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Showing 421 to 440 of 1125 Records
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2020 (11) TMI 705
Disallowance u/s 14A r.w.r. 8D - HELD THAT:- Appeal is disposed of by remitting the matter back to the Assessing Officer for deciding the issue regarding disallowance under Section 14A as relying on M/s. Marg Limited [2020 (10) TMI 102 - MADRAS HIGH COURT] wherein held that the disallowance under Rule 8D of the IT Rules read with Section 14A of the Act can never exceed the exempted income earned by the Assessee during the particular assessment year and further, without recording the satisfaction by the Assessing Authority that the apportionment of such disallowable expenditure made by the Assessee with respect to the exempted income is not acceptable for reasons to be assigned the Assessing Authority, he cannot resort to the computation method under Rule 8D.
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2020 (11) TMI 704
Reopening of assessment u/s 147 - Deemed dividend addition 2(22)(e) - approval by the JCIT without expressing any satisfaction - HELD THAT:- A summary approval by the JCIT without expressing any satisfaction on presence of underlying materials showing escapement while exercising the functions under s.151 of the Act cannot be countenanced in law. This apart, a consolidated approval memo of multiple assessee without recording satisfaction qua each individual case raises serious doubt on plausibility of implicit satisfaction for each case as contemplated in Section 151 of the Act.
A nondescript approval under S. 151 without requisite satisfaction is a nullity. The issuance of notice under S. 147 itself is thus void where the sanction is not obtained in terms of S. 151 of the Act. Hence, on this ground also, the notice under s.147 of the Act itself gets vitiated.
Section 147 of the Act confers jurisdiction upon the Assessing Officer for carrying out assessment proceedings. The legal objection raised by the assessee on the validity of assumption of jurisdiction under s.147 r.w.s. 151 of the Act and consequent additions carried out under s.2(22)(e) of the Act within the framework of the provisions of Section 147 of the Act strikes to the root of the matter and therefore can be challenged before the Tribunal even if not raised or not argued diligently before the lower authorities. We, thus, do not concur with the objections of the Revenue on this score.
Additions made under s.2(22)(e) of the Act in departure with recorded reasons, cannot be sustained in the current proceedings under s.147 of the Act where no additions towards retuned income has been made on the grounds for which powers under S. 147 were exercised. We thus are not inclined to go into the remaining aspects, if any, concerning merits of the additions. The proceedings under s.147/s.148 of the Act are thus quashed as void ab-initio and the additions made under s.2(22)(e) of the Act is held to be bad in law. - Decided in favour of assessee.
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2020 (11) TMI 703
Unexplained cash deposits u/s 69A - unexplained money - addition made u/s 69A was levied at the rate of 60% in view of the provisions of section 115BBE - HELD THAT:- Assessment for assessment year 2017-2018 was completed u/s 144 prior to the date of filing of the return (assessment was completed on 25.09.2019). The assessee in the paper book has also filed Form 26AS for the assessment years 2015-2016, 2018-2019, etc. On perusal of Form 26AS for the above mentioned assessment years shows huge cash deposits and withdrawals.The assessment year 2018-2019 there are cash deposits of ₹ 49,94,230 and cash withdrawals of ₹ 60,54,406.
There is some truth in assessee’s contention that cash deposits are attributable to agricultural / trading activities and entire cash deposits in the current account of the assessee cannot be treated as unexplained money and brought to tax u/s 69A.
One more opportunity should be granted to the assessee to prove his case that cash deposits are attributable to the agricultural / trading activities. For the above said purpose, the issue raised in this appeal is restored to the Assessing Officer - Appeal filed by the assessee is allowed for statistical purposes.
