Home Case Index All Cases Income Tax Section Wise 2024 2024 (1) This

Law	-- All -- GST Income Tax Benami Property Customs Corporate Laws Securities / SEBI Insolvency & Bankruptcy FEMA Law of Competition PMLA Service Tax Central Excise CST, VAT & Sales Tax Wealth tax Indian Laws
Court	-- Any -- Supreme Court SC Orders / Highlights High Court Appellate Tribunal Tribunal Appellate authority for Advance Ruling Advance Ruling Authority National Financial Reporting Authority Competition Commission of India ANTI-PROFITEERING AUTHORITY Commission Central Government Board DISTRICT/ SESSIONS Court Commissioner / Appellate Authority Other
Citation	--Year-- 2025 2024 2023 2022 2021 2020 2019 2018 2017 2016 2015 2014 2013 2012 2011 2010 2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996 1995 1994 1993 1992 1991 1990 1989 1988 1987 1986 1985 1984 1983 1982 1981 1980 1979 1978 1977 1976 1975 1974 1973 1972 1971 1970 1969 1968 1967 1966 1965 1964 1963 1962 1961 1960 1959 1958 1957 1956 1955 1954 1953 1952 1951 1950 Upto 1949 - -Volume- 1 2 3 4 5 6 7 8 9 10 11 12 -
Landmark	Nil - N/A Referred in >= 2 Cases Referred in >= 4 Cases Referred in >= 5 Cases Referred in >= 10 Cases Referred in >= 15 Cases Referred in >= 25 Cases Referred in >= 50 Cases Referred in >= 100 Cases
Order by	TMI Citation Date of Decision

Advanced Search Options

Case Laws

Showing 41 to 60 of 1456 Records

• 2024 (1) TMI 1416
  

  Condonation of delay in filing the revocation application - HELD THAT:- The delay in Petitioner’s invoking the proviso to Rule 23 of the Odisha Goods and Services Tax Rules (OGST Rules) is condoned and it is directed that subject to the Petitioner depositing all the taxes, interest, late fee, penalty etc. due and complying with other formalities, the Petitioner’s application for revocation will be considered in accordance with law.

  Petition disposed off.

  ---

• 2024 (1) TMI 1415
  

  Maintainability of appeal on low tax effect - HELD THAT:- The present appeal is not maintainable keeping in view Circular No.3 of 2018 dated 11.07.2018 of the Central Board of Direct Taxes since the tax effect is only Rs.24,00,519/- which is below the limit.

  The argument that it is covered under the exceptions cannot be accepted as it would amount to violating the circular itself by the Department in each and every case by making said averments.

  The present appeal stands dismissed.

  ---

• 2024 (1) TMI 1414
  

  Validity of Reassessment proceedings - proceedings u/s 147 based on some information from undisclosed sources/unknown persons - case was reopened for the reason that the assessee received rental/booking banquet charges - HED THAT:- In the instant case the AO had some material to investigate the matter. This material was received through a complaint as the assessee himself accepted this fact. To verify the information the Assessing Officer reopened the case.

  A.O has the reason to believe that some income has escaped income on which basis he reopened the assessment. Thus, the reopening proceedings cannot be treated as invalid. The grounds raised by the assessee are decided against the assessee.

  Unaccounted receipts from the banquet hall/marriage palace, based on loose sheets of paper - as argued loose sheets were neither confronted to the appellant and nor cross examination was allowed of the complainant - In the given case from the information available on record, first the writing of the register is different and the order of registration is different except having few common bookings. Therefore, the sanctity of the copy of the register submitted before the AO is not correct and genuine. Merely relying on such documents, the AO could not initiate the proceedings for making rowing enquiry.

  AO relied on the loose sheets and documents were not provided to the assessee firm. The l.d. Assessing Officer has relied the fabricated papers which was not in the hand writing of the manager of the banquet hall. Complainant Sh. Dharmender Goyal was not the employee of the assessee but supervised the work in the absence of the assessee partner. The assessee has provided the details of the booking register, books of accounts, receipt vouchers bank statement, etc. which duly reconciles with the gross receipts offered for tax. The ld. Assessing officer should have made the enquiry on those parties who have booked the marriage hall for the marriage purpose, but has not been done.

