition. The issues which arise in this case are covered by the judgment of this Court in Union of India & Anr. vs. M/s. Ganpati Dealcom Pvt. Ltd. [2022 (8) TMI 1047 - SUPREME COURT]
Special Leave Petition is dismissed both on the ground of delay as well as on merits.
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2024 (1) TMI 1438
Non-payment of service tax - providing nonbinding investment advisory services to various overseas clients (Group companies) as per the contractual norms agreed upon - export of service as per the conditions laid down under Rule 3(2)(a) of the Export of Service Rule, 2005 or not - CENVAT Credit - input services - rent-a-cab service - outdoor catering service - air travel agent service.
Non-payment of service tax - providing nonbinding investment advisory services to various overseas clients (Group companies) as per the contractual norms agreed upon - export of service as per the conditions laid down under Rule 3(2)(a) of the Export of Service Rule, 2005 or not - HELD THAT:- It is an admitted fact on record that the appellants have entered into the agreement with the overseas entities for providing the services under the category of non-binding investment advisory services in their behalf. The payment for provision of said services were also received in convertible foreign exchange. The services provided by the appellants were for the benefit of the overseas entities and as such, falls under the Category-III of services defined under Rule 3(1) (iii) ibid - CBEC vide Circular dated 13.05.2011 has also clarified the said phrase ’used outside India’, mentioning that the benefit should accrue in favour of the overseas entities for the purpose of qualifying certain transaction as export of service.
Further, it is also found that the issue arising out of the present dispute is no more open for any debate, in view of the order passed by this Tribunal in the case of Arcelor Mittal Stainless India Pvt. Ltd. [2023 (8) TMI 107 - CESTAT MUMBAI-LB]. The Larger Bench of the Tribunal in said case has held that since the benefit of service is accruing outside India, the said service should qualify as export of service in terms of the Rules, 2005.
CENVAT Credit - input services - rent-a-cab service - outdoor catering service - air travel agent service - adjudicating authority has denied the benefit of Cenvat Credit solely on the ground that no documentary evidences were produced to demonstrate that those disputed services would be considered as input service - HELD THAT:- Since, the appellants are the business entity and utilized the services for provision of the output services and also paid the service tax on the input services, it cannot be said that those disputed services were not used/utilized for provisions of the output services. Since, the disputed services were used for accomplishing the purpose of the business, the said service, should qualify as ‘input service’, defined under Rule 2(l) ibid.
Conclusion - i) The non-binding investment advisory services provided by the appellants qualified as export of service. ii) The appellants were entitled to avail Cenvat Credit on the disputed input services.
There are no merits in the impugned order, insofar as it has confirmed the adjudged demands on the appellant - appeal allowed.
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2024 (1) TMI 1437
Denial of grant registration u/s 12AB(1) - assessee has already been granted registration which is valid till 2026-27 - HELD THAT:-Clause (c) of Section 12AB(1) provides for grant of provisional registration for a period of three years from the assessment year from which the registration is sought which the assessee has been granted.
Now, the assessee has applied for permanent registration u/s 12AB(1) Clause (b) of the Act and CIT (Exemption) is required to call for the documents and information and after recording his satisfaction grant registration for a period of five years.
Thus, the assessee has filed the application for grant of registration for a period of five years and nothing else. Therefore, we find that ld. CIT (Exemption) has not properly appreciated the facts of the case and has wrongly dismissed the application of the assessee for permanent registration as premature in nature.
The case of the assessee finds support from the decision of Fatika Nazrul Sukanta Educational Training Center [2023 (11) TMI 1271 - ITAT KOLKATA] wherein a similar issue has been decided in favour of the assessee.
Set aside the orders of ld. CIT (Exemption) in all the above four appeals and restore the issue back to the file of ld. CIT (Exemption) for afresh adjudication. Appeals filed by the assessee are allowed for statistical purposes.
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2024 (1) TMI 1436
Undisclosed investment in 29315 boxes of goods - undisclosed sales detected during the course of search by Excise Department - CIT(A) restricted the addition to the extent of gross profit and deleted balance addition made by the assessee on ground of undisclosed investment u/s 69C - HELD THAT:- Entire sale proceeds should be taxed (covering both gross profit and undisclosed investments) or only the gross profit embedded in undisclosed sales should be taxed.
In the case of President Industries [1999 (4) TMI 8 - GUJARAT HIGH COURT] has held that in case of undisclosed sales only profit margin should be taxed and in absence of any specific findings of any investment routed in undisclosed sales, the undisclosed investment cannot be taxed on assessment basis.