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2020 (11) TMI 702
No mandatory notice u/s 143(2) issued by eligible ITO - ITO jurisdiction to frame the scrutiny assessment u/s 143(3) without issuing notice u/s 143(2) - assessee objected to the jurisdiction of ITO, Ward-3, Shillong to have issued the statutory notice wherein it was stated that the assessee society is in Tezu which is situated in the State of Arunachal Pradesh and ITO, Ward-2, Digboi has territorial jurisdiction u/s 124 - HELD THAT:- It is an admitted fact that the assessment was framed by the ITO, Ward-2, Digboi and that he has not issued notice u/s 143(2) of the Act which is discernible from the order sheet as well as from perusal of the assessment order - scrutiny assessment u/s 143(3) was framed without issuing notice u/s 143(2) by the ITO, Ward-2, Digboi. The legal issue raised before me is no longer res integra. As in Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT] has held that issue / serving notice u/s 143(2) of the Act is sinequa- non before framing of scrutiny assessment u/s 143(3) - Therefore, relying on the said decision of Hon’ble Supreme Court, we allow the legal issue raised by the assessee.
PAN jurisdiction of assessee - Coming to the contention of the ld D.R that PAN jurisdiction of assessee was with ITO, Ward-3, Shillong and therefore he issued notice u/s 143(2) of the Act after taking note of CASS in the case of assessee ; and later when he came know that jurisdiction was with ITO, Ward-2, Digboi , he has transferred the case to the jurisdiction of ITO at Digboi and since the assessee has participated in the assessment proceedings, there is no prejudice caused to the assessee. This submission of Ld. D.R cannot be accepted since the statute does not recognize PAN jurisdiction.
Jurisdiction recognized by the Act are based on territory, residence, pecuniary, classes of assessee like companies, firms etc. Since the PAN jurisdiction must be an internal arrangement of the Department which does not have the sanction of law and since it is not recognized by the Statute, therefore this contention of the revenue cannot be accepted and so it is rejected. Thus ITO, Ward-2, Digboi could not have framed the assessment order u/s 143(3) without issuing notice u/s 143(2) - Decided in favour of assessee.
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2020 (11) TMI 701
Disallowance of provision for unreconciled OD and CC loan - AO has made addition on the basis of provisional profit and loss account and the balance sheet - CIT-A deleted the addition - HELD THAT:- On perusal of the financial statement no where it is appearing in the profit and loss account. Therefore, the AO was not justified to make addition on this account and the CIT(A) has rightly deleted the addition made by the AO.
Provisions debited into profit and loss account without creating any liability is not allowable under the Income Tax Act but in the financial statements produced before us, we also do not find anywhere that the particular amount has been debited into the profit and loss account. The findings recorded by the CIT(A) in this regard are justified. Accordingly, we uphold the order of the CIT(A) with regard to deletion of addition made by the AO under the head provision for unreconciled OD and CC loan and dismiss the appeal of the Revenue.
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2020 (11) TMI 700
Revision u/s 263 by CIT - CSR expenses allowability - HELD THAT:- AO had called for and obtained explanation for CSR expenses incurred by the assessee. The explanation given by the assessee before the AO is extracted by it, in its reply to the PCIT u/s 263 - This is not a case where there was no enquiry on this issue by the A.O. It is also not a case of non-application of mind nor in the case where the AO had not examined these particular expenses claimed by the assessee, as alleged in point No. (ii) of the show cause notice by the Pr. CIT. Though the Pr. CIT had made this allegation in his Show Cause Notice, no such finding has been given by the Pr. CIT in his order u/s 263 of the Act. Admittedly, the expenditure in question is audited and is allowable as deduction.
The amendment brought about by way of Explanation 2 to section 37 by Finance Act, 2014, was only with effect from 01.04.2015. In the case of Misrilall Mines Pvt. Ltd. [2018 (6) TMI 893 - ITAT KOLKATA] and Jindal Power Ltd., Raipur Bench [2016 (7) TMI 203 - ITAT RAIPUR] ITAT held that the amendment in question is not retrospective. Expenditure incurred in CSR in accordance with guidelines issued by the Govt. of India is allowable as a deduction for both A.Y. 2013-14 and A.Y. 2014-15.
