Home Case Index All Cases Income Tax Section Wise 2024 2024 (3) This

Law	-- All -- GST Income Tax Benami Property Customs Corporate Laws Securities / SEBI Insolvency & Bankruptcy FEMA Law of Competition PMLA Service Tax Central Excise CST, VAT & Sales Tax Wealth tax Indian Laws
Court	-- Any -- Supreme Court SC Orders / Highlights High Court Appellate Tribunal Tribunal Appellate authority for Advance Ruling Advance Ruling Authority National Financial Reporting Authority Competition Commission of India ANTI-PROFITEERING AUTHORITY Commission Central Government Board DISTRICT/ SESSIONS Court Commissioner / Appellate Authority Other
Citation	--Year-- 2025 2024 2023 2022 2021 2020 2019 2018 2017 2016 2015 2014 2013 2012 2011 2010 2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996 1995 1994 1993 1992 1991 1990 1989 1988 1987 1986 1985 1984 1983 1982 1981 1980 1979 1978 1977 1976 1975 1974 1973 1972 1971 1970 1969 1968 1967 1966 1965 1964 1963 1962 1961 1960 1959 1958 1957 1956 1955 1954 1953 1952 1951 1950 Upto 1949 - -Volume- 1 2 3 4 5 6 7 8 9 10 11 12 -
Landmark	Nil - N/A Referred in >= 2 Cases Referred in >= 4 Cases Referred in >= 5 Cases Referred in >= 10 Cases Referred in >= 15 Cases Referred in >= 25 Cases Referred in >= 50 Cases Referred in >= 100 Cases
Order by	TMI Citation Date of Decision

Advanced Search Options

Case Laws

Showing 21 to 40 of 1445 Records

• 2024 (3) TMI 1426
  

  Denial of CENVAT credit of service tax paid - Bank Guarantee charges under 'Banking and other Financial Services' and Sales Commission to agents under 'Business Auxiliary Services' used in connection with supply, commissioning and installation of Turbo Generator (TG) sets - HELD THAT:- The issues are no more res-integra. The issue regarding availment of cenvat credit of service tax paid on Bank Guarantee charges is settled as per the decision of this Tribunal in the matter of M/s RMS Infotech Pvt Ltd., Vs. CC, Bangalore [2021 (11) TMI 1108 - CESTAT BANGALORE]. The issue of Sales Commission was also considered by this Tribunal in the matter of M/s Beloorbayir Biotech Limited [2018 (5) TMI 24 - CESTAT BANGALORE], wherein it is held that 'The commission is paid on sales of the products/services with an intention to boost the sale of the company. In view of the same, the sales commission has a direct nexus with the sales which in turn is related to the manufacture of the products. It is to be understood that there need not be manufacture unless there is sale of product. To increase the manufacturing activity encouragement is being given for increased sales. Hence, the commission paid on sales becomes part of sales promotion resulting in increased manufacturing activity.'

  The dispute regarding CENVAT credit availed against the sales commission was considered by this Tribunal in the matter of M/s Federal Mogul TRP (India) Ltd [2020 (11) TMI 893 - CESTAT BANGALORE], wherein it is held that sales commission fall under definition of 'input service'.

  Conclusion - Denial of CENVAT Credit of the service tax paid on 'Bank Guarantee commission' and 'Sales Commission is not sustainable in law, hence the impugned order is liable to be set aside

  Appeal allowed.

  ---

• 2024 (3) TMI 1425
  

  Application for rectification of mistake - CENVAT Credit - invocation of extended period of limitation - demand of interest and penalty - HELD THAT:- It is correct that whatever duty was paid by Unit-II is entitled as CENVAT Credit by Unit-I of the appellant themselves. In these circumstances, it is a situation of revenue neutrality. Therefore, as held by the Hon’ble Apex Court in M/s. Nirlon Ltd. [2015 (5) TMI 101 - SUPREME COURT], it is held that the extended period of limitation is not invokable. Consequently, the demand of interest and penalty against the appellant are not sustainable.

  The impugned order qua demanding interest and penalty set aside - appeal disposed off.

  ---

• 2024 (3) TMI 1424
  

  Confiscation of the seized goods, redemption fine and the penalty - contravention of provisions of Section 113(i) of the Customs Act, 1962, by exporting goods that did not correspond in respect of value or material particulars - abetment in the contravention of the EPCG license - HELD THAT:- It is found from the records that the EPCG licence holder was M/s. Print Zone and we are given to understand that against the penalties imposed and duty confirmed on Print Zone, no further appeal was filed by them. In the present case, the EPCG licence holder is Print Zone who has definitely contravened the provisions by not disclosing the details of supporting manufacturer. It is further found that the appellant has exported the goods under proper Shipping Bills and they have also realised the export proceeds.

