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Showing 121 to 140 of 1570 Records
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2024 (5) TMI 1450
Dismissal of an application of recall of an order - manipulation of books of account and siphoning of funds - fabrication of valuation report - HELD THAT:- The Ld. NCLT had rightly observed there was nothing on record to suggest Respondent No.7 was a necessary and proper party or was required to be summoned as a Respondent only for confirmation of his valuation report, when such valuation report in fact was never denied by the Respondents except it was required to be verified by the Statutory Auditors.
The orders dated 11.01.2024 and dt. 22.02.2024 does not warrant any interference by this Tribunal. There is no merit in the appeal - appeal dismissed.
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2024 (5) TMI 1449
Fixation of rate of interest at 14.85% per annum - HELD THAT:- There are no good ground and reason to interfere with the impugned judgment dated 21.11.2023 passed by the National Company Law Appellate Tribunal, fixing the rate of interest at 14.85% per annum. This determination has been made after considering several facts and taking a holistic picture.
It is clear that the Resolution Professional has to undertake the exercise to verify and compute the principal amount payable by the Corporate Debtor to the respondent no. 2 – Asset Reconstruction Company (India) Limited - the Resolution Plan has already been approved by the Committee of Creditors.
Appeal disposed off.
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2024 (5) TMI 1448
Non-payment of service tax - amounts received towards the ensuing projects - Construction of Residential Complex Services - period prior to 01.07.2010 - HELD THAT:- The appellant being a Promoter/Developer/Builder of residential projects has entered into Joint Development agreement with land owners where the parties agree to jointly promote and develop a construction project.
It is very much clear that the appellant is a promoter of residential projects. The Board vide Circular dated 29.01.2009 has clarified that a Promoter/Developer/Builder is not liable to pay service tax for Construction of Residential Complex Services prior to 01.07.2010. The Tribunal in the case of M/s. Krishna Homes Vs. Commissioner of Central Excise [2014 (3) TMI 694 - CESTAT AHMEDABAD] held that the demand of service tax against a Promoter/Builder/Developer cannot sustain for the period prior to 01.07.2010.
Moreover, in the present case the contracts are composite in nature. The demand raised under Commercial or Industrial Construction or Construction of Residential Complex Services cannot sustain. The Tribunal in the case of Real Value Promoters Pvt Ltd [2018 (9) TMI 1149 - CESTAT CHENNAI] had held that the demand of service tax for composite contracts can only be made under Works Contract Services. Therefore, the demand raised under the above categories of Services cannot sustain.
The impugned order is set aside - appeal allowed.
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2024 (5) TMI 1447
Depreciation claimed on goodwill - cost of goodwill acquired from MSN Singapore by way of demerger - HELD THAT:- Since it is submitted that MSN Singapore has not claimed/has been allowed depreciation under the Indian Income tax Act, the depreciation claimed by the assessee on the amount of goodwill should be allowed on its original cost as per the law discussed by us. However, we notice that the above said facts narrated by the assessee are not emanating from the orders passed by the tax authorities, meaning thereby, the tax authorities did not examine the facts submitted by the assessee, which became the foundation in support of the claim of depreciation made by the assessee. Hence, we are of the view that the facts narrated by the assessee needs to be verified at the end of the assessing officer.
Accordingly, we restore this issue to the file of the assessing officer for the limited purpose with following directions: -
(a) If MSN Singapore has not claimed/has not been notionally allowed depreciation under sec. 32 of Indian Income tax Act for any of the years, then the assessee is eligible to claim depreciation on the cost of goodwill acquired from MSN Singapore by way of demerger.
(b) If MSN Singapore has claimed and/or has been allowed depreciation u/s 32 of Indian Income tax Act for any of the years, then the AO may compute depreciation on goodwill in accordance with the law. Accordingly, this issue is disposed of.
Disallowance of Provision for Expenses - assessee had provided for outstanding expenses as at the yearend in books of accounts. Since no TDS was deducted, it voluntarily disallowed 30% of Provision for outstanding expenses u/s 40(a)(ia) - HELD THAT:- What is required to be examined is, whether the relevant liability has been incurred or not. The said liability may pertain to whole of the year also. So long as the liability towards expenses has been incurred by the assessee and if the payment has not been made, then the same has to be provided for in the books, even if it relates to more than one month. For example, it may be usual practice to pay rent for an office premises in the succeeding month. Hence, usually, the March month rent would be paid in the month of April and hence the provision for outstanding rent is made for the month of March, i.e., for one month. It may so happen that the assessee might not have paid rent, say for October to March for some reason.
