|
Advanced Search Options
Case Laws
Showing 341 to 360 of 1570 Records
-
2024 (5) TMI 1230
Disallowance of interest u/s. 36(1)(iii) - advance was given to the wife of the employees out of the overdraft account having credit balance frequently resulting into payment of interest on which the assessee has paid interest - HELD THAT:- ITAT Ahmedabad Bench in assessee’s own case for AY 2014-15 [2020 (11) TMI 260 - ITAT AHMEDABAD] held as assessee was having substantial amount of interest free funds as against amount of loan advanced.
Addition u/s. 145A - excise duty payable on closing stock of finished goods - HELD THAT:- We find that the Ld.CIT(A) has deleted the addition in assessee’s case for the AYs 2013-14 & 2014-15 [2020 (11) TMI 260 - ITAT AHMEDABAD] Before us, neither the Ld.DR has placed any material on record nor controverted the findings of the ld.CIT(A). The CIT(A) while passing the aforesaid order relied upon the decision(s) of Hon’ble Supreme Court in the case of CIT vs. Indo Nippon Chemicals Co. Ltd.[2003 (1) TMI 8 - SUPREME COURT] and CIT vs. M/s. Dynavision Ltd. [2012 (9) TMI 265 - SUPREME COURT]. In view of the aforesaid facts, we are of the opinion to approve the findings of Ld.CIT(A) and delete the addition. Thus, this ground of Assessee’s appeal is allowed.
Disallowance u/s. 14A r.w.r. 8D - HELD THAT:- The assessee has claimed as exempt income being earned as dividend income. AO held that the indirect expenses were involved in earning this exempt income. The Assessing Officer accordingly worked out disallowance u/s. 14 r.w.Rule 8D and made disallowance of Rs. 2,73,643/- and the same was upheld by Ld.CIT(A) vide order dated 09/06/2023. Accordingly, we approve the findings of the Ld.CIT(A) and accordingly ground No.5 of assessee’s appeal is rejected.
-
2024 (5) TMI 1229
Disallowance of business loss on account of sale of securities - LTCG in the trading of penny stocks - delivery of physical shares remain unexplained - as per AO Spot delivery contract note alongwith proof of physical share transfer has not been provided as mandatorily required under Securities Contract Act - HELD THAT:- Assessee furnished all evidences in the form of bills, contract notes, demat statements and the bank accounts to prove the genuineness of the transactions relating to purchase and sale of shares resulting in LTCG. These evidences were neither found by the ld AO to be false or fabricated. The facts of the case and the evidences in support of the assessee’s case clearly support the claim of the assessee that the transactions of the assessee were bonafide and genuine and therefore the ld AO was not justified in rejecting the assessee’s claim.
We note that the AO having failed to bring on record any material to prove that the transaction of the assessee was a collusive transaction could not have rejected the evidences submitted by the assessee. In fact, in this case nothing has been found against the assessee with aid of any direct evidences or material against the assessee, under these circumstances nothing can be implicated against the assessee.
One is bound to consider and rely on the evidence produced by the assessee in support of its claim and base decision on such evidence and not on suspicion or preponderance of probabilities, no material was brought on record by the AO to controvert the evidence furnished by the assessee. It is a settled law that no disallowance on estimation, surmise or conjecture basis can be made.
As decided in SHAILESH S. SHAH [1997 (3) TMI 610 - ITAT MUMBAI] that no addition can be made purely based on suspicion.
Just because assessee`s broker has become defaulter, is not conclusive evidence to make addition, the assessing officer should examine other evidences submitted by the assessee, such as, the evidence of the purchase of shares of two concerns; the source of such purchases has been explained by assessee and has been brought to tax by the department, holding of shares in Demat form and consequent sales through the stock exchange after payment of STT and receipt of payment through banking channels. Therefore, considering these facts and circumstances, we delete the addition made by the assessing officer. Assessee appeal allowed.