In the case of CIT vs. Leo Formulations Pvt. Ltd. [2014 (4) TMI 633 - GUJARAT HIGH COURT] AO observed that the assessee had not recorded consumption of different raw materials correctly in the books of account and had suppressed production.
Accordingly, the Assessing Officer estimated unaccounted sales of assessee at 40% of the turnover. The Gujarat High Court held that the contention of the Revenue that entire excess consumption should be added to the income of the assessee could not be accepted as the AO himself has recorded in the assessment order that there has been unaccounted purchases which needed to be considered against unaccounted sales and further excess consumption of raw materials could not automatically result into matching value of excess sales of finished product.
High Court held that the entire unaccounted sales cannot be added the income but only the net profit can be added to the income of the assessee.
Thus, in instant facts, in our view, Ld. CIT(A) has correctly observed that Assessing Officer has not recorded any finding of any undisclosed investment found as a result of search by Excise Department. The undisclosed investments has only been assumed as the source of purchases recorded for subsequent sales. Accordingly, in view of the aforesaid discussions, we are of the considered view that Ld. CIT(A) has correctly held that looking into the instant facts, the addition should be restricted only to the extent of gross profit and no further additions can be made on account of undisclosed investments. Appeal of the Department is dismissed.
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2024 (1) TMI 1435
Coercive recovery made by the respondent-Authorities during the course of search as the petitioners were compelled to deposit the amount along with an undertaking that they are depositing such amount as a deposit - HELD THAT:- The matters require consideration. Hence, issue Rule, returnable on 1st July, 2024.
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2024 (1) TMI 1434
Validity of invocation of jurisdiction under Section 73 of the RGST/CGST Act, 2017 when proceedings under Section 61 had already been initiated and an explanation had been provided by the petitioner - HELD THAT:- In the present case, indisputedly, a notice under form No. GST ASMT-10 was issued to the petitioner on 01.09.2023 under Section 61 of the RGST Act, 2017. The notice clearly stated that during scrutiny of the return for the tax period under reference, discrepancies were noticed. The contents of the said notice clearly show that jurisdiction under Section 61 was invoked having noted certain discrepancies in the return of tax and not on the basis of any other material. The aforesaid notice was replied by the petitioner on 15.09.2023.
A perusal of the reply shows that the petitioner, though, sought some time to file detailed reply, nevertheless, offered explanation as to why exception clauses (c) and (d) of Section 17(5) of the CGST Act, 2017 will not be applicable in the case of the petitioner and the petitioner would be entitled to avail ITC on plant and machinery. Thereafter, a show cause notice under Sections 7, 9, 50 and 73 of the RGST Act, 2017 was issued to the petitioner.
In the present case, once notice under Section 61 was issued to the petitioner requiring its explanation pointing out certain discrepancies from the return, the proper officer, before he could assume jurisdiction to issue show cause notice under Section 73 of the Act, was mandated under the law to consider the explanation offered by the petitioner.
The submission of learned counsel for respondents that the power under Section 73 could be invoked irrespective of whether satisfaction in terms of Section 61(3) was arrived at or not is misplaced both in law and on facts. Where show cause notice is based on discrepancies found in the return and not on any other independent material, the proper officer is obliged under the law to follow the mandate of Section 61 before invoking jurisdiction under Section 73 of the Act. Present is not a case that on any other material, the proceedings under Section 73 were initiated. Present is, on facts, a case where jurisdiction under Section 73 has been invoked and show cause notice has been issued on the basis of discrepancies found in the return. If that be so, jurisdiction under Section 73 could be invoked only after complying with the mandate of Section 61 and not otherwise.
In the present case, the invocation of jurisdiction under Section 73 is based on discrepancies found in the return. If that be so, the mandate of Section 61 is required to be followed by the proper officer before assuming jurisdiction under Section 73 of the Act.
Conclusion - The invocation of Section 73 was invalid due to the failure to consider the explanation under Section 61. The show cause notice and related actions were set aside.
Petition allowed.
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2024 (1) TMI 1433
Admission of Section 7 application filed by the Respondent No.1 - no debt due to the Financial Creditor since the optionally convertible debentures are in the nature of equity - Financial Creditor is related party of the Corporate Debtor - Violation of Principles of Natural Justice since the Adjudicating Authority relied on the Rejoinder filed by the Applicant - Impugned order passed on the basis of instruments which are stamped insufficiently and are not admissible evidence - Admission of section 7 application when Corporate Debtor is a going concern.
