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2023 (2) TMI 1290 - ITAT DELHI
Reopening of assessment u/s 147 - Reason to believe - HELD THAT:- As the facts and circumstances of the present case are identical to the facts of the case in the case of RMG Polyvinyl (I) Ltd. [2017 (7) TMI 371 - DELHI HIGH COURT] and Shri Omvir Singh vs. ITO [2020 (6) TMI 822 - ITAT DELHI] therefore we are inclined to hold that the AO initiating reassessment proceedings mainly on the incorrect and wrong basis that the assessee has not filed its return of income for A.Y. 2011-12 and thus the AO did not assume valid jurisdiction to initiate reassessment proceedings u/s. 147 and to pass impugned reassessment order u/s. 143(3) r.w.s. 147 - Assessee appeal allowed.
Addition u/s 68 - unexplained cash deposited to the bank accounts of the assessee - HELD THAT:- When the assessee is in the business of exchange of old Torn/Soiled/Mutilated currency noted then the modus operandi of business would be the same as stated by the learned counsel of the assessee that is the assessee has to deposit old Torn/Soiled/Mutilated notes to the bank account and he is required to withdraw amounts from the bank account for the purpose of giving the same in exchange to its customer and clients. Therefore we declined to approve basis taken by the AO for making addition of entire cash deposited to the bank accounts of the assessee and ignoring the high amount of cash withdrawn by the assessee for the purpose of its business.
Therefore addition made by the AO and upheld by the Ld. CIT(A) has no legs to stand. Our above noted conclusion also gets strong support from the judgement of Sona Electric Co. [1984 (2) TMI 37 - DELHI HIGH COURT] and Mrs. Deepali Sehgal [2014 (9) TMI 1073 - ITAT DELHI] and Smt. Parminder Kaur Matharoo [2022 (11) TMI 779 - ITAT DELHI] to hold that the addition made by the AO u/s 68 of the Act is not sustainable - Assessee appeal allowed.
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2023 (2) TMI 1289 - ORISSA HIGH COURT
Benefit of Section 10(38) - Assessee to file revised returns if he omitted to make a claim - denial of an opportunity to cross examine the entry providers - Whether after making certain statements in the survey the Assessee not claiming exemption u/s 10(38) at the stage of the assessment proceedings, could be the Assessee turned around and make such claim of wanting to cross-examine persons make adverse statements against the Assessee at the stage of the appeal before the ITAT”?
HELD THAT:- Having heard Department (Appellant) and having perused the impugned orders of the AO, CIT(A) and the ITAT, the Court finds that both the grounds viz., the claim for benefit of Section 10(38) and denial of an opportunity to cross examine the entry providers, turned on facts. ITAT was justified in accepting the plea of the Assessee that the failure to adhere the principles of natural justice went to the root of the matter. Also, the CBDT circular that permitted to the Assessee to file revised returns if he omitted to make a claim was also not noticed by the AO.
ITAT committed no error in concurring with the view of the CIT(A) and in dismissing the Revenue’s appeal. No substantial question of law arises from the impugned order of the ITAT that calls for interference by this Court.
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2023 (2) TMI 1288 - SC ORDER
Maintainability of petition - Initiation of CIRP - Operational Creditor or not - proceedings before the NCLT are in rem or not - HELD THAT:- In order to restore the appeal before the NCLAT, this Court must be satisfied that the appellant is in a position to meet the threshold requirement which is imposed by the terms of Section 7 for the initiation of the CIRP. Absent that demonstration, the appeal is not allowed at the behest of the appellant and restore the proceedings, the effect of which would be to revive the CIRP against the company. In the event that the appellant seeks to invoke the jurisdiction of the NCLT in terms of the provisions of Section 7 of the IBC, the appellant would be at liberty to do so in which case, the observations in the present order will not stand in its way as any adjudication on the merits or maintainability of such an application. The order of the NCLAT dated 13 December 2022 disposing of the appeal filed by the appellant, namely, BPTP SPACIO PARK SERENE FLAT ALLOTTES WELFARE ASSOCIATION (BAWA) VERSUS M/S. BPTP LTD. & ANR. [2022 (12) TMI 1504 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI] shall not come in the way of the appellant in taking recourse to its remedies before the NCLT in fresh proceedings, if so advised.