-
2024 (5) TMI 1228
Revocation of the license - forfeiture of security deposit - Penalty - Smuggling of gold declaring them as Diplomatic Cargo - Non-production of relevant documents - Refusal of cross-examination by the Commissioner - Violation of provisions of the CBLR, 2018 rules - Whether the notice was time barred - HELD THAT:- In the present appeal, we are concerned with the allegations against the appellant as a Customs Broker who is responsible for clearing the above consignment of gold which has been smuggled by the syndicate.
Time barred notice - As per the Regulation 17(1) of CBLR 2018, the notice is to be issued within 90 days from the date of receipt of the offence report. In the instant case, the offence report dated 8.10.2021 was issued by the Customs Preventive Commissionerate Cochin. The show-cause notice was issued on 28.12.2021 much before the 90 days’ time limit prescribed under the Regulations.
The learned AR for the Revenue has rightly relied on the judgement of the Hon’ble High Court of Bombay in the case of Principal Commr. of Cus. (General), Mumbai Versus Unison Clearing P. Ltd. [2018 (4) TMI 1053 - BOMBAY HIGH COURT] to justify that each and every report needs not be mandatory and one such report is the inquiry report where it depends on the cooperation of the appellant and his timely submissions.
Thus, we are of the opinion that the notice was not time barred as alleged by the Learned Counsel.
Non-production of relevant documents - The Counsel was provided an opportunity not only on the documents received and even on the Order-in-Original dated 13.6.2023 which was issued at a later date. Therefore, we do not find any merit on the submission of non-production of documents as the learned counsel after providing all the documents was given an opportunity to make his submissions based on these documents which were received at a later date.
Refusal of cross-examination - In the instant case I find that the said officers have not given statements and their conduct is in nowhere relevant to the case at hand viz; the question whether the CB has flouted any of the obligations cast upon them.’ Relying on the Supreme Court’s decision in the case of Harinderpal Singh Shergill vs. Commissioner [2010 (10) TMI 1222 - SC ORDER], he states that the request for cross-examination of 7 personnel who have cleared the Bills of Entry only goes to prove that they want the proceedings to be delayed. The officers who have cleared the consignment have done so based on the declaration that it is a diplomatic cargo. Only on investigation and opening the consignment it was known that that gold was concealed in the cargo that was declared as diplomatic cargo. Therefore, we do not find any reason to disagree with the above observations of the Commissioner which appears to be only delay tactics.
Violation of any of the provisions of the CBLR, 2018 - In respect of three Bills of Entry, the appellant had declared the consignor’s details as “Ministry of foreign affairs Abu Dhabi UAE” wherein the airway bill clearly shows that the goods were consigned by private individuals and the invoices and packing list were also not filed with the Bills of Entry which clearly shows a mala fide intention of the appellant and collusion with the smuggling syndicate, thus, abetting in the smuggling of 136.828 kgs. of gold including the seized consignment of 30.245 kgs of gold. The appellant as a Customs Broker as per Regulation 10(d) was not only required to advise the client to comply with the provisions of the Act but also required to report such non-compliance to the Customs.
As rightly argued by the Revenue, the appellant knew that Shri Sarith was no more with the UAE Consulate and did have knowledge that the consignor was not the ‘Ministry of Foreign Affairs’ but neither advised the client nor apprised the department which is nothing but violation of Regulation 10(d) of the CBLR, 2018. The appellant was responsible for allowing smuggling of gold concealed in the personal effects declared as Diplomatic Cargo. He failed to guide his client and to alert Customs and instead ended up facilitating the smuggling of gold, thus, his actions of omission and commission violates Regulation 10(d) and 10(e).
Thus, it is clear that appellant has violated Regulation 10(d), 10(n) and 10(e) of CBLR, 2018.
In the instant case, the very same Regulations have been violated and the trust reposed on the appellant has been mis-utilised for the benefit of few. Hence, we do not find any reason to interfere with the impugned order.
Thus, we uphold the impugned order and dismiss the appeal.