  AO merely recorded passing reference to the investments and expenditures incurred by one of the partners which does not have any bearing on the assessment of the partnership firm. Therefore, those passing comments are uncalled for. While considering the above information, we are inclined to decide the issue in favour of the assessee

  ---

• 2024 (1) TMI 1413
  

  Failure on the part of CESTAT to follow the judicial discipline by deciding the cases finally when the matter was pending before this Court - HELD THAT:- Such kind of aspersions not approved, being cast on the CESTAT or any other Tribunal/Court. Merely because the matter is pending before this Court as long as there is no direction not to hear similar cases before other Tribunals/Courts passed by this Court, the pendency of a matter before this Court would not come in the way of other Tribunals/Courts deciding similar case.

  Issue notice to the respondent.

  ---

• 2024 (1) TMI 1412
  

  Condonation of delay of 5 years 10 months and 16 days in filing appeal - delay is occurred due to the procedural follow of and reason beyond the control of appellant - sufficient cause for delay or not - HELD THAT:- The words "sufficient cause" used in Section 5 cannot be liberally construed only because the party in default is the Government. Section 5 makes no distinction between the State and private individual or an institution when it has the need to establish sufficient cause. The doctrine of equality before law demands that the litigants including the State as the litigants are accorded the same treatment and the law is administered in an even-handed manner. In considering the condonation of delay by the Government, the court should adopt a pragmatic approach. If the State fails to offer and explain sufficient cause, the delay may not be condoned. In the case of Hindusthan Petroleum Corporation Limited vs. Yashwant Gajanan Joshi [1990 (12) TMI 345 - SUPREME COURT (LB)] Hon'ble the Supreme Court has held that the petition was barred by limitation of 90 days and no satisfactory explanation of such delay was shown.

  The petition was dismissed on the ground of delay alone by the Hon'ble Apex Court. In the case of Maniben Devraj Shah vs. Municipal Corporation [2015 (3) TMI 64 - SUPREME COURT], it is held by Hon'ble Supreme Court that in cases involving State and its agencies while deciding the application for condonation of delay the fact that sufficient time is taken in decision making process of State can be taken note by Court but delay cannot be condoned as matter of course on ground that dismissal will cause injury to public interest when the delay is due to total lethargy or utter negligence of its officers.

  In case of State of U.P. through Executive Engineer and anr. Vs. Amarnath Yadav [2014 (5) TMI 823 - SUPREME COURT] Hon'ble Supreme Court while considering the delay of 481 days in filing the special leave petition has held that moving of file from one department/officer to the other is not sufficient reason for condoning such an abnormal delay.

  Conclusion - No insufficient or plausible reason has been put forth by the State which can be said to be satisfactory and which can be deemed as sufficient cause. Since the inordinate delay of 1788 days has not been explained satisfactorily and no sufficient cause has been shown for such delay, such inordinate delay cannot be condoned.

  Application dismissed.

  ---

• 2024 (1) TMI 1411
  

  Money Laundering - proceeds of crime - challenge to summons issued under Sub-Section (2) and (3) of Section 50 of the Prevention of Money Laundering Act 2002 - challenge to constitutional vires of Section 50 - seeking declaration of the same as being violative of Article 20(3) of the Constitution read with Articles 14 and 21 thereof - HELD THAT:- The applicannt has already been discharged by the learned Special Judge, therefore, the summon dated 18.12.2021 issued by the respondent No. 3 to the petitioner in respect of the entry made in file Directorate of Enforcement Case numbered as File. No. F.No. GWZO/09/2020 (sd/-illegible)/1861 is hereby set aside and quashed.

  Matter closed.

  ---

• 2024 (1) TMI 1410
  

  Special Audit passed u/s 142(2A) - extension of time allowed for Special Audit by the Department - HELD THAT:- The extension has not been granted in terms of provisions of Section 142(2C) of the Income Tax Act, 1961 but time for extension has been sought by the ACIT through range head Addl. CIT from PCIT. The ld. PCIT approved the proposal of the AO and only after that the approval has been granted by the ACIT vide letter dated 17.05.2019. The para 12 of the letter of the Assessing Officer is not an administrative intimation but it sought the approval of the ld. PCIT who as per the statute do not have the power of granting extension for Special Audit.

  PCIT-07, Delhi has granted the extension saying “approved as proposed” vide order sheet dated 16.05.2019.The said approval has been intimated to the assessee by the ACIT vide letter dated 17.05.2019.

