|
Advanced Search Options
Case Laws
Showing 1 to 20 of 1658 Records
-
2024 (10) TMI 1658
Refund application filed under Section 142(3) - Unutilised CENVAT credit of cess - HELD THAT:- We find ourselves in complete agreement with the findings of the learned Single Judge that in the light of the judgment of the Supreme Court in Union of India and Others v. VKC Footsteps India Private Limited [2021 (9) TMI 626 - SUPREME COURT] and the fact that the refund that was sought was of amounts that could not be refunded as per the statutory provisions that were in force, the prayers in the writ petition could not be granted. We are also not impressed with the submission of the learned counsel for the appellant that the Assessing Authority ought to have considered and passed orders on the refund application preferred by it under Section 55 of the CGST Act. As rightly noticed by the learned Single Judge, the refund application could not be maintained in the first place, and hence, a direction to the respondents to consider the refund claim would be nothing but an exercise in futility.
In the result, we see no reason to interfere with the impugned judgment of the learned Single Judge. The Writ Appeal fails, and is accordingly dismissed.
-
2024 (10) TMI 1657
Attachment of the bank account in exercise of powers conferred by Section 83 - provisional attachment not continued beyond a period of 12 months - subsequent issuance of a Show Cause Notice - post conclusion of investigation - HELD THAT:- In our considered opinion, the mere issuance of that SCN would not sustain a continuance of the provisional attachment.
Accordingly, we allow the instant writ petition and quash the continuance of the provisional attachment order dated 12 May 2020. The respondents are directed to issue appropriate clarificatory directions and communicate the same to the Branch Manager of the United Bank of India forthwith.
-
2024 (10) TMI 1656
Penalty u/s 271(1)(c) - Estimation of income - bogus purchases - addition was made on the basis of the estimated addition @5% on the alleged bogus purchases - HELD THAT:- Admittedly AO made an addition on estimated basis. It has been decided in a number of judgments that when income of assessee was determined on estimation basis, then no penalty u/s 271(1)(c) could be imposed for concealment and furnishing inaccurate particulars. The quantification of the addition is admittedly only an estimate.
It is settled principle of law that penalty is not attracted on estimated additions. In that view of the matter, we find no justification imposing penalty for concealment of income or furnishing of inaccurate particulars of income by the assessee. We respectfully relied on the order of Fancy Diamonds India Pvt Ltd [2023 (6) TMI 1370 - ITAT MUMBAI] We set aside the impugned appeal order and direct to delete the penalty levied u/s 271(1)(c) - Decided in favour of assessee.
-
2024 (10) TMI 1655
Cancellation of GST registration with retrospective effect without explicit reasons and notice to the taxpayer - HELD THAT:- While dealing with an identical question, in Riddhi Siddhi Enterprises vs. Commissioner of Goods and Services Tax (CGST), South Delhi & Anr. [2024 (10) TMI 278 - DELHI HIGH COURT] it is held that 'It is important to note that, according to the respondent, one of the consequences for cancelling a tax payer’s registration with retrospective effect is that the taxpayer’s customers are denied the input tax credit availed in respect of the supplies made by the tax payer during such period. Although, we do not consider it apposite to examine this aspect but assuming that the respondent’s contention in required to consider this aspect while passing any order for cancellation of GST registration with retrospective effect. Thus, a taxpayer's registration can be cancelled with retrospective effect only where such consequences are intended and are warranted.'
Conclusion - The mere existence of a power to cancel with retrospective effect would not justify such a step being adopted unless reasons be assigned to support such a decision and the assessee being placed on due notice.
The impugned order cannot be sustained - petition allowed.
-
2024 (10) TMI 1654
Revision u/s 263 - Non-Deduction of TDS being bank interest paid outside India - as argued interest was paid on foreign currency loan taken from Foreign Branches of Indian Banks which were Domestic Companies, hence TDS was neither required to be deducted u/s 194A nor u/s 195 - HELD THAT:- Provisions of section 195 provides that any person responsible for paying to a non-resident, not being a company, or to a foreign company, any interest (not being interest referred to in section 194LB or section 194LC or section 194LD) or any other sum chargeable under the provisions of this Act (not being income chargeable under the head "Salaries") shall, at the time of credit of such income to the account of the payee or at the time of payment thereof in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, deduct income-tax thereon at the rates in force.
