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2025 (4) TMI 1184
Refund claim rejected on the ground of being barred by time limitation - relevant date for the purpose of limitation under Section 11B(5)(B)(ec) when the refund arises as a consequence of a judgment or order of the Appellate Tribunal - HELD THAT:- In the present case, the Tribunal passed the order on 01.11.2018 in the presence of both the parties and the appellant was very much aware of the decision of the Tribunal as the order was passed on the date of hearing itself; but the appellant filed refund application on 16.12.2019 which is beyond the period of one year.
There is a statutory provision as prescribed under Section 11B (5) (B) (ec) of the Central Excise Act, 1944, which says that in case, where the duty becomes refundable as a consequence of judgment, decree, order or direction of appellate authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction will be the “relevant date” and the limitation period of one year will start from that date.
This issue of “relevant date” has been considered by the Tribunal in the case of Prontos Steerings Ltd Vs CCE, Chandigarh-I [2011 (8) TMI 898 - CESTAT, NEW DELHI] where it was held that 'it is clear that when some order of Court or an authority affects an assessee, the limitation would start from the date on which the order was communicated to the assessee or the date on which it was pronounced or published so that the party affected by which have reasonable opportunity of knowing of the passing of such an order and what it contains.'
Further, the statutory provision also prescribed that the period of one year would start from the date of the judgment on which the same is pronounced in the open court. Therefore, in the present case, the date of communication of the Tribunal’s order is 01.11.2018, on which the order was pronounced in the open court in the presence of the appellant’s counsel, but the refund application was filed on 16.12.2019; hence, the refund claim filed by the appellant on 16.12.2019 is beyond the prescribed period of one year, accordingly, is clearly time barred.
Conclusion - i) The limitation period prescribed under Section 11B for filing the refund claim is one year from the relevant date. The term 'relevant date' in the case where the duty becomes refundable as the consequences of judgment, decree, order or direction of the Appellate Authority, Appellate Tribunal or any Court has been defined in Explanation B (ec) of Section 11B as the 'date of such judgment, decree or direction'. ii) The refund claim filed by the appellant is beyond the prescribed period of one year, accordingly, is clearly time barred.
Appeal of appellant dismissed.
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2025 (4) TMI 1183
SSI Exemption - clubbing of value of clearances of a holding company, with the value of clearances of its subsidiary for the purpose of determining eligibility for exemption - applicability of concept of ‘interconnected undertaking’, ‘holding and subsidiary’ etc. for denial of benefit of SSI exemption - HELD THAT:- Since, the appellants are recognized as an independent manufacturer of excisable goods, which are distinctively different from the final products of M/s. Parle Products and upon satisfaction, the jurisdictional Central Excise authorities have issued the Central Excise Registration certificate in their behalf, the clearance value of holding company M/s. Parle Products Pvt. Ltd., cannot be clubbed with the clearance value of the appellants for the purpose of denying the benefit of SSI exemption provided under the Notification dated 01.03.2000.
The issue arising out of the present issue is no more res integra, in view of the order passed by the Tribunal in the case of Aschem Agrotech [2015 (10) TMI 1937 - CESTAT BANGALORE] where it was held that 'For all purposes the holding company would be having more than 50% of the shares of the subsidiary company and in this case admittedly 100% of the shares are held by the holding company. When 100% of the shares are held, Interest is paid on the loan or not does not really make a difference for the transaction between the two. Because in any case the holding company would have to bear the entire amount or profit or loss, whatever be the result of the activity of the subsidiary.'
The judgement of Hon’ble Supreme Court, in the case of Parle Bisleri Pvt. Ltd., [2010 (12) TMI 26 - SUPREME COURT], relied upon by the learned AR for Revenue are distinguishable from the facts of the present case inasmuch as the issue considered in those decided cases is in context with affixation of the brand name of another manufacturer(s) and the judicial forum have held that in the case, where brand name of another manufacturer is affixed with the product manufactured by the assessee governed under SSI, then the claim of the benefit provided to the SSI unit, shall not be available. Contrary is the situation in the present case, inasmuch as the appellants are recognized as an independent manufacturer of excisable goods and for that purpose, were also issued with the registration certificate by the jurisdictional Central Excise authorities.
Conclusion - The value of clearances of the holding company, under such circumstances, cannot be clubbed with the value of the goods cleared by the appellants, for denying the benefit provided under the Notification dated 01.03.2000.
The impugned order iss et aside - appeal allowed.
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2025 (4) TMI 1182
Method of valuation - assorted leaf springs and assemblies - to be classified u/s 4 of the Central Excise Act, 1944, or u/s 4A? - Clandestine removal - demand worked out on the basis of the comparison of the figures in the order sheets with invoices issued during the same month - HELD THAT:- Taking note of the fact that the Revenue authorities have accepted the order in appeal dated 17.11.2017 holding that the value of the “assorted leaf springs”, seized and confiscated in the same proceedings initiated during the search of the Appellant premises on 04.08.2015, there are no merits in the appeal filed by Revenue in the present proceedings. Revenue authorities do not have discretion to pick and chose the proceedings for filing the appeal, when they have accepted the order on the same issue earlier. Even otherwise the both the authorities have concluded that the goods in the form in which they cleared do not qualify to be cleared in the packaged form for which the provisions of Standard of Weight and Measures Act and Rules made thereunder will be applicable.
