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Showing 41 to 60 of 1518 Records
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2022 (12) TMI 1478 - DELHI HIGH COURT
Non-compliance with the obligation o allotment of booked flats - During the pendency of the proceedings, the parties have arrived at a settlement wherein the flats have been given to the petitioners and they are satisfied with the allotment and do not wish to prosecute the FIR any further.
HELD THAT:- Respondents states that all the respondents are satisfied with the settlement and do not have any dispute with the petitioners and have no objection to the FIR being quashed.
It is in the interest of justice it is convincing that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice. This should not be treated as a legal precedent as in this case, the proceedings are quashed as the respondent has decided to put a quietus to the matter. The Court does not see any fruitful purpose if criminal proceedings are permitted to be prosecuted any further. It is a fit case for quashing. In this view of the matter, there is no reason to continue the proceedings.
Petition disposed off.
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2022 (12) TMI 1477 - ITAT MUMBAI
Revision u/s 263 - claim of deduction of the impugned interest on Perpetual Non-Convertible Debentures (PNCDs) - HELD THAT:- We find that the assessee during the course of assessment proceedings itself had submitted the entire facts of the case by placing reliance on various provisions of the Companies Act and SEBI Regulations and had also taken efforts to explain the meaning of the term “debentures”, “debts”, “bonds”, “shares” etc., under provisions of various Acts.
The main case of the Revenue is only that the perpetual debentures issued are akin to equity and hence, it does not fall under the ambit of borrowing and accordingly, no interest would become allowable on the said alleged borrowing. In this regard, we find that assessee had already explained the very same query before the AO at the time of assessment proceedings itself which is evident from the reply filed by the assessee which is reproduced hereinabove at the beginning of the order. Moreover, we also find that these bonds were indeed repaid by the assessee on 18/03/2021 with interest and on 11/05/2021 with interest. The evidences in this regard are enclosed and the fact of repayment of these borrowings with interest had also been duly notified by the assessee to BSE Ltd. and NSE Ltd as per the requirement of SEBI regulations.
This categorically goes to prove that it is not a case of equity and the issue of perpetual bonds is only borrowing made by the assessee. Since the said borrowing has been used for business purposes of the assessee, the interest paid thereon would be squarely allowable as deduction u/s. 36(1)(iii) of the Act. Hence, even on merits, the action of the ld. PCIT would have no legs to stand.
Thus we have no hesitation in quashing the revision order passed by the ld. PCIT u/s. 263 of the Act. Accordingly, the grounds raised by the assessee are allowed
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2022 (12) TMI 1476 - CESTAT NEW DELHI
Waiver of penalty - penalties on other co-noticees, when main assessee’s case is settled by the Settlement Commission - HELD THAT:- It is found that the matter was referred to a larger bench by another learned member in RAJESH VERSUS COMMISSIONER OF CUSTOMS, TUTICORIN [2014 (1) TMI 1390 - CESTAT CHENNAI]. The question was referred to the larger bench in two cases by the learned members. The reason for referring the matter is that there are conflicting views expressed by different benches.
Cases in which it is held by the Tribunal that penalties against co-noticees do not survive if the main appellant has settled the matter - HIM LOGISTICS PVT. LTD. VERSUS CC, NEW DELHI [2016 (4) TMI 1153 - CESTAT, NEW DELHI] - COMMISSIONER OF CUSTOMS (EXPORT) MUMBAI VERSUS MAHENDRA KUMAR DAREWALA [2016 (9) TMI 1011 - CESTAT MUMBAI] - RADIANT SILK MILLS (P) LTD. VERSUS COMMISSIONER OF CUS. & CEN. EX., JAIPUR [2013 (9) TMI 582 - CESTAT NEW DELHI].