In view of the above discussion, we are of the considered view that there is no error in the order of the Assessing Officer passed u/s 143(3) of the Act in both the assessment year, much less an error, in so far as it is prejudicial to the interest of Revenue. Thus we cancel the orders passed by the Pr. CIT u/s 263 - Decided i favour of assessee.
There is no error in the order of the Assessing Officer passed u/s 143(3) of the Act in both the assessment year, much less an error, in so far as it is prejudicial to the interest of Revenue. Thus we cancel the orders passed by the Pr. CIT u/s 263 - Decided in favour of assessee.
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2020 (11) TMI 699
Deduction u/s.54F - Receipt of 10 flats in lieu of Joint development agreement (JDA) of land - assessee did not offer any long term capital gain (LTCG) on entering into joint venture agreement in respect of property - whether there is a transfer of the property within the meaning of section 2(47)(v)? - plea of the assessee was that it is only on delivery of the constructed area by the developer in all respects that a transfer would take place and since no such delivery of built up area had taken place during the previous year - AO was of the view that possession of the property had been delivered to the developer and therefore there was a transfer of the property on the signing of the development agreement dated 21.01.2010 and therefore capital gain was exigible to tax in Assessment Year 2010-11 - HELD THAT:- In the case of K.G.Rukminiamma [2010 (8) TMI 482 - KARNATAKA HIGH COURT] the facts were on a site measuring 30' x 110' the assessee had a residential premises. Under a joint development agreement she gave that property to a builder for putting up flats. Under the agreement 8 flats are to be put up in that property and 4 flats representing 48% is the share of the assessee and the remaining 52% representing another 4 flats is the share of the builder. So the consideration for selling 52% of the site was 4 flats representing 48% of built up area and the 4 flats are situated in a residential building. The Court held that the 4 flats constitute 'a residential house' for the purpose of sec 54. The 4 residential flats cannot be construed as 4 residential houses for the purpose of sec 54. It has to be construed as "a residential house" and the assessee is entitled to the benefit accordingly.
In that view of the matter, the Court held that the Tribunal as well as the appellate authority were justified in holding that there is no liability to pay Capital Gains tax as the case squarely falls under sec. 54 of the Income Tax Act, 1961.
Post amendment, viz., from 01.04.2015, benefit of s 54F will be applicable to one residential house in India. However, prior to said amendment, a residential house would include multiple flats/residential units. Similar decisions were rendered on identical facts by the Hon'ble Madras High Court in the case of CIT vs Gumanmal Jain[2017 (3) TMI 394 - MADRAS HIGH COURT].
In the present case all the 13 flats were situate in the same premises and, therefore, the decision rendered in the case of Smt. K.G Rukminiamma (Supra) will apply. In the light of above judicial pronouncements on identical facts and circumstances of the case of the assessee, we are of the view that the Assessee is entitled to deduction u/s.54F of the Act on all the 13 flats and if the deduction is allowed then there would be no capital gain that would remain which is chargeable to tax in the hands of the assessee. We hold and direct accordingly and allow the appeal of the Assessee.
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2020 (11) TMI 698
Addition being the amount of PF and ESI u/s 36(1)(va) - amount remitted to the concerned accounts before the due date of filing the return of income - HELD THAT:- In the instant case, there is no dispute that the amounts-in-question with regard to EPF and ESI were remitted to the concerned accounts before the due date of filing the return of income u/sn 139(1). This, the Tribunal has consistently taken a view that if the PF and ESI are remitted to the respective accounts, the same are required to be allowed as deduction. See KLR INDUSTRIES LTD., HYDERABAD [2015 (7) TMI 684 - ITAT HYDERABAD]
No disallowance could be made in respect of employees contribution of PF and ESI if the same are deposited before the due date of filing the return of income. Accordingly, we set aside the order of Ld.CIT(A) and delete the addition made by the AO. The appeal of the assessee on this ground is allowed.