In this case the payment is made by the assessee to Foreign branch of Indian Bank. The nature of payment is interest but is not paid to foreign company. Further these banks are also not a company. Therefore, if there recipient interest non-resident, then only tax is required to be deducted. The term non-resident is defined in section 2(30) which says that non- resident means a person who is not the resident includes a person who is not ordinary resident within the meaning of clause 6 of section 6.
The term resident is defined in section 6(4) of the Act which says that every other person is said to be resident in India in any previous year. In every case, except where during that year the control and management of his affairs is situated holly outside India whereas in the case of banking companies effective place and management is controlled in India and not outside India.
In this case, as is evident that the case of ld. PCIT is not that control and management of this branches of bank are situated outside India. In fact, these foreign branches are not foreign entity but foreign branch of Indian Bank.
Therefore, foreign Branch of this Indian Bank cannot be considered as non-resident. Accordingly provisions of section 195 do not apply to payment made by Indian company to foreign branch of Indian Bank. Hence there is no requirement on deduction of tax at source. Even otherwise these banks are Indian resident and incomes of their branches are taxable in the hands of this Indian Bank in their return of income to be filed in India.
Because of these reason that global income of resident of Indian would be chargeable to tax in India, if any tax is deducted at source of income of foreign branch of this resident bank, once again be granted the credit of taxes in the hands of this Indian Bank. Even otherwise deduction of at source, u/s 194A(3) on payment made to an Indian Bank is out of purview of TDS.
In view of the provisions of section 194(A)(3)(iii)(f) of the Act under this clause all banks covered under the bank nationalization given the exemption for withholding of tax under section 194A of the Act. In view of this aspect also we do not find that the tax is required to be deducted on the above payment of interest paid to foreign branch of Indian Bank. Thus, here also the order of ld. AO cannot be said to the erroneous so far as prejudicial to the interest of revenue.
Therefore, the twin conditions as prescribed under the Act are missing. Explanation 2 cannot be used for such void manner that if relief is granted which is otherwise eligible by the assessee should again to subjected to verification u/s. 263 by the order of the PCIT. Law does not permit to invoke the provisions of section 263 of the Act without proving that order passed by the Assessing Officer is erroneous and prejudicial to the interest of the revenue.
Charging of dividend income as per section 115BBD Vs. Business income - Assessee has received the dividend income after deducting the withholding of tax and is supported by the dividend certificate (APB-176). The income is supported by the various records placed on record stating that the income is on account of declaration of dividend declared by the joint venture company where the assessee hold 33.33 % shares which is more than 26 % prescribed under the provision of section 115BBD of the Act and thus the income received from the JV was to be treated as dividend income only.
The assessee offer this income regularly and the revenue has not challenged that act of the assessee. The contention of the PCIT to treat the dividend income as business profit is against the provision of law and plain reading of section 115BBD read with section 90(2) of the Act the view is against the provision. Moreover while taking that plea the ground taken are also against the law and considering the evidences placed on record the view that the ld. AO has adopted while considering that income chargeable to tax as per section 115BBD cannot be considered as erroneous view and prejudicial to the interest of the revenue.
Thus, proceeding-initiated u/s. 263 fails on the twin condition and even the ld. PCIT on the issue noted that the issue need only verification / examination and there is no independent view of the ld. PCIT even on merits of the issue and therefore, the ground no. 1 to 3 raised by the assessee are allowed.