-
2024 (5) TMI 1227
Condonation of delay in filing appeal - constrained to file the appeal after SEBI had instituted an appeal before this Court against the order of the Securities Appellate Tribunal “SAT” - HELD THAT:- From a reading of the impugned order, it appears that while the appellants have succeeded on the first issue, an order of remand has been passed on the second issue to the Whole Time Member by SAT.
Appellants, submits that, as a matter of fact, after the order of SAT, a notice was issued to the appellants requiring them to file written submissions before the Whole Time Member which they have complied with. However, it has been submitted that no hearing has taken place before the Whole Time Member and since an appeal has been filed by SEBI against the order of SAT, these appeals may be tagged with the companion appeal filed by SEBI.
In the facts and circumstances, we condone the delay. Issue notice.
-
2024 (5) TMI 1226
Refund claim - adjustment of an income tax refund with outstanding liability - set-off exercised by the Respondent, during the intervening period when the CIRP timeline period had expired and the liquidation order was passed - Violation of Moratorium u/s 14 of IBC or not - HELD THAT:- Merely on completion of permissible CIRP time-period, the CIRP process is completed and the effect of moratorium automatically ceases to exist, irrespective of whether the resolution plan is approved or liquidation order is passed, does not commend here - Even if the CIRP period is over with no resolution plan on the anvil and Adjudicating Authority was yet to pass the liquidation order, the creditor of the Corporate Debtor cannot avail of the benefit of set-off during this interregnum by claiming that moratorium had ceased to exist.
Whether the Respondent in the given factual matrix is liable to refund the amount which has been set off against income tax dues? - HELD THAT:- In this case, the set-off exercise undertaken by the Respondent preceded the liquidation orders, hence could not have been allowed by the Adjudicating Authority. It is also strenuously contended that the Income Tax Department cannot claim the status of a secured creditor - reference made to the judgement of the Hon’ble Apex Court in Bharti Airtel Ltd vs Vijaykumar V. Iyer [2024 (1) TMI 187 - SUPREME COURT] wherein after explaining the contours and different meanings that can be ascribed to the term ‘set-off’, it was held that set-off done at the behest of any entity against a company while undergoing CIRP is violative of the basic principles and provisions of IBC.
When it is settled law that Regulation 29 of the Liquidation Regulations does not apply to Part II of the IBC, there are no hesitation in holding that Regulation 29 comes into play only after the liquidation order is passed by the Adjudicating Authority and not at any moment earlier than that. Given this position, the Adjudicating Authority committed grave error to hold that moratorium had come to a halt during the period of vacuum from the expiry of the permitted CIRP period till passing of the liquidation order and that the Respondent was entitled to conduct the set-off exercise to realise security interest in terms of Section 52 of the IBC.
Admittedly, the Respondent had exercised the set-off by adjusting the tax refunds payable to the Corporate Debtor. This set-off clearly reduced the total kitty of funds available to the other creditors awaiting distribution as per the provisions of the IBC. The assets therefore available for distribution amongst the general body of creditors would thus stand reduced to the extent of the set-off while it would put the Respondent in a more beneficial position - the adjustment of the said amount of Rs 90 lakhs towards tax demands prior to liquidation amounted to a sort of recovery by the Respondent in violation of the moratorium and hence the Respondent is liable to return or pay the adjusted amount to the Corporate Debtor. Hence, this bench is of the considered view that there is a need to refund the amount in question to the Corporate Debtor.
The Respondent to refund the sum of Rs. 90,42,174/- which had been set-off against outstanding tax dues of the Corporate Debtor to the Liquidator within two weeks from the date of this order. The Respondent shall have the liberty to file their claim with the Liquidator for recovery of their dues in terms of the IBBI (Liquidation Process) Regulations, 2016 - Appeal allowed.