  There is no allegation from the Revenue’s side that the exports have not taken place or realization has not come back to the appellant. In such a case, it is not found that the appellant could be fastened with any allegation towards contravention of Section 113 (i) of the Customs Act, 1962.

  Confiscation of the goods - penalty - HELD THAT:- The goods are already exported and hence, they are not available physically for confiscation. The ratio of cited case law of COMMISSIONER OF CUSTOMS, CENTRAL EXCISE & SERVICE TAX HYDERABAD – II VERSUS G.M.K. PRODUCTS PVT LTD. [2020 (2) TMI 234 - CESTAT HYDERABAD] squarely apply to the facts of the present case. Consequently, confiscation of the exported goods is not justified and so also the Redemption fine imposed. As there is not contravention on the part of M/s. Rup Exports, they are not liable to penalty under Section 114 (iii) 114AA & 117 of the Customs Act, 1962.

  Conclusion - The appellant did not violate Section 113(i), and thus, the confiscation of goods, redemption fine, and penalties were unwarranted.

  Appeal allowed.

  ---

• 2024 (3) TMI 1423
  

  Penalty u/s. 271(1)(c) - defective notice u/s 274 - AO while framing the assessment u/s.147 r.w.s. 144B initiated penalty proceedings u/s.271(1)(c) for "concealment of income" but levied penalty u/s.271(1)(c) for "furnishing of inaccurate particulars of income" - HELD THAT:- AO had in the SCN, called upon the assessee to explain why he may not be subjected to penalty u/s 271(1)(c) for having “concealed the particulars of income” but thereafter vide a vague order had saddled his with a penalty for both the defaults, i.e. “concealed the particulars of income” and “furnished inaccurate particulars of income”; which thereafter was restricted to “furnishing of inaccurate particulars” [while quantifying the amount of penalty in order u/s 271(1)(c)]; therefore, the order so passed by him cannot be sustained and is liable to be struck down on the said count itself.

  AO had failed to discharge his statutory obligation of fairly putting the assessee to notice as regards the default for which he was being proceeded against, therefore, the penalty u/s 271(1)(c) imposed by him being in clear violation of the mandate of Sec. 274(1) of the Act cannot be sustained. We, thus, for the aforesaid reasons not being able to persuade ourselves to subscribe to the imposition of penalty by the A.O, therefore, set-aside the order of the CIT(A) who had upheld the same. Decided in favour of assessee.

  ---

• 2024 (3) TMI 1422
  

  Recovery of service tax with interest and penalty - services provided by the appellant fall under the category of "Business Auxiliary Service" or "Advertising Agency Service" or "Sale of Space or Time Slot for Advertisement Service"? - quantification of Service Tax demand - Services provided by the party are exempted after introduction of Section 66D of the F A 1994 w.e.f. 01.07.2012 - invocation of extended period beyond 5 years.

  Computation of Demand - HELD THAT:- The entire demand made in the show cause notice and the impugned order is based on presumed commission of 15% whereas the actual value of sales margin is available and on the basis of the said commission works out year wise as indicated in column 5. If the commission was even to be averaged out the same would have been only 6.67% as per the figures indicated in the SCN and impugned order on the basis of Balance Sheets/ Profit and Loss Account of the appellant. From the invoices raised by the print media on the appellant and by the appellant on their clients it is evident that normally appellants were getting discount of 15% from the print media, and they were in turn passing certain discounts to their clients while billing them.

  In certain cases it may be that no discount has been passed and on the basis of the those document both show cause notice and impugned order presume that commission earned by the appellant is 15 %. This fact is not established either by the figures in the balance sheet nor evidenced by the invoices of the print media on appellant and the appellant on their clients. Thus the manner in which the demand has been computed by the impugned order and the Show cause Notice/ Statement of Demand are at variance and do not inspire confidence. In fact the actual discount should have been worked out on the basis of receipts and payments which are available in the audited balance sheet.

  Classification of Services - HELD THAT:- It is evident that North Eastern Railway (NER) has raised an advertisement order upon the appellant specifying the category of the advertisement and newspapers in which the same was required to be published. News Paper Agencies in which the said advertisement was published have raised the bill on the appellant for publishing the said agreement by allowing discount of 15% to the appellant. On publication of the said advertisements appellant has raised the invoices of NER for the amounts charged by the Newspaper Agencies without allowing any discount to their client on each of the invoices raised by the Newspaper Agencies on the appellant. The name of the client is indicated as NER. From the above documents it is quite evident that appellant has purchased these spaces for publication the advertisement given by NER. In these publications on a discount of 15% and have sold the same to their clients without allowing for any discount.