Cases in which it is held by the Tribunal that penalties against co-noticees survive even if the main appellant has settled the matter - KI. INTERNATIONAL LTD. VERSUS COMMISSIONER OF CUSTOMS, CHENNAI [2013 (5) TMI 383 - CESTAT, CHENNAI] - MAMTA GARG VERSUS COMMISSIONER OF CUS. AND C. EX., NOIDA [2017 (2) TMI 1317 - CESTAT NEW DELHI] - M/S. AV AGRO PRODUCTS LTD., M/S. GENEX FOODS PVT. LTD., SHRI ROHIT AGGARWAL, DIRECTOR VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & CENTRAL GST, NEW DELHI [2020 (3) TMI 490 - CESTAT NEW DELHI].
Thus, both views were taken by different single member benches, division benches and also in cases where the two members of the bench differed and the difference was settled by a third member. In view of these legal precedents, it is found appropriate to direct the Registry to relist the matter after the decision of the larger bench. Both sides are free to mention as and when the decision of the larger bench is available.
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2022 (12) TMI 1475 - AUTHORITY FOR ADVANCE RULING, CUSTOMS, DELHI
Classification of goods sought to be imported - display assembly/module - to be classified under heading 8524 or not - Sub-section (b) of section 28E of the Customs Act, 1962 - HELD THAT:- The applicant has stated that display assembly main structure consist of cover glass, contrast enhancement film, flexible printed circuit & integrated circuit on TFT glass and back light unit. It is relevant to mention that in para 4.1 of CBIC Circular No. 14/2022-Customs dated 18-8-2022, Meity has been quoted stating that what are the constituents of the display assembly. Comparing the list of items mentioned in the circular with that of items declared to be part of display assembly imported by the applicant, it is found that these items are mentioned at serial no. b, c, h and j of the list given in para 4.1 of the above circular. It is also clarified that display unit is not equipped with components for converting video signals, decoder IC, scaler IC and any application processor.
On going through the possible headings viz 8517, 8524 etc. and GRI and HSN Explanatory Notes thereof. It is also noticed that for the purposes of heading 8524, the declaration of the applicant satisfy conditions of Chapter Note 7 of Chapter 85, thereby Display assembly/module, as described in the application for advance ruling merit classification under Sub-heading 8524 91 00.
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2022 (12) TMI 1474 - ITAT SURAT
Revision u/s 263 - taxability of undisclosed expenses as declared in survey action - case of assessee was selected for limited scrutiny - As per CIT income declared during the survey was also charged to tax at normal rate instead of charging at special rate at 60% as per the provisions of Section 115BBE of the Act which is in violation of Section 68 to 69C r.w.s. 115BBE - HELD THAT:- We find that the case of assessee was selected for limited scrutiny and for limited scrutiny, AO issued necessary questionnaire about seeking details of bank accounts and other related information and evidences. The assessee in its reply, furnished such details of bank statement and other information. AO after taking such reply, completed the assessment on 18/12/2019 without any variation.
CIT in its show cause notice, identified the issue which was not the subject matter of limited scrutiny. In the show cause notice, the ld. Pr. CIT raised the issue that survey action was conducted on the assessee firm in relevant financial year and that the assessee made declaration of Rs. 1.24 crore on account of undisclosed expenses. We find that such issue was not the subject matter of scrutiny, hence, the Assessing Officer was not entitled to raise such question.
We find that in Balvinder Kumar [2021 (3) TMI 649 - ITAT DELHI] has held that “in case of limited scrutiny, AO could not go beyond reason for which matter was selected for limited scrutiny thus, it would not be open to Principal Commissioner to pass revisionary order u/s 263 on other aspects and remit matter to AO for fresh assessment.”
The Supreme Court in celebrated/ leading case of Malabar Industrial Co. Ltd. [2000 (2) TMI 10 - SUPREME COURT] held that the prerequisite for the exercise of jurisdiction by the Commissioner suo-motu is that the order of the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the revenue. If one of them is absent - if the order of the Income-tax Officer is erroneous but is not prejudicial to the revenue or if it is not erroneous but is prejudicial to the revenue - recourse cannot be had to section 263(1) of the Act.
Thus the twin condition as required to revise the assessment order is not meet out in the present case, therefore, the order passed by the ld. Pr. CIT is set aside and the grounds of appeal raised by the assessee are allowed.