That being so, in view of the decision of the Hon’ble Supreme Court in case of Jayanti Food Processing (P) Ltd. [2007 (8) TMI 3 - SUPREME COURT], valuation will have to be done as per Section 4 of the Central Excise Act, 1944 and not under Section 4A ibid. The finding of fact and the application of the case law in terms of the referred decision of Hon’ble Apex Court do not call for any interference and the appeal filed by the Revenue is without any merits.
The demand has been worked out on the basis of the comparison of the figures in the order sheets with invoices issued during the same month. In some months where the figures as per the invoices is higher than the figure indicated in the order sheet the differential figure of number of assorted leaf springs cleared clandestinely is shown as ‘0’ (Zero). In the months where figure of number of leaf springs as per order sheet is higher than the number in the invoice the differential is alleged to be cleared clandestinely. No explanation is given for adopting such an approach. It is possible that the number of assorted leaf spring which are found in excess in one month get cleared in subsequent month or vice versa.
The assessable value of the assorted leaf springs have been calculated on the basis of the presumption in terms of the formula which has been adopted by the adjudicating authority which do not have any basis in law.
During search of the premises of the Appellant certain excesses of the finished goods were found which were seized by the officers. In respect of these excess finished the value of the seized goods was determined as per Section 4A, and show cause notice dated 29.01.2016 was issued to the Appellant. This show cause notice was adjudicated by the original authority determining the seizure value in line with the proposal made in the show cause notice on the basis of Section 4A of the Central Excise Act, 1944.
Interestingly on the basis of the statement of the Shri Ashu Pandey Authorized Signatory of the Appellant recorded on 23.01.2018 and accepted by the proprietor in his statement on 04.04.2018, the present show cause notice dated 20.04.2018 was issued to Appellant seeking to value the alleged clandestinely cleared goods again in terms of Section 4A of Central Excise Act, 1944 - The formula adopted by the adjudicating authority for valuation under Section 4 which is only a mathematical exercise has no basis in law. Thus computation of the assessable value on such basis cannot be anything other than presumption for computing the demand. Appellant was never put to notice about any such presumption in the show cause notice.
The demand made on the basis of such erroneous computations and presumptions do not satisfy the test of pre-ponderance of probability enunciated by the Hon’ble Supreme Court in case of D Bhoormull [1974 (4) TMI 33 - SUPREME COURT], and relied in the impugned order. The demand thus made in respect of alleged clandestinely cleared goods on the basis such erroneous computations and presumptions need to be set aside.
It is evident that the panchnama is totally silent about the manner in which stock verification was undertaken. From the annexure to Panchnama it is transpires that Appellant had stock of about 93.6 Tons of Assorted spring leafs and 960 pcs of Spring leaf assembly. Even the in the statement of Shri Ashu Pandey recorded on that date nothing is forthcoming to say how this stock was verified and excesses and shortages determined. In absence of any thing with regards to the manner of stock verification in the panchnama there are no merits in the confirmation of the demand made in respect of shortages determined.
There are no merits in the impugned order to the extent it uphold the order in original to the extent of demanding duty in respect of allegedly clandestinely cleared assorted spring leafs and the shortages of spring leaf assembly detected at the time of visit of officers on 04.08.2015. As there are no merits in the demand, the penalties imposed also need to be set aside.
Conclusion - Assorted leaf springs" cleared loose without any packaging do not qualify as retail packages under the Legal Metrology (Packaged Commodities) Rules, 2011, and hence valuation under Section 4A of the Central Excise Act, 1944 is not applicable. Valuation must be done under Section 4 of the Act.
Appeal allowed.
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2025 (4) TMI 1181
Challenge to assessment order - invocation of extended period of limitation - absence of willful evasion of tax by the petitioner - Section 21 (5) of the A.P VAT Act - Penalty order - HELD THAT:- A best judgment order, of assessment, in the case of willful evasion of tax, by the dealer, would mean that the period of assessment, of six years, for every month would commence from the 20th day of the succeeding month, where returns have been filed in time. As there is no dispute that the returns have been filed, by the petitioner, within the prescribed time, the limitation of every month would have to be taken into account. In such circumstances, the order of assessment, dated 31.03.2021, is beyond the period of limitation set out for the months of April to February of the financial year 2014-15. Since the assessment order is beyond the period of limitation, the order of assessment, dated 31.03.2021, passed by the 1st respondent is to be set aside for the period April, 2014 to February, 2015.