-
2024 (5) TMI 1225
CIRP - NCLT admitted the application u/s 9 - Liability of Corporate Debtor for the outstanding dues claimed by the Operational Creditor - goods being delivered to and demand notices issued to M/s. Chirag Impex (HK) Ltd - validity of the debt and who truly owes the money - malpractices concerning customs duty and under-invoicing.
Whether in the facts of this case the Corporate Debtor can be held liable for the outstanding dues claimed by the Operational Creditor, despite the goods being delivered to and demand notices issued to M/s. Chirag Impex (HK) Ltd.? - HELD THAT:- Despite repeated reminders and a formal demand notice under Section 8(1) of the Insolvency and Bankruptcy Code, 2016 sent to known email addresses with no delivery failures, the Corporate debtor had failed to respond or dispute the invoices within the legal timeframe. The so called dispute being raised by the Appellant at this stage is based on the remarks of the Adjudicating Authority which are not at all pre-existing dispute - The link between the Corporate Debtor's director's son and Chirag Impex emails further undermines the Corporate Debtor's claims and suggests potential attempts to obfuscate the truth. This linkage cannot be ignored in assessing liability. The Corporate Debtor’s claims of a separate company, Chirag Impex, being responsible lack any credible evidence. The Operational creditor's documented trail directly contradicts this assertion.
Validity of the debt and who truly owes the money - HELD THAT:- The Operational Creditor presents a compelling case with documented evidence: signed sales contracts, bills of lading listing them as the shipper and the Corporate Debtor as the receiver, confirmation letters from the Corporate Debtor acknowledging receipt and satisfaction with the machines, and a formal demand notice sent but with no response from the Appellant. The creditor's documented trail, particularly the bills of lading and confirmation letters, appears strong. However, the Corporate Debtor’s allegations of Chirag Impex involvement and undervalued invoices tries to raise suspicion but are not convincing at all to treat them as a case of dispute - Despite repeated reminders and a formal demand notice under Section 8(1) of the IBC, the Corporate Debtor failed to respond or dispute the invoices within the legal timeframe, indicating the absence of a pre-existing dispute.
Allegations of Malpractices and Customs Duty Evasion - HELD THAT:- The alleged malpractices concerning customs duty and under-invoicing, while serious, do not negate the Operational Creditor’s claim. These issues are not being addressed by us and need be looked into separately through appropriate investigative channels. - Any issues related to alleged malpractices and customs duty evasion could be investigated separately through the appropriate legal channels and no orders passed onto that issue.
The evidence overwhelmingly supports the Operational Creditor’s claim for repayment from the Corporate Debtor. The Corporate Debtor has a clear legal obligation to fulfil their financial commitment as outlined in the signed contracts and documented transactions. The Adjudicating Authority’s orders to admit the Corporate Debtor into the Corporate Insolvency Resolution Process (CIRP) is upheld.
Appeal is dismissed.
-
2024 (5) TMI 1224
Conviction u/s 57 of FERA - Non-realization of export proceeds - Repeal of FERA and enactment of Foreign Exchange Management Act, 1999 (FEMA) - Applicability of FEMA provisions to offences committed under FERA - actions taken by the competent authorities against the offence committed under the repealed Act - sunset period - commission of an offence punishable under Section 57 of the Foreign Exchange Regulation Act, 1973 and sentencing petitioner to suffer imprisonment for 6 months and to pay fine of Rs. 5000/- in default to suffer simple imprisonment for 2 months more - HELD THAT:- The Foreign Exchange Management Act of 1999 effectively operated from 1st of June, 2000 as aforesaid. The memorandum as aforesaid was issued against the petitioner to show cause as to why adjudication proceedings under Section 51 of the F.E.R.A Act should not be initiated against him for contravention of Sections 18(2) and Section 18(3) of the Foreign Exchange Regulation Act, 1973 on 18.07.1996. The adjudicating authority as aforesaid found the petitioner guilty of violation of the aforesaid provisions on 16.05.1996 and imposed a penalty of Rs. 1.50 lakhs upon the petitioner. The petitioner preferred an appeal against such order on 09.07.1997 and was subsequently directed to deposit a sum of Rs. 33,000/- with prerequisite for admission of the appeal which was not complied with by the petitioner stating his financial constraint. The issuance of notice and subsequent adjudication determining the petitioner to be guilty of violation of Section 18(2) and Section 18(3) of the Foreign Exchange Regulation Act 1973 related to 18.07.1996 and 16.05.1997 prior to the promulgation of the Foreign Exchange Management Act, 1999 and according to Section 49 (3) and Section 49 (4) of the F.E.M.A. Act of 1999. The provisions of the F.E.R.A. Act of 1973 will be applicable in the instant case.