Addition proportionate expenditure attributing to non-taxable units - HELD THAT:- Assessee is having four units, for which the income and expenditure has been allocated unit-wise and head-wise. The assessee also stated that separate books of accounts are maintained for each unit and if separate books are maintained, there is no case for disallowance of expenditure on estimation basis. AR also submitted that all the expenditure was distributed among all the units proportionately and there is no case of making estimated disallowance relating to non-taxable unit. AO neither rejected the books of accounts nor made out case of suppression of taxable income, or inflation of expenditure in taxable units. We hold that there is no case for making the addition on estimation basis, hence, we set aside the orders of lower authorities and delete the additions made by the AO. The appeal of assessee on this ground is allowed.
Set-off of loss before allowing the deduction u/s 10A - HELD THAT:- In the case of CIT Vs. Yokogawa India Ltd [2016 (12) TMI 881 - SUPREME COURT] it was held that the profits and gains of business of eligible undertaking has to be made independently and immediately after the stage of determination of its profits and gains and it is premature to apply the provisions of Section 70, 71 and 72 of the Act at the stage of determination of profits and gains of the business, thus held that the deduction u/s.10A of the Act is to be allowed from the gross total income of eligible undertaking but not at the stage of computation of total income.
We direct the AO to allow the deduction at the stage of computation of gross total income but not under Chapter-VI for arriving the total income, accordingly we set aside the order of the CIT(A) and remit the matter back to the file of the AO for limited purpose of computing the deduction u/s.10A of the Act as per the order of the Hon’ble Apex court supra. Accordingly, the appeal of the assessee on this ground is allowed for statistical purposes.
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2020 (11) TMI 697
Estimation of income - bogus purchases - CIT-A restricting the disallowance to 12.5% - HELD THAT:- As relying on SIMIT P SHETH [2013 (10) TMI 1028 - GUJARAT HIGH COURT] no infirmity in the order passed by the Ld.CIT(A) in restricting the addition/disallowance to the extent of 12.5% of the purchases. Grounds raised by the revenue are dismissed.
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2020 (11) TMI 696
Addition u/s 68 - unexplained cash credit - HELD THAT:- If the assessee fails to give any explanation of the source and nature of money deposited in his bank account, definitely the provisions of Section 68 of the income tax act applies, as the assessee has failed to discharge initial onus cast upon him. In absence of any evidence, that he is carrying on business as a commission agent, cannot be believed. Even if it is believed, that he is a commission agent, the ignorance of the fact that who is principal, on whose behalf he is working, is not known to the assessee or he is not disclosing, it clearly shows that addition is required to be made in the hands of the assessee as there is no explanation about the source and nature of credits - Addition on account of unexplained cash credit being cash deposited in the bank account of the assessee confirmed.
Claim of the assessee to grant the benefit of peak credit - No substantial the argument in view of the decision in case of CIT versus DK Garg [2017 (8) TMI 450 - DELHI HIGH COURT] it is held that that where an assessee was unable to explain the sources of deposits and the corresponding payments , he was not entitled to get the benefit of “peak credit”. If the assessee, had wanted to avail of the benefit of the “peak credit”, he ought to have disclosed all the facts within his knowledge concerning the credit entries in the accounts.
He had to explain with sufficient details the sources of all the deposits in his accounts as well as the corresponding destinations of all payments from the accounts. He should have been able to show that the money had been transferred through banking channels, from whom to his bank account, the identity of the creditors and that the money paid from the accounts of the assessee. The assessee had to discharge the primary onus in that regard. The peak credit worked out by the assessee, on the basis that the principle of peak credit applied, notwithstanding the failure to explain each of the sources of the deposits and the corresponding destinations of the payments without squaring them off, was not permissible - Decided against assessee.
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2020 (11) TMI 695
Disallowing the non-compete fee - Nature of expenditure - revenue or capital expenditure - HELD THAT:- The above issue stands decided against the assessee by the Tribunal in assessee’s own case for A.Y. 2002- 03 Tribunal again, in assessee’s own case for A.Y. 2001-02[2020 (4) TMI 823 - ITAT DELHI] has decided the issue regarding disallowance of non-compete fee against the assessee by following the decision of the Tribunal in assessee’s own case for A.Y. 2002-03. In view of the consistent decision of the Tribunal in assessee’s own case, the grounds raised by the assessee have to be decided against the assessee.