-
2024 (10) TMI 1653
Classification of leasing transactions for tax purposes - whether the supply of machinery or equipment on lease constitutes a "supply of tangible goods for use" service liable to service tax or a "transfer of right to use goods"? - HELD THAT:- An identical issue in the same set of facts in the appellant’s own case has been decided by this Tribunal AMOL DICALITE LTD. [2024 (9) TMI 1727 - CESTAT AHMEDABAD], wherein this Tribunal has held that 'the assessee‘s activity of giving various equipments on hire does not fall under the category of “Supply of tangible goods for use”, hence the same is not liable to service tax w.e.f. 16-5-2008.'
The issue is no longer res-integra. Accordingly, the impugned orders are set aside and appeals are allowed in favour of the appellant.
-
2024 (10) TMI 1652
Reopening of assessment beyond a period of three years - Mandation to get approval of the specified authority u/s. 151 of the new law - HELD THAT:- As in the present case before us for A.Y. 2017-18, wherein notice u/s. 148 of the Act was issued on 30.06.2022, i.e. beyond a period of three years from the end of the assessment year, the A.O. was statutorily obligated to have obtained the approval from either of the authorities specified u/s. 151(ii) of the extant law, viz. Principal Chief Commissioner or Principal Director General or where there is no Principal Chief Commissioner or Principal Director General, Chief Commissioner or Director General.
However, as the A.O. had obtained the approval from the Pr. Commissioner of Income Tax, i.e. an authority who was not vested with any jurisdiction as per the mandate of Section 151 of the Act (as made available on the statute w.e.f 01.04.2021), therefore, the assessment so framed by him u/s. 147 r.w.s. 144 r.w.s. 144B being devoid and bereft of valid assumption of jurisdiction is liable to be quashed. Accordingly, we quash the assessment framed by the A.O u/s. 147 r.w.s. 144 r.w.s. 144B of the Act - Decided in favour of assessee.
-
2024 (10) TMI 1651
Rejecting the books of accounts and making trading addition - CIT(A) reducing the G.P. rate to 3% - HELD THAT:- It was not justified on the part of the AO to observe that the assessee has nothing to say on the query raised to hold that books of account are not reliable. It appears that before the CIT(A) all these aspects were brought on record.
CIT(A) preferred to sustain the observations of the AO with very general observation and showing generosity gave relief to the assessee by reducing the GP rate from 4% as considered by the AO to 3% in those years in which GP rate is not already shown above three years.
It seems to be more an act of benevolence rather than an exercise of quasi judicial function. Such ad-hocism has no place in law when otherwise assessee had provided all the relevant pieces of financials and records.
Tax authorities seems to have taken a short cut of rejecting the books of accounts instead of showing due indulgence to the material before them and point specific instances of misreporting income or expenses in the books.
Thus, we are of the considered view that at one end the AO has failed to justify the rejection of books of account and on the other hand, the CIT(A) has failed to consider the relevant pleas of the assessee and to make an ad hoc assessment. Assessee appeal allowed.
-
2024 (10) TMI 1650
Levy of surcharge - where the income is less than Rs. 5,00,00,000/- then rate of surcharge would be 25% OR 37% as per Finance Act, 2021 - HELD THAT:- As decided in Anant Bajaj Trust [2024 (8) TMI 1551 - ITAT MUMBAI] has analyzed the factual aspects as well as relevant provisions of law and ultimately affirmed the levy of surcharge @ 37% where the MMR was applicable. Decided against assessee.
-
2024 (10) TMI 1649
Validity of reopening of assessment u/s 147 - absence of any response from the appellant - HELD THAT:- It appears from the show cause notice issued on 28.03.2022 that at the bottom of the page it was digitally signed thereby giving date 29.03.2022 at 00:20:37 IST.
We further find that in the show cause notice the assessee has been directed to furnish explanation on or before 29.03.2022. It is surprising that when it was issued on 29.03.2022 at 00:20:37 IST and directed the assessee to explain the explanation before 29.03.2022.
We find substance in the argument of the CIT(A) that assumption of jurisdiction prior to 29.03.2022 by the AO is to be held to be without jurisdiction. Accordingly, the assessment order, passed, is to be deemed without jurisdiction.