In the alternative, since the appellant has a consent decree of the NCDRC, it would be at liberty to execute it in accordance with law. The execution proceedings before the NCDRC are expedited and may be taken up for early disposal.
Application disposed off.
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2023 (2) TMI 1287 - DELHI HIGH COURT
Calling witness for the purpose of examination - jurisdiction under Section 311 Cr.P.C. was properly exercised or not - HELD THAT:- The object of Section 311 Cr.P.C is that there may not be a failure of justice on account of the mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. A bare reading of Section 311 would show that this section vests in the courts the power to summon any person as a witness or to recall and reexamine any witness at any stage of the inquiry, trial, or other proceedings under the code if his evidence appears to be essential for the just decision of the case. It will not be an improper exercise of the powers of the court under section 311 Cr.P.C. to summon a witness merely because the evidence supports the case of the prosecution and not that of the accused - The function of the criminal court is to administer justice and not to evaluate the parties on the basis of their performance.
In the present case, the allegations include that of the forgery of a letter of the then Minister and thus are quite serious in nature. It is correct that this witness had not appeared before the Court despite having opportunities been given. There may also be a possibility that there might be some lethargy on the part of the prosecution but it is the duty of the Court to ensure that justice should be done and a criminal trial should conclude with the desired objective of the quest for justice. Suppose this witness is not examined, the Court or this case shall always be deprived of some material facts which could have been produced.
Taking into account the timeline, which shall expire in the middle of April, the CBI is directed to examine PW C. Edmonds Allen through video conferencing on the date set up by the learned Trial Court.CBI shall not be given more than two opportunities for examining this witness. If the witness fails to appear on these two dates or CBI fails to examine (except for some technical reason), the right to his examination shall automatically stand closed. The learned Trial Court shall also give an opportunity to the defence for the statement of the accused and the defence witnesses, if any, on a day-to-day basis. The Learned Trial Court may fix a schedule accordingly to ensure that the trial is completed within the time frame given by the Hon'ble Supreme Court.
The present petition along with the pending applications are allowed and disposed of.
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2023 (2) TMI 1286 - CESTAT MUMBAI
Violation of principles of natural justice - non-speaking adjudication order - though the said order has recorded the submissions made by the appellant in great detail, but no findings were recorded therein countering the submissions made in the reply to the show cause notice as well as during the course of adjudication proceedings - HELD THAT:- It is found that the submissions made by the appellant during the course of adjudication proceedings were recorded therein from pages 19 to 29, but the findings in the impugned order are only confined to few pages, wherein the submissions made by the appellant had not been captured fully for an effective order as contemplated under the statute. Thus, the principle of natural justice have been violated in this case, for which the matter should go back to the original authority for a proper fact finding on the issues involved in this appeal.
The appeal is allowed by way of remand to the original authority for deciding the issues involved in this case.
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2023 (2) TMI 1285 - SUPREME COURT
Maintainability of petition - availability of alternative remedy - Validity of assessment order - HELD THAT:- The High Court ought to have addressed the jurisdictional question and the appellant ought not to have been non-suited on the ground of existence of alternative remedy. The point urged before the High Court goes to the root of the controversy, which gives rise to the present proceeding. In the event the High Court found that the officer who passed the assessment order had the authority to do so, on such finding the writ petition could be dismissed as there being alternative remedy under the statute.
Matter remanded to High Court for adjudication on the question of the jurisdiction of Assistant Commissioner to pass the assessment order, which was challenged before the High Court - appeal allowed by way of remand.
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2023 (2) TMI 1284 - UTTARAKHAND HIGH COURT
Cancellation of GST registration of petitioner - non-submission of GST returns for six consecutive months - HELD THAT:- An identical controversy has been decided by Coordinate Bench of this Court in M/S SHIRDI PACKAGING VERSUS COMMISSIONER STATE GOODS AND SERVICES TAX COMMISSIONERATE DEHRADUN, STATE TAX OFFICER RUDRAPUR [2023 (1) TMI 1365 - UTTARAKHAND HIGH COURT], where it was held that we dispose of the writ petition giving liberty to the petitioner to file an application before the State Tax Officer, Rudrapur, Sector-2, Uttarakhand ventilating his grievances and if the petitioner pays dues under the GST Act pending against him, then his application for restoration of GST registration may be considered liberally.