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2022 (12) TMI 1473 - DELHI HIGH COURT
Applicability of time limit prescribed under Section 27 of the Customs Act 1962, in case of refund of Special Additional Duty of Customs (SAD) - HELD THAT:- This court is informed that the special leave petition was preferred by the appellant against the decision in M/s Sony India Pvt. [2014 (4) TMI 870 - DELHI HIGH COURT]. The said special leave petition was dismissed by an [2016 (11) TMI 500 - SC ORDER] on the ground of delay however, the question of law was kept open - This court is also informed that the Bombay High Court has taken a different view in M/S. CMS INFO SYSTEMS LIMITED VERSUS THE UNION OF INDIA & OTHERS [2017 (1) TMI 786 - BOMBAY HIGH COURT].
This court finds no reason to differ with the aforesaid view - Appeal dismissed.
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2022 (12) TMI 1472 - ITAT SURAT
Suppression of professional receipts from the patients under OPD category - assessee has shown some “Zero Receipt Patients” in IPD” indoor patient department - On analysis of disc of computer during the search action, it was noted that many patients were operated but payments made by them, are not accounted in the books of account and such patients were referred as “Zero Receipt Patients-IPD” - CIT(A) restricted the addition to the extent of 30% of alleged suppressed receipt by taking view that only profit element of reasonable basis should be taxed - HELD THAT:- AO has granted concession of two patients in respect of other hospitals for treatment of free patients, however, no such concession was allowed in case of assessee-hospital. It is a common factor that a privately managed hospital has to treat second category of patients as free-of-cost, which may include relatives of doctors, para-medical staffs, close relatives or family friends etc., During the hearing, we also find that certain patients which were closely related with the partners of assessee-hospital.
Thus, we find that the Assessing Officer has made addition without being confronting information collected by her at the back of assessee-hospital. No show cause notice before making such addition on account of suppressed addition, therefore the addition is not justified.
We further find that allegation of suppressed income for A.Y 2008-09 is of Rs. 148,000, however, the assessee-hospital had paid the tax of Rs. 33,17,496/-and the partners had paid tax of Rs. 28,22,084/-thus total tax of Rs. 61,39,580/-was paid. Thus, we find merit in the submission made by Ld. AR for the assessee that allegation of suppress receipt of IPD patients of is not tenable. Hence, we direct the Assessing Officer to delete the entire addition of suppressed receipt on account of IPD patients. In the result, the grounds of appeal raised by assessee are allowed.
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2022 (12) TMI 1471 - AUTHORITY FOR ADVANCE RULINGS CUSTOMS, MUMBAI
Eligibility for BCD exemption rate of 25% vide Notification No. 50/2017-cus dated 30-6-2017 Sl. No. 524 - import of dump trucks designed for off-highway use in CKD form, with the engine and alternator, control cabinet and wheel motor (i.e., alternate technology used in place of gearbox and transmission system) in pre-assembled condition but not mounted on a chassis in a completely knocked down form - HELD THAT:- The Motor Vehicles for the transport of goods are classified under CTH 8704. Further, there is a specific entry for Dumpers designed for off-highway use under CTH 8704 10. Therefore, the Dump truck proposed to be imported as CKD kit will merit classification under the CTH 8704.
Further, the subject dump truck is not an electrically operated vehicle. The dump truck shall be built with an electrical AC drive system where power is supplied from the engine to the alternator to produce electricity and drive the three-phase induction motor. In this electrical AC drive system, the control cabinet and wheel motor play the role of the gearbox and transmission system. Hence, it shall not comprise of a gearbox and transmission system, and this would instead be replaced by the alternate technology explained above, i.e., a control cabinet and wheel motor - In the instant case, the subject dump truck proposed to be imported in CKD form shall continue to be driven by fuel only and no electrical energy is derived from any external source or from batteries to run such dump trucks. This truck does not operate solely on electrical energy to be called electrically operated vehicle.