No debt due to the Financial Creditor since the optionally convertible debentures are in the nature of equity - HELD THAT:- In present case, DSA in question is not CCD rather DSA in question is OCD with regard to which there is no dispute between the parties - the Respondent has rightly relied on judgment of this Tribunal in MAIF Investments India Pte. Limited [2019 (4) TMI 1903 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI], where Section 7 application was filed by the Financial Creditor which was dismissed by the Adjudicating Authority. The Financial Creditor has entered into subscription agreement subscribing OCDs. Appeal was filed by the Financial Creditor challenging the order rejecting the application. This Tribunal in the aforesaid case examined the DAS and held that OCDs are financial debt within the meaning of Section 5(8)(c). - This Tribunal allowed the appeal and set aside the order and held the Appellant to be treated as Financial Creditor. The above judgment fully supports the submission of learned counsel for the Respondent.
Financial Creditor is related party of the Corporate Debtor - HELD THAT:- The said plea has not been taken by the Appellant in the appeal or in the reply. However, it is not the case of the Appellant that application filed by the Financial Creditor is not maintainable it being related party. On the said submission no mileage can be taken by the Appellant nor on this ground it can be held that application was not maintainable.
Violation of Principles of Natural Justice since the Adjudicating Authority relied on the Rejoinder filed by the Applicant - HELD THAT:- The fact is that the arguments did not proceed on that day and matter was adjourned to give opportunity to the Corporate Debtor. The Adjudicating Authority gave opportunity to the Corporate Debtor to make his submissions on the next date and submissions were not heard on 11.10.2023 since Rejoinder was served on the Corporate Debtor only on 09.10.2023. Matter was heard thereafter on 07.11.2023 and after hearing the matter judgment was reserved. There are no substance in the submission of the Appellant that there is any violation of Principles of Natural Justice.
Impugned order passed on the basis of instruments which are stamped insufficiently and are not admissible evidence - HELD THAT:- Relying on the material on record, the Adjudicating Authority concluded that there are sufficient materials to prove financial debt and default by the Corporate Debtor. Learned counsel for the Respondent has relied on the judgment of Hon’ble Supreme Court in M. Suresh Kumar Reddy vs. Canara Bank & Ors. [2023 (5) TMI 570 - SUPREME COURT] where the Hon’ble Supreme Court after referring to the earlier judgment of Hon’ble Supreme Court in Vidarbha Industries Power Ltd. vs. Axis Bank Ltd. [2022 (7) TMI 581 - SUPREME COURT] held that in the application under Section 7, the Adjudicating Authority has to look into the debt and default.
Admission of section 7 application when Corporate Debtor is a going concern - HELD THAT:- Respondent is right in his submission that judgment of Hon’ble Supreme Court in Vidarbha is on its own facts and reasons and no ratio can be culled out from the said judgment that if Corporate Debtor is a going concern, Section 7 application has to be rejected on this ground.
Conclusion - There is sufficient material on record that proves the existence of financial debt and default. There are no error in the order of the Adjudicating Authority admitting Section 7 application.
Appeal dismissed.
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2024 (1) TMI 1432
Suit for partition and allotment of 5/7th share filed by respondent Nos.1 to 5 herein - entitlement to a share in the first schedule of the properties - validity of will dated 06.04.1990 - joint enjoyment of the suit properties of plaintiffs and defendants 2 and 3 - entitlement to 5/7th share in the property.
Whether the appellant succeeded in proving the execution of the Will and if so, whether the appellants who disputed its execution and also challenged the Will on the ground of existence of suspicious circumstances would make the same unreliable and not worthy for proceeding further? - HELD THAT:- There can be no doubt with respect to the manner in which execution of a Will is to be proved. In the light of plethora of decisions including the decisions in MOTURU NALINI KANTH VERSUS GAINEDI KALIPRASAD (DEAD) THROUGH L. RS. [2023 (11) TMI 1346 - SUPREME COURT] and in DEREK AC LOBO AND ORS. VERSUS ULRIC MA LOBO (DEAD) BY L. RS. AND ORS. [2023 (12) TMI 1413 - SUPREME COURT] this position is well settled that mere registration of a Will would not attach to it a stamp of validity and it must still be proved in terms of the legal mandates under the provisions of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. It is not the case of the appellant that the Will dated 06.04.1990 is a registered one.