Then the provision for outstanding rent for six months has to be provided for as per the accounting principles, since the liability to pay rent for six months has been incurred. Hence the period for which provision was made is not a relevant factor. Incurring of liability irrespective of duration of period is relevant. Accordingly, the various observations made by DRP, in our view, would fail.
The provision for outstanding expenses claimed by the assessee is an ascertained liability only. Accordingly, we are of the view that the Ld DRP was not justified in confirming the disallowance made by the AO. Accordingly, the addition of 70% of expenses made by the AO is liable to be deleted. We order accordingly.
Non-granting of TDS - TDS credit was not given by the AO for the reason that the TDS certificates are not in the name of assessee, but it was in the name of amalgamated/demerged company - HELD THAT:- Resulting company in case of demerger and transferee company in the case of transfer, are eligible to claim TDS credit, even if the TDS certificates are in the name of demerged company/transferor company. In the instant case, the assessee has offered the relevant income, even though the TDS certificates were in the name of amalgamated/demerged company.
Accordingly, following the above said decisions POPULAR COMPLEX ADVISORY PVT. LTD. [2023 (8) TMI 1485 - ITAT KOLKATA], ADANI GAS LTD. [2016 (1) TMI 940 - ITAT AHMEDABAD] and ULTRATECH CEMENT LTD [2022 (1) TMI 923 - ITAT MUMBAI] we direct the AO to allow TDS credit to the assessee after verifying that the relevant income has been assessed by the AO in this year.
Deduction of foreign taxes u/s 37(1) - HELD THAT:- AO did not discuss this issue at all. We restore this issue to the file of the AO with the direction to examine the claim of the assessee in accordance with the decision rendered in RELIANCE INFRASTRUCTURE LTD. [2016 (12) TMI 1293 - BOMBAY HIGH COURT].
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2024 (5) TMI 1446
Estimation of income - bogus purchases - ITAT restricting disallowance to 12.5% of purchases - HELD THAT:- In the present case, the indisputable fact is that assessee had furnished copy of the tax audit report, P&L A/c and balance-sheet. Assessee also filed purchase bills, payments made by cheques to all suppliers, their ledger accounts, PAN Card, bank statements, purchase confirmation of suppliers, etc. AO did not accept the evidence but instead, added the amount in assessee’s income.
AO, however, has not disputed the sales made by assessee out of such purchases. The ITAT has given detailed findings for justifying addition to the extent of 12.5% only. The Courts have time and again held that only the profit element in the alleged bogus purchases amount can be treated as income, particularly, when the sales has not been disputed. CIT(A) restricted the addition by estimating the gross profit at 12.5%. Whether that is a right estimate is a question of fact. The ITAT has accepted it. Therefore, we see no reason to interfere. Appeals dismissed.
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2024 (5) TMI 1445
Writ Petition - Common ancestor property - Partition land Possession and interference in a property between the plaintiff and the defendant - share of the plaintiff on being partitioned and is enjoying the same for the last more than three decades - Plaintiff is the sister of the defendant - Challenged the order passed by trial Court with the direction that the respondent is temporarily restrained from causing the obstruction in the cultivation of suit property till the disposal of main suit - The court also restrained respondent herein from creating third party interest or change the nature of the suit property for the purposes other than cultivation -
HELD THAT:- It is trite proposition of law that this Court while exercising power of superintendence will not interfere with the orders passed by the Courts unless there is manifest miscarriage of justice. This Court will not normally interfere even if there is some wrong committed on facts or law by the Courts below. Article 227 cannot be invoked only for the reason that the petitioner feels aggrieved of the order impugned in the petition. The compelling circumstances have to be made out by the aggrieved party against the order impugned in the petition requiring interference by the Court.
In Supreme Court case Radhey Shyam & Anr. Vs. Chhabi Nath & Ors. [2015 (7) TMI 376 - SUPREME COURT], it has been held that ‘an error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings, e.g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision’.
The court is not convinced that the orders passed by the Courts below require any interference of sort in the facts and circumstances of the case.