  There are no merits in the impugned order demanding service tax on the services provided by the appellant by classifying their services under the category of Business Auxiliary Services. The services provided by the appellant would have merited classification under the category of advertising agency services and the appellants were required to pay service tax under this category on the income received under this category.

  It is noted in the show cause notice and the impugned order that appellant were paying service tax on the income earned that is net surplus i.e. difference of payment received and the payment made. The demand made by classifying the services provided under the category of Business Auxiliary Services on a notional value of the commission received cannot be sustained.

  Time Limitation - HELD THAT:- As the case cannot be upheld on the merits itself, the issue of limitation not considered.

  Penalties - HELD THAT:- As the demand of tax is set aside the penalties imposed too are set aside.

  Conclusion - i) The appellant's services were not taxable post-01.07.2012 and that the quantification of the demand was incorrect. ii) The services provided by the appellant would have merited classification under the category of advertising agency services and the appellants were required to pay service tax under this category on the income received under this category. iii) As the case cannot be upheld on the merits itself, the issue of limitation not considered. As the demand of tax is set aside the penalties imposed too are set aside.

  Appeal allowed.

  ---

• 2024 (3) TMI 1421
  

  Valuation of imported goods - rejection of declared transaction value - enhancement of assessable value of the melting scrap imported by the appellant, based on NIDB data as well as based on contemporaneous import of identical goods and also based on the guidelines issued by the Directorate of Valuation - HELD THAT:- The appellant had accepted the enhanced duty and paid the same out of compulsion to clear their goods, but accepting the same, will not debar the appellant to challenge the same by filing the appeal. There is no estoppel in law and the appellant is entitled to challenge the enhancement of assessable value by way of filing the appeal. This issue has been considered in various cases by the Tribunal/High Courts/Supreme Court.

  The Hon'ble High Court of Delhi, in a bunch of appeals, has considered the identical issue in detail after considering the various judgments of the Tribunal as well as of the Supreme Court. After considering all the judgments, the Hon‟ble High Court of Delhi in the case of Niraj Silk Mills Vs. Commr of Customs (ICD) Patparganj [2024 (11) TMI 1361 - DELHI HIGH COURT] along with Hanuman Prasad & Sons Vs Commissioner of Customs [2024 (11) TMI 1361 - DELHI HIGH COURT], has decided the issue in favour of the importer- assessee holding that 'It becomes apparent from a reading of these decisions collectively that the Tribunal has consistently found that a valuation addition based solely on NIDB data would wholly unwarranted and that any such reassessment would have to be shored by independent and cogent evidence.'

  Conclusion - The transaction values must be accepted unless there is substantial evidence to justify rejection. In the present case, the enhancement of the assessable value was not legally justified.

  The impugend order is set aside - appeal allowed.

  ---

• 2024 (3) TMI 1420
  

  Challenge to interim release of the vehicle by the learned court - recovery of alleged contraband articles from the ship or not - legality in considering the application of the Petitioner-Shipping Company under Section 457 of Cr.P.C. for interim release of the vessel - validity of terms and conditions subject to which the vessel was directed to be released interimly in favor of the shipping company.

  Legality in considering the application of the Petitioner-Shipping Company under Section 457 of Cr.P.C. for interim release of the vessel - HELD THAT:- The language employed in Section 457 of Cr.P.C. is self- explanatory. Therefore, the same does not call for an in-depth analysis. Moreover, Section 457 of Cr.P.C. has been elaborately discussed and analysed in various judgments delivered by the Hon’ble Supreme Court as well as this Court. Undisputedly, the provision contained in Section 457 of Cr.P.C. is a procedural provision to be followed by the police upon seizure of property. The first sub-Section provides whenever the seizure of the property is reported to a Magistrate and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may pass such order as he thinks fit respecting the disposal or delivery of such property to the person entitled to the possession thereof, and if such person cannot be ascertained, respecting the custody and production of such property.

  A duty is cast upon the Magistrate to pass necessary orders once the property is seized and reported to such Magistrate. Moreover, discretion has been vested with the Magistrate for disposal of such property or delivery of such property to the person entitled to the possession thereof. If the owner of the property is known, then the order shall be passed with regard to the disposal of such property and if the owner is unknown, then such order shall be passed with regard to the custody and production of such property. In the instant case, since the owner of the property is known, the Magistrate is duty bound to pass an order with respect to the disposal of such property or delivery of such property to the person entitled to the possession thereof.