Disallowing being 1/5th of service charge and processing charges debited to the Profit & Loss Account - HELD THAT:- CIT(A) upheld the action of the AO on the ground that the assessee failed to demonstrate before him with any evidence to substantiate such service charges and processing charges. While doing so, he also rejected the additional evidences filed before him. It is the submission of the ld. Counsel that such additional evidences were crucial for deciding the issue before the CIT(A) which he should have admitted. Further, once he has called for a remand report from the AO, he should have admitted those additional evidences. It is also his alternate submission that in subsequent assessment years, i.e., from A.Y. 2006-07 to 2009-10, such disallowances made by the AO were deleted by the CIT(A) and in A.Y. 2010-11, no such disallowance has been made by the AO. - we deem it proper to restore the issue to the file of the AO with a direction to grant one final opportunity to the assessee to file the requisite details and reconcile the differences between outstanding appearing in its books of account and the balance appearing in the accounts of the third parties. The assessee is directed to file the requisite details and necessary evidences to substantiate the claim of such service charges and processing charges.
MAT computation u/s 115JB - CIT (A) directing the AO to exclude the share premium amount from the book profit calculated for the purposes of Section 115JB - HELD THAT:- No infirmity in the order of the CIT(A) approving the adjustment of security premium account with brought forward losses. Further, the Hon’ble Supreme Court in the case of Apollo Tyres [2002 (5) TMI 5 - SUPREME COURT]has held that the AO does not have the jurisdiction to go beyond the net profit shown in the Profit & Loss Account except to the extent provided in the Explanation to section 115J which has been relied on by the CIT(A). In view of the above and in view of the detailed reasoning given by the CIT(A) at para 6.3 of his order, we do not find any infirmity in the same in absence of any contrary material brought to our notice by the ld. DR. Accordingly, the order of the CIT(A) is upheld and the ground raised by the Revenue is dismissed.
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2020 (11) TMI 694
Disallowance u/s. 14A r.w.r. 8D - Huge interest free funds - HELD THAT:- There was no justification for making disallowance out of interest expenditure incurred on earning exempt income. In respect of disallowance of administrative expenditure, we have gone through the order in the case of the assessee itself for the assessment year 2012-13 [2018 (12) TMI 1651 - ITAT AHMEDABAD] wherein the disallowance in respect of administrative expenditure was restricted to ₹ 6 lacs after taking into consideration the total exempt income earned by the assessee of ₹ 63,35,308/-.
Respectfully following the decision of the Co-ordinate Bench on the similar facts and identical issue, we restrict the disallowance out of administrative expenses to ₹ 7 lacs as asssesse has earned dividend income of ₹ 77,60,108/- as against dividend income of ₹ 63,35,308/- earned in A.Y. 2012-13. Accordingly, the appeal of the assessee is partly allowed.
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2020 (11) TMI 693
Unexplained share capital - share premium and share application money made u/s.56(1) / u/s 68 - AO has said that since the premium charges are in excess of intrinsic value of the shares, the provisions of Section 68 of the Act could also be applied - Quantum addition deleted by CIT-A - HELD THAT:- This issue has been dealt with in length in the appellate order, wherein the Ld.CIT(A) has categorically held that the provisions of Section 56(1)(viib) of the Act are not applicable to the year under consideration, since new provision is introduced by the Finance Act, 2012, which is effective from AY.2013-14.
CIT(A) after considering the assessee’s contentions and submissions has given finings that the provisions of Section 68 of the Act were also satisfied by the assessee. Ld.CIT(A) has noted as assessee has filed the confirmation letters, copies of ITRs, copies of bank statements of five parties, who invested share capital. Besides, the assessee has filed the allotment letters, returns as filed with the AO along with Board’s resolution for allotment of shares. Under these circumstances, we do not find any reason to interfere with the order of Ld.CIT(A), which otherwise appears to be quite reasoned and correct. - Decided in favour of assessee.