The learned trial Court has taken care of the controversy involved and issues which require determination in the suit in hand and also protected the rights of the parties. The appellate Court has confirmed the order of the trial Court with valid reasons.
Thus, the Court finds no reason to set aside the impugned order and allow the present petition. This petition is, accordingly, dismissed.
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2024 (5) TMI 1444
Validity of the re-assessment order - no notice u/s 148 was ever served on the assessee - notice u/s 148 issued through the ITBA portal but sent on wrong email ID - HELD THAT:- As notice u/s 148 of the Act generated in the ITBA portal on 30.03.2021 was sent to e-mail ID which does not belong to assessee To prove such fact, assessee has brought to our notice that for the first time the assessee through the help of a tax consultant in India registered himself on the e-filing portal on 31.03.2022 with the e-mail ID [email protected], which was confirmed through the e-mail received from [email protected]. Thus, the facts narrated above clearly reveal that the notice u/s 148 generated on 30.03.2021, on ITBA portal was not served on the assessee.
For the assessment year under dispute the limitation for issuing notice u/s 148 of the Act in usual course would have ended on 30.03.2020. Due to the situation arising on account of Covid-19, the limitation got extended to 31.03.2021. Pertinently, just one day prior to expiry of limitation the AO issued notice u/s 148 of the Act through the ITBA portal. Revenue has failed to establish on record that the notice so issued was served upon the assessee. Decided against revenue.
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2024 (5) TMI 1443
Addition u/s 68 - sundry creditors unexplained - proof of genuineness of the amount on account of sundry creditor not proved - HELD THAT:- ITAT has made a categorical finding that the respondent-assessee had a running account with TCPL having substantial movement in the account of the creditor. It has also been held that the copy of the ledger account of TCPL which was filed before the AO manifested that against credit balance of Rs. 33,00,000/-, there were four debit entries amounting to Rs. 15,00,000/- and as such, a sum of Rs. 18,00,000/- was outstanding as on 31.03.2013, which was written off on 31.03.2014. ITAT held that the addition of the said sum would amount to double addition, for the amount had been written off and was offered to tax. ITAT also noted that the respondent-assessee cannot be asked to prove the source of the source since the entire case of the Revenue is with regard to the source of MTL and MOL.
ITAT has correctly evaluated the facts and has rightly arrived at the conclusion. The questions, answered negatively and in favour of the assessee.
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2024 (5) TMI 1442
Dishonour of cheques - Two directors being a signatory of the cheques, has committed offence - Impleadment of the applicant as accused u/s 319 of CrPC - Non-service of statutory notice u/s 138(b) of N.I. Act - Delay in filing the application u/s 319 of CrPC - HELD THAT:- It is not in dispute that the applicant was in charge of and responsible to the conduct of business and the cheques were issued by the company allegedly signed by the applicant herein. Therefore, mere non mentioning of the name of the applicant in the complaint cannot be absolved him of the responsibility of the company as he has issued the cheques in question. Thus, therefore, the technical issue of non-serving of notice as contemplated u/s 138 (b) has no any merits as the principal accused-company and other two directors were served with statutory notice and in view of the status of the applicant in the company and being a signatory of the cheques was deemed to be aware of the receipt of the notice by the company.
Thus, the ratio of the Apex Court laid down in Krisha Texport and Capital Markets [2015 (6) TMI 344 - SUPREME COURT] and considering the peculiar facts and circumstances of present case, the prosecution against the applicant without serving the statutory notice is maintainable and trial court has rightly recorded the findings that, the notice to the applicant is not necessary and prosecution can be proceeded without it.
The second contention raised is that, the impleadment of the accused u/s 319 of the CrPC for the offence punishable u/s 138 could not have entertained after the expiry of statutory period.
When the application u/s 319 of CrPC was allowed, the trial court has not taken a cognizance of the offence. The contention with regard to limitation would be applicable only in case the court has taken cognizance of the offence. If the application of impleadment of the applicant would have filed after taking cognizance of the offence, then, the issue of limitation would come into picture.
In the facts of present case, at the time of passing the order u/s 319, the trial court has not taken cognizance of the offence and at the enquiry stage, the application was entertained. Thus, before taking cognizance in terms of Section 142 of the N.I. Act, the trial court could implead the accused u/s 319 of CrPC and plea of limitation at that stage was not require to be considered nor it is applicable.