In view of consensus between the parties that matter is covered by the order passed in above order, present writ petition is also decided in terms of the said order. Petitioner shall be at liberty to move an application for revocation of cancellation order, under Section 30 of Central GST Act, within two weeks.
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2023 (2) TMI 1283 - DELHI HIGH COURT
Seeking transfer of present winding-up proceedings to the National Company Law Tribunal, Delhi [NLCT] - HELD THAT:- It would be pertinent to note that in Action Ispat [2020 (12) TMI 535 - SUPREME COURT], the petition was transferred to NCLT because at the time when such an application was made, not much time had lapsed since appointment of the OL therein and moreover, steps for seizure of company’s factory premises had not been initiated. It is for this reason that the Court had opined that no effective or irreversible steps had been taken by the OL.
In the present case, as noted above, the sale of Company’s assets was effected, but the possession could not be transferred to the Auction Purchaser due to acquisition proceedings. Further, as it manifests, possession of the Company’s entire plant and machinery presently vests with Pegasus, and its land has been acquired by the Government of Haryana. In the afore-noted backdrop of the case, with no assets available for satisfying dues of the sole creditor – Pegasus, the Court is of the opinion that winding-up proceedings have progressed to an irreversible stage, and it would not be beneficial to transfer the same to NCLT. Mr. Rohatgi also argued that there is a possibility that the land may be de-notified. The Court however cannot decide the application on presumptions which have no basis.
Therefore, without delving into the question as to whether the Applicant, as a shareholder of the Company, has the locus to file present application or not, the Court is of the opinion that in the instant case for the facts recounted above, there is no good reason to transfer present winding up proceedings before NCLT.
Application is dismissed.
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2023 (2) TMI 1282 - DELHI HIGH COURT
Seeking release of Frames and Slides imported - import permission granted by the competent authority in the office of Directorate General of Foreign Trade (DGFT) - HELD THAT:- The matter requires a detailed hearing. The Learned Senior Counsel for the Writ Petitioner has stated before this Court that most of the supplies are to be made to Organizations under the Government of India i.e. Defence, Para Military Forces and Sports Ministry. It is stated that the Petitioner has already paid more than a sum of Rs. 1 crore as demurrage charges on the consignment and other related consignments which are the subject matter of the present LPA. It has also been stated that the consignment has been opened by the Delhi Police for inspection because of which rusting of small parts is taking place.
As an interim measure, the entire consignment which is subject matter of LPA 695/2022, be handed over to the Writ Petitioner on Supratnama, and the Writ Petitioner is directed not to dispose of even a single item therein without the directions of this Court.
List the present LPAs on 10.05.2023.
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2023 (2) TMI 1281 - KARNATAKA HIGH COURT
Non-consideration of reassessment - Escalation Charges would be exigible under the VAT Act or not - HELD THAT:- When it remains undisputed that the seventh respondent could not have decided on reassessment without considering the petitioner’s case that the amount received as Escalation Charges would not be exigible under the VAT Act, this Court is of the considered opinion that the petition must succeed to this limited extent with the impugned order dated 31.03.2022 being quashed and the proceedings restored to the seventh respondent for reconsideration with liberty to the petitioner to file detailed objections but without raising question of limitation as the impugned order is within time. This Court must observe that all questions are left open for consideration by the seventh respondent.
The petition for the different relief/s other than the relief as against the challenge to the reassessment order is dismissed - petition is allowed in part.
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2023 (2) TMI 1280 - ITAT MUMBAI
Addition u/s 68 - bogus LTCG on share transactions - exemption of income u/s 10(38) denied - reason for selection for scrutiny was “suspicious sale transaction in shares and exempt long term capital gains shown in return (Penny Stock tab in ITS) - HELD THAT:- The burden was on the department to nail the assessee through proper evidence, that there was some cash transaction with the suspected brokers, on whom there was an investigation being conducted by the department. See Shyam R Pawar [2014 (12) TMI 977 - BOMBAY HIGH COURT] - Just because few operators have done some nefarious activities, the assessee cannot be blamed and cannot be denied the gain LTCG merely on the basis of suspicion.
As relevant evidence were produced to suggest that the transactions (purchase and sale of shares) were undertaken and thereafter the same was reflected in the Demat Account; and the transactions have taken place through banking channel and through registered broker of Stock Exchange; and there is no evidence to disprove these relevant documents which support the claim of assessee (LTCG). Therefore, the claim of LTCG on the scrip under question cannot be disallowed based on general enquiry conducted by department unless the involvement of assessee is shown in the illegal activities, without which, the impugned action to disallow the claim of assessee cannot be sustained. Decided in favour of assessee.
