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2024 (10) TMI 1178
100% EOU - interest on the delayed refund of pre-deposit - HELD THAT:- It is found that in this case, the appellant has made the pre-deposit in terms of the direction of the Tribunal vide Order dated 09.09.2014 on 11.11.2014, and the order of the Tribunal has gone in favour of the appellant.
In these circumstances, by relying on the decision of the Tribunal in the case of Riba Textiles Ltd. [2020 (2) TMI 602 - CESTAT CHANDIGARH], which decision has been affirmed by the Hon'ble Punjab and Haryana High Court [2022 (3) TMI 693 - PUNJAB & HARYANA HIGH COURT], wherein the Hon'ble High Court observed 'The appellant is entitled to claim the interest on delay refund from the date of deposit till its realization.'
Relying on the decision of the Hon'ble High Court of Punjab and Haryana in the case of Riba Textiles Ltd. the appellant is entitled to claim interest of pre-deposit made on 11.11.2014 till its realization.
Appeal disposed off.
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2024 (10) TMI 1177
Inclusion of discounts offered to bulk purchasers in the transaction value - period from July 2008 to November 2011 and from December 2011 to January 2013 - HELD THAT:- The issue stands squarely covered by the decision of the Tribunal in MAHANAGAR GAS LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, MUMBAI – II [2024 (3) TMI 341 - CESTAT MUMBAI]. On a perusal of the said decision, it is found that the issue is identical and relates to the period from July 2008 to November 2011 and from December 2011 to January 2013. The said decision, having examined the contentions as well as decision of the Tribunal in MAHANAGAR GAS LIMITED VERSUS CCE, MUMBAI - V [2016 (9) TMI 782 - CESTAT MUMBAI], held that 'money value of the facilities, treated as equivalent to ‘trade discount’, be added back to the transaction value. These fall under different provisions of the Rules supra and the lower authorities have not amplified the lack, and remedy, which was sought to be invoked.'
There are no merit in the impugned order which is set aside to allow the appeals.
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2024 (10) TMI 1176
Seeking to challenge review orders 15 of the Maharashtra Settlement of Arrears of Taxes, Interest, Penalties or Late Fees Act, 2022 (Settlement Act) - refund amount for financial year 2016-2017 is sought to be adjusted against the outstanding demand for the financial years 2013-2014, 2015-2016 and 2017-2018 - seeking to review settlement orders passed under Section 13 (1) of the Settlement Act.
Whether the Respondents were justified in exercising the review powers under Section 15 of the Settlement Act to review the settlement orders passed under Section 13 (1) of the said Settlement Act and recalculating the amount of ‘arrears’ which were initially accepted by the Respondents while passing the settlement orders? - HELD THAT:- On an analysis of the Settlement Act, it is found to be a self-contained code in itself, inasmuch as, it defines various terms for the purpose of the said Act. It provides for the designated authority for implementation of the said Act. It provides for eligibility for the settlement of the arrears, the amount which is to be considered for the settlement of the Act, the time within which the amount determined for settlement is required to be paid, the conditions to be satisfied for availing the settlement, order to be passed accepting or rejecting the settlement, power of rectification, review and appeal. Consequences of settlement order obtained by suppression and conclusiveness of the proceedings covered by settlement.
Whether authorities under the Settlement Act can abdicate and exercise powers granted to authorities under the MVAT Act? - HELD THAT:- It is important to note that the Settlement Act nowhere provides or empowers the authorities under the said Act to import the provisions of the MVAT Act and more particularly provisions of Section 50 of the MVAT Act for determination of the requisite amount to be paid under the Settlement Act. Therefore, the action of the Respondents in passing the review order by importing the provisions of Section 50 of the MVAT Act is wholly without the authority of law and without jurisdiction. If the legislature wanted to empower the authorities under the Settlement Act with the powers conferred under the MVAT Act then nothing prevented them from providing the same under the Settlement Act. The legislature while enacting the Settlement Act in Section 2 (2) provided that the “words and expressions” used in the Settlement Act, but not defined in the said Act shall have the same meanings assigned to them under the Relevant Act. However, the legislature consciously and rightly so did not empower the authorities under the Settlement Act with the powers conferred under the MVAT Act and, therefore, any action of the authorities under the Settlement Act by encroaching upon the powers conferred under the MVAT Act would be without jurisdiction.