  Whether the approval sought by the Assessing Officer from the ld. PCIT and granting extension by the AO after receiving of the approval from the ld. PCIT is legally tenable or not? - We are guided by the judgment of Soul Space Projects Ltd. [2023 (12) TMI 740 - DELHI HIGH COURT] held that the initial exercise of the power has been explicated as one that is not administrative, the ld. PCIT could not have extended the time for Special Audit based on recommendation of the Assessing Officer. The enunciation of the legal principle does not derogate the observation that since the discretionary power was vested with the Assessing Officer which is non-delegable, it could not have been exercised by the Pr. CIT irrespective of the nature of the power.

  Thus we hold that the extension given for getting the special audit done u/s 142(2A) suffers from multiple infirmities and therefore, the assessment order is held to be void ab-initio.

  ---

• 2024 (1) TMI 1409
  

  Refund of tax paid under mistake - time limitation - rejection of refund only on the ground that the refund claims were filed by the petitioner are time barred beyond the statutory time period of two years as per Section 54(1) CGST Act - HELD THAT:- The contention of the petitioner that the Section 54(1) of the CGST Act is not applicable in the facts of the case is not tenable in view of the fact that the petitioner is liable to pay the GST under the Act. However, in view of the Notification No. 32/2017, the petitioner was not granted exemption providing “Nil rate of Tax”. Therefore, as per clause(h) explanation 2, refund date would be the date of payment of tax, which petitioner has failed ignoring the Notification No. 32/2017. Therefore, the petitioner is ought to have filed refund claim as per the Section 54(1) of the CGST Act.

  This Court in the case of Joshi Technologies International [2016 (6) TMI 773 - GUJARAT HIGH COURT] has held that the amount paid by mistake or through ignorance as self assessment of tax cannot be retained by the revenue and revenue is duty bound to refund as its retention is hit by Article 265 of the Constitution of India, which mandates that no tax shall be levied or collected except by authority of law. It was held that 'It appears that it is only sometime after the Education Cess and Secondary and Higher Secondary Education Cess came to be paid for the month of April 2014 that the petitioner came to know about its mistake and in July 2014, it filed the application for refund before the second respondent. Since the period of limitation begins to run only from the time when the applicant comes to know of the mistake, the application made by the petitioner was well within the prescribed period of limitation.'

  The amount of GST paid by the petitioner is admittedly paid as a self assessment, which the petitioner was not required to pay as per the Notification No. 32/2017. Accordingly, in the facts of the case, the amount paid by the petitioner from electronic cash ledger is required to be refunded by the respondent authority and could not have been rejected on the ground of limitation under Section 54(1) of the CGST Act.

  The impugned order dated 20.07.2021 passed by the Appellate Authority and Orders in Original dated 18.12.2020 passed by the adjudicating authority rejecting the claims of the petitioner are hereby quashed and set aside. All these matters are remanded back to the adjudicating authority to process the refund claims in accordance with law without considering the limitation period for filing the refund claim as prescribed under Section 54(1) read with explanation 2(h) of the CGST Act - petition allowed by way of remand.

  ---

• 2024 (1) TMI 1408
  

  Income deemed to accrue or arise in India - Taxability of revenue earned by the assessee from offshore supplies in India - Existence of Permanent Establishment (PE) in India - HELD THAT:- In the present case, it is noticed that an identical issue having similar facts was a subject matter of the assessee’s appeal in [2022 (11) TMI 1534 - ITAT DELHI] held that while deciding the issue relating to existence of PE, the departmental authorities have simply relied upon decision taken in earlier assessment years without verifying the factual position qua contracts executed in these assessment years, in our view, the assessee must be given an opportunity to furnish the relevant contracts before the departmental authorities to establish its case that in the assessment years under consideration the assessee did not have any PE in India so as to bring to tax the income from off- shore supplies.

  We are inclined to restore the matters back to the Assessing Officer for fresh adjudication after thoroughly examining the relevant contracts and other materials brought on record.

  Hence, in the absence of any material change on the facts of the issue, the matter is being restored to the Assessing Officer for adjudication afresh.

  ---

• 2024 (1) TMI 1407
  

  TP adjustment - Corporate guarantee given by the Assessee on behalf of its Associated Enterprises - HELD THAT:- Tribunal has examined the aspect and found that the average rate of corporate guarantee commission has been accepted for several decisions of the Tribunal at 0.5% and the assessee in the instant case has already charged a guarantee commission at 0.5% from the associated enterprises.