Section 68 of the Evidence Act makes it clear that at least one attesting witness has to be examined to prove execution of a Will. It is true that in the case at hand DW2 was the attesting witness who was examined in Court. Therefore, the question is whether they had deposed to the effect that the Will in question was executed in accordance with sub-rules (a) to (c) thereunder - The Trial Court rightly held that the propounder of the Will has to establish by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound disposing state of mind and that he understood the nature and effect of the dispositions and put his signature out of his own free will.
The very case of the first defendant viz., DW1 is that the testator was being looked after by her. She was residing at Tenkasi and if the testator used to stay there with her and her deposition is to the effect that she was not aware that her husband was going to execute a Will at Madurai and then, the proven fact is that two stamp papers, on which 2 pages of the Will were typed, were purchased in the name of the first defendant from Tenkasi, create some suspicion. As noted earlier, the health of testator was in bad condition and if so, the case that the execution of the Will was at a far away place from Madurai is also a matter casting suspicion. Evidently, it was taking into consideration all the aforesaid and such other circumstances that the High Court arrived at the finding that the execution of the Will itself was not proved. The circumstances surrounding the Will were also concurrently held as suspicious.
Conclusion - The evidence of DW2 cannot be taken sufficient to prove the execution of the Will in question in the manner it is required to be proved and to accept it as genuine. It can only be held that the defendants have failed to prove that the testator executed the Will by putting his signature after understanding its contents. In such circumstances, when the findings are concurrent how can the findings on the validity and genuineness of the Will in question by the Trial Court and the High Court be interfered with. There is no reason to hold that the appreciation and findings are absolutely perverse warranting appellate interference by this Court. It is also to be noted that the defendant Nos.2 and 3 also got 1/7th share each in the suit schedule properties.
Appeal dismissed.
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2024 (1) TMI 1431
Adjustments of the refund amount due to the petitioners by resorting to the provisions in Section 245 w/o prior intimation to the petitioners - HELD THAT:- The affidavit filed on behalf of the respondents admits that no intimation as contemplated by Section 245 was given to the petitioners before making the adjustments. It explains that notice was prepared but remained to be issued to the petitioners.
Considering the above admission and the law laid down by this Court in Hindustan Unilever Ltd. [2015 (7) TMI 366 - BOMBAY HIGH COURT], Jet Privilege (P) Ltd. [2021 (8) TMI 593 - BOMBAY HIGH COURT] and Greatship (India) Ltd. [2022 (7) TMI 905 - BOMBAY HIGH COURT] the impugned order of adjustments is set aside.
We think that interest of justice would be met if the respondents are directed to deposit the amount otherwise refundable to the petitioners as a consequence of setting aside the order in this Court within two weeks from today.
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2024 (1) TMI 1430
Remedy of a statutory appeal against the assessment order - statutory remedy of appeal is sought to be bypassed by arguing that the impugned order is in breach of principles of natural justice, contrary to statutory provisions and otherwise perverse - HELD THAT:- As petitioner has admitted that an appeal against an assessment order does not involve making of any pre-deposit as a condition precedent for entertainment of the appeal. Otherwise, we have cases where parties plead this as a cause for not availing the alternate remedy. Apart from the fact that this cannot be good cause, in this case, there is no such requirement as admitted by learned counsel for the petitioner.
Accordingly, we decline to entertain this petition. However, we leave it open to the petitioner to appeal the impugned assessment order in accordance with law. The impugned order was made on 18 March 2024. This petition was instituted on 14 June 2024. The matter was pending in this Court. Therefore, this aspect may be considered by the appellate authority should the petitioner institute an appeal and seek condonation of delay.
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2024 (1) TMI 1429
100% EOU - Liability to pay duty on goods procured without duty payment under N/N. 22/2003-CE, which were destroyed in floods and not used in manufacturing goods for export - HELD THAT:- Since it is an admitted position that goods were destroyed by the floods, therefore, its actual use in the goods which were subsequently exported out of India cannot be sustained. As regards the plea of the appellant that the said goods to be considered as if they were rejected goods and since there is a provision for destruction of rejected goods, both within the factory as well as outside, by applying the same ratio, their damaged/destroyed goods should also be treated as rejected goods and it is also to be treated as if they have been already destroyed inside the factory itself.
It is found that this stretching the provision is not permissible, inasmuch there is very clear cut case where only four categories of goods are covered for destruction either within the factory or outside the factory, but subject to presence of Central Excise officer. The goods which have been clearly damaged or destroyed in the floods cannot fall in any of these categories nor there is evidence that such materials were stored as scrap material or rejected in the factory.