Whether the goods imported as Completely Knocked Down (CKD) kit by the applicant contains all the necessary components, parts or sub-assemblies, for assembling a complete vehicle with engine or gearbox or transmission mechanism in pre-assembled form but not mounted on a chassis or a body assembly? - HELD THAT:- In the present case, the role of a gearbox and transmission system is performed by an alternate technology in the subject motor vehicle. The dump truck shall be built with an electrical AC drive system, wherein power is supplied from the engine to the alternator to produce electricity and drive the three-phase induction motor - In this case, the function of a traditional gearbox and transmission system is being achieved through other components such as alternator, control cabinet and wheel motor, although a gearbox and transmission system - the eligibility of concessional rate should be determined on the basis of the functions and characteristics of the key components and mere fact that one of the internal systems uses an alternate technology should not impact the benefit available.
It is not mandatory to import gearbox and transmission system, in view of technological advancement leading to replacement of these parts by parts based on different technology, to qualify for the concessional rate of duty provided under Sl. No. 524(1)(b) of the Notification as long as the essential items are imported. Applicant itself has submitted that the role of a gearbox and transmission system is performed by an alternate technology in the subject motor vehicle. In order to qualify for the concessional rate of duty as provided under Sl. No. 524(1)(b) of the Notification, it is only mandatory that the product is imported in CKD form comprising the essential components, sub-assemblies, etc.; and at least one of the three key components (i.e., engine or gearbox or transmission system) is imported in pre-assembled form but not mounted on a chassis - The CKD kit proposed to be imported, as described in para 3.1 of this ruling, satisfies the test laid down by the CBEC Circular from F. No. 5281/128/97 Cus - TRU, dated 5-12-1997 that the components mentioned in this kit will bring into effect a motor vehicle.
Thus, applicant are eligible to claim concessional rate of basic Custom duty at 25% on import of dump truck designed for off-highway use in CKD form, with the engine and alternator, control cabinet and wheel motor (i.e., alternate technology used in place of gearbox and transmission system) in pre-assembled condition but not mounted on a chassis, as per Sl. No. 524(1)(b) of the Notification No. 50/2017-Customs dated June 30, 2017.
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2022 (12) TMI 1470 - ITAT RAJKOT
Levy of penalty u/s 270A - misreporting of income in case of property sold jointly by brothers - search conducted at third party - CIT(A) deleted penalty levy - HED THAT:- We observe that search was conducted at the premises of the third party and on the basis of diary seized during the course of search, certain additions were offered to tax by the assessee in order to buy peace. Since the search was conducted during the year under consideration, the accounts of the assessee were not finalised and there was still time for the assessee to file return of income. Accordingly, the addition amount offered to tax was reflected in the return of income filed by the assessee on 08-03-2018.
On a perusal of the conditions laid out u/s 270A case of the assessee does not fall under any of the provisions of section 270A of the Act. Since the search took place during the year under consideration at the premises of third party, and there was still time to file return of income, the said income in respect of on-money receipts was included in the income offered to tax by the assessee in the return of income.
Even the AO in the penalty order has failed to specify under which specific clause of section 270A of the Act does the case of the assessee fall under. CIT(Appeals) in his appellate order has analysed the non-applicability of the provisions of section 270A of the Act in the instant set of facts. Accordingly no infirmity in the order of Ld. CIT(Appeals) deleting penalty imposed under section 270A Decided in favour of assessee.
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2022 (12) TMI 1469 - SC ORDER
Money Laundering - accused in the prescribed offence or not - Sections 406, 420, 468 471 and 506 of IPC - HELD THAT:- In the given circumstances, at least there cannot be any prosecution against the present petitioner under Sections 3 and 4 of PMLA Act.
Issue notice.
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2022 (12) TMI 1468 - AUTHORITY FOR ADVANCE RULING CUSTOMS, NEW DELHI
Classification of goods proposed to be imported - Data Projector [Model (i) Optoma SA520. (ii) Optoma X400LVe, (iii) Optoma W400LVe and (iv) Optoma VV319ST] - eligibility of exemption from duties vide Sl.No.17 of exemption Notification No. 24/2005 dated 1-3-2005, as amended by Notification No. 67/2016 dated 31-12-2016 - HELD THAT:- It is evident that the projectors in question are designed for use with an automatic data processing machine. It also appears that the subject goods has got additional ports which make it capable of being a video projector, classifiable under 8528 69 00. In this regard, it may be mentioned that rule 3 of General Rules for Interpretation of Import Tariff states that, "the heading which provides the most specific description shall be preferred to headings providing a more general description" - Though, these projectors appear to have additional features to act as video projector, however, presence of such additional features cannot dis-entitle the subject goods from classification under Sub-heading 8528 62 00.