  As found on facts that this charge of commission compares favourably with the Bank of Singapore usually charge commission in the range of 0.15%. Therefore, it was held that the upward adjustment made on account of corporate guarantee commission cannot be sustained and, accordingly, the same was deleted. The Tribunal noted the decision of Redington (India) Ltd. [2020 (12) TMI 516 - MADRAS HIGH COURT] and applied the same to the facts of the case and held in favour of the respondent/assessee. No substantial question of law

  ---

• 2024 (1) TMI 1406
  

  Income deemed to accrue or arise in India - management fee/processing fee received by the non-resident banking company from India - whether the management fee/processing fee received by the assessee is in the nature of Fees for Technical Services (FTS) under provisions of section 9(1)(vii) as well under Article 12 of the India Germany Double Tax Avoidance Agreement (DTAA) - HELD THAT:- The term “interest” includes any service fee or other charge in respect of the moneys borrowed or debt incurred or in respect of any credit facility which has not been utilized. Thus, even the definition of interest in the domestic law, in our view, covers all kinds of payment attached to the loan.

  AO, no doubt, has accepted the claim of the assessee that interest along with other fees, such as, commitment fee, documentation fee attached to the loan granted are exempt under Article 11(3)(b) of the Act.

  Even the management fee is of similar nature as commitment fee and documentation fee, as it is closely linked to the loan granted, hence cannot be distinguished from the documentation fee and commitment fee. Thus, in our view, management fee partakes the character of interest u/s 2(28A).

  Hence, would be exempt from taxation in India in terms of Article 11(3)(b) of the treaty. While coming to such conclusion, we find support from the decision of Sisecam Flat Glass India Ltd. [2021 (3) TMI 591 - ITAT KOLKATA] Thus, we hold that the amount in dispute, being covered under Article 11(3)(b) of the India Germany DTAA is not taxable in India. Assessee appeal allowed.

  ---

• 2024 (1) TMI 1405
  

  Existence or otherwise of a Permanent Establishment (PE) of the assessee in India - HELD THAT:- As relying on assessee own case [2023 (10) TMI 967 - ITAT DELHI] we hold that the assessee did not have any PE in India in the assessment years under dispute. Hence, no profit can be attributed to such PE. Consequently, the Assessing Officer is directed to delete the addition in both assessment years. Appeals of the assessee are allowed.

  ---

• 2024 (1) TMI 1404
  

  TP Adjustment - addition on account of Advertisement, Marketing and Promotion (AMP) adjustment - HELD THAT:- ITAT has rendered the impugned order following the judgment rendered by our Court in Sony Ericsson Mobile Communications India (P.) Ltd. [2015 (3) TMI 580 - DELHI HIGH COURT] and which had rejected the application of the Bright Line Test in all circumstances. We find that these appeals raise no substantial question of law.

  ---

• 2024 (1) TMI 1403
  

  Entitlement of exemption from tax in India - interest arising in a contracting state/India - appellant, a Foreign Institutional Investor (FII) from Mauritius - assessee earned an amount as interest income on securities - HELD THAT:- To fall under Clause 3(c) of Article 11 of the DTAA, assessee need not have to be carrying on banking business in India. Assessee should only be a resident of Mauritius and must be carrying on bona fide banking business in Mauritius. We have to note that in the draft assessment order passed u/s 144C (1) r/w Section 143(3) of the Act, the AO while granting exemption to the interest on ECB has accepted that assessee is carrying on bona fide banking business in Mauritius. So also in the final assessment order - The fact that assessee is carrying on a bona fide banking business in Mauritius is not disputed.

  Article 11(3) of the DTAA interest arising in a contracting state (in this Case India) shall be exempt from tax in that State (in India) provided it (the Income) is derived and beneficially owned by any bank carrying on a bona fide banking business which is a resident of the other contracting State (Mauritius). Therefore, so long as assessee is carrying on bona fide banking business in Mauritius being a resident of Mauritius, the interest that assessee would earn in India shall be exempt from tax in India.

  If we have to accept, what Appellant submitted, that assessee should have had a banking license from the Reserve Bank of India, then what would be applicable is Clause 6 of Article 11 of the DTAA and that has not been relied upon by the AO.

  AO has, as noted earlier, granted exemption to the interest on FCB by accepting that assessee is carrying on bona fide banking business in Mauritius. No infirmity in the order passed by the ITAT. No substantial question of law.

  ---

• 2024 (1) TMI 1402
  

  Reopening of assessment u/s 147 - Unexplained gain on sale of shares of company abroad - assessee claimed gains earned by it on sale of Agile shares were not taxable in India by virtue of Article 13(4) the DTAA entered into and subsisting between India and Singapore (“India-Singapore DTAA”) based on the Tax Residency Certificate (‘TRC’) - Relevance of information from a third party - borrowed satisfaction - As decided by HC [2023 (2) TMI 35 - DELHI HIGH COURT] no income chargeable to tax has escaped assessment in the present case

  HELD THAT:- Delay condoned. Leave granted. Hearing expedited.