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2023 (2) TMI 1279 - CHHATTISGARH HIGH COURT
Grant of bail - Money Laundering - opening of 446 numbers of bank accounts of various persons in connivance with the brothers of Babulal Agrawal and later on, the entire amount was transferred to M/s Prime Ispat Limited through 13 shell companies - allegations against the present applicants are that they helped the main accused persons and they were involved in the commission of the crime in question - HELD THAT:- From bare reading of the Section 45 of the Act of 2002, it appears that the court has to record finding with regard to grant of an opportunity to the Public Prosecutor and if the Public Prosecutor opposes the application, the court has to record its satisfaction to the effect that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail, before passing an order of release of an accused. In the matter of Pawan Kumar Agrawal and Ashok Kumar Agrawal same offence arising out of same complainant case was registered, but no plea was taken by Enforcement Directorate before this High Court and they have been granted protection by the Hon'ble Supreme Court.
Hon'ble Supreme Court in the case of Pawan Kumar Agrawal and Another [2023 (2) TMI 1218 - SC ORDER], held that considering the fact that during the investigation, the Investigating Agency never arrested the petitioner(s) and that the petitioner(s) had co-operated during the investigation and that now the Charge-sheet is already filed and the custodial investigation is not required, we deem it appropriate to make order dated 23.03.2022 as absolute. It is directed that in case of arrest of petitioner(s), the petitioner(s) be released on bail on the terms and conditions that may be determined by the learned Trial Court.
Considering the fact that the similar relief has been granted to the similarly situated accused persons by the Hon'ble Supreme Court, this bail application is allowed in the light of the order passed by the Hon'ble Supreme Court. Therefore, it is directed that in case of arrest of the present applicants, they shall be released on bail on the terms and conditions that may be determined by the trial Court - application allowed.
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2023 (2) TMI 1278 - SC ORDER
Seeking grant of bail - Money Laundering - prosecution did not feel necessity to put the petitioner to custodial interrogation and/or arrest him for being taken to judicial custody - HELD THAT:- No meaningful purpose will be served by retaining the petitioner in judicial custody and the conclusion of trial is likely to take reasonable time, but without expressing any views on the merits of this case, we are inclined to enlarge the petitioner on bail.
The petitioner is, therefore, directed to be released on bail, subject to his furnishing bail bonds to the satisfaction of the learned Special Judge - SLP disposed off.
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2023 (2) TMI 1277 - ORISSA HIGH COURT
Exemption u/s 10(38) claimed in revised return - scrutiny assessment - bogus LTCG on shares - revised return was filed by the Assessee claiming the above exemption which was denied - whether Revenue debarred from obtaining admissions/ statements during the course of a survey? - denial of an opportunity to cross examine the entry providers - CIT(A) was satisfied that the purchase of liquid shares have been made through Account Payee Cheques and the shares themselves were held in Demat Account for more than 12 months - ITAT noted the settled position in law that if an Assessee has wrongly offered an item of income or omitted to make a claim of deduction in the return, he was entitled to correct such a mistake by making a request to the AO to that effect - HELD THAT:- ITAT was justified in accepting the plea of the Assessee that the failure to adhere the principles of natural justice went to the root of the matter. Also, the CBDT circular that permitted to the Assessee to file revised returns if he omitted to make a claim was also not noticed by the AO.
In the considered view of the Court, the ITAT committed no error in concurring with the view of the CIT(A) and in dismissing the Revenue’s appeal.
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2023 (2) TMI 1276 - RAJASTHAN HIGH COURT
Seeking bail u/s 439 CrPC - Offence(s) under Sections 132 & 135 (1)(A)(B) & (1)(C)&(1) of Custom Act, 1962 - HELD THAT:- Bail is allowed and it is ordered that the accused-petitioner Babulal Qazi Son Of Shri Kasam Qazi be enlarged on bail provided he furnishes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial court with the stipulation that he will appear before the trial court on all subsequent dates of hearing and as and when called upon to do so.