Applicability of exemption notification - HELD THAT:- It is noted that vide SI. No. 17 of Notification No. 24/2005, as amended, all goods of a kind solely or principally used in an automatic data processing system of heading 8471, falling under 852862 are given exemption.
The projectors in question are machines working in conjunction with an automatic data processing machine and performing a specific function other than data processing, thus the same merit classification in the headings appropriate to their respective function i.e 85286200. Moreover, subject goods are eligible for exemption from duties vides SI. No. 17 of Notification No. 24/2005-Cus. dated 1-3-2005, as amended.
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2022 (12) TMI 1467 - ITAT MUMBAI
Disallowance u/s 14A r.w.r. 8D - Suo moto disallowance of the assessee - Mandation of recording satisfaction by AO - HELD THAT:- We find justification in the order of the ld. CIT(A) in upholding the A.O.’s action in invoking the provision of Rule 8D(2)(ii) by rejecting the assessee’s contention that suo moto disallowance by the assessee warrants no further disallowances.
The assessee’s alternate claim is that the disallowance u/s. 14A r.w.r. 8D(2)(iii) should be restricted only to those investments on which exempt income was earned by the assessee during the impugned year, by placing reliance on the decision of Vireet Investments Pvt. Ltd. [2017 (6) TMI 1124 - ITAT DELHI] is acceptable.
We uphold the order of the ld. CIT(A) in directing the A.O. to recompute the disallowance only to the investments which have yielded exempt income during the impugned year. Appeal filed by the Revenue is dismissed.
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2022 (12) TMI 1466 - DELHI HIGH COURT
Reopening of assessment u/s 147 - allegation against the petitioner is that it has received bogus entry from an entry provider one Mr Ramesh Kumar Bagri - HELD THAT:- As would be evident upon perusal of the certificate CBI has stated that the amount was neither remitted nor credited from the accounts of the petitioner maintained with it.
Insofar as the other certificate CBI makes the same assertion and goes on to confirm that the remittance was not made to the account number said to be maintained by Mr Ramesh Bagri.
As we have before us, in the very least, the certificate dated 01.08.2022, which indicates that the petitioner had not remitted Rs.1,76,00,000/- on 12.08.2015 from its bank accounts maintained with CBI, it appears that, at least at this juncture, there was no information or material available with the concerned authority to trigger proceedings u/s 148/148A(d) of the Act..
List the matter on 11.04.2023.
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2022 (12) TMI 1465 - CALCUTTA HIGH COURT
Seeking grant of bail - Corruption - appointment of assistant teachers in Classes IX and X under the auspices of the Commission - HELD THAT:- Perusal of the charge sheet and materials collected during investigation show petitioner was the Chairman of the Commission from January, 2014 till July, 2018. Under his supervision selection process for appointment to the post of assistant teachers for Class IX and X in Secondary and Higher Secondary Schools was initiated - undeserving candidates were issued recommendation letters to attend counselling and were given appointments.
The present case involves offences under Prevention of Corruption Act and would not fall in Category A but Category D. In the said report, the Court referring to the observations in P. CHIDAMBARAM VERSUS DIRECTORATE OF ENFORCEMENT [2019 (12) TMI 186 - SUPREME COURT], inter alia, held the gravity of the offence, object of the special law and attending circumstances are to be taken note of in addition to the period of sentence. Each case has to be decided on its own merit.
In SANJAY CHANDRA VERSUS CBI [2011 (11) TMI 537 - SUPREME COURT] the Apex Court observed bail ought not to be denied merely on the sentiments of the community. A decision against the petitioner cannot be arrived at only on the score of sentiments of the community - Petitioner has been implicated in another case involving similar allegations. Enforcement Directorate has also been directed to initiate enquiry in the matter. He is in custody barely for three months.