Thus, this Court is of considered opinion that, the order passed by the trial court cannot be termed as unsustainable or abuse to the process of law which do not warrant any interference as no ground is made out to quash the same.
Resultantly, the application stands dismissed. Rule is discharged.
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2024 (5) TMI 1441
Foreign tax credit u/s 90 - denying the relief merely on the ground that Form 67 was not filed before filing the original tax return u/s 139 (1) - as argued assessee is entitled to claim foreign tax credit as per the DTAA between India and the host jurisdiction even if a Form 67 is filed along with revised return of income - HELD THAT:- CIT (A) has primarily taken adverse inference on the ground that necessary claim was not pressed before the AO but the claim was very much before the AO. In the interest of justice and exercising our discretion as spelt out by Hon’ble Supreme Court in the case of Goetze (India) Ltd. [2006 (3) TMI 75 - SUPREME COURT] we admit this claim of the assessee in the light of the submissions above and case laws cited. We remit the issue to the file of AO. AO shall duly consider the claim of the assessee in the light of the documents already submitted and decide as per law on this claim duly admitted. Appeal of the assessee is allowed for statistical purposes.
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2024 (5) TMI 1440
Maintainability of petition - availability of alternative remedy - order passed under Section 73(1) of GST Act - appealable order or not - no proper service of notice - Violation of principles of natural justice - HELD THAT:- Admittedly, the impugned order is issued under Section 73(1) of the GST Act and none of the parties are able to make any dispute that the such order is appealable under Section 107 of the GST Act.
Hon’ble Supreme Court in catena of judgments has held that when there is alternative statutory remedy is available, the writ Court ordinarily should not entertain the writ petition filed under Article 226 of the Constitution of India. In case of UNITED BANK OF INDIA VERSUS SATYAWATI TONDON AND OTHERS [2010 (7) TMI 829 - SUPREME COURT] it was held that It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance.
In light of the above judgment this Court is not inclined to entertain this Writ Petition as petitioner is having alternative statutory remedy to challenge the impugned order in appeal. The question as to whether the petitioner was able to operate its e-mail may be determined by appellate authority. Therefore, the writ petition is liable to dismissed.
There are no reasons to entertain this writ petition, hence, this petition is dismissed.
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2024 (5) TMI 1439
Cancellation of the petitioner’s registration of the GST - reply to SCN not considered while passing the impugned order - Violation of principles of natural justice - HELD THAT:- It appears prima facie, that taking the advantage of the mention in the impugned order that the reply was filed on 02.04.2023, the petitioner took the plea in his affidavit that the reply was filed. If the reply had been filed, a copy thereof should have been annexed with the writ affidavit, which was not done. It is only after our order dated 09.01.2024 followed by few more orders directing the petitioner to file the additional affidavit brining on record copy of the reply, the additional affidavit was filed stating inter alia that the reply was not filed. Even with the additional affidavit, the alleged draft reply which has been annexed, does not bear any date - such acts cannot be condoned.
The petitioner has not approached this Court with clean hands. The petitioner has tried to abuse the process of the writ Court. He has unnecessarily engaged this Court in such a matter which deserved dismissal on the first hearing, the petitioner having failed to file reply to the show cause notice and thus not having availed the opportunity of hearing granted, could not be heard complaining violation of the principles of natural justice. He has encroached upon the public time on various dates, which could have been utilized in some other cases.
Petition dismissed with costs.
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2024 (5) TMI 1438
Dishonor of cheques - Offences punishable u/s 138 of the Negotiable Instruments Act - Joint trial of cases - material alteration of cheques - statutory presumptions - burden of proof - HELD THAT:- It is well settled that the standard of proof which is required from the accused to rebut the statutory presumption under Sections 118 and 139 of NI Act is preponderance of probabilities and that the accused is not required to prove his case beyond reasonable doubt. The standard of proof, in order to rebut the statutory presumption, can be inferred from the materials on record and circumstantial evidence.
There is a specific finding in the trial court judgment that Exhibit P2 cheque is materially altered by the complainant and that the same was originally issued for Rs.50,000/- and later altered and fabricated to one for Rs.7,50,000/- by the complainant and on that ground, the accused was acquitted in C.C and the said judgment has already become final. It is also pertinent to note that the trial court has also recorded a finding that the evidence of DW1 that Exhibit D1 is the receipt issued by the complainant to the accused for payment of Rs.3,50,000/- after the issuance of Exhibit P1 cheque and the said finding is also approved in the impugned judgment and considering the facts and circumstances, I find no reason to interfere with the said concurrent findings.