  List in the month of March, 2024.

  There shall be stay of the impugned judgment of the High Court. In the meanwhile, the Revenue shall not proceed to collect the amount assessed to be collected from the respondent.

  ---

• 2024 (1) TMI 1401
  

  TP Adjustment - Comparability analysis - CIT(A) has issued direction to the Assessing Officer for computing the arithmetic means of the 14 companies for comparing with the margin of the tested parties - HELD THAT:- We find that as per section 251 of the Income-tax Act, CIT(A) in appeal against order of the assessment made confirm, reduce, enhance or annul but he can’t restore the matter back to the AO. Section 250(4) of the Act prescribe for making any inquiry by himself or he may direct the AO for making further inquiry but in this case no inquiry has been carried out by the CIT(A). Therefore, we are of the opinion that the direction given by the CIT(A) not being in accordance with law, we set aside the finding of the CIT(A) and restore the matter back to him for deciding afresh after providing adequate opportunity of being heard to both the Revenue as well as to the assessee.

  Ground of appeal of the Revenue and cross objection of the assessee both are allowed for statistical purposes.

  ---

• 2024 (1) TMI 1400
  

  TP Adjustment - foreign AES be taken as ‘tested party’ or not? - HELD THAT:- Tribunal noted that the issues which arise for consideration had been decided in favour of the assessee in the assessee’s own case for the assessment years 2005-06, 2006-07, 2010-11, 2011-12, 2012-13 and 2013-14. The orders passed in favour of the assessee for the assessment years 2005-06 and 2006-07 [2015 (1) TMI 870 - ITAT KOLKATA] have been affirmed by this Court in the judgment [2016 (2) TMI 406 - CALCUTTA HIGH COURT] Apart from that, the law and the subject is in favour of the respondent assessee in the light of the decision of this Court in the case of Principal Commissioner of Income Tax vs. Almatis Alumina Pvt. Ltd. [2022 (2) TMI 1063 - CALCUTTA HIGH COURT] held Indian Transfer Pricing guidelines issued by the Institute of Chartered Accountants of India vide guidance note on report under Section 92E by Institute of Chartered Accountants of India and transfer pricing guidelines issued by OECD does not prohibit associated enterprises to be a tested party. The Tribunal accepted the stand taken by the assessee that the associated enterprises can be selected as a tested party. In the light of the decision in the case of Virtusa Consulting Services (P) Ltd. as well as on the factual aspect which has been noted by the Tribunal with regard to the function, asset and risk profile of both the assessee-company and the associated enterprises, we are of the considered view that the finding rendered by the Tribunal is just, proper and legally valid - Decided against the revenue.

  ---

• 2024 (1) TMI 1399
  

  TP Adjustment - assessee has benchmarked its international transactions following TNMM as most appropriate method - TPO has not agreed with the assessee for making economic adjustment on account of excess depreciation, foreign exchange fluctuation and under utilized capacity as discussed above in this order therefore proposed upward adjustment - HELD THAT:- We consider it appropriate to restore the issue to the file of the AO for deciding the same denovo after considering the economic adjustments and working of correct computation of adjustment provided by the assessee. Therefore, the case is restored to the file of the AO for deciding a fresh as directed above in this order after affording adequate opportunity to the assessee.

  Penalty u/s 271(1)(c) - HELD THAT:- As relying on Mohd. Farhan A. Shaikh [2021 (3) TMI 608 - BOMBAY HIGH COURT (LB)] AO has not specified whether the penalty is being levied on account of concealment of particulars of income or furnishing of inaccurate particulars of income. We direct the Assessing Officer to delete the penalty since, the notice issued under section 274 read with section 271(1)(c) was bad in law.

  ---

• 2024 (1) TMI 1398
  

  Refund of unutilized Input Tax Credit (ITC) under Section 54(3) of the CGST Act - whether the transitional credit as per the form Trans-1 filed by the petitioner and accepted by the department can be considered as an opening balance in electronic credit ledger as unutilized ITC available for granting refund as per the provisions of Section 54 (3) of the CGST Act to the petitioner as per per the claim made by the petitioner in form RFD01A?