It is not prudent to release the petitioner on bail at this stage - bail application dismissed.
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2022 (12) TMI 1464 - ITAT MUMBAI
TP Adjustment - ALP for corporate guarantee determined by the Appellant - HELD THAT:- Respectfully following the above said decisions of the co-ordinate benches of the Tribunal in the case of the Appellant for the Assessment Years 2011-12 [2021 (10) TMI 822 - ITAT MUMBAI], 2012-13 [2021 (4) TMI 254 - ITAT MUMBAI], 2013-14 [2021 (10) TMI 453 - ITAT MUMBAI] and 2014-15 [2021 (4) TMI 254 - ITAT MUMBAI], we hold that corporate guarantee commission determined by the Appellant at the rate of 0.35% per cent per annum is at arm’s length not requiring any transfer pricing adjustment. Consequently, the transfer pricing additions made by the AO and confirmed by the DRP is deleted.
Disallowance u/s 14A r.w.r. 8D - mandate of recording dissatisfaction - HELD THAT:- In the present case the dissatisfaction has been recorded, however, the same is not in accordance with mandate of Section 14A(2) of the Act as the Assessing Officer has acted in a mechanical manner based upon conjecture/surmise and has recorded dissatisfaction without having regard to the accounts of the Appellant and/or the computation of suo moto disallowance made by the Appellant u/s 14A of the Act.
The general hypothesis made by the AO fails to meet the mandate of Section 14A(2) of the Act in view of the methodical computation of disallowance furnished by the Appellant taking into the account the actual expenditure incurred by the Appellant. Accordingly, we delete the addition made by AO u/s 14A read with Rule 8D of the Rules. Thus, Ground raised by the Appellant are allowed.
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2022 (12) TMI 1463 - CESTAT MUMBAI
Availing wrongful SSI benefit - resorting to the incorrect valuation of the goods cleared - electrical accessories, bells, chokes and street light fixtures - relevant date for assignment of ttrademark - possession of registered trademark - HELD THAT:- The trade mark No. 622155 KALKI registered in the name of Shri Mohanlal Gosar Gosrani and Smt. Hemlata Gosrani has been assigned in the name of Shri Chandrakant Gosrani and this fact has been duly intimated in the affidavit filed before Registrar of Trade Marks, Mumbai. Affidavit of 11.05.2011 also refers to the earlier deed and says that it was assigned on 06.05.2011. Reliance by Commissioner on the affidavit of 2011 to deny the fact of assignment of the trade mark in the name of the appellant on 06.05.2011 is contrary to the facts.
From the perusal of the certificate of registration it is clear that the brand name KALKI was registered in the name of the appellant from 01.07.2009 - Commissioner has given no plausible reason for denying SSI exemption.
Only during the financial year 2009-10 appellant had crossed the exemption limit as provided in terms of Notification No.8/2003-CE dated 01.03.2003. Accordingly central excise duty is demandable only for the said year and value of clearances which is beyond the exemption limit of Rs.1.5 crores.
The total duty demand and interest and penalty under Section 11AC for the duty so short paid would be within the amount already deposited and appropriated by the Commissioner by the impugned order. Learned counsel has undertaken not to claim any refund in respect of the amount of Rs.3,00,000/- deposited and appropriated by the Commissioner - after allowing the benefit of Notification No.8/2003-CE dated 01.03.2003, the appeal is partly allowed.
Appeal allowed in part.
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2022 (12) TMI 1462 - TELANGANA HIGH COURT
Recovery of Tax - waiver of interest - CIT had partially allowed the claim of the petitioner for waiver of interest charged under Section 220(2) - quantum of depreciation on theatre building - As in the two assessment years, the assessee had claimed 15% and 25% respectively, depreciation was allowed by the Assessing Officer to the extent of 10 per cent. only in the two orders of assessment
HELD THAT:- As decided in Anand Theatres [2000 (5) TMI 4 - SUPREME COURT].a building used for running of a hotel or carrying on cinema business could not be held to be a plant.Thus the question decided in favour of the Revenue and against the assessee by holding that the building which is used as a hotel or as a cinema theatre cannot be given depreciation as a plant.