The fact remains that the period beyond limitation would have to be excluded and a fresh computation of the tax that would have paid would have to be undertaken. For this purpose, it would be more appropriate that the entire order is set aside and the matter is remanded for a fresh assessment, by the Assessing Officer, for the period which is within limitation. Apart from this, the petitioner has also raised a ground that the levy of tax @ 14.5%, without giving the benefit of the composition scheme, is impermissible as the Assessing Authority had not verified the forms of composition given by the petitioner and endorsed by the 1st respondent.
Penalty order - HELD THAT:- The order of Penalty, dated 21.05.2021, is based upon the order, dated 31.03.2021. Once the order of assessment itself has been set side, the order of penalty would not survive.
Conclusion - Since the assessment order dated 31.03.2021 is beyond the period of limitation set out for the months of April, 2014 to February, 2015, the order of assessment passed by the 1st respondent is to be set aside for that period.
The order of assessment, passed by the 1st respondent on 31.03.2021 as well as the order of penalty, passed by the 1st respondent on 21.05.2021 set aside - petition allowed.
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2025 (4) TMI 1180
Refund of excess tax credit - applicability of provisions of Rule 18(3)(b) of the Andhra Pradesh VAT Rules, 2005, read with Section 22 of the A.P. Value Added Tax Act, 2005 (the VAT Act) - HELD THAT:- While Section 22 (3) would be applicable to the Central Government, the State Government and the organizations mentioned in Section 22 (3), the provisions of Section 22 (3-A) would be applicable only to the Government of A.P., or any local authority. It would not be applicable to the Central Government - The State is relying upon the provisions of Rule 18 (3) (b) to contend that any payments made in excess of tax liability of the dealer, by a Government authority, can be forfeited under Rule 18 (3) (b).
A closer look at Rule 18 would show that the said Rule specifically stipulates that it would be applicable for payments made under Section 22 (3-A). As the Central Government is not covered under Section 22 (3-A), the provisions of Rule 18 (3) would not be applicable. Consequently, the State cannot refuse refund of amounts to the credit of the petitioner on the ground of Rule 18 (3) of the VAT Rules.
Concluson - Excess tax credits arising from contracts executed for the Central Government are refundable and cannot be forfeited under the provisions invoked by the Revenue in this case.
This writ petition is allowed setting aside the assessment order, dated 30.10.2023, passed by the 3rd respondent with a consequential direction to the 3rd respondent to refund the amount of Rs. 20,19,710/- along with interest under the provisions of the APVAT Act and the Rules made thereunder.
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2025 (4) TMI 1179
Offence under Section 8(c) of the NDPS Act - production, manufacture, possession, sale, purchase, transport, warehouse, use, consumption, import inter-State, export inter-State, import into India, export from India or transhipment of a psychotropic substance which is listed under the Schedule to the NDPS Act but not mentioned under Schedule I of the NDPS Rules - Doctrine of prospective overruling - Prospective effect of decision of this Court in Sanjeev V. Deshpande [2014 (8) TMI 695 - SUPREME COURT] - seeking for discharge/deletion of a particular offence from the charge under Section 216 CrPC, once, the charge has been framed by a competent court under Section 228 of the CrPC.
HELD THAT:- It cannot be said that the dealing in of “Buprenorphine Hydrochloride” would not amount to an offence under Section 8 of the NDPS Act owing to the fact that the said psychotropic substance only finds mention under the Schedule to the NDPS Act and is not listed under Schedule I of the NDPS Rules. There exists nothing to indicate that Rules 53 and 64 of the NDPS Rules respectively, are the governing rules in their respective Chapters, more so, when the language of the other rules in Chapters VI and VII respectively, are clear about their application to the substances mentioned under the Schedule to the Act as well.
All the psychotropic substances mentioned under the Schedule to the Act have potential grave and harmful consequences to the individual and the society at large, when abused. Some psychotropic substances mentioned under the Schedule to the NDPS Act are also mentioned under the D&C Act and the rules framed thereunder - the mere mention of certain psychotropic substances under the D&C regime would not take them away from the purview of the NDPS Act, if they are also mentioned under the Schedule to the NDPS Act.
There arises no occasion for us to declare the interpretation given to Section 8 of the NDPS Act and the relevant NDPS Rules, by the decision in Sanjeev V. Deshpande [2014 (8) TMI 695 - SUPREME COURT], as prospectively applicable. There exists no overwhelming reason for us to do so. On the other hand, in order to meet the ends of justice and with a view to ensure that public interest is safeguarded and to give effect to the salutary object behind the enactment of the NDPS Act, the decision must necessarily be retrospectively applicable. This Court in Sanjeev V. Deshpande, perhaps, did not think fit to confine or restrict its interpretation of Section 8 of the NDPS Act to future cases only.
The retrospective application of the dictum in Sanjeev V. Deshpande would not give rise to any implications as regards the rights of the accused persons under Article 20(1) of the Constitution. This is because while overruling the decision in Rajesh Kumar Gupta [2006 (11) TMI 542 - SUPREME COURT], the decision in Sanjeev V. Deshpande has only clarified the law as it stood from its inception and given true effect to the meaning assigned to the relevant provisions of the NDPS Act and the Rules thereunder, by the lawmakers. The same cannot be construed as creating a new offence. Additionally, the overruling of a decision cannot be equated to the enactment of an ex-post facto law, especially when the interpretation given to the statute/provision in the overruling decision is not a novel and unreasonably expansive interpretation of the provision in question such that it was completely unforseeable - there remains no doubt that giving retrospective effect to the decision in Sanjeev V. Deshpande would be necessary considering the facts and circumstances in the background of which are called upon to adjudicate these matters.