  This Court observes that when the shipping company filed an application for interim release of the vehicle before the learned Court in seisin over the matter, at that time the learned court in seisin over the matter was well aware of the requirement of the seized vessel during investigation as well as trial. Moreover, the ownership of such vessel remains undisputed. The question, therefore, which remains is as to whether the seized property is required during the inquiry or trial? In reply to the said question, this Court would like to observe that none other than the court in seisin over the matter is in the best position to decide with regard to the use of the seized property during inquiry or trial. Thus, by virtue of the impugned order dated 12.02.2024, the learned court in seisin over the matter has exercised its discretion in favour of the release of the seized property to its real owner, subject to certain terms and conditions.

  To understand the scope and ambit of Section 457 of the Cr.P.C., this Court would like to refer to certain judgments of the Hon’ble Supreme Court in this regard. In Basavva Kom Dyamanagouda Patil v. State of Mysore [1977 (4) TMI 170 - SUPREME COURT]. The question arose as to whether the seized ornaments kept in the truck should be returned to the rightful owner while the criminal case is still pending. The Hon’ble Supreme Court after analysing the provision contained under Section 457 of Cr.P.C. held that the power under Section 457 Cr.P.C. should be exercised promptly to prevent unnecessary hardship to the owner. Further, it was emphasized that seized property should not be kept in police custody for an indefinite period unless it is essential for the investigation.

  In Sunderbhai Ambala Desai v. State of Gujarat [2002 (10) TMI 773 - SUPREME COURT], the Hon’ble Supreme Court was dealing with an issue with regard to disposal of seized property under Sections 451 and 457 of the Cr.P.C. While addressing the prolonged retention of seized property in the custody of police authorities, the Hon’ble Supreme Court observed that timely disposal of such property is very much essential.

  Ater a critical analysis of the judgments discussed, this Court has no hesitation in coming to a conclusion that the provisions contained in Sections 451 and 457 of the Cr.P.C. would be applicable to the cases involving offence under the provisions of the NDPS Act. Therefore, any property/ vehicle seized in connection with such cases can very well be dealt with by the trial court by resorting to the provisions contained under Sections 451 and 457 of the Cr.P.C.

  Conditions imposed by the learned trial court while releasing the vessel in question - HELD THAT:- As to the value of the vessel, it is no doubt a difficult proposition to accurately assess the exact value of the vessel involved in the present case. Keeping in view the law involved through various judgments of the Hon’ble Supreme Court as well as this Court, the learned trial court while directing interim release of the vehicle/ property is duty bound to ensure that while taking on Zima, the person concerned secures the property/ vehicle/ vessel in question and further gives an undertaking that he shall not sell, transfer, alienate or part with possession of such property till conclusion of the trial and shall further give an undertaking to the effect that he shall produce such property/ vehicle/ vessel before the trial court as and when required by the trial court within a reasonable period of time. Furthermore, the learned Division Bench of this Court in Rabindra Kumar Behera’s case, while answering the reference, has laid down the conditions that are required to be fulfilled while directing interim release of the vehicle/ property/ vessel.

  Reverting back to the financial condition imposed in condition Nos.1 and 2, this Court finds that the condition No.1 with regard to furnishing a Bank Guarantee would be a harsh condition so far the Petitioner-Shipping Company is concerned since they are not having any bank account in India. Therefore, the condition No.1 requires reconsideration by this Court. Accordingly, the condition No.1 is hereby waived. So far the condition No.2 is concerned, the value of the vessel has been assessed on a hypothetical basis. In other words, the real value of the vessel has not yet been assessed by any certified valuer in the present case. Basing upon the insurance declaration, the value of the vessel has been arrived at Rs.100 crores. Therefore, this Court is of the view that the same may not be the actual cost of the vessel which is stranded at the Paradeep port at the moment.

  Since no valuation report by a certified valuer could be produced in course of the hearing of the present application by the customs authorities, this Court is required to take a reasonable approach in the matter, particularly, keeping in view the factual background of the present case and the progress made in the investigation so far. Accordingly, the condition No.2 is modified to the extent that instead of Rs.100 crores, the Petitioner-Shipping Company shall now furnish an indemnity bond to the tune of Rs.75 crores and instead of one solvent surety for the like amount, they shall furnish two solvent sureties for the like amount. Further, it is directed that the other conditions of order dated 12.02.2024 shall remain intact.

  Conclusion - i) Section 457 of Cr.P.C. applies to cases involving the NDPS Act, allowing for interim release of seized property. ii) The legality of the interim release order upheld but the conditions are modified to be more reasonable, waiving the bank guarantee requirement and reducing the indemnity bond.

  The Criminal Revision Petition is dismissed.

  ---

• 2024 (3) TMI 1419
  

  Reopening of assessment u/s 147 - giving time of less than 7 days to respond - HELD THAT:- When the notice u/s 148A (b) has admittedly issued giving time of less than 7 days to file reply to the assessee contrary to the provision of the Act such notice is to be held invalid.