Whether, on a reading of the Settlement Act, amount for considering for settlement is to be arrived at after adjusting refund of other years against the dues of the years for which application is made under the Settlement Act? - HELD THAT:- There is no provision under Settlement Act which provides for calculation of outstanding arrears of a particular year to be arrived at after adjustment of refund for another year moreso in a case where there is no such adjustment of the refund order on the date of application or on the date of settlement order under Section 13 of the Settlement Act. Therefore the impugned action of the Respondents to recalculate the outstanding arrears for the financial years 2013-2014, 2015-2016 and 2017-2018 after passing the settlement order by invoking provisions of Section 15 of the Settlement Act admittedly without there being an order Section 50 of the MVAT Act is certainly without jurisdiction.
Whether in the absence of any order under Section 50 of the MVAT Act for adjustment of refund order, are the authorities under the Settlement Act justified in invoking review powers under Section 15 of the Settlement Act? - HELD THAT:- On conjoint reading of Section 50 and Rule 60, unless an assessee desires for adjustment of refund of one year against demand of another year, the Commissioner cannot, under Section 50 adjust the same on its own volition and even if he proposes to do so he has to do so by giving an opportunity of hearing - In the instant case, admittedly there is neither such desire expressed by the Petitioner nor we have been shown any order under Section 50 which is passed for adjusting the refund of Financial Year 2016-2017 against demand for the years 2013-2014, 2015-2016 and 2017-2018. Therefore, in absence of any order under Section 50 read with Rule 60 of the MVAT Rules, the impugned action of the Respondents to adjust refund by resorting to the provisions of the Settlement Act is wholly without jurisdiction.
In the absence of any order under Section 50 of the MVAT Act by the authorities under the said Act, review orders passed by authorities under the Settlement Act conferring power upon itself powers under Section 50 of the MVAT Act is without jurisdiction and also there is no provision under the Settlement Act to adjust such refund for arriving at the amount to be considered for the settlement and, therefore, there cannot be any error in the settlement orders for the authorities to exercise review powers under Section 15 of the Settlement Act.
The impugned review orders dated 17th July 2023 passed under Section 15 of the Settlement Act for the years 2013-2014, 2015-2016 and 2017-2018 are hereby quashed and set aside and consequently impugned communication dated 13th October 2023 is also quashed and set aside - Respondents are directed to refund sum of Rs. 2,72,08,381/- being refund for the financial year 2016-2017 alongwith interest as per the Act and the said refund should be credited to the Petitioner’s account within four weeks from the date of uploading the present order.
Petition disposed off.
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2024 (10) TMI 1175
Violation of principles of natural justice - declination to grant waiver of pre-deposit to the appellant without assigning any reasons for such decision - declination to grant waiver of pre-deposit to the appellant even though the entire demand is based upon Section 61 of the VAT Act which is wholly irrelevant to the issue of determination of “sale price” - declination to grant waiver of pre-deposit to the appellant even though adjustment of tax liability is clearly permissible under Section 8 of the VAT Act - declination to grant waiver of pre-deposit to the appellant even though the appellant has a strong prima facie case squarely supported by decision of Hon’ble Supreme Court in the case of Southern Motors [2017 (1) TMI 958 - SUPREME COURT].
HELD THAT:- On perusal of the impugned order passed by the Tribunal dated 16.06.2022 as well as the order dated 18.11.2022 dismissing second appeals on the ground of non-payment of pre-deposit, it is opined that the Tribunal has admittedly not considered the prima facie case of the appellant while determining the amount of pre-deposit which ought to have been considered as per the decision of this Court in case of Kavya Marketing [2022 (4) TMI 1202 - GUJARAT HIGH COURT].
The impugned order passed by the Tribunal is accordingly quashed and set aside. The appeals are therefore allowed by remanding the matter back to the Tribunal to consider the prima facie case of the appellant for deciding the quantum of pre-deposit, if required.
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2024 (10) TMI 1174
Assessment/reassessment proceedings against company insolvent - HELD THAT:- As pursuant to insolvency proceedings initiated under the Code, a resolution plan was approved by the Tribunal u/s 30 (6) of the Code. It is also on record that the claim which was lodged by the Deputy Commissioner of Income Tax, Rajkot was verified and admitted in the proceedings before NCLT after consideration of the claim filed by the Additional Commissioner of Income Tax, Rajkot.