Both the Trial Court and the High Court committed an error in holding that the offence under the provisions of the NDPS Act is not made out. The Trial Courts in both the appeals could also not have discharged/deleted the charge under the NDPS Act framed against the accused persons while disposing of an application under Section 216 CrPC. This is something not permissible within criminal procedure and the High Court unfortunately failed to take notice of this aspect.
Conclusion - The Trial Courts and High Courts erred in holding that offences under the NDPS Act were not made out and in permitting discharge or deletion of charges under Section 216 CrPC.
The impugned orders passed by the High Court are set aside - appeal allowed.
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2025 (4) TMI 1178
Liability under the Employees' State Insurance Act, 1948 - post of General Manager or Principal Employer - case of appellant is that the liability was on the Company for making payments to the ESIC, therefore, he could not be charged, much less convicted, for an offence under the Act - HELD THAT:- The High Court rightly indicated that non-remittance of the contribution deducted from the salary of an employee to the ESIC is a offence under Section 85(a) of the Act and punishable under Section 85(i)(a) of the Act but the Trial Court had imposed a lesser sentence as provided under Section 85(i)(b) of the Act. This is clearly borne out by Section 85(i)(a) of the Act which provides for a sentence of not less than one year imprisonment and fine of Rs.10,000/-, since the amount had been deducted from the salaries of the employees and not paid, which is the fact in the present case, whereas under Section 85(i)(b) of the Act, sentence of imprisonment is not less than six months and with fine of Rs.5,000/- in other cases. Of course, the Trial Court could have given a lesser sentence even for an offence under Section 85(i)(a) of the Act under the proviso to Section 85(i) of the Act. Overall, the High Court did not feel the necessity to interfere in the lesser sentence awarded by the Trial Court. Thus, we find that the conviction and the sentence does not require any interference, much less in the present case, where despite contributions having been deducted from the employees’ salaries, they were not deposited with the ESIC.
In A K Abdul Samad [2016 (3) TMI 1488 - SUPREME COURT], the question before the Court was as to whether discretion had been granted only to reduce the sentence of imprisonment for a term lesser than six months or whether it encompassed discretion to levy no fine or a fine of less than five thousand rupees. Answering the said question, the Court held that 'There is no discretion of awarding less than the specified fee, under the main provision. It is only the proviso which is in the nature of an exception whereunder the court is vested with discretion limited to imposition of imprisonment for a lesser term. Conspicuously, no words are found in the proviso for imposing a lesser fine than that of five thousand rupees. In such a situation the intention of the legislature is clear and brooks no interpretation. The law is well settled that when the wordings of the statute are clear, no interpretation is required unless there is a requirement of saving the provisions from vice of unconstitutionality or absurdity. Neither of the twin situations is attracted herein.'
The decision in A K Abdul Samad, thus, is of no help to the Appellant. While the fine awarded and affirmed by the Courts below is upheld, we are not convinced to substitute the term of imprisonment to be operative only for a day till the rising of the Court.
The Appellant is directed to undergo the sentence after setting off the period already undergone, if any and pay the fine, if not already paid, as awarded by the Trial Court. The exemption from surrendering granted by order dated 18.03.2024 stands withdrawn. The appellant shall surrender before the Trial Court within two weeks from today.
Conclusion - i) The Appellant is rightly held liable as the General Manager and Principal Employer under the Act. ii) The Appellant's conviction under Section 85(i)(b) of the Act for failure to remit deducted ESI contributions is justified and sustained.
Appeal dismissed.
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2025 (4) TMI 1177
Vicariously liability of Hospital (Appellant) and the doctor (Respondent No. 2) for medical negligence resulting in the death of the complainant's son - challenge is on the ground that the liability as has been imposed upon the Appellant and the proforma Respondent No.2, on the ground of negligence without there being any medical literature or evidence of any expert substantiating the said findings deserve to be set aside - HELD THAT:- It is apparent that there is ample evidences as well as records to indicate that there was indeed medical negligence at the end of the Appellant and Respondent no.2.
Quantum of compensation as has been assessed and awarded by the NCDRC - HELD THAT:- As is apparent from the pleadings, the son of the complainant was 27 years of age at the time of his death, which is the prime age when a person starts his career and has his whole life to look forward to.
Considering that the individual was a B.Tech graduate and he was working in a soap factory, albeit drawing a modest salary. In the beginning, when youngsters start their career, generally, humble short steps are taken. It is evident that he was financially supporting the family and had the qualification and potentiality for earning higher income in future. Therefore, it cannot be said that the compensation as has been assessed by NCDRC is without any basis or the quantum is on extremely higher side. As a matter of fact, the NCDRC has fixed the compensation at Rs.5 lakhs to be paid by Dr. J.V.S. Vidyasagar, proforma Respondent no.2 who has accepted the said judgment and has even deposited the said amount.