A further sunset period of two years was granted to adjudicate the proceedings of the offences instituted under the F.E.R.A. Act deferring the applicability of the F.E.M.A. Act of 1999 as enumerated in Section 49 (3) of the F.E.M.A. Act.
The contention of the Learned Advocate for the petitioners to deal with the instant offence of the petitioner leniently with a liberal approach considering the same to be of civil nature in consonance with the provisions of the F.E.M.A. Act of 1999 is redundant and inoperative.
The inherent power of the High Court under Section 482 of the Code of Criminal Procedure is wide subject to certain criteria whereby the High Court cannot conduct a mini trial to determine the culpability of the offender. Moreover, the inherent power as aforesaid is to be exercised to secure ends of justice or for the prevention of abuse of process of any court.
In the instant case the guilt of the petitioner has been conclusively determined by the Trial Court after adducing evidence. Moreover, the petitioner at the inception as well as on the second occasion of depositing a sum of Rs.33,000/- for admission of the appeal asserted his inability to pay the required sum of money for deficient funds. The process instituted against the petitioner was justified and not harassive in nature. The petitioner was legally incumbent and liable for contravention of Section 18(2) and Section 18(3) of Foreign Exchange Regulation Act 1973 which have been aptly proved.
The aforesaid Section 57 of the said Act provides for a disjunctive clause. Considering the age of the petitioner to be 75 years and the incident relating to the year 1996 with a lapse of considerable period of time, the incarceration of the petitioner will not serve any further purpose. The conviction of the petitioner is upheld. However the sentence is modified to the extent of payment of fine of Rs. 3 lakhs within three months from the date.
The instant criminal revisional application is dismissed. Sentence is modified to pay a fine of Rs. 3,00,000/- within three months from the date.
-
2024 (5) TMI 1223
Refund claim - availing CENVAT credit after the expiry of six months from the date of issue of invoices - HELD THAT:- The only reason stated in the impugned order for holding against the appellant is the delay beyond six months in taking the Cenvat credit. As this issue has been settled in favor of the appellant vide the above referred order of the Tribunal, I do not find any merits in the impugned order and set aside the same.
In the appeal filed by the appellant, he has not challenged the denial of the refund claim on lunch and dinner charges, Rs.25,288/- and pantry and mobile charges Rs.10,043/- are not covered under input services. No submission has been made on this account. Even at Sl No 13 in the appeal memo amount of refund rejected has been indicated as Rs 7,29,970/-. Accordingly, impugned order to that extent for denial of refund in respect of dinner charges and mobile charges is upheld. The, order to the extent of rejecting refund amount of Rs.7,29,970/- is set aside and remaining part of the impugned order is upheld. Accordingly, impugned order is modified to this extent.
Appeal is allowed.
-
2024 (5) TMI 1222
Refund claim to be time barred - Relevant date - Date of order-in-original or Date of payment - Work contract service falling u/s 65 of the Finance Act, 1994 - short payment of service tax of the same amount - HELD THAT:- Undisputedly there was no service tax liability on the party hence there was no question of short payment. The amount deposited by the appellant continues to remain as deposit without acquiring the character of tax without the same being appropriated against the tax liability. Commissioner (Appeal) has in his order referred to the decision of Hon’ble Madras High Court decision in the case of Commissioner of C.Ex., Chennai-II Versus Ucal Fuel Systems Ltd. [2011 (9) TMI 903 - MADRAS HIGH COURT] allowed this finding.