Thus, in view of above clear provisions of law no person would be entitle to initiate or continue any proceedings in respect of any claim for any dues relating to the period prior to approval of resolution plan. We therefore, deem it appropriate to quash and set aside Assessment Order passed u/s 147 r.w.s.144 and 144B and order passed u/s 148A (d) as well as the impugned notices passed under Section 148A (b) - Decided in favour of assessee.
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2024 (10) TMI 1173
Denial of Registration u/s 80G - belated filing of application in form 10AB - HELD THAT:- When we read the Budget Speech of Hon’ble Finance Minister 2020 and the Memorandum of Finance Bill 2020 together, it becomes clear that the concept of Provisional registration was mainly to facilitate the registration of newly formed Trust/Institutions which have not yet begun the activities. In continuation of this when we read the “sub clause iii of Proviso” of section 80G(5), which we have already reproduced above, it is clear that the intention of parliament in putting the word “or within six months of commencement of its activities, whichever is earlier” is in the context of the newly formed Trust/institutions. For the existing Trust/Institution, the time limit for applying for Regular Registration is within six months of expiry of Provisional registration if they are applying under subclause (iii) of the Proviso to Section 80G(5) of the Act.
If we agree with the interpretation of the CIT(E), then say a trust which was formed in the year 1986, performed charitable activities since 1986, but did not applied for registration u/s 80G, the said trust will never be able to apply for registration now. This in our opinion is not the intention of the legislation.
Even otherwise, the Provisional Approval is upto AY 2024-25, and it can be cancelled by the CIT(E) only on the specific violations by the assessee.
Therefore, we hold that the Assessee had made the application in form 10AB within the prescribed time limit and hence it is valid application.
CIT(E) has not discussed whether the Assessee fulfils all other conditions mentioned in the section as he rejected it on technical ground. Therefore, we direct the CIT(E) to treat the application as filed within statutory time and verify assessee’s eligibility as per the Act. The CIT(E) shall grant opportunity to the assessee. Appeal of the assessee is allowed for statistical purpose.
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2024 (10) TMI 1172
Profiteering - Constitutional validity of Section 171 of the Central Good and Services Tax Act, 2017 and Rules 122, 124, 126, 127, 129, 133 and 134 of the Central Good and Services Tax Rules, 2017 - legality of the notices proposing imposition or orders imposing penalty issued by the National Anti-Profiteering Authority (NAA) under Section 122 of the Act, 2017 read with Rule 133(3)(d) of the Rules, 2017 - it was held by High Court that 'The constitutional validity of Section 171 of Act, 2017 as well as Rules 122, 124, 126, 127, 129, 133 and 134 of the Rules, 2017 is upheld. This Court clarifies that it is possible that there may be cases of arbitrary exercise of power under the anti-profiteering mechanism by enlarging the scope of the proceedings beyond the jurisdiction or on account of not considering the genuine basis of variations in other factors such as cost escalations on account of which the reduction stands offset, skewed input credit situations etc.'
HELD THAT:- Issue notice.
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2024 (10) TMI 1171
Profiteering - Constitutional validity of Section 171 of the Central Good and Services Tax Act, 2017 and Rules 122, 124, 126, 127, 129, 133 and 134 of the Central Good and Services Tax Rules, 2017 - legality of the notices proposing imposition or orders imposing penalty issued by the National Anti-Profiteering Authority (NAA) under Section 122 of the Act, 2017 read with Rule 133(3)(d) of the Rules, 2017 - it was held by High Court that 'The constitutional validity of Section 171 of Act, 2017 as well as Rules 122, 124, 126, 127, 129, 133 and 134 of the Rules, 2017 is upheld. This Court clarifies that it is possible that there may be cases of arbitrary exercise of power under the anti-profiteering mechanism by enlarging the scope of the proceedings beyond the jurisdiction or on account of not considering the genuine basis of variations in other factors such as cost escalations on account of which the reduction stands offset, skewed input credit situations etc.'
HELD THAT:- Issue notice.
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2024 (10) TMI 1170
Violation of principles of natural justice - rejection of impugned order without assigning any reason - HELD THAT:- It is settled law that reason is the heartbeat of every conclusion. An order without valid reasons cannot be sustained. To give reasons is the rule of natural justice. One of the most important aspect for necessitating to record reason is that it substitutes subjectivity with objectivity. It is well settled that not only the judicial order, but also the administrative order must be supported by reasons recording in it.