As regards the amount of Rs. 15 lakhs is concerned which is assessed to be paid as compensation by the Appellant, it would not be out of way to mention here that while issuing notice in the present case, this Court had directed the Appellant to deposit an amount of Rs.10 lakhs in the Registry of this Court to be invested in short term fixed deposit to be renewed from time to time - the amount of Rs.10 lakhs as stands deposited in this Court by the Appellant along with the accrued interest thereon would serve the interest of justice and the said amount of compensation would suffice as far as the liability of the appellant hospital is concerned.
Conclusion - Considering that the individual was a B.Tech graduate and he was working in a soap factory, albeit drawing a modest salary, the compensation as has been assessed by NCDRC is fully justified calling for no interference by this Court.
The decision of the NCDRC is upheld however, the amount of compensation with regard to the liability of the appellant – hospital would stand at Rs.10 lakhs along with accrued interest. The amount so deposited be disbursed to Respondent no.1 – the complainant on an application to be submitted to the concerned Registrar of this Court - appeal disposed off.
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2025 (4) TMI 1176
Dishonour of Cheque - challenge to setting aside of conviction and sentence of the Respondents accused - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- This Court is of the view that the consensual terms are fair and reasonable.
Accordingly, the Special Leave Petition is disposed of.
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2025 (4) TMI 1175
Dishonour of Cheque - legally enforceable debt or liability - scope of an appeal against an acquittal - Section 138 of the Negotiable Instruments Act, 1881 - HELD THAT:- It would be worthwhile to note the scope of Appeal against Acquittal and the law with regard to scope of interference by Appellate Court in an Appeal against acquittal. A recent decision of the Division Bench of this Court in the case of ABC, Through Police Station, Chhavani, Nashik Vs. The State of Maharashtra and Anr. ABC, VERSUS THE STATE OF MAHARASHTRA, RAOSAHEB BABURAO MALI [2024 (6) TMI 1453 - BOMBAY HIGH COURT], has after analysing the settled law on the above issue laid down the scope for interference in Appeal against Acquittal.
This is because the trial before the trial court on remand by the session court was specifically required to determine the existence of a legally enforceable debt. In the Suit plaint Complainant has stated that the claim arises out of a mutually agreed settlement between parties as on 30.06.1996 after accounts between the Plaintiff and the Defendants that is Complainant and Accused were worked out mutually between them and the said statement of claim was prepared. If this statement of cause of action is true then Exhibit-A appended to the Suit plaint ought to have been signed and acknowledged by both the parties. However it doesn’t bear signature of either parties. It is merely prepared by the Complainant on his own. There is no evidence or fact stated about how and whether the mutual settlement occurred or took place. Same cause of Action is pleaded by Complainant in the present case also when he is called upon to prove his legally enforceable debt or liability of the Accused towards him.
The present appeal is dependent upon the strength of the evidence of the Complainant to prove the legally enforceable debt. In the present case it is seen that substantial witness action is led by both sides. What is crucial to be noted is the fact that claim of Complainant is for a substantial tenure of time on the ground that he brought good amount of business to the Accused and was to get 0.5 percent of the total turnover in addition to Rs. 3,000/- per month as salary. Complainant was employee of Accused and his firm, Meera Investments is an admitted fact - The question as to why did the Complainant choose to pay the third parties is left clearly unanswered. This goes to the root of the matter to prove legally enforceable debt, if any from the Accused. The Complainant admittedly was not the agent of the Accused so as to foist the liability on Accused. Complainant in his deposition claimed to be a guarantor but once again his claim is a bald claim without any deed of guarantee between the parties. Complainant did not choose to make the Accused aware even once that he was guarantor / surety for the investors over the years. Hence his case is unbelievable.
It is seen that Complainant issued the legal notice under Section 138 in the year 1996 raising the demand of Rs. 49,83,836/- under the two cheques. It is seen that immediately thereafter in the reply to the said notice Accused raises his defense of the issue of the two cheques by fraudulent means. Complainant thereafter issued a rejoinder. In the notice and the rejoinder Complainant does not state the cause of action namely the details of the eleven (11) heads under which the twin cheques were issued by the Accused to him.
There is admittedly no evidence produced to arrive at the said statements and liability. Hence, if it is Complainant’s case that the cheques were issued for a legally enforceable debt, it was his duty to prove the same. There is nothing on record placed by the Complainant to show that the amounts stated in Exhibit “P11” to Exhibit “P13” are arrived at pursuant to a legally enforceable debt. Exhibit “P11” to Exhibit: P-13 do not prove the case of the Complainant. Mere exhibition of the said Computer statement prepared by the Complainant do not prove the contents of the said document - The Complainant has failed to prove the existence of any legally enforceable debt and on the contrary. Accused in his defence by leading cogent evidence has clearly rebutted the Complainant’s case.