  When the impugned notice under section 148A(b) of the Act is invalid, order under section 148A(d) and any notice under section 148 would not survive. Accordingly, impugned order u/s 148A(d) and notice u/s 148 of the Act are hereby quashed and set aside.

  ---

• 2024 (3) TMI 1418
  

  Seeking grant of regular bail - Money Laundering - proceeds of crime - alleged AgustaWestland VVIP helicopter scam - accused of being a middleman who had facilitated bribes to Indian officials to secure a deal for the supply of 12 AW-101 helicopters - HELD THAT:- This Court is of the view that while Section 45 of PMLA imposes stringent conditions for the grant of bail, constitutional courts, including the Hon’ble Supreme Court, have also emphasized time and again that this provision cannot be interpreted in a manner, to confine the accused in judicial custody for an indefinite period of time.

  The present case presents an exceptional situation where the applicant has already been in custody for over six years and two months, yet the trial has not even commenced due to the incomplete investigation. Such prolonged incarceration, without any foreseeable conclusion of trial, would infringe upon the applicant’s fundamental right to a speedy trial under Article 21 of the Constitution.

  Section 436A of the Cr.P.C. is a statutory safeguard designed to prevent excessive and disproportionate pre-trial detention. It provides that an accused, who has undergone detention for a period equivalent to one-half of the maximum sentence prescribed for the offence, shall ordinarily be released on bail unless the court, for reasons recorded in writing, directs otherwise. In the context of offences under PMLA, where the maximum sentence is ordinarily seven years, the one-half threshold would be three and a half years. Although the proviso to Section 436A of Cr.P.C. allows the court to extend the period of detention beyond the one-half threshold based on the facts of the case, yet such extended detention cannot be indefinite and the Courts must assess the necessity of continued incarceration in light of the specific facts, the stage of the trial, and the overall interests of justice.

  In V. Senthil Balaji v. Enforcement Directorate [2024 (9) TMI 1497 - SUPREME COURT], it was observed that existence of proceeds of crime at the time of the trial of the offence under Section 3 of the PMLA can be proved only if the scheduled offence is established in the prosecution of the scheduled offence. Thus, even if the trial of the case under PMLA proceeds, it cannot be finally decided unless the trial of scheduled offences concludes. Applying the said principle to the present case, this Court observes that the trial has not begun either in the case pertaining to scheduled offence or in the case under PMLA.

  In this Court’s opinion, the prolonged incarceration of the accused, of about six years and two months, and the fact that investigation is not yet complete and trial has not yet begun, and there are more than 100 witness to be examined in this case, would entitle him to grant of regular bail, thereby overriding the statutory bar under Section 45 of PMLA and proviso to Section 436A of Cr.P.C.

  Considering the period of incarceration of about six years and two months undergone by the applicant, and in view of the fact that he has also been granted bail in the case pertaining to predicate offence by the Hon’ble Supreme Court on the ground that the investigation has not been completed and the trial has not even begun, and considering that there seems to be no possibility of trial in this case concluding too within the remaining duration of the maximum prescribed sentence under Section 4 of PMLA, inasmuch as the same has not even begun as of now, this Court is inclined to grant regular bail to the present applicant, on furnishing a personal bond and surety in the sum of Rs. 5,00,000/- each and on surrendering the passport before the learned Trial Court, which be not released without permission of this Court, considering that investigation qua the present applicant is still pending. The rest of the conditions be imposed by the learned Special Court, since as per order of the Hon’ble Apex Court, the learned Trial Court has been directed to impose conditions as deemed appropriate while granting bail in predicate offence.

  Conclusion - The applicant's prolonged detention without trial justifies the grant of bail, notwithstanding the statutory bar under Section 45 of PMLA and the proviso to Section 436A of Cr.P.C.

  Application allowed.

  ---

• 2024 (3) TMI 1417
  

  Penalty u/s 271AAB - additional income offered in the return of income filed u/s. 153A towards estimated disallowance of 1/3rd of marketing expense - HELD THAT:- No doubt, the assessee has admitted additional income towards estimated disallowance of 1/3rd of marketing expenses when the Department has found and seized unaccounted cash in the residential premise of the assessee Company Director and their associates.

  But, fact remains that said unaccounted cash was not identified to any particular assessment year or person. Although, the AO has telescoped unaccounted cash to additional income offered by the assessee towards estimated disallowance of marketing expenses, but, in our considered view, said cash was not identified for the impugned assessment year either by the assessee or by the AO. Further, additional income offered by the assessee and accepted by the AO towards estimated disallowance of marketing expenses is also an ad hoc disallowance without there being any observation/adverse comments with regard to expenses accounted by the assessee in the books of accounts of the specified previous year and also explanation offered by the assessee.