When the evidence of DW1 and Exhibit D1 receipt proves payment of Rs.3,50,000/- by the accused to the complainant in partial discharge of the earlier liability of Rs.4,00,000/- as per Exhibit P1 cheque and when it is in evidence that the accused has subsequently issued Exhibit P2 cheque for Rs.50,000/- for the balance amount, it cannot be held that Exhibit P1 cheque represent a legally enforceable debt at the time of encashment.
Therefore, in the absence of any satisfactory evidence to show that Exhibit P1 cheque is supported by a legally enforceable debt at the time when the same was presented for collection, I find no reason to interfere with the finding in the impugned judgment that the accused has succeeded in rebutting the statutory presumptions in favour of the complainant and in that circumstance, I find that this appeal is liable to be dismissed.
In the result, this appeal is dismissed. Interlocutory applications, if any pending, shall stand closed.
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2024 (5) TMI 1437
Validity of initiation of proceedings u/s 153C(1) instead of 143(3) - HELD THAT:- The validity of issuance notice u/s 153C, the said proposition has been reiterated several times by the Hon'ble Apex Court and Hon’ble High Court and assessee has relied on plethora of decisions/order to support this proposition that initiation of Section 153C is on date of receiving the books of account or documents or assets seized by the AO having jurisdiction over such other person.
On a specific query from the Bench, DR has not controverted the date 16-03-2021 related assessment year 2021-22 for handing over the impugned documents to AO of the assessee as there is no other incriminating documents with the revenue. The initiation of proceedings u/s 153C(1) is fully related to AY 2021-22. So, the ld. AO without jurisdiction had started proceeding u/s 143(2) of the Act by contravening the Section 153C(1) of the Act for AY 2020-21.
Keeping in view on the orders of Jasjit Singh [2023 (10) TMI 572 - SUPREME COURT] and RRJ Securities Ltd [2015 (11) TMI 19 - DELHI HIGH COURT] we have no hesitation in holding that the impugned assessment order is invalid and shall be deemed to have never been issued. Accordingly, we quash the impugned assessment order. As a natural corollary, the appeal order is set aside.
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2024 (5) TMI 1436
Liability to pay service tax on Consulting Engineer Services - wrongly availed the Cenvat credit without support of input documents - Whether the extended period of limitation has wrongly been invoked while issuing the show cause notice - HELD THAT:- Allegations of improper documents/ invoices for availing the Cenvat credit, we follow the proviso to Rule 9 of Cenvat Credit Rules, 2004. The proviso clarifies that in case all the particular mentioned in clause (a) to (g) of Rule 9 of Cenvat Credit Rules, 2004 are otherwise available on the documents, and submitted same is sufficient for availment of Cenvat Credit as per clause 9(f). An invoice / bill or challan issued by the provider of input service is a relevant document. Proviso (2) reveals that “No Cenvat credit under sub-rule (1) shall be taken unless all the particulars as prescribed under the Central Excise Rules, 2002 or the Service Tax rules, 1994, as the case may be. All these particulars are contained in the documents provided by appellant for availing credit.
The invoice has not been considered by the department while issuing the show cause notice as well as by the adjudicating authority for the sole reason that the appellant was not find existing at the address which is mentioned in the invoice. From the appellant’s letter given to the department, it is very much apparent on record that the appellant was shifting the office premises. Hence, it is not a case of obtaining fake registration at false address. Otherwise also, the objection about the address of an existing registered service provider is nothing but a procedural lapse. Substantial benefit of availing of Cenvat credit could not have been denied on the grounds of procedural lapse. Resultantly, we hold that the Cenvat credit was rightly availed by the appellant based on invoices.
Invocation of extended period, we observe that admittedly the appellant was filing regular ST-3 returns The department cannot allege suppression of facts with an intent to evade tax was to be produced by the department. But same has not been produced. Relying upon the decision of Hon’ble Supreme Court in the case of Continental Foundation Jt. Venture vs Commissioner of Central Excise, [2007 (8) TMI 11 - SUPREME COURT], we hold that extended period has wrongly been invoked.