On the basis of material on record, it cannot be said that Complainant has proved his case beyond all reasonable doubts. The burden on the Accused to prove his case only to the extent of preponderance of probability is clearly proved in the present case even though there may be a probability that Complainant brought business to the Accused or the Accused received loans from third parties. Admittedly there is no documentary evidence placed on record to that effect by Complainant. That apart Complainant had no right whatsoever to recover the amounts given by him on his own volition to third parties from the Accused. Complainant was neither guarantor nor surety for these amounts. Accused has clearly set and proved the probability that the Complainant through his nexus/ employment with the firm of the Accused obtained the two cheques signed by the Accused which is believable and therefore the onus of proving that the two cheques were issued towards a legally enforceable debt and liability was on the Complainant. The Complainant has failed to discharge this burden. Therefore the case of the Complainant- Appellant before me fails miserably.
Conclusion - The Complainant failed to prove the existence of a legally enforceable debt, and the Accused successfully rebutted the presumption under Section 139. Therefore, the acquittal by the trial court is upheld.
Appeal dismissed.
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2025 (4) TMI 1174
Validity of Revision u/s 263 - order of the AO u/s 143 (3) is found to be erroneous and prejudicial to the interest of the revenue - Large investment in property - HELD THAT:- The issue relating to acquisition of property was subject matter of consideration before the Assessing Officer. The assessee submitted their explanation to the same contending that the assessee has entered into an agreement for purchase of a building at Worli, Mumbai from Shreeniwas Cotton Mills Limited on 28.11.2014 and the total sale consideration is Rs. 11,41,07,130/-. A copy of the ledger of capital WIP (Building) Account was enclosed showing the payment made at various dates.
Assessee stated that the availed loan from ICICI bank for purchase of such property and the copy of the bank statement of various banks has been enclosed to show the payment made to Shreeniwas Cotton Mills Limited. Further, the assessee pleaded that the possession of the aforesaid property was not handed over by the seller to the assessee before 31.3.2015 and the amount paid by them is reflected in the balance-sheet as on 31.11.2015 under the head ‘capital work in progress’. Further, the assessee stated that the agreement for purchase was duly registered with the Joint Registrar, Mumbai City-IV.
Considering all these aspects, the AO completed the assessment. Though the aforementioned points were placed by the assessee in response to the show cause notice issued u/s 263 PCIT opined confirmation of the proposal in the show cause notice not on the ground which was proposed in the show cause notice that the Assessing Officer did not do any verification at all but on the ground that the Assessing Officer has not carried out proper verification/investigation.
As pointed out above, the factual position clearly shows that there has been due verification done by the AO and the AO was also careful enough to note CASS point which was also verified by the AO. The substantial questions of law are answered against the revenue.
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2025 (4) TMI 1173
Denial of final approval under clause (iii) to the first proviso to Section 80G(5) - scope of “ registration” or “approval” - technical discrepancies in Form No. 10AC, specifically the erroneous mention of "provisional approval" instead of "approval " - HELD THAT:- Where due to technical glitches, Form No. 10AC has been issued during FY 2021- 2022 with the heading “Order for provisional registration” or “ Order for provisional approval” instead of “Order for registration” or “Order for approval”, then in all such cases, Form No. 10AC shall be considered as an “Order for registration” or “approval” as the case may be, and, in such cases where Form No. 10AC has been issued, in the relevant columns, wherein the word “provisional registration” or “provisional approval” have been mentioned, they shall be read as “ registration” or “approval” as the case may be.
The relevant provisions of section 80G(5) provide that institutions which were already approved u/s 80G(5) prior to the amendment were required to apply under clause (i) of the first proviso for fresh approval, which was to be granted for five years. The provisions nowhere state that such approval would be provisional.
The confusion has arisen only due to technical glitches in Form No. 10AC where such approvals were erroneously mentioned as "provisional". CBDT Circular No. 11/2022 has clarified this position beyond any doubt by specifically stating that in such cases, the words "provisional approval" shall be read as "approval".
This issue has been considered in identical circumstances in the case of Ananda Nagar Development Society [2025 (1) TMI 1546 - ITAT KOLKATA] wherein, it was held that where an institution was already approved under section 80G(5) prior to the amendment and had applied for fresh approval under clause (i) of the first proviso to section 80G(5), the approval so granted is a regular approval and not provisional, notwithstanding the inadvertent mention of the term "provisional approval" in Form No. 10AC due to technical reasons.
Since the approval granted to the assessee under clause (i) of the first proviso to section 80G(5) is a regular approval valid for five years from AY 2022-23 to AY 2026-27, hence, there is no requirement to the assessee for applying for final/regular approval under clause (iii) to the first proviso to section 80G(5) of the Act. The present appeal of the assessee, thus, is infructuous and not maintainable and the same is accordingly dismissed. However, it is made clear that the dismissal of the above appeal of the assessee will not in any manner tantamount to affect the approval granted to the assessee vide order dated 28.05.2021 which is valid up to AY 2026-27. Decided against assessee.