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2020 (11) TMI 692
Disallowance of interest paid - CIT(A) had deleted the same by appreciating the fact that assessee had sufficient interest free funds - HELD THAT:- It could be safely presumed that assessee had sufficient own funds to make interest free advances to its sister concerns and to its outsiders. By placing reliance on the decision of the Hon’ble Bombay High Court in the case of Reliance Utilities and Power Ltd. [2009 (1) TMI 4 - BOMBAY HIGH COURT] and HDFC Bank Ltd. [2014 (8) TMI 119 - BOMBAY HIGH COURT] we hold that no disallowance of interest paid by the assessee could be made in the facts of the instant case. Accordingly, the ground No.1 raised by the revenue is dismissed.
Disallowance of remuneration paid to the Director u/s 40A(2) - CIT-A restricted addition at 20% as against 50% made by the ld. AO - HELD THAT:- Disallowance has been made @ 20% by the lower authorities by applying the provisions of Section 40A(2)(a) of the Act without bringing any comparable instances to drive home the point as to why the salary paid to the Director Mr. Pankaj Dayal was excessive or unreasonable. There is no finding by the lower authorities that the said Director is not competent or not technically qualified to receive such remuneration. In any case, the disallowance has been made only on an adhoc basis by the lower authorities. Since, the assessee has not preferred any appeal against the order of the ld. CIT(A) before us, we do not deem this as a fit case to interfere with the finding recorded by the ld. CIT(A). Accordingly, we direct the ld. AO to restrict the disallowance at 20% of total salary paid to the Director - Ground No.2 raised by the revenue is dismissed.
Disallowance of 50% of total advertising and publicity expenses - HELD THAT:- GMR Sports Pvt. Ltd., possessed the sponsorship of IPL team of Delhi Dare Devils and this sum paid for purchase of 32 tickets in corporate tax for watching IPL matches enabled the assessee company to advertise its real estate projects by way of display boards in all the matches at Feroz Shah Kotla Cricket Stadium, New Delhi. This obviously improved the performance of the functioning of the assessee company and hence, the same would be wholly and exclusively for the purpose of business. But since the assessee has not preferred any appeal before us, against the order of the ld. CIT(A) granting relief only to the extent of 50% of the said expenditure, we do not deem it fit to interfere with the said finding of the ld. CIT(A). Accordingly, ground No.3 raised by the revenue is dismissed.
Disallowance of rent expenses - CIT-A restricted addition @ 10% as against 60% done by AO - HELD THAT:- CIT(A) had given proper finding with regard to apportionment of rent not being done by the assessee to its group companies and had restricted the disallowance to 10% of the total rent paid. When a particular premises is occupied by the assessee and others (whether it is a group company or not), the rental payment and other maintenance expenses included therein are to be apportioned in a just and fair manner. When this is not done by the assessee, disallowance of expenses had to be made in the hands of the assessee. In the instant case, the ld. CIT(A) had restricted the disallowance to 10% of the total rent paid in the hands of the assessee. Ground No.4 raised by the revenue is dismissed.
Disallowance of business promotion, electricity, legal and professional charges, repairs & maintenance, travelling and conveyance and miscellaneous expenses - CIT-A restricted addition to 10% as against 40% disallowed by the ld. AO - HELD THAT:- Assessee had not preferred any appeal against this order of the ld. CIT(A) before us. Since the same premises has been occupied by various concerns of the assessee, the entire expenses has to be apportioned in a just and fair manner based on the usage and the ld. CIT(A) had restricted the disallowance to 10% thereon - since no appeal has been preferred by the assessee before us against the order of ld. CIT(A), we do not deem it fit to interfere with the finding of the ld. CIT(A) especially when assessee was not categorically able to prove even before us that the subject mentioned expenditure were incurred only for the business purpose of the assessee. Hence, the disallowance restricted to 10% on adhoc basis by the ld. CIT(A) does not require any interference. Accordingly, the ground No.5 raised by the revenue is dismissed.