-
2024 (10) TMI 1648
Deduction claimed u/s 80G - contributions made by a company towards Corporate Social Responsibility (CSR) - HELD THAT:- We find that an identical issue came up for consideration in the case of Credit Suisse Services (India) Private Limited [2024 (5) TMI 1542 - ITAT PUNE] wherein the Tribunal dismissed the appeal of the Revenue relying on the decision of Allegi Services (India) Pvt. Ltd. [2020 (5) TMI 378 - ITAT BANGALORE] wherein it was held that the assessee is entitled to claim deduction u/s 80G with respect to donations forming part of CSR expenses. Appeal of assessee is allowed.
-
2024 (10) TMI 1647
Levy of service tax on the amount collected as liquidated damages - HELD THAT:- The issue as to whether the service tax can be demanded on liquidated damages has been settled by a division bench of this Tribunal in Madhya Pradesh Poorva Kshetra Vidyut Vitran Co. Ltd. [2021 (2) TMI 155 - CESTAT NEW DELHI] and it has been held that liquidated damages cannot be subjected to levy of service tax.
The impugned order to the extent it confirms the demand of service tax on liquidated damages deserves to be set aside and is set aside. The appeal is, accordingly, allowed.
-
2024 (10) TMI 1646
Penalty u/s 270A - as argued revenuE not specified corresponding limbs in section 270A(9)(a) to (f) whilst concluding that these are the instances of under-reporting of income as a consequence to misreporting thereof - HELD THAT:- DR could hardly dispute the fact that the AO’s corresponding show cause notices as well as penalty orders in both these cases have not specified the relevant limb u/s. 270A(a) to (f) in very terms. We thus delete the impugned penalty in both these assessees cases therefore on the very analogy. Assessee appeal allowed.
-
2024 (10) TMI 1645
Dishonour of Cheque - legally enforceable debt or not - rebuttal of presumption under Sections 118 and 139 of NI Act by probable defence - HELD THAT:- From the order impugned, it is clear that though the contention of the petitioners was that the said amounts were given for producing a film and were not by way of return of any loan taken, which may have been a probable defence for the petitioners in the case, but rightly, the High Court has taken the view that evidence had to be adduced on this point which has not been done by the petitioners. Pausing here, the Court would only comment that the reasoning of the High Court as well as the First Appellate Court and Trial Court on this issue is sound. Just by taking a counter-stand to raise a probable defence would not shift the onus on the complainant in such a case for the plea of defence has to be buttressed by evidence, either oral or documentary, which in the present cases, has not been done. Moreover, even if it is presumed that the complainant had not proved the source of the money given to the petitioners by way of loan by producing statement of accounts and/or Income Tax Returns, the same ipso facto, would not negate such claim for the reason that the cheques having being issued and signed by the petitioners has not been denied, and no evidence has been led to show that the respondent lacked capacity to provide the amount(s) in question.
The High Court has also rightly observed that even assuming the petitioners and the complainant engaged together in film production and were in the course of jointly producing a film, the fact that the transaction occurred as a joint investment has not been substantiated by the petitioners before the Courts. In this background, the onus to first prove as to how the amount that is said to have been given by the complainant to the petitioners could have been given, would not be fatal as receipt of the amount(s) has not been denied, much less disputed by the petitioners. In this regard, specifically, a suggestion given to the GPA-holder of the complainant i.e., PW1 that the complainant and petitioners were engaged in film production has been emphatically denied by PW1.
Conclusion - There are no error in the High Court opining that in the backdrop of emphatic denial by PW1 with regard to any joint deal/venture with the petitioners in film production and acceptance and non-rebuttal of receipt of Rs.41,28,000/-, the onus would not shift on the complainant and would remain on the petitioners to prove that such receipt of money was not with regard to repayment of an amount legally due to the complainant. In fact, the accused have not been able to dislodge the statutory presumption under Section 139 of the Act.
Petition dismissed.