  The sole basis for the AO to levy penalty u/s. 271AAB of the Act, is voluntary surrender of income by the assessee in the return of income filed u/s. 153A of the Act, and such income has been quantified in the statement recorded u/s. 133(4) of the Act. Although, the AO took support from confirmation from one of the suppliers, where he has stated that at times cash has been returned to the assessee, but there is no specific admission in the confirmation letter of suppliers regarding supplies made to the assessee and refund of 1/3rd of cash for the impugned assessment year.

  We have gone through the reply received from supplier which has been extracted in the penalty order and we find that said reply is general in nature without any specific reference for the impugned assessment year and also amount of cash returned to the assessee.

  Thus, on the basis of admission of the assessee without there being any reference to incriminating material surrender of additional income in the return of income filed u/s. 153A of the Act, cannot be considered as undisclosed income as defined in Explanation-(c) to Sec. 271AAB(1)(a) of the Act and such undisclosed income is for specified previous year.

  As decided in Shri. Prafulla Shashikant Vaidya [2023 (8) TMI 1619 - ITAT MUMBAI] issue of penalty levied u/s. 271AAB of the Act, in respect of income surrendered by the assessee and held that surrender of income would not if so facto lead to the conclusion that the amount surrendered by the assessee is undisclosed income in terms of Sec. 271AAB.

  Thus additional income offered by the assessee in the return of income filed in response to notice issued u/s 153A of the Act, towards surrender of estimated disallowance of 1/3rd marketing expenses does not come under the definition of undisclosed income as defined in Explanation-c to Sec. 271AAB - Decided in favour of assessee.

  ---

• 2024 (3) TMI 1416
  

  Benefit of country of origin (SAFTA) as per N/N. 99/2011-Customs dated 09.11.2011 - appellant contended that till date, no speaking order of assessment had been received by them u/s 17(5) of the Customs Act, 1962 - HELD THAT:- An importer is required to file their Bill of Entry and self-assess the duty leviable on the goods imported, under Section 17(1) of the Act and if the proper officer is not of the view that the assessment has been done by the importer correctly, then he may re-assess the duty leviable on such goods, under Section 17(4) of the Act. Section 17(5) mandates that if the re-assessment done under Section 17(4) is contrary to the assessment done by the importer, then a speaking order is to be passed on the re-assessment, within a period of fifteen days from the date of re-assessment of the Bill of Entry.

  Admittedly, in this case, no reasons have been assigned by the proper officer for denying the benefit of country of origin (SAFTA) under Notification No. 99/2011-Cus. dated 09.11.2011. It is observed that the certificate of origin have already been defaced by the proper officer.

  Moreover, as the country of origin certificate has already been defaced, which clearly shows that the proper officer has accepted the country of origin certificate and nothing adverse has been found, in these circumstances, the proper officer was required to pass a speaking order under Section 17(5) of the Act. As no such order has been passed by the proper officer in this case, therefore, re-assessments of the Bills of Entry under Section 17(4) of the Act are illegal.

  Conclusion - The denial of the country of origin benefit was not sustainable.

  Appeal allowed.

  ---

• 2024 (3) TMI 1415
  

  Bogus purchases - bogus accommodation bills - estimation of income - hawala transactions from certain parties who were only providing accommodation sale bills - gross delay of 606 days in filing this special leave petition.

  HELD THAT:- We note that this Court in [2024 (1) TMI 1443 - SC ORDER] and similar matters has dismissed the petition(s) on merits.

  We are not satisfied with the explanation offered seeking condonation of delay in filing the special leave petition. Also, by following the order [supra] we dismiss this special leave petition both on the ground of delay as well as on merits.

  We also observe that this petition has to be dismissed owing to low tax effect.

  ---

• 2024 (3) TMI 1414
  

  Addition made on account of accrued interest - AO was of the view that the assessee is following hybrid system of accounting which is not allowed u/s 145 and made the addition - AO also did not accept the submissions of the assessee that only the real income can be applied towards the objects of the trust for the purpose of claiming exemption u/s 11 - HELD THAT:- From the plain reading of the above section it is clear that income chargeable under the head “Profits & Gains from Business or Profession or Income from Other Sources” should be computed in accordance with either cash or mercantile system of accounting regularly employed by the assessee. In the given case, we notice that the assessee has been offering Income from Other Sources by following cash system of accounting i.e. on receipt basis consistently from inception. Therefore, in our view there is merit in the contention there is no violation of section 145 since for the purpose computing income from Other Sources the assessee is not following hybrid system of accounting but has been consistently following cash system of accounting.