This is a conditional notification and in terms of judgment of Hon’ble Supreme Court in the case of COMMISSIONER OF CUSTOMS (IMPORT) , MUMBAI VERSUS M/S. DILIP KUMAR AND COMPANY & ORS. [2018 (7) TMI 1826 - SUPREME COURT (LB)] it has to be construed strictly and by the plain reading of the said notification, in the given factual matrix, the destroyed goods due to floods etc., would not get covered and there is no provision in the said notification for remitting the duty in a situation like natural disaster, etc.
Conclusion - The appellant is liable to pay the duty demanded by the department, as the destroyed goods do not qualify for exemption under N/N. 22/2003-CE.
The demand made by the department is tenable - Appeal dismissed.
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2024 (1) TMI 1428
Addition u/s 68 - presuming the genuine long term capital gain (LTCG) earned from sale of listed shares on the platform of stock exchange and claimed exempted u/s 10(38) as non-genuine and arranged LTCG - HELD THAT:- We find on similar set of facts, SMC Bench of this Tribunal [2023 (8) TMI 1611 - ITAT SURAT] wherein in the case of PCIT Vs. Indravadan Jain, HUF [2023 (7) TMI 1091 - BOMBAY HIGH COURT] also held that when Assessing Officer nowhere alleged that transactions made by assessee with a particular broker or share broker was bogus, merely because investigation was done by SEBI against the broker or its activities, the assessee cannot be said to have entered into ingenuine transaction.
We find that assessee made sale of shares through BSE and paid security transaction tax and there is no allegation against the share broker through whom assessee has made sales that they were indulging any price manipulation.
Therefore no justification in treating the LTCG as unexplained cash credit in absence of any cogent evidence. Addition of undisclosed income under section 68 is deleted. Have accepted the LTCG by deleting the addition made u/s 68, therefore the addition of alleged commission payment is also deleted.
Addition of commissions expenses @5% u/s 69A - We find that the assessing officer while treating the long term capital gain on share transaction as unexplained credit and made addition under section 68, also added commissions expenses. We have already deleted the addition u/s 68, therefore this addition being consequential is also deleted. In the result, this ground of appeal is allowed.
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2024 (1) TMI 1426
Seeking grant of bail on medical grounds - Money Laundering - proceeds of crime - right to speedy trial - applicability of 1st proviso to Section 45 (1) of PMLA - HELD THAT:- In Amar Sadhuram Mulchandani Vs. Directorate of Enforcement and Anr. [2024 (11) TMI 131 - SUPREME COURT (LB)], the Hon’ble Supreme Court has categorically held that in view of Section 45 (1) of the Act, that ‘sick or infirm’ person is entitled to be released on bail. In that case, the Hon’ble Supreme Court had, taking into consideration that the accused was in judicial custody for a year and three months and was suffering from physical illness and enlarged him on bail.
In the case on hand, the petitioner was remanded to judicial custody on 21.11.2023, which is nearly 14 months now. The Medical Board Report clearly shows that the petitioner is a sick person. In view of Section 45 (1) of the Act and the law laid down by the Hon’ble Supreme Court, the petitioner has to be given the benefit of the 1st proviso to Section 45 (1) of the Act.
This Court is satisfied that there are reasonable grounds to hold that the petitioner has not committed the above offences. As the petitioner has no criminal antecedents, going by the law laid down by the Honourable Supreme Court in Dheeraj Kumar Shukla v. State of Uttar Pradesh [2023 (1) TMI 1374 - SC ORDER], this Court has no hesitation to hold that the petitioner is not likely to commit an offence if he is enlarged on bail. This Court is convinced that the petitioner has satisfactorily diluted the twin conditions under Section 45 of the Act. Hence, the petitioner is entitled to be enlarged on bail.
Conclusion - The petitioner is granted bail due to medical conditions, violation of the right to a speedy trial, and satisfaction of the twin conditions under Section 45 of the Act.
The application is allowed, by directing the petitioner to be released on bail subject to fulfilment of conditions imposed.
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2024 (1) TMI 1425
Revision u/s 263 - disallowing the deduction of the claim of doubtful debts - order of the AO sought to be revised is erroneous and also prejudicial to the interest of the Revenue - HELD THAT:- AO did not show any application of mind and mechanically accepted the statement of the assessee.