The Hon'ble Supreme Court, in the cases of ASSISTANT COMMISSIONER, COMMERCIAL TAX DEPARTMENT, WORKS CONTRACT & LEASING, KOTA VERSUS M/S SHUKLA & BROTHERS [2010 (4) TMI 139 - SUPREME COURT], TRAVANCORE RAYONS LTD. VERSUS UNION OF INDIA [1969 (10) TMI 23 - SUPREME COURT] have observed that the administrative authority and the tribunal are obliged to give reasons, absence whereof would render the order liable to judicial chastisement. Once the reason has not been assigned by the competent authority for levying the penalty then on this ground alone, the impugned orders cannot be sustained.
In view of the facts and circumstances of the case as well as law laid down by this Court, the impugned order passed by the appellate court dated 31.3.2023 cannot be sustained in the eyes of law and same is hereby quashed - Petiiton allowed.
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2024 (10) TMI 1169
Seeking for a direction to the Respondent to process the refund application and sanction the refund along with interest - time limitation - Zero Rate Supplies - HELD THAT:- It is to be noted that initially, the petitioner has made application well within time, i.e. on 22.02.2018, claiming refund of the tax under Section 54 of CGST Act, 2017 followed a reminder letter dated 29.03.2019, but the respondent has not processed the same, but after a lapse of more than one year, they issued a Deficiency Memo on 12.04.2019 calling upon the petitioner to rectify certain deficiencies mentioned therein. According to the petitioner, they had not received the said Deficiency Memo and they came to know only when they received a letter dated 26.5.2023 from the respondent.
Therefore, since the petitioner has made the application claiming refund of the tax within the time, which was not processed by the respondent more than a year, this Court is of the view that it would be appropriate to direct the respondent to process the application without insisting limitation aspect and pass orders therein.
The respondent is directed to process the refund application dated 22.02.2018 filed by the petitioner and pass appropriate orders in accordance with law, after giving an opportunity of hearing to the petitioner, within a period of four (4) weeks from the date of receipt of a copy of this order.
This writ petition is disposed of.
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2024 (10) TMI 1168
Dismissal of appeal of the petitioner on the ground of limitation - difference between the GSTR-1 and GSTR-9C - HELD THAT:- It is admitted fact that the appeal has been dismissed on the ground of limitation. Learned counsel for the petitioner has relied upon the notification dated 02.11.2023. On close scrutiny of the said notification, it is clear that if taxable person could not file appeal against the order passed by the Proper Officer on or before 31.03.2023 under sections 73 or 74 of the GST Act and if the appeal is preferred on or before 31.01.2024, the same will be considered on merit without taking recourse to the limitation.
In the case in hand, the impugned order has been passed on 20.07.2023, much after the date mentioned in the aforesaid notification, i.e., 31.03.2023. Therefore, the said notification is of no aid to the petitioner.
In the case of M/s Yadav Steels [2024 (2) TMI 1069 - ALLAHABAD HIGH COURT], it has been specifically held that delay in filing the appeal cannot be condoned beyond the prescribed period of limitation in the Act.
This Court does not find any merit in these writ petition - Petition dismissed.
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2024 (10) TMI 1167
Constitutional Validity of Rule 86A of the CGST/SGST Rules, 2017 - violation of Article 14 of the Constitution of India and Article 19 (1) (g) of the Constitution of India - requirement of reasonable cause before action is taken under the Rule by an authorized officer - HELD THAT:- In the instant case, since no pre-decisional hearing was provided/granted by the respondents before passing the impugned order, coupled with the fact that the impugned order invoking Section 86A of the CGST Rules by blocking of the Electronic credit ledger of the petitioner does not contain independent or cogent reasons to believe except by placing reliance upon the reports of Enforcement authority which is impermissible in law, since the same is on borrowed satisfaction as held by the Hon’ble Division Bench of this Court, the impugned order deserves to be quashed.
Impugned order dated 23.01.2020 at Annexure-A is hereby quashed - the concerned respondents are directed to unblock the Electronic credit ledger of the petitioner immediately upon the receipt of copy of this order, so as to enable the petitioner to file returns forthwith - petition allowed.