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2023 (2) TMI 1275 - DELHI HIGH COURT
Reopening of assessment - foreign outward remittance is income chargeable to tax on the ground it has allegedly escaped assessment - principal allegation leveled against the petitioner is that it has failed to collect withholding tax in respect of remittances made to an Associated Enterprise(USA) - as petitioner sought 10 days’ time to furnish a response to the notice issued u/s 148A(b) but AO seems to have not addressed his mind to the request for accommodation made by the petitioner, and proceeded to pass, as indicated above, an order u/s 148A(d) of the Act, on the very next day, i.e., 05.04.2022.
HELD THAT:- As to whether this resulted in a breach of principles of natural justice will also be examined on the next date of hearing. The matter requires further examination.
Issue notice.
Respondent accepts notice on behalf of the respondents/revenue.Counter-affidavit will be filed within the next four weeks.
Rejoinder thereto, if any, will be filed at least five days before the next date of hearing.
List the matter on 25.09.2023.
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2023 (2) TMI 1274 - SC ORDER
Money Laundering - conspiracy - proceeds of crime - GST violation or not - commission of any scheduled offence in terms of the Scheduled Part A & B in terms of Section 2(x) of the PMLA, 2002 or not - admissible statements under Section 50 of the PMLA, 2002 - judicial proceedings within the meaning of Section 193 & 228 of the Indian Penal Code, 1860 or not - it was held by High Court that There is no infirmity in the impugned order dated 03.11.2022 of the learned Trial Court holding that prima facie case is made out against the accused/ petitioner herein of the alleged commission of the offence under Section 3 of the PMLA, 2002 punishable under Section 4 of the said enactment - HELD THAT:- The case is only at the stage of framing of the charges by the Special Court under the Prevention of Money Laundering Act, 2002.
No interference needed at this stage - SLP dismissed.
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2023 (2) TMI 1273 - ITAT BANGALORE
TP Adjustment - royalty adjustment - MAM - royalty adjustment has been made separately by applying profit level method (PSM) whereas the assessee contested that the TNMM should be applied by the revenue authorities - HELD THAT:- As relying on own case for the AY 2017-18 [2022 (6) TMI 1462 - ITAT BANGALORE] we direct the AO/TPO/DRP for applying TNMM as most appropriate method as decided in the previous assessment year cited supra. Needless to say that the assessee shall be given reasonable opportunity of being heard and assessee is directed not to seek unnecessary adjournment for early disposal of the case.
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2023 (2) TMI 1272 - ITAT VISAKHAPATNAM
Addition u/s. 40A(3) - payments in cash to the farmers - Submission of the AR that since the payments were made during the bank holidays as well as neither the assessee nor the payees had bank accounts - HELD THAT:- On careful reading of Rule 6DD(j) of the IT Rules, 1962 and on perusal of the details of payments made by the assessee during the holidays, we find merit in the argument of the Ld. AR and hence we are of the opinion that the payments made by the assessee do not attract the provisions of the section 40A(3) of the Act and hence the Ld. AO is hereby directed to delete the addition to this extent. Decided in favour of assessee.
Addition made u/s. 69 r.w.s 115BBE on account of deficit cash - HELD THAT:- CIT(A) has discussed the issue at length before confirming the addition made by the Ld. AO and thereby denying the claim of the assessee. Even before us the assessee has not produced any cogent evidence in support of the expenditure claimed by assessee. Under these circumstances, we are inclined not to interfere with the decision of the Ld. CIT(A)on this issue and accordingly the relevant ground raised by the assessee is dismissed.
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2023 (2) TMI 1271 - CALCUTTA HIGH COURT
Validity of impugned order u/s 147/263 - violation of principle of natural justice by not allowing the assessee petitioner to have access/inspection of some inspection report on which the AO concerned has relied while passing the impugned reassessment order which is an admitted position - HELD THAT:- This is the issue of such a nature it can be adjudicated by the appellate authority since the impugned order is an appellable order.
Petitioner shall file appeal against the impugned assessment order within a period of two weeks from date. Petitioner shall make payment of 10% of the disputed tax within a period of ten days.
If petitioner files the document before the AO concerned relating to filing of appeal and deposit of the amount of tax as per the order of this Court, in that event the assessing officer concerned shall not take any coercive action against the petitioner till the disposal of the appeal to be filed. If petitioner files the appeal within the time stipulated herein the appellate authority concerned shall expedite the appeal and dispose of the same not beyond the period of six months from date without being influenced by any observation made in this writ petition.
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