When the assessee is found to have claimed deduction towards the “provision for doubtful assets” for the purpose of computation of book profit u/s 115-JB the AO did not state any reason as to why he decided, if at all, to accept the explanation of the assessee despite the fact that the said amount was not debited for the provision for doubtful account and consequently, the provision of doubtful debts account has not been obliterated. Thus, it is only for disclosure purposes that the amount was shown as a reduction from the trade receivables in the balance sheet. The assessee has not included the said amount as written off debts, but was hopeful of getting it back at some point of time.
We cannot find fault with the PCIT for having exercised his jurisdiction u/s 263. Consequently, the order passed by him after hearing the appellant and directing the AO to re-examine the said issue is perfectly justifiable and legal.
Tribunal, on the other hand, had analysed the position of law as stated by us above and concluded rightly that the order passed by the CIT did not suffer from any illegality or perversity. Decided against assessee.
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2024 (1) TMI 1424
Prayer for condonation of delay in filing the appeal - typographical error - HELD THAT:- The order was delivered by the Court on 08.12.2023 and 30 days’ period of limitation came to end on 07.01.2024 and further 15 days’ period expired on 22.01.2024. The reason for not filing the appeal as claimed by the Appellant is that the application for correction of the order was filed by the Appellant before the Adjudicating Authority on 13.01.2024 i.e. after 30 days from passing of the order. IA which was filed for correction was allowed on 29.04.2024 where the Adjudicating Authority has noted that judgment was delivered on 08.12.2023, which is also clearly evident from the contents of the order as well as the last page of the order. Thus, the application was allowed and it was noted that the typographical error correcting the judgment stands corrected and order may be read as part of the main order dated 08.12.2023.
Whether limitation for filing the appeal shall commence from 08.12.2023 or it shall commence from 29.04.2024? - HELD THAT:- The judgment relied by learned counsel for the Respondent in Yerramaneni Ramakrishna & Ors. Vs. Suraksha Realty Ltd. & Ors. [2024 (10) TMI 511 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI - LB] do support the submission of the Respondent in the above case where the typographical error in mentioning the date as 13.06.2024 was corrected as 13.05.2024. In the judgment Para 7, the correction allowed by the Court was noticed. This Tribunal in Para 8 noticing the V. Nagarajan’s judgment of the Hon’ble Supreme Court [2021 (10) TMI 941 - SUPREME COURT (LB)] has held that the limitation for filing the appeal shall commence after pronouncement of the order.
In the above case it was held that period of limitation in filing the appeal commences from the date when order was pronounced. Relying on the aforesaid precedent, we are of the view that in the present case the limitation for filing the appeal shall commence from 08.12.2023, the date when order was pronounced by the Tribunal.
Conclusion - There is no case that there was modification of order rather there is correction of the date of the order. Further, there is no dispute between the parties that judgment was delivered on 08.12.2023, which is an admitted fact. The limitation for filing the appeal shall commence from 08.12.2023 and the appeal which was filed by the Appellant was beyond condonable period i.e. beyond 45 days. There are no ground to condone the delay. The application for condonation of delay deserves to be rejected and is hereby rejected.
Appeal dismissed.
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2024 (1) TMI 1423
Maintainability of appeal - low tax effect - Classification of the imported goods - Aluminium Composite Plates of various thickness - to be classified under heading 76061190 or under Heading 76109090? - rejection of declared value - enhancement of declared value based on NIDB data - it was held by CESTAT that Ld. Commissioner (Appeals) in the present matter correctly held that the imported goods cannot be considered as ‘prepared for use in structures’ and therefore falls out of the scope of heading 7610 and the value declared by the respondent has to be accepted.
HELD THAT:- In view of the statement of the learned ASG that the appeal involves low tax effect, the appeal is dismissed.
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2024 (1) TMI 1422
Assessment u/s 153A - Addition u/s 68 - bogus LTCG - penny Stocks - any incriminating material found in the search or not? - whether in respect of completed / unabated assessment, any addition can be made by the AO in absence of any incriminating material found during the course of search u/s 132 or requisition u/s 132A or not.
HELD THAT:- In case of unabated assessment, the reassessment can be made on the basis of the satisfaction note pursuant to which the search has been initiated and books of account or other documents not produced in the course of original assessment but found in the course of search which indicate undisclosed income or undisclosed property, and secondly, the reassessment can be made on the basis of the undisclosed income or undisclosed property which is physically found and discovered in the course of search.
In case of completed assessment and not abated as on the date of search, as in the instant case, the AO has to reassess the total income of the assessee and the assessment already completed can be tinkered with or distrusted where some incriminating material is found and seized during the course of search indicating undisclosed income of the assessee.