Addition on account of disallowance with respect to cost of goods sold - HELD THAT:- CIT(A) had given a categorical finding that the ld.AO had grossly erred in rejecting the book results of the assessee without pointing out any discrepancy in the books of accounts produced before him during the course of assessment proceedings. We also find that the entire details of opening stock, purchases and project expenses and closing stock were also filed before the AO as narrated hereinabove and the same were duly reproduced in the order of the ld. CIT(A). The said facts as reproduced in the order of ld. CIT(A) has not been controverted by the ld. DR before us. The law is now very well settled that without pointing out any discrepancy in the books of accounts produced by the assessee, the ld. AO cannot reject the book results as per his whims and fancy. See POONAM RANI [2010 (5) TMI 57 - DELHI HIGH COURT] and M/S JAS JACK ELEGANCE EXPORTS. [2010 (4) TMI 84 - DELHI HIGH COURT] . No infirmity in the order of the ld. CIT(A) deleting the addition made on account of cost of goods sold - Ground No.6 raised by the revenue is dismissed.
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2020 (11) TMI 691
EPCG Scheme - non-issuance of Occupation Certificate - Construction of a multistoried building for operating a hotel - the cost included the cost of imported goods against which customs duty was not paid, as the goods imported were against 50 EPCG licenses - HELD THAT:- Since an application is pending, I am not going into the merits of the case. The EPCG committee is requested to consider the application filed by the petitioner on 9th August, 2020 within four weeks from today. The committee is also requested to pass a reasoned order after giving opportunity of hearing, not only to the petitioner but also to the customs authority, if required.
As the petitioner has already alienated with the goods, imported without payment of customs duty, the customs authority may proceed to encash the bank guarantee for realising the customs duty but such realised amount shall be kept in a separate account and not to be appropriated as government dues till a reasoned order is passed by the EPCG committee. If the reasoned order is in favour of the petitioner, the customs department shall refund the amount to the petitioner at an earliest.
Petition disposed off.
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2020 (11) TMI 690
Direction to the respondent to finalise the bills of entry filed by the petitioner for clearance of goods - polyester knitted fabrics - period 2013 to 2016 - HELD THAT:- Keeping in view the limited prayer made in the writ petition, the same is disposed of with a direction to the respondent to finalise the bills of entry filed by the petitioner for clearance of goods namely polyester knitted fabrics during the period 2013 to 2016 within a period of six weeks - Petition disposed off.
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2020 (11) TMI 689
Reclaim of goods after surrender of rights in warehoused Goods (after import) u/s 23(3) - Due to increased customs duty, the plaintiffs could not take the delivery of the goods - Decree of mandatory injunction directing the defendants to deliver 58 bales, 76 bales and 61 bales respectively of the goods amenable to customs duty - defendants took the plea that the plaintiffs themselves have surrendered the goods in terms of Section 23(3) of the Customs Act vide letter dated 10-12-1985 and therefore, no cause for the plaintiffs to file the suit was made out - Section 23 of Customs Act - HELD THAT:- Learned Counsel for the respondents could not show any such document or evidence that they have availed of the remedy provided under the Customs Act. The Customs Act which being a special Act has provided remedial action against the orders of the authorities and which the plaintiffs failed to have recourse to and therefore, having failed to exhaust the departmental remedies provided under the Act, the plaintiffs to the mind of this Court cannot have resort to general provisions by way of filing civil suit seeking mandatory injunction. More so, even in the suit the plaintiffs have not challenged the letter dated 25-2-1986 by which the Collector, Central Excise and Customs disallowed clearance of the goods, therefore, by resorting to such a suit the plaintiffs cannot bypass the administrative order which was never put to challenge either in the hierarchy of the Act or even in the suit. The Learned Trial Court has rightly held while deciding issues No. 1 to 3 that since plaintiffs have surrendered the goods in terms of Section 23(2) of the Customs Act and therefore, are not entitled to any mandatory injunction nor have ever availed of the remedy provided by way of appeal under the Customs Act - In the impugned findings the Learned First Appellate Court has failed to appreciate this important aspect of the evidence and the admitted facts and by mis-construing the truth on the records has arrived at a totally perverse and illegal finding purely on the grounds that the act of the department for not supplying the orders was mala fide and that is how the decision stood reversed.