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2025 (4) TMI 1172
Accrual of income in India - Income derived from transmitting of satellite signals from ship to the customers and vice versa - assessee is a tax resident of Netherland and it is eligible to claim the treaty benefits as per Indian-Netherland DTAA - AO held that the assessee has received the revenue from the customers by leasing transponders in India and held that the receipts are in the nature of royalty u/s 9(1) (vi) of the Act as well as under 12 of India – Netherlands tax treaty as they are towards use or right to use of equipment/processes etc.- assessee stated that in absence of a Permanent Establishment in India, the income of Inmarsat is not chargeable to tax in India.
HELD THAT:- Considering the rival submission and material placed on record, we observed that similar issues were considered and adjudicated by the Coordinate Bench in assessee’s own case for A.Y. 2019-20 & 2020-21 [2023 (10) TMI 1520 - ITAT DELHI] decided the issue in favour of the assessee as held Finance Act, 2012 will not affect Article 12 of the DTAAs, it would follow that the first determinative interpretation given to the word "royalty" in Asia Satellite [2011 (1) TMI 47 - DELHI HIGH COURT] which held that receipts from lease of transponder capacity are not 'royalty' and when the definitions were in fact parimateria (in the absence of any contouring explanations), will continue to hold the field for the purpose of assessment years preceding the Finance Act, 2012 and in all cases which involve a Double Tax Avoidance Agreement, unless the said DTAAs are amended jointly by both parties to incorporate income from data transmission services as partaking of the nature of royalty, or amend the definition in a manner so supra note 1 that such income automatically becomes royalty. It is reiterated that the Court has not returned a finding on whether the amendment is in fact retrospective and applicable to cases preceding the Finance Act of 2012 where there exists no Double Tax Avoidance Agreement.
For the above reasons, it is held that the interpretation advanced by the Revenue cannot be accepted. The question of law framed is accordingly answered against the Revenue.
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2025 (4) TMI 1171
Estimation of income - bogus purchases - CIT(A) confirmed the addition of GP at 8% and upheld the assessment order - HELD THAT:- The issue stands well settled by the decision of the Coordinate Bench of ITAT, Mumbai, in the assessee’s own case [2018 (12) TMI 2017 - ITAT MUMBAI]. The assessee had accepted the addition of GP at 8% on the alleged bogus purchases. We find no reason to deviate from the ruling of the Coordinate Bench, and accordingly, we restrict the addition to 8% GP on the alleged bogus purchases.
It is noted that in the original assessment order u/s 143(3), an addition (8% GP) was made on the alleged bogus purchase which was already confirmed. Therefore, the entire addition made in the reassessment order under Sections 143(3)/147 is unsustainable and is accordingly deleted.
However, concerning the alleged bogus purchases we direct that the addition be restricted to 8% of the GP, which works out to Rs. 5,49,452/-.
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2025 (4) TMI 1170
Blocking of Electronic Credit Ledger (ECL) of the petitioner under Rule 86A of the Central Goods and Services Tax (CGST) Rules, 2017 - before passing the impugned letter, pre-decisional hearing was not provided to the petitioner nor does the impugned order contain any reason to believe as to why it was necessary to block the Electronic credit ledger - Violation of principles of natural justice - HELD THAT:- The issue decided in the case of K-9-Enterprises [2024 (10) TMI 491 - KARNATAKA HIGH COURT], where it was held that 'in the absence of valid nor sufficient material which constituted ‘reasons to believe’ which was available with respondents, the mandatory requirements/pre-requisites /ingredients/parameters contained in Rule 86A had not been fulfilled/satisfied by the respondents- revenue who were clearly not entitled to place reliance upon borrowed satisfaction of another officer and pass the impugned orders illegally and arbitrarily blocking the ECL of the appellant by invoking Rule 86A which is not only contrary to law but also the material on record and consequently, the impugned orders deserve to be quashed.'
In the instant case since no pre-decisional hearing are provided/granted by the respondents before passing the impugned order, coupled with the fact that the impugned order invoking Section 86A blocking of the Electronic credit ledger of the petition does not contain independent or cogent reasons to believe/accept by placing reliance upon reports of enforcement authority which is impermissible in law, since the same is on borrowed satisfaction as held by Division Bench, the impugned order deserves to be quashed.
Conclusion - The impugned order blocking the petitioner's Electronic Credit Ledger under Rule 86A is illegal, having been passed without pre-decisional hearing, without independent reasons to believe, and based on borrowed satisfaction.
The concerned respondents are directed to unblock the Electronic credit ledger of the petitioner immediately upon the receipt of copy of this order, so as to enable the petitioner to file returns forthwith - petition allowed.