-
2024 (10) TMI 1644
Deduction u/s 80P - assessee has not filed its return of income within the due date prescribed u/s 139(1) - HELD THAT:- The issue is no longer res integra. As decidedin the case of Nileshwar Range Kallu Chethu Vyavasaya Thozhilali Sahakarana Sangham. [2023 (3) TMI 1055 - KERALA HIGH COURT] has decided the issue in favour of the Revenue.
On identical facts, the Bangalore Bench of the Tribunal in the case of Madhu Souharda Pathina Sahakari Niyamitha [2024 (1) TMI 1452 - ITAT BANGALORE] by following the judgment of Nileshwar Range Kallu Chethu Vyavasaya Thozhilali Sahakarana Sangham [supra] has decided the issue in favour of the Revenue.
-
2024 (10) TMI 1643
Maintainability of appeal on low tax effect - HELD THAT:- As Assessee has submitted that all these appeals would stand covered by a circular issued by the CBDT dated 17 September 2024, considering the tax effect. We accept such statement as made on behalf of the assessee.
As the tax involved in these appeals for the assessment year 2005-06, 2006-07, 2007-08 and 2008-09, we dispose of these appeals with liberty to the revenue to revive the proceedings, in the event, it is revealed that they are not covered by the circular dated 17 September 2024. Liberty to apply.
-
2024 (10) TMI 1642
Adjustment made in the intimation u/s 143(1)(a) - doctrine of merger - contention of the assessee that the intimation u/s 143(1) was merged in the order u/s 143(3) and, therefore, the additions made in the intimation should have been deleted by the CIT(A), which has not been done - HELD THAT:- The doctrine of merger is a common law doctrine that is rooted in the idea of maintenance of the decorum of hierarchy of courts and tribunals, the doctrine is based on the simple reasoning that there cannot be, at the same time, more than one operative order governing the same subject matter as held in the case of Gojer Bros. (P) Ltd. v. Ratan Lal Singh [1974 (5) TMI 115 - SUPREME COURT]
Since, in the instant case, the addition made in the intimation u/s 143(1)(a) by the CPC have not been reversed by the Ld. AO in the order u/s 143(3) passed subsequently and the income as per the intimation has only been retained, therefore, the doctrine of merger does not apply.
AO has accepted the returned income, thereby implying that no addition was made on account of the reasons for which the case was selected under scrutiny but the adjustment made to the income vide intimation issued by the CPC had been retained. Hence, all the grounds of appeal in this regard are dismissed and the appeal of the assessee is liable to be dismissed. The assessee may pursue the other modes of relief in respect of the addition made in the intimation under section 143(1)(a) of the Act.
Retention of the addition made in the intimation u/s 143(1)(a) -Since both the rectification as well as the appeal proceedings are pending, therefore, there does not arise any occasion for adjudication on the issue in this appeal against the scrutiny assessment order and the appeal is hereby dismissed and all other grounds of appeal are dismissed.
-
2024 (10) TMI 1641
TP upward adjustment - delayed recovery of the trade receivables from the associated enterprises - TPO during the proceedings found that there was a delay in the recovery of trade receivable form the associated enterprises, which represents the international transaction and accordingly he made the upward adjustment - TPO, while bench marking the impugned international transaction had adopted the SBN/short term deposit interest rate.
HELD THAT:- The issue on hand needs to be revisited at the level of the TPO so as to find out whether the trade receivables are outstanding more than 90 days if yes, only such trade receivables will be made subject to the adjustment on account of interest up to the end of the financial year in dispute. TPO is also directed to bench mark such transactions at Libor and 200 base points as held by the ITAT in the case of Hewlett Packard India Software Operations Pvt. Ltd. [2022 (11) TMI 1017 - ITAT BANGALORE]
Ground of appeal of the assessee is hereby partly allowed for statistical purposes.