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2024 (10) TMI 1166
Constitutional Validity of N/N. 09/2023 dated 31-03-2023 - violation of provision of section 168A of the CGST Act - extension of time limit in an arbitrary manner - non-application of mind - violation of principles of natural justice - whether the N/N. 9/2023 issued by the Government of India on 31.03.2023 at Annexure-A can be said to be without any basis or without application of mind?
HELD THAT:- The explanation to Section 168A indicates as regards the time limit which has been fixed that notwithstanding anything contained in the Act, the Government may, on the recommendation of Council by notification, extend the time limit specified in or prescribed or notified under the Act. The explanation to the said Section indicates that the expression force majeure would include case of war, epidemic, flood, drought, fire, cyclone, earthquake, or any other calamity caused by nature otherwise affecting the implementation of any of the provision of the Act -
A perusal of the discussion made in the GST Council in the 49th meeting held on 18.02.2023 which has been extracted hereinabove indicates that the Law Committee had considered the representation of various officers, the delay in the scrutiny and audit because of Covid-19 pandemic, the workload having been increased and that it not being capable that the proceedings be closed in terms of Subsection (10) of Section 173 by 30.09.2023, therefore, recommended an extension of a period of three months.
The extension of the period of limitation in all proceedings before Courts and Tribunals is what was considered by the Hon’ble Apex Court in the said decision and not matters pertaining to assessment, reassessment, show cause notice or the like issued by tax Authorities. Thus, the decision of the Hon’ble Apex Court in suo motu proceedings [2022 (1) TMI 385 - SC ORDER] would also not be applicable to the present facts and circumstances.
The notification No.9/2023 dated 31.03.2023 at Annexure-A cannot be found fault with on the basis of the submission made by the Council for the petitioner.
There are no grounds that have been made out in the present petition, so the petition is dismissed.
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2024 (10) TMI 1165
Decision of appeal ex-parte - Impugned order passed ex-parte by the appellate authority on the ground that on the date fixed, the counsel of the appellant could not appear before the appellate authority and neither did anyone appear on behalf of the State and the appeal was decided on merits - whether in absence of counsel of the appellant, the appellate authority can proceed to consider and decide the appeal 'ex-parte' in absence of the appellant? - HELD THAT:- The specific statutory mandate is that after hearing the appellant, the Appellate Authority is to make further enquiry, if found necessary and pass such orders as it thinks just and proper, confirming, modifying or annuling the decision or order appealed against. Such affirmation, modification or annulment shall not be an empty formality nor can it be mechanical, without the consideration of the grounds of appeal.
It is observed so, specifically when the Appellate Authority is empowered to refuse the prayer for adjournment made by an appellate, if on three prior occasions, such adjournment has been allowed, in which case also the Appellate Authority cannot absolve itself from the obligation to conduct such further enquiry as is mandated under sub-section (11) of Section 107. Sub-section (12), it has to be further emphasized, also requires the order of the Appellate Authority disposing of the appeal to be in writing and specifically stating the points for determination, the decision thereon and the reasons for such decision. When an appeal is dismissed for reason only for absence of the appellant or lack of effective prosecution, then the Tribunal should be found to have abdicated its powers and not followed the statutory mandate.
Even otherwise, deciding a case ex-parte on merits without giving reasonable opportunity to the parties is blatant violation of rule of "Audi alterum partem". In absence of the appellant, the Commercial Tax Tribunal had the authority to dismiss the appeal in default as provided in the Order XLI Rule 17 of the Code of Civil Procedure, 1908 rather than hearing it ex-parte and deciding it on merits.
Accordingly, adequate reasons are given for the defendant for non appearance and judgement is rendered ex-parte, but recall of order, exercise of rectification has been provided under Section 31 of the U.P. Value Added Tax Act, 2008.
The impugned order dated 18.12.2023, whereby the appellate authority has proceeded to decide the appeal preferred by the petitioner in his absence, is held to be illegal and arbitrary and accordingly set aside and the matter is remitted back to the appellate authority to decide the matter afresh after affording an opportunity of hearing to the parties and considering the fact that much time due to pendency of the aforesaid proceedings, has elapsed, the appellate authority is directed to expedite the appeal and decide the same within three months from the date of production of a certified copy of this order, in accordance with law.
Revision allowed.