For the Principal Chief Commissioner or the Chief Commissioner or the Principal Commissioner or Commissioner to exercise jurisdiction under Sub-Section (2A) for reduction or waiver of interest, the said authority must be satisfied that Payment of such amount would cause or has caused genuine hardship to the assessee, Default in the payment of the amount on which interest has been paid or was payable under Sub-Section (2) of Section 220 was due to circumstances beyond the control of the assessee and assessee had co-operated in any enquiry relating to the assessment or any proceeding for the recovery of any amount due from him.
Considering the status of the petitioner, a view can be taken that none of the above pre-conditions were attracted in its case. Nonetheless substantial relief has been granted by the CIT/1st respondent.
Writ petition dismissed considering the status of the assessee, none of the preconditions mentioned in section 220(2A) were satisfied in its case. No good ground to interfere with the order passed by the Commissioner granting partial waiver of interest.
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2022 (12) TMI 1461 - CALCUTTA HIGH COURT
Jurisdiction - allegation is that Commissioner of Customs (AA) issuing notice of hearing is the same person and same officer who has filed the alleged offence report against the petitioner customs broker and has passed the interim order of suspension - Suspension of petitioner’s licence - HELD THAT:- This writ petition is disposed of by directing the Chief Principal Chief Commissioner of Customs concerned to appoint another officer having the same rank to hear the case of the petitioner relating to suspension of his licence. Time for personal hearing on the basis of the aforesaid impugned notice dated 22nd November, 2022 is extended by 30 days from date. For the limitation purpose the period from the date of initial notice dated 22nd November, 2022 till the date of issuance of fresh notice for personal hearing shall be excluded.
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2022 (12) TMI 1460 - GUJARAT HIGH COURT
Reopening of assessment - petitioner was a beneficiary of accommodation entries - HELD THAT:- On facts, the case on hand is not the case where the assessee willfully made any false or untrue statement at the time of original assessment or that falsity has come to the notice, which may justify the assessing officer to exercise the powers.
The case is not only of reopening the completed assessment on the same facts without availability of fresh and tangible material, it was reopening acted upon beyond period of four years from the end of the relevant assessment year. The law requires, in such cases, that the reopening is permitted only if the assessee had not disclosed fully and truly all the material facts. There was no failure on the part of the petitioner (i) to make return under section 139 or in respect to notice u/s 142(2) or u/s 148 or that (ii) he had not disclosed fully and truly all material facts necessary for the assessment concerned.
The assessee in the present case furnished complete details in his letter dated 08.10.2014 during the assessment with respect to the transaction occured with Shubh Dristi Complex Pvt. Ltd.[alleged accomodation entry provider] - There was no omission on the part of the petitioner as to full and true disclosure for the year under consideration which were necessary for the assessment concerned.
Thus it has to be held that the action of reopening by the AO was bad in law, mainly for the reason that it was passed on a mere change of opinion on the same set of facts, which was disclosed and considered by the assessing officer during the assessment year 2012-13. Decided in favour of assessee.
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2022 (12) TMI 1459 - CALCUTTA HIGH COURT
Reopening of assessment - Validity of order passed u/s 148A - why two PAN numbers were obtained by the appellants / assessee? - HELD THAT:- Order passed u/s 148A(d) is a non-speaking order. Appellants had submitted a reply to the notice issued u/s 148A (b) wherein assessee has pointed out as to how and under what circumstances two PAN numbers were applied and the fact that one of the PAN numbers was surrendered, was also set out.
AO should examine the correctness of the stand taken by the appellants, which according to the appellants, was an inadvertent mistake. As we are satisfied that the order is a non-speaking order, we are inclined to interfere with the same and remand the matter back to the assessing officer for fresh consideration and preserving the direction issued by the learned Single Bench directing the appellants to submit a representation.
Appeal along with the connected application are disposed of by setting aside the order passed u/s 148A(d) of the Act and the matter stands remanded and restored to the file of the assessing officer.
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