Thus, we hold that issue is no more res integra and stand already decided by this Bench in its Final Order No. 50857-50858/2023 dated 10.07.2023. The appellant is held not liable for any service tax liability as is alleged. Cenvat Credit availed is held as proportionately availed. The demand is held to have been hit by bar of limitation. The findings in the Order-in-Original as has been challenged in the present appeal are contrary, hence the said order is hereby set aside. Consequent thereto, the appeal is hereby allowed.
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2024 (5) TMI 1435
Validity of assessment made by AO on the issues other than the issues for which notice u/s 143(2) was issued under CASS for limited scrutiny - immovable property under a family arrangement - HELD THAT:- DR represented that the notice was issued on the basis of information received from SRO which equated gift with purchase and hence the notice was issued for limited purpose of verification of purchase of immovable property. AO has restricted the scope of assessment to the property under question and has not extended it to another gift received by the assessee. Considering the facts put forward by Ld. DR we dismiss the first ground of the assessee.
Addition u/s 56(2)(x) - addition of stamp duty value of the said property to the assessee’s income of the Act stating that the property is not received from the relative as defined and that the gift deed does not specify that it is a family arrangement - In present case, the transfer by way of gift is a part of family settlement through which individual shares were determined out of the property which they were already owning. It is not a case that the property was received from a third party where the assessee was having no interest at all.
As noted the contents of affidavits filed by husband of the assessee, Shri Mahesh Bhagwandas Parwani, stating that the gift was made by his aunt as per his request as a part of family settlement. We have also noted the contents of other affidavits filed by the parties to family settlement confirming the fact that the gift was a part of family settlement. The details of gift made by Bhojraj Parwani Group to the families of other two brothers as a part of family arrangement to arrive at equality also supports the plea of the assessee that the property is received under family settlement.
Hon’ble Supreme Court in Kale & others [1976 (1) TMI 172 - SUPREME COURT] as explained the concept of family arrangements and their legal validity. The court held that a family arrangement can be even oral, and registration is necessary only if the terms are reduced into writing. The object of a family arrangement is to protect the family from long drawn litigation or perpetual strife which mars the unity and the solidarity of the family. The court also held that the family arrangement must be bona fide so as to resolve family disputes.
In the case at hand, the CIT(A) failed to appreciate the nature and purpose of the family arrangement and the judicial precedents supporting the assessee's claim. He has relied on the order passed by the AO and concluded that the immovable property received by the assessee as a gift is not from a relative within the meaning of section 56(2)(x) of the Act.
We hold that the addition made by the AO and confirmed by the CIT(A) u/s 56(2)(x) of the Act is not sustainable. Appeal of assessee partly allowed.
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2024 (5) TMI 1434
Violation of principes of natural justice - impugned order does not take into consideration the reply submitted by the Petitioner - cryptic order - demand including penalty u/s 73 of CGST Act - HELD THAT:- Since the only reason for passing the impugned order is that petitioner had not filed any reply/explanation, one opportunity needs to be granted to the petitioner to respond to the Show Cause Notice. The matter is liable to be remitted to the Proper Officer for re-adjudication.
Further, the observation in the impugned order dated 28.12.2023 is also not sustainable for the reasons that the reply dated 29.10.2023 filed by the Petitioner is a detailed reply with supporting documents including invoices, ledger accounts, invoices of weighing bridge and bank statements showing payment made to the supplier. Proper Officer had to at least consider the reply on merits and then form an opinion - Further, if the Proper Officer was of the view that any further details were required, the same could have been specifically sought from the Petitioner. However, the record does not reflect that any such opportunity was given to the Petitioner to clarify its reply or furnish further documents/details.
The impugned orders cannot be sustained and are set aside. The Show Cause Notices dated 22.09.2023 and 29.09.2023 are remitted to the Proper Officer for re-adjudication - Petition disposed off by way of remand.