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2024 (10) TMI 1164
Disposal of the petition - it is submitted that this petition may not be kept pending but with appropriate protection available under Section 112 (8) of the Rajasthan Goods and Services Tax, 2017, this petition may be disposed off with liberty to the petitioner to file appeal within stipulated period from the date the Tribunal is constituted - HELD THAT:- This petition, at this stage, is disposed off with a direction that in case petitioner makes payment as per provisions contained in Sub-section (8) of Section 112 of the Act, further proceedings shall not be drawn for recovery of the balance amount, provided that the petitioner avails statutory remedy of appeal within a period of three months from the date of the constitution of the Tribunal.
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2024 (10) TMI 1163
Imposition of a condition of furnishing a bank guarantee while granting bail - Seeking modification of the order under Section 439(1)(b) of the CrPC - misappropriation of funds of the organization and also thieved certain documents - whether the Court would have imposed a condition of furnishing of bank guarantee of whatever amount it is, while granting bail? - HELD THAT:- The Apex Court answering an identical circumstance has held that asking for a bank guarantee or a condition of furnishing a bank guarantee, while granting bail, is illegal. The Apex Court in the case of Subhash Chouhan v. Union of India and another [2023 (1) TMI 1168 - SC ORDER] has held 'the condition directing the appellant to deposit a sum of Rs. 70 Lakhs is not liable to be sustained and is hereby set aside.'
The Apex Court has held it to be illegal in the afore-quoted judgment. The said finding would become applicable to the facts of the case at hand and the condition of furnishing of bank guarantee is on the face of it illegal. This Court is coming across plethora of cases where the concerned Courts, while granting bail are imposing a condition that the accused should furnish a bank guarantee of any quantum. This is on the face of it illegal. Such orders being passed have generated lot of litigation.
It is deemed appropriate to observe that the concerned Court shall not insist on furnishing of bank guarantee for release of the accused on grant of bail. Except this, the concerned Court would be free to impose any other legally tenable conditions - the criminal petition is allowed.
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2024 (10) TMI 1162
Amnesty scheme - Failure to file annual returns for the period from financial year 2018 - 2019 till 01.04.2023 but filed the same on or before 31.08.2023 - justification in continuing with the notices for non payment of late fee for belated GSTR – 9C filed by tax payees before 01.04.2023 or not - HELD THAT:- Reliance placed on the judgment of this Court in Anishia Chandrakanth v. the Superintendent, Central Tax & Central Excise [2024 (4) TMI 993 - KERALA HIGH COURT], wherein it has been held that in view of Exts.P4 and P5 notifications, there appears to be no justification in continuing with the notices for non payment of late fee for belated GSTR – 9C filed by tax payees before 01.04.2023, the date on which one time amnesty commences.
Ext.P3 is set aside to the extent it sought to collect late fee for delay in filing GSTR – 9C. However, the petitioner will not be entitled to claim refund of the late fee which has already been paid by him over and above Rs. 10,000/-.
The writ petition is disposed of.
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2024 (10) TMI 1161
Constitutional validity of Rule 117 (4) (b) (iii) of the CGST Rules - ultra-vires of Section 140 (3) of the CGST Act - violation of Article 14 of the Constitution of India - seeking declarartion that Rule 117 (4) (b) (iii) of the CGST Rules to be directory in nature - HELD THAT:- It appears that this Court has already concluded this issue in the aforesaid decision of Siddharth Enterprise [2019 (9) TMI 319 - GUJARAT HIGH COURT] with regard to the right of the petitioner to avail the transitional credit which is even otherwise legally available and due to the technical glitch or inadvertent mistake on the part of the petitioner, the respondent authorities were supposed to permit the petitioner to rectify TRAN-1/TRAN-2 by making necessary changes in the software if the software is designed not permitting the petitioner to upload the correct TRAN-1 to rectify the mistake in the first TRAN-1 which was uploaded on 12.12.2017.
The respondent authorities are therefore directed to permit the petitioner to file the rectified TRAN-1 with correct details in correct columns so as to avail the transitional credit by the petitioner along with TRAN-2 within a period of eight weeks from today.
The impugned show-cause-notice is hereby quashed and set aside - Petition allowed.