AO would assume the jurisdiction to reassess the ‘total income’ taking into consideration the incriminating material unearthed during the search and the other material available with the AO including the income declared in the return. In case no incriminating material is unearthed during the search, the AO cannot reassess taking into consideration the other material in respect of completed assessments/unabated assessments.
In the instant case, there is nothing on record and/or brought to our notice during the course of hearing that the Competent authority was seized of the aforesaid statement of Shri S. K Khemka at the time of recording of the satisfaction whereby the authorization has been issued and the search warrant was issued whereby the search has been initiated in case of the assessee.
Therefore, the statement of Shri S.K Khemka is availability of other material/documentation which has come in the knowledge and possession of the AO for the first time during the course of reassessment proceedings and therefore can’t be referred to and relied upon by the AO to augment, supplement and add to the material found during the course of search in terms of the share certificates and contract notes and in terming the same as incriminating material found during the course of search in case of the assessee. The contents advanced by the ld CIT/DR therefore cannot be accepted.
We are of the considered view that the addition made by the AO during the reassessment proceedings completed u/s 153A is not based on any incriminating material found or seized during the course of search and seizure action u/s 132 of the Act in case of the assessee. Being a case of completed/unabated assessment, in absence of any incriminating material found during the course of search, the addition so made cannot be sustained and is hereby directed to be deleted. In the result, the ground of the assessee’s appeal is allowed.
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2024 (1) TMI 1421
Maintainability of petition - availability of alternative remedy of appeal to the petitioner under Section 129 A of the Customs Act, 1962 - Revocation of Custom Broker License of the petitioner - forfeiture of entire security deposit - imposing penalty - petitioner was not granted the right to cross-examination of the witnesses whose statements were relied upon - violation of Regulation 10 (d), 10 (m), 10 (n) & 10 (q) laid down in CBLR, 2018 - HELD THAT:- In the case of Godrej Sara Lee Ltd. Vs. Excise and Taxation Officer-cum-Assessing Authority and Others [2023 (2) TMI 64 - SUPREME COURT], the question for determination before the Apex Court was whether the High Court was justified in declining interference on the ground of availability of an alternative remedy of appeal to the appellant under Section 33 of the VAT Act, which it had not pursued.
Regulation 17 of CBLR, 2018 prescribes the procedure for revoking the license or imposing penalty. The time limit (s) prescribed under the CBLR, 2018 is mandatory and not directory and this Court in a plethora of judgment has also repeatedly held so - In terms of regulations 17 (1), a show cause notice is to be issued within 90 days from the date of receipt of the Offence report, while regulation 17 (5) prescribes a time period of 90 days from the date of issue of Show Cause Notice for submission of an Inquiry Report. Regulation 17 (7) prescribes that within 90 days from the date of the submission of the Inquiry Report and after consideration thereof, the Principal Commissioner/Commissioner shall pass orders either revoking the suspension of license or revocation of license of the Customs Broker. Although, the said regulation does not prescribe an overall time limit for completing the inquiry, Circular No. 09/2010/Customs dated 08.04.2010 issued by the Central Board of Excise and Customs, Department of the Revenue, Ministry of Finance, Govt. of India, inter alia prescribed time limits for procedures governing the suspension/revocation of CB licenses.
As per regulation 17 (4) of CBLR, 2018, if the Deputy Commissioner of Customs or Assistant Commissioner of Customs declines the permission to examine any person on the ground that his evidence is not relevant or material, he needs to record the reasons in writing for doing so but the Inquiry Officer assigned no reason what so ever. The Commissioner of Customs ignored the error on the part of the Inquiry Officer to grant an opportunity of cross examination of the exporters and rather observed that the object behind cross examination of the witnesses appeared to be to merely prolong/discredit the investigation and the denial of cross examination by the Inquiry Officer has not impacted the objectivity of the Inquiry. Such an observation is based on incorrect understanding of regulation 17 (4) of CBLR, 2018. Provisions of Regulation 17 (4) were given a complete go-by. Not allowing the Customs broker an opportunity to cross examine the persons examined in support of the grounds forming the basis of these proceedings has resulted in serious prejudice to the petitioner.
The Court in Kunal Travels [2017 (3) TMI 1494 - DELHI HIGH COURT] held that the obligation of the CHA under Section 13 (e) of the CHALR, 2004 cannot be stretched to it being obliged to undertake a further background check of the client. As such, as a Customs Broker, the petitioner cannot be held liable because exporters were not traceable, after the issuance of ‘Let Export Orders’ and export of the goods out of the country.