-
2024 (10) TMI 1640
Money Laundering - proceeds of crime - prima facie evidence against the applicant indicating involvement in money laundering activities under Sections 3 and 4 of the PMLA - twin conditions u/s 45 of the Prevention of Money Laundering Act, 2002 (PMLA) - HELD THAT:- The Hon’ble Supreme Court in the matter of Vijay Madanlal Chaudhary case [2022 (7) TMI 1316 - SUPREME COURT (LB)] has observed that 'The Court will not weigh the evidence to find the guilt of the accused which is, of course, the work of Trial Court. The Court is only required to place its view based on probability on the basis of reasonable material collected during the investigation and the said view will not be taken into consideration by the Trial Court in recording its finding of the guilt or acquittal during trial which is based on the evidence adduced during the trial.'
In the case of Satish Jaggi Vs. State of Chhattisgarh, [2007 (4) TMI 775 - SUPREME COURT], the Hon’ble Supreme Court has held that “at the stage of granting of bail, the Court can only go into the question of prima facie case established for granting bail, it cannot go into the question of credibility and reliability of witnesses put up by the prosecution. The question of credibility and reliability of prosecution witnesses can only be tested during trial.”
The requirement of Section 19 of the PMLA, 2002 is completely satisfied. In criminal activity of using the benami bank accounts and utilizing them for managing the proceeds of crime belonging to Mahadev Online Book is the proceeds of crime as defined under Section 2(1)(u) of the PMLA, 2002. The material collected during the investigation and the statements recorded under Section 50 of the PMLA, 2002 clearly establish the link of the present applicant with the alleged offence.
From the material produced in the present case, it is not acceptable that the present applicant did not know about the transactions that the amount utilized by him in purchasing the assets comes from Mahadev Online Book. Denial by the accused itself is not sufficient to consider prima facie that there is no mens rea of the applicant for the said offence under the PMLA, 2002. Although the statement recorded under Section 50 of the PMLA, 2002 is required to be tested at the time of trial, for the purpose of consideration of bail application the statement recorded under Section 50 of the PMLA, 2002 can be considered against the applicant.
It cannot be said that there is no involvement of the applicant in the offence in question. Considering the role of the applicant in the ensuing money laundering case of proceeds of crime in the Mahadev Book App, it is found that there is sufficient evidence collected by the ED/respondent to prima facie show the involvement of the applicant in the offence of money laundering as defined under Section 3 of the PMLA, 2002. It is an organized crime having various facets of its complexion, therefore, further considering the provisions of Section 45 of the PMLA, 2002 this Court is satisfied that there is reasonable ground for believing that the applicant is involved in the offence and he is likely to commit any other offence while on bail, it is not inclined to release the applicant on bail.
Conclusion - There is sufficient prima facie evidence against the applicant to justify denying bail. The court found that the applicant's arrest and remand were conducted in accordance with legal provisions and that the evidence presented by the ED supported the allegations of money laundering.
The present bail application filed by the applicant is rejected.
-
2024 (10) TMI 1639
Addition u/s. 68 - unexplained entries in bank account - assessee has failed to produce any concrete - CIT(A) deleted the addition - HELD THAT:- As the protective additions are made in the hands of the assessee in all the three assessment years under consideration.
Assessee company being a conduit company, addition was made on protective basis by the AO by observing that the assessee has acted as conduit company for providing accommodation entries to the beneficiaries - Since the addition was made on protective basis and the addition was made substantive basis in the hands of beneficiaries, we observed that ld. CIT (A) has deleted the same correctly as it is a fact on record that assessee has acted only as a conduit entity. Accordingly, the ground raised by the Revenue is dismissed.
Commission income which was made on substantive basis in the hands of the assessee, however it is brought to our notice that Anand Kumar Jain who is the provider of accommodation entries, who is the main person, has established these dummy and conduit entities and he has earned the commission income and the same was offered to tax and also confirmed in the case of Anand Kumar Jain [2023 (5) TMI 1186 - ITAT DELHI] therefore, the same income cannot be subject to tax twice. Therefore, even on the issue of commission, we are not inclined to disturb the findings of the ld. CIT (A). Accordingly, this ground of appeal is also dismissed.
Decided in favour of assessee.
........
|
9911796707