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2025 (4) TMI 1169
Jurisdiction of respondent no. 2 to invoke the extended period of limitation under Section 73 of the Finance Act, 1994 - liability to pay service tax on the royalty amount deducted by the Government under the Reverse Charge Mechanism (RCM) as per the Finance Act, 1994 - HELD THAT:- It is evident from a reading of Sub-Section (1) of Section 73 that the prescribed period of limitation for serving a notice on the person chargeable with service tax is thirty months from the relevant date. The words ‘thirty months’ have been substituted for ‘eighteen months’ by Finance Act, 2016 (28 of 2016), dt.14-5-2016. Proviso to Sub-Section (1) of Section 73, however, permits invocation of extended period of limitation of five years in the cases where service tax has not been paid by reason of fraud or collusion or wilful misstatement or suppression of facts or contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, by the person chargeable with the service tax.
The petitioner is a Government Contractor and the services availed by him has been found exempted under the Mega Exemption Notification No. 25 of 2012. In fact, Annexure ‘P/2’ clearly admits that the activity of the petitioner is exempted under Mega Exemption Notification No. 25/2012 dated 20.06.2012 and as such no service tax is leviable on the said activity. This Court finds much force in the submission of the petitioner that had the Government Department issued invoice as required under Rule 4A of the Service Tax Rules, 1994, he would have come to know the requirement of payment of service tax and the rate at which it was required to be paid - The Challan has to contain the name, address of the registration number of such person and name and address of the person receiving taxable service. It will also contain the description and value of taxable service provided or agreed to be provided and the service tax payable thereon. In this case, admittedly, the respondent no. 4 did not issue any invoice, bill or challan.
Conclusion - It is not one of those cases in which the petitioner may be said to have committed a fraud or acted with an intention to evade the service tax. The show cause (Annexure ‘P/2’) is barred by limitation. The benefit of extended period of limitation would not be available to the respondent no. 2. Hence, the SCN as contained in Annexure ‘P/2’ and the consequent order confirming the demand vide Annexure ‘P/4’ to the writ application are quashed.
Application allowed.
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2025 (4) TMI 1168
Seeking certain amendments as per the draft amendment tendered to the Court - Challenge to N/N. 56/2023-Central Tax dated 28th December, 2023 issued by Respondent No. 1 (Union of India) and N/N. 56/2023 dated 16th January, 2024 issued by Respondent No. 2 (State of Maharashtra) exercising powers under Section 168A of the Central Goods and Services Tax Act, 2017 (CGST Act) - HELD THAT:- It is found that in similar matters in EVIE REAL ESTATE PRIVATE LTD. VERSUS STATE OF MAHARASHTRA [2025 (3) TMI 173 - BOMBAY HIGH COURT], the petitions have been admitted and interim relief has been granted. We therefore issue Rule. Respondent Nos. 1 to 4 waive service.
Liberty granted to the parties to apply in the event the matter before the Hon'ble Supreme Court is disposed of one way or the other.
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2025 (4) TMI 1167
Short payment of Goods and Service Tax - classification of products of the Petitioner - GST applicable at 12% or 18%? - reply of petitioner not taken into consideration - violation of principles of natuarl justice - HELD THAT:- Considering the fact that the reply has been completely ignored by the adjudication authority, the impugned order would not be sustainable. The said Order-in-Original clearly records that no reply was filed.
The matter is remanded to the adjudicating authority for a fresh hearing - Petition allowed by way of remand.
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2025 (4) TMI 1166
Challenge to Circular No. 235/2024-Goods and Services Tax (‘GST’) dated 11th October, 2024 issued by the Joint Secretary, Tax Research Unit, Department of Revenue, Ministry of Finance, Government of India - Classification of Roof Mounted Package Unit (RMPU) air conditioning machines used for railways - to be classified under HSN code 8415 or 8607? - HELD THAT:- Considering that the Show Cause Notice has now been issued to the Petitioner, the Petitioner would file a reply to the Show Cause Notice. The Show Cause Notice shall proceed before the Adjudicating Authority who shall take into consideration all the relevant material including the advance rulings by different state authorities, the reply of the Petitioner as also the impugned circular.
The proceedings shall continue before the Adjudicating Authority and the final order shall be passed, which shall be, however, subject to the outcome of this petition. It is made clear that the final order shall not be given effect without further orders of this Court.
List on 9th May, 2025.
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2025 (4) TMI 1165
Fraudulent availment of Input Tax Credit - issuance of fake invoices without actual receipt of goods and services - HELD THAT:- This Court is of the opinion that both these orders are appealable orders before the concerned Appellate Authority under Section 107 of the Central Goods and Services Tax Act, 2017. The question of duplication, if any, shall be examined and adjudicated by the Appellate Authority. However, on a prima facie perusal, it appears that the amount pertaining to M/s Nivaran Enterprises has been reflected in both orders, indicating a possible instance of duplication.
The Petitioner is permitted to avail of its Appellate remedies in respect of both orders - considering the possibility of duplication, insofar as the second order is concerned i.e., 10th January, 2025, the pre-deposit shall only be in respect of the amount pertaining to M/s Radhey Enterprises i.e. Rs. 14,12,730/- at the initial stage. The Appellate Authority may examine the matter and pass directions in accordance with law.
Let the appeal be filed by the Petitioner before the Appellate authority within a period of 30 days.
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