  HELD THAT:- The provisions of Goods and Service Tax Act replaced the indirect tax regime with effect from 01.07.2017. Central Goods and Service Tax Act 2017 and State Goods and Service Tax Act 2017 and Integrated Goods and Service Tax 2017, were enacted by the legislature which came into effect from 01.07.2017, which intended to subsume all indirect taxes including the Central Excise Act, 1944, the Finance Act, 1994 (Service Tax Act) and Value Added Tax Act. As per the scheme of the GST all the three Acts provide for seamless flow of Input Tax Credit to avoid cascading effect of various taxes. The CGST Act therefore provided the transitional arrangement for carry forward and availing of credit of eligible indirect taxes paid on the Goods & Services under the erstwhile regime.

  Rule 117 of the Rules provides that if a registered person has to claim Transitional Credit under Section 140 of the CGST Act, a declaration in Form GST TRAN-1 was required to be filed within 90 days of the appointed day i.e. on or before 28.09.2017. As per the provisions of Section 140 of the CGST Act read with Rule 117 of the Rules, the transitional credit, closing balance of credit of taxes lying and shown in last return filed by the assessee prior to introduction of CGST i.e. as on 30.06.2017 will be carried forward as credit in Electronic Credit Ledger as on 01.07.2017. in view of the above, GST regime, the credit balance as on of the unutilized input tax credit in erstwhile regime as on 30.06.2017 shall be available as opening balance of unutilized input tax credit as on 01.07.2017.

  As per provisions of Section 140(1) of the CGST Act, a registered person shall be entitled to take, in his electronic credit ledger, the amount of CENVAT credit of eligible duties carried forward in the return relating to the period ending with the day immediately preceding the appointed day i.e. 01.07.2017. The petitioner, is therefore, entitled to get the benefit of amount of CENVAT credit of eligible duties carried forward in the return in GST Form TRAN-1, which was verified and approved by the GST authority.

  The adjudicating authority has rightly sanctioned the refund to the petitioner considering the closing balance of CENVAT credit carried forward as per GST Form TRAN-1 filed by the petitioner as on 01.07.2017. However, the Commissioner (Appeals) appears to have a very pedantic literal approach of the provisions of Section 54(3) of the CGST Act, 2017 thereby allowed the appeal of the department on the ground that when the petitioner filed refund claim in statement 3A of the GST-RFD-01A for the months of July and August, 2017, the transitional credit as per form GST TRAN-1 was not verified and was not given effect in the electronic credit ledger and therefore, obviously there cannot be any balance of such unutilized CENVAT credit which was carried forward as on 01.07.2017.

  The Commissioner (Appeals) committed an error by in relying upon Circular No. 59 dated 04.09.2018, which would not be applicable in the facts of the case as the petitioner is entitled to get the benefit of carried forward of CENVAT credit as on 01.07.2017 in view of the provisions of Section 140(1) read with Section 54(3) of the CGST Act, 2017 read with Rule 89(4) and 117 of the Rules - also, the petitioner would never be available to utilize the carried forward of CENVAT credit, which would contrary to the provisions of Section 140(1) of the CGST Act.

  The impugned order dated 22.03.2019 passed by the Commissioner (Appeals) is hereby quashed and set aside - petition allowed.

  ---

• 2024 (1) TMI 1397
  

  Disallowance of CENVAT Credit - recovery alongwith penalties invoking Extended period of limitation - HELD THAT:- It would be seen from the judgment of the Supreme Court in COLLECTOR OF CENTRAL EXCISE VERSUS H.M.M. LIMITED [1995 (1) TMI 70 - SUPREME COURT] that in order to attract the proviso to section 11A of Central Excises and Salt Act 1944, which is pari materia to section 73 (1) of the Finance Act, it must be alleged in the show cause notice that the duty of excise had not been paid by reason of fraud, collusion or willful mis-statement or suppression of facts on the part of the assessee with intent to evade payment of duty and if there is no averment that duty of excise had been intentionally evaded or that fraud or collusion had been noticed, it would not be possible to sustain the notice seeking to invoke the extended period of limitation.

  The facts of the present case are also almost identical. Here also the show cause notice merely refers to the proviso to section 73(1) of the Finance Act and fails to make reference to any specific ingredient of the proviso.

  In view of the aforesaid decisions of the Supreme Court, it would not be possible to sustain the order passed by the Commissioner confirming the demand by invoking the extended period of limitation under the proviso to section 73(1) of the Finance Act - the impugned order dated 08.06.2017 passed by the Commissioner is, accordingly, set aside - appeal allowed.

  ---

1234567........ 73