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2024 (5) TMI 1433
Exemption of service tax u/s 65 (105) (zzzza) of the Finance Act, 1994 - Notification No. 25/2012 dated 20.06.2012 for construction work related to railways - HELD THAT:- There is justification in the contention advanced by the learned counsel for the respondent in as much as the issue involved has been decided in favour of the assessee by the Tribunal in SMS Infrastructure Limited [2016 (9) TMI 843 - CESTAT MUMBAI]. The same view was taken by the Tribunal in Anand Construction [2017 (9) TMI 81 - CESTAT NEW DELHI] and Tracks and Towers Infratech [2020 (2) TMI 40 - CESTAT NEW DELHI]. There is no good reason to differ with the aforesaid views expressed by the benches of the Tribunal.
There is, therefore, no illegality in the order passed by the Commissioner (Appeals). The appeal is, accordingly, dismissed.
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2024 (5) TMI 1432
Cancellation of registration of the petitioner - petitioner is a person hostile to the department or not - evasion of tax - HELD THAT:- Although, the cancellation order of the petitioner’s registration dated 28th September, 2022 records that the petitioner had submitted a response, it is found from the pleadings that no response had, in fact, been filed by the petitioner. On the contrary, the petitioner had also responded to the show cause dated 12th October 2022 issued in connection with his application for rejection of the order of cancellation. The said response to the show cause, however, does not appear to have been considered at all by the proper officer. The reason for rejection of the application for revocation of cancellation of registration vide order dated 18th November, 2022 is non submission of total purchase and sale statement from the date of cancellation till the date of response.
The reasons for not revoking the cancellation has been clearly spelt out in the order dated 18th November 2022. It appears that the petitioner having not uploaded/submitted the total purchase and sale statements from the date of cancellation, his application had been rejected. Having regard to the aforesaid, the cancellation of petitioner’s registration should be revoked with a further direction on the petitioner to forthwith file his returns along with documents as per requirement for the respondents to determine the tax liability. Once, the returns are filed, the respondents shall determine the liability, if at all.
The order passed by the appellate authority, order of cancellation of registration dated 28th September 2022 and the order of rejection dated 18th November 2022 is set aside, subject to the condition that the petitioner complies with the directions issued by the respondents and file his returns for the entire period of default and pays requisite amount of tax, interest, fine and penalty.
Petition disposed off.
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2024 (5) TMI 1431
Dishonor of cheque - Appeal against acquittal u/s 138 of NI Act - rebutting statutory presumptions u/s 118 and 139 of NI Act - cheque in a different handwriting and ink - no satisfactory evidence to show that the cheque was issued in discharge of a legally enforceable debt - HELD THAT:- The evidence of PW2, who is the son-in-law of the complainant, shows that he went abroad on 09.03.2003 and returned only on 22.07.2005. The learned counsel for the first respondent pointed out that Exhibit P1 cheque is dated 15.03.2004 and therefore, it can be seen that PW2 was abroad during the validity of Exhibit P1 cheque and that will probabilise the case of the defence that Exhibit P1 cheque was originally entrusted as security in connection with Exhibit D1 transaction and that the complainant materially altered the said cheque by adding his name as payee without the knowledge and consent of the accused and therefore, there is no reason to interfere with the finding of the trial court in this regard.
It is well settled that the standard of proof which is required from the accused to rebut the statutory presumption under Sections 118 and 139 of NI Act is preponderance of probabilities and that the accused is not required to prove his case beyond reasonable doubt. The standard of proof, in order to rebut the statutory presumption, can be inferred from the materials on record and circumstantial evidence.
The specific case of the accused/first respondent is that he has not issued any cheque to the complainant and no amount was due from the accused to the complainant and that Exhibit P1 cheque was entrusted as security in connection with Exhibit D1 agreement to the son-in-law of the complainant and the same was misused by the complainant after materially altering the same by inserting the name of the complainant as payee in the cheque without the knowledge and consent of the accused.
It is pertinent to note that the evidence of PW1 in cross examination would clearly show that he has no definite case as to whether the amount is due to the complainant or to his son-in-law and further, it is in evidence that PW2, the son in law of the complainant, was abroad from 09.03.2003 to 22.07.2005 and therefore, considering the facts and circumstances I find no reason to interfere with the finding in the impugned judgment that the accused has succeeded in rebutting the statutory presumptions in favour of the complainant and that there is no satisfactory evidence to show that Exhibit P1 cheque was issued in discharge of a legally enforceable debt from the side of the accused to the complainant and in that circumstance, I find that this appeal is liable to be dismissed.
In the result, this appeal is dismissed. Interlocutory applications, if any pending, shall stand closed.
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