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2024 (10) TMI 1160
Validity of proceedings u/s 153C - whether the assessee should be treated as a “Searched Person” or “Other Person”? - Whether ‘Loose Sheets’ and ‘Diary’ have any evidentiary value? - As decided by HC [2024 (2) TMI 116 - KARNATAKA HIGH COURT] impugned notices issued u/s 153C based on the loose sheets/diaries are contrary to law, which require to be set aside in these writ appeals, as the same are void and illegal. As satisfaction note is required to be recorded under Section 153C of the IT Act for each Assessment Year and in the impugned proceedings, a consolidated satisfaction note has been recorded for different Assessment Years, which also vitiates the entire assessment proceedings. In view of all these findings, it is said that the appeals do not have any substance for seeking intervention as sought for by the appellant / Revenue.
HELD THAT:- Delay condoned. Heard the learned counsel appearing for the petitioners.
We are not inclined to interfere with the impugned judgment passed by the High Court. Hence, the Special Leave Petitions are dismissed.
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2024 (10) TMI 1159
Deemed registration u/s 12AA - specific deeming provision in the I.T. Act, 1961 - HELD THAT:- There is much substance in the contention as urged on behalf of the Revenue that the decision of Harshit Foundation Sehmalpur [2022 (5) TMI 179 - SC ORDER] would be required to be held to be the law declared by the Supreme Court u/Article 141 of the Constitution, on the interpretation of the interplay between Section 12A and Section 12AA (2) on the issue whether sub-section (2) of Section 12AA conceives any deemed grant of registration, if the assessee’s application is not decided within six months. This decision considers the applicability and interpretation of the said provisions and accords an approval to the view taken in Muzafar Nagar Development Authority [2015 (3) TMI 99 - ALLAHABAD HIGH COURT (LB)] and as in Harshit Foundation Sehmalpur [2022 (5) TMI 179 - SC ORDER] which had also distinguished the applicability of the decision of the Supreme Court in Society for Promotion of Education [2016 (2) TMI 672 - SC ORDER]
We find ourselves in agreement with the observations made in Harshit Foundation Sehmalpur [2022 (5) TMI 179 - SC ORDER] including to distinguish the applicability of the decision, the Supreme Court in Society for Promotion of Education [2016 (2) TMI 672 - SC ORDER] On a reading of the decision of the Supreme Court in Harshit Foundation Sehmalpur (supra) it is clear that the Supreme Court has considered the legal effect which emanated from Section 12AA (2) of the IT Act and as considered by the Full Bench of the Allahabad High Court in Muzaffar Nagar Development Authority [2015 (3) TMI 99 - ALLAHABAD HIGH COURT (LB)] when it upheld the decision of the Division Bench in Harshit Foundation Sehmalpur [2022 (5) TMI 179 - SC ORDER] while approving the decision of the Full Bench. In this view of the matter, considering the reasoned orders passed by the Supreme Court although in dismissing the SLP applying the principles as laid down in Kunhayammed and others vs. State of Kerala & Anr. [2000 (7) TMI 67 - SUPREME COURT (LB)] it would be required to be held that the Revenue is right in its contention that the decision of the Supreme Court in Harshit Foundation Sehmalpur (supra) is the law declared by the Supreme Court under Article 141 of the Constitution.
Having considered both the decisions as rendered by the Supreme Court namely in Society for Promotion of Education [2016 (2) TMI 672 - SC ORDER] and Harshit Foundation Sehmalpur [2022 (5) TMI 179 - SC ORDER] and as held by the Division Bench of the Allahabad High Court, in fact, we do not find that there is any situation that both the said decisions are mutually irreconcilable, for the reasons we have noted hereinabove. In our opinion, accepting Mr. Mundhra’s argument that these decisions bring about a mutually irreconcilable legal position, would not be a correct reading of these decisions.
Thus, as held by the Supreme Court in Harshit Foundation Sehmalpur [2022 (5) TMI 179 - SC ORDER] the clear position in law is to the effect that Section 12AA (2) of the IT Act does not recognize any deeming fiction, that an application for registration is deemed to be granted, if it is not disposed of within six months, as succinctly held by the Full Bench of the Allahabad High Court in Muzafar Nagar Development Authority (supra) when it observed that the Parliament has carefully and advisedly not provided for such deeming fiction and as approved by the Supreme Court in Harshit Foundation Sehmalpur [2022 (5) TMI 179 - SC ORDER]
Allow the Revenue’s appeal in answering the question of law in favour of the Revenue and against the assessee.
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9911796707