The Commissioner of Customs erred in accepting the findings of the Inquiry Officer regards the failure of Customs Broker to comply with the provisions of Regulation 10(d), 10 (m), 10 (n) & 10 (q) of the CBLR, 2018 - The impugned order dated 29.06.2022, insofar as, it revokes the CB License of the petitioner and levies penalty upon the petitioner shall stand quashed and set aside.
Petition allowed.
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2024 (1) TMI 1420
Exemption from GST - health care services - composite supply or not - supply of medicines, drugs and consumables used in the course of providing health care services to in-patients during the course of diagnosis and treatment during the patients admission in hospital - supply of food to in-patients - Fees collected from nurses and psychologists for imparting practical training - Levy of GST on money retained by the applicant.
Whether the supply of medicines, drugs and consumables used in the course of providing health care services to in-patients during the course of diagnosis and treatment during the patients admission in hospital would be considered as "Composite Supply" qualifying for exemption under the category of "health care services" as per Services Exempt Notification No. 12/2017-Central Tax (Rate) dated: 28-06-2017 read with Section 8(a) of the CGST Act, 2017/ KGST Act, 2017? - Whether the supply of food to in-patients would be considered as "Composite Supply" of health care services under CGST Act, 2017 & KGST Act, 2017 and consequently, can exemption under Services Exempt Notification No. 12/2017-Central Tax (Rate) dated: 28-06-2017 read with Section 8(a) of GST be claimed? - HELD THAT:- The Applicant is running a hospital and providing treatment to in-patients suffering from psychic disorder, substance use disorder, Neurology etc. The Applicant is a hospital hence, the same is covered under 'clinical establishment' as per the definition mentioned supra and since the hospital is providing treatment to in- patients suffering from psychic disorder, substance use disorder, Neurology etc the same is covered under "health care services" as per the definition mentioned. In view of the above, the Applicant is providing health care services subjected to the condition that room charges are not exceeding Rs. 5000 per day to a person receiving health care services.
The patients admitted to a hospital undergo proper diagnosis of the disease/illness and then treatment which includes appropriate medicines, surgical procedures which need necessary consumables required along with proper diet. These are provided to the in-patient so that they can regain their health within the shortest possible time and resume their activities. Therefore, the medicines, consumables and foods supplied in the course of providing treatment to the patients admitted in the hospital is an integral part of the health care service extended to the patients - Hence the room charges, medicines, consumables and food supplied in the course of providing treatment to the patients admitted in the hospital(in-patient) are undoubtedly naturally bundled in the ordinary course of business and the principal supply is health care service which is the predominant element of the composite supply - food supplied to the in-patients as advised by the doctor/nutritionists is a part of composite supply of healthcare and not separately taxable.
Whether GST is applicable on money retained by the applicant? - HELD THAT:- The entire amount charged by the hospital from the patients including the retention money and the fee/payments made to the doctors etc. is towards the healthcare services provided by the hospitals to the patients and is exempt.
Whether GST is exempt on Fees collected from nurses and psychologists for imparting practical training? - HELD THAT:- The Applicant states that they are providing practical training to nursing students and psychologists who are about to complete their course in recognised educational institutions. They allow trainee nurses and psychologists to interact with patients and try to understand the reason for their mental disorder and neurological illness. At the end of the training the Applicant conducts a test and issues certificate to all. The Applicant is of the understanding that training imparted to Nurses and Psychologists forms part of health care service and hence GST is exempt on fees collected from Nurses and Psychologists - to become a health care service, it should be a service by way of diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy. But here the Applicant is providing practical training to nursing students and psychologists and hence the same is not covered under healthcare services.
Conclusion - i) The supply of medicines, drugs and consumables used in the course of providing health care services to in-patients during the course of diagnosis and treatment would be considered as "Composite Supply" of health care services qualifying for exemption as per entry No. 74(a) of Notification No. 12/2017-Central Tax (Rate) dated: 28-06-2017 subjected to the condition mentioned therein. ii) The supply of food to in-patients would be considered as "Composite Supply" of health care services qualifying for exemption as per entry No. 74(a) of Notification No. 12/2017-Central Tax (Rate) dated: 28-06-2017 subjected to the condition mentioned therein. iii) GST is not applicable on money retained by the applicant. iv) GST is not exempted on the fees collected from nurses and psychologists for imparting practical training.
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