  As noticed that for the purpose of maintenance of books of accounts, the assessee is following mercantile system of accounting since the assessee is mandatorily required to do so under the Companies Act. Therefore in our view the contention of the AO is that the assessee is following hybrid system of accounting which is not accordance with section 145 is factually incorrect and not sustainable. Therefore, in our considered view the addition made by the AO on the basis that the assessee is following hybrid system of accounting is not correct and therefore, we hold that the addition made towards interest income be deleted. Appeal of the assessee is allowed.

  ---

• 2024 (3) TMI 1413
  

  Capital gain computation - treatment of deemed Capital Gain u/s 50C, and the classification of the piece of land as an agricultural asset not subject to capital gains tax - CIT(A) confirmed the action of assessing officer on the basis of CBDT Circular No. 3/2014 by holding that areal distance of shortest possible route has to be taken as the crow flies - HELD THAT:- Before us, the objection of revenue is that the documents and evidences have never been examined by the assessing officer, therefore, considering the above facts, we deem it fit and proper to set aside the order of the CIT(A) and remit the matter back to the file of the assessing officer on limited issue to examine the fact about the distance of land sold by the assessee by considering the aforesaid in case the distance of location of land is more than 8.00 KM from municipal limits, allow relief to the assessee.

  AO shall allow reasonable and fair opportunity to the assessee. The assessee is also directed to make compliance in time. For statistical purposes, the appeal of the assessee is treated as allowed.

  ---

• 2024 (3) TMI 1412
  

  Legitimacy of additions/disallowances made u/s 153A - whether, while making assessment u/s 153A, Revenue is entitled to interfere with unabated assessment which stood concluded either u/s 143(1) or u/s 143(3) and not pending at the time of search in the absence of any incriminating material unearthed as a result of search in the case of assessee?

  HELD THAT:- As pointed out on behalf of the assessee, there is a total absence of reference to any incriminating material which may have any bearing to the impugned additions/disallowances.

  AO has relied on material found in a different search proceedings. There is no rebuttal from revenue on this pertinent aspect.

  Additions/disallowances have been made without reference to any specific incriminating material/document found as result of search and seizure action u/s 132 and such additions are solely based on certain information/material collected against the assessee in the course of search in another case.

  Guided by the principles laid down in the case of Abhisar Buildwell (P.) Ltd [2023 (4) TMI 1056 - SUPREME COURT] we find force in the legal plea raised on behalf of the assessee. Hence, in the absence of any incriminating material in an unabated assessment, additions/disallowances made by the AO is unsustainable within the remit of sec 153A of the Act and consequently the additions under challenge in the captioned appeal requires to be quashed. Appeal of the assessee is allowed.

  ---

• 2024 (3) TMI 1411
  

  Reopening of assessment u/s 147 - as argued procedure contemplated by Section 148A as not been followed before issuing the impugned notices - petitioner said that the reference to Section 132A is only to get over the formalities contemplated by Section 148A and the facts and circumstances of the case indicate that Section 132A is not applicable - HELD THAT:- It is clear from the judgment of this Court in R. Ravirajan and Others [2023 (9) TMI 1557 - KERALA HIGH COURT] that when an item or cash, as in this case, is produced before a Criminal Court, then it is not open to the Income Tax Department to issue a notice under Section 132A to the Court in question.

  Once the item is produced before the Court in connection with any criminal case registered by the Police or any other law enforcement agency, an application for release of the same or for giving custody of the same to the Income Tax Department can only be in accordance with the provisions of the Code of Criminal Procedure and specifically Section 451 Cr.P.C. thereof. That does not take away the fact that the department had initiated proceedings u/s 132A to requisition the amount from the Station House Officer, Nilambur Police Station.

  Therefore, no option but to hold that this is a case covered by the 1st proviso to Section 148A. Therefore, the procedure contemplated by the provisions of Section 148A need not be complied with before issuing notices under Section 148 of the 1961 Act. No other point has been raised.

  ---

• 2024 (3) TMI 1410
  

  Seeking grant of anticipatory bail - allegations against the appellant primarily relates to taking a bribe to sign the proposal to enhance the cost estimate for upgrading a building of the Municipal Corporation, Sonepat, to a green building - HELD THAT:- The behaviour attributed to the appellant cannot be treated to be instances of non-cooperation justifying dismissal of his appeal for pre-arrest bail. An accused, while joining investigation as a condition for remaining enlarged on bail, is not expected to make self-incriminating statements under the threat that the State shall seek withdrawal of such interim protection.

  There are no reason for custodial interrogation of the appellant. There is no aggravating factor either, which would justify his detention at the investigation stage.

  Appellant shall be released on bail on such terms and conditions the Trial Court may consider fit and proper - appeal allowed.