Since the plaintiffs have initially surrendered their right and claim over the goods, now they cannot reverse their stand and re-claim the same after inordinate delay without assigning any sufficient condonable reasons for the same. Rather what appears is that the suit filed by the plaintiffs is an afterthought belated machination by misuse of the process of the Court - the impugned findings reversing the judgment of the Trial Court are highly erroneous and need to be set aside by way of acceptance of the instant appeal.
Appeal allowed - decided in favor of appellant.
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2020 (11) TMI 688
Maintainability of appeal - non-deposit of pre-deposit amount - Principles of Natural Justice - grounds urged in the appeal is that the third respondent ought to have extended an opportunity to the petitioner to cross-examine the officers who allegedly conducted search and seizure proceedings - HELD THAT:- In the present case, the appeal is dismissed on the ground that the petitioner did not deposit 50% of the demand in terms of the order dated 2-2-2016. It must also be mentioned that the directors of the petitioner’s company also did not deposit 50% of the penalty imposed on them, and further it must also be mentioned that there is no dispute that none appeared for the petitioner on 18-10-2016 when the appeal was listed for orders on an application filed for recall of the order dated 2-2-2016. The CESTAT’s order is not an order of modification or confirmation or annulling, or an order of remanding.
The impugned orders will have to be set aside and the appeal restored for fresh disposal as contemplated under Section 129B of the Customs Act leaving it open to the parties to urge their respective grounds before the CESTAT. Further, given the facts and circumstances of the case, it would also be just and reasonable to restore the petitioner’s application for recall of the interim order dated 2-2-2016.
Petition allowed in part.
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2020 (11) TMI 687
Smuggling - gold chain - gold bangles - gold anklet - Reopening of adjudication proceedings - section 124 of Customs Act - HELD THAT:- There is no force and merit in the submission of the Learned Counsel for the petitioner. The reference to Section 124 of the Customs Act in not issuing any notice in writing for confiscation or imposition of the penalty cannot be agitated after the lapse of three years. Alleged non-adherence to the provisions of Section 124 by issuing a separate notice before imposition of penalty and confiscation, cannot be raised for the first time in the writ petition, that too after a gap of three years. However, on going through the adjudication order of Ext. P3, the petitioner suffered a statement which was not found to be sufficient and was served with Ext. P2 summons to appear and explain along with the documents regarding the jewellery. In the absence of any challenge to the adjudication order for the last three years is a deemed acceptance, there is no provision for re-opening of the adjudication proceedings to attempting to circumvent appeal.
The litigants cannot be permitted to agitate remedy of the issue with the purported cause of action by submitting an application for reopening - Petition dismissed.
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2020 (11) TMI 686
Implementation of order passed by this Tribunal and for early hearing of the said application - restoration of CHA license not stayed - HELD THAT:- In view of the fact that operation of the order dated 21.11.2019 has not been stayed or vacated by the higher appellate forum, the Revenue has left with no alternative, but to implement the order of the Tribunal in true letter and spirit. However, since it is contended that the order dated 21.11.2019 has already been appealed against by Revenue, we direct that the Revenue should obtained the stay order from the Hon’ble Bombay High Court in staying operation of the order dated 21.11.2019, if any, or to implement the said order passed by the Tribunal on expiry of the period of one month.
Registry is directed to list the matter for reporting compliance on 16.11.2020.
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9911796707