  ---

• 2024 (3) TMI 1409
  

  Validity of Reopening of assessment u/s 147 - change of opinion or reasons to believe - provision for warranty made by the petitioner was not made on a scientific basis and reliance was placed upon the provisions made in the earlier assessment years - HELD THAT:- The issue of provision of warranty for the subject assessment year was under consideration AO while passing the assessment order dated 29th March, 2014.

  As held by this Court in Aroni Commercials Limited [2014 (2) TMI 659 - BOMBAY HIGH COURT] once a query is raised during the assessment proceedings and Assessee has replied to it, it follows that the query raised was a subject of consideration of the AO while completing the assessment. It is also not necessary that an assessment order should contain reference and/or discussion to disclose its satisfaction in respect of the query raised.

  Therefore, the reopening of the assessment, in our view, is merely on the basis of change of opinion of the AO from that held earlier during the course of assessment proceedings and this change of opinion does not constitute justification and/or reason to believe that income chargeable to tax has escaped assessment.

  Having considered the documents over the pleadings with the assistance of the counsels, the notice has been issued purely on the basis of ‘change of opinion’, which cannot be sustained.

  ---

• 2024 (3) TMI 1408
  

  Demand of differential Customs duty - classification of exported iron ore fines under CTH 2601 1149 or not - mis-declaration of Fe content of the iron ore fines - HELD THAT:- On going through the fact that as the Fe content is to be calculated on WMT and as per the test reports of the goods in question which have not been disputed by either of the sides, the Fe content on WMT treating the whole consignment as one consignment works out to 57.48% which is less than 58%, therefore, it is held that the appellant is not liable to pay any duty on the export of the said consignment treating as single consignment.

  Conclusion - The Fe content of iron ore should be calculated on a WMT basis, considering the condition of the goods at the time of export.

  The impugned order is not sustainable in the eyes of law. Consequently, no penalty is imposable on the appellants - Appeal allowed.

  ---

• 2024 (3) TMI 1407
  

  CENVAT Credit - input service - service tax paid by an employer on insurance premiums for policies taken for employees and their family members.

  Insurance taken for employees - HELD THAT:- It would be appropriate to refer to the decision of the Bombay High Court in Coca Cola [2009 (8) TMI 50 - BOMBAY HIGH COURT], wherein the definition of ‘input service’ under rule 2(l) of the CENVAT Rules, as it stood prior to amendment made on 01.04.2011, came up for interpretation. The issue was as to whether the appellant, a manufacturer of non-alcoholic beverage bases, was eligible to avail credit of the service tax paid on advertising services, sales promotion, market research and the like services that had been availed. The High Court held that the expression ‘means and includes’ is exhaustive and that the expression ‘business’ is an integrated/continued activity and is not confined or restricted to mere manufacture of the product and, therefore, activities in relation to business can cover all activities that are related to the functioning of a business.

  The Bombay High Court in Ultratech Cement [2010 (10) TMI 13 - BOMBAY HIGH COURT], after considering the earlier judgment of the Bombay High Court in Coca Cola, took the view that the definition of ‘input service’ in rule 2(l) of the CENVAT Rules consists of three categories of services, and CENVAT credit of service tax paid on all such services would be available to an assessee.

  The judgment of the Supreme Court in Maruti Suzuki [2009 (8) TMI 14 - SUPREME COURT] would not come to the aid of the department to contend that unless there is a clear nexus between ‘input service’ and ‘manufacturing activity’, CENVAT credit cannot be claimed.

  The appellant would be entitled to avail CENVAT credit of the service tax paid on procuring insurance policies for the employees.

  Insurance for family members of employees - HELD THAT:- It has been found as a fact in the present case that the appellant is entitled to avail CENVAT credit of the service tax paid on the insurance premium for the employees and their family members in terms of the definition of ‘input service’ contained in rule 2(l) of the Credit Rules.

  The decision of the Tribunal in PTC Software [2014 (12) TMI 498 - CESTAT MUMBAI] correctly holds that CENVAT credit of the service tax paid for procuring insurance for the family members of the employees can be availed. The decisions to the contrary do not lay down the correct position in law.

  CENVAT credit of the service tax paid on the insurance premium paid for the family members of the employees would also be admissible.

  Conclusion - The appellant would be entitled to avail CENVAT credit of the service tax paid by the appellant on the insurance premium paid for procuring insurance services for the employees and their family members, as the said service would be an ‘input service’ under rule 2(l) of the CENVAT Rules, both under the main limb of the definition as also under the inclusive limb of the definition. It is not necessary for the appellant to establish an integral connection between the service and business of manufacture for the said service to be categorized as ‘input service’ under rule 2(l) of the CENVAT Rules for the period prior to 01.04.2011.

  The reference is answered, accordingly. The papers may be placed before the Division Bench of the Tribunal for hearing the appeal on merits.

  ---

123456........ 73