In the present case the appellant relevant date for refund claim would not be the date of payment but the date of the decision for Order-In-Original. As refund claim has been filed within time the order of Commissioner (Appeals) cannot be faulted with.
Thus, we do not find any merits in this appeal filed by the revenue and dismiss the same.
-
2024 (5) TMI 1221
Refund of Service tax - rejection on the ground that filing of refund claim by the branches instead of the head office - Unjust enrichment - Government Works Contracts - challans not mentioned in ST-3 returns - compliance with Section 102 of the Act - construction services to various Departments of U.P. Government - HELD THAT:- We find that since this appeal is arising out from the bunch of appeal filed by the revenue against the same Order-in-Appeal dated 31.01.2019 decided by the Tribunal vide Final Orde [2019 (9) TMI 1395 - CESTAT ALLAHABAD] held that:
''The provisions of Rule 102 were specifically introduced in the Finance Act for refund of the service tax so paid, which was actually paid on account of inadvertant withdrawing of exemption. The contracts with the U.P. Government were inclusive of all taxes, thus, not attracting the provisions of unjust enrichment. Appeal dismissed - decided against Revenue.''
Appeal is dismissed.
-
2024 (5) TMI 1220
Recovery of CENVAT Credit - clearances/ sale of Bagasse and Press Mud - applicability of Rule 6 of the CENVAT Credit Rules, 2004 - applicability of CBEC Circular No 1027/15/2016-CX dated 25.04.2016 - Relevance of the Supreme Court Judgment in UNION OF INDIA VERSUS DSCL SUGAR LTD. [2015 (10) TMI 566 - SUPREME COURT].
Applicability of Rule 6 of the CENVAT Credit Rules, 2004 - HELD THAT:- Bagasse and Press Mud being non excisable and exempted but having cleared for consideration, therefore provisions of Rule 6 (3) (b) of the CCR are attracted.
Relevance of the Supreme Court Judgment in Union of India vs. DSCL Sugar Limited - HELD THAT:- It was held in the said case that 'Cenvat Credit in respect of electricity was denied only on the premise that Bagasse attracts excise duty and consequently Rule 6 of the Cenvat Credit Rule is applicable. Since this action of the appellant is found to be erroneous, all these appeals of the Revenue also stand dismissed' - it is found that Bagasse and Press Mud, being agricultural waste, cannot be said to be manufactured, and therefore, Rule 6 is not applicable.
Validity of CBEC Circular No. 1027/15/2016-CX dated 25.04.2016 - HELD THAT:- The amendment carried out in Rule 6 of CCR, with effect from 01.03.2015, clarifying that for the purpose of Rule 6, exempted goods would include non-excisable goods and the CBEC Circular No 1027/15/2016-CX dated 25.04.2016, issued in this regard, is not relevant as Bagasse and Press Mud, being excisable goods, and chargeable to Nil rate of duty, was already covered under the ambit of „exempted goods‟ referred to in the said Rule 6. However, this does not alter the afct there is no manufacture involved in the emergence of Bagasse and Press Mud and therefore Rule 6 of the CCR is not applicable - The circular dated 25.04.2016 which is the backbone of the appeal filed by the revenue has been quashed by the jurisdictional high court. Thus, we do not find any merits in this appeal filed by the revenue.
There are no merits in this appeal filed by the revenue - appeal dismissed.
-
2024 (5) TMI 1219
Dishonour of Cheque - insufficient funds - settlement of disputes between the parties - compounding of offence u/s 138 N.I. Act - HELD THAT:- This Hon’ble Court in ‘Ramesh Chander Vs. State of Haryana and another [2006 (8) TMI 685 - PUNJAB AND HARYANA HIGH COURT] held that 'The compounding of the offence under Section 138 can be done during the trial of the case as well as by the High Court or Court of Session while acting in the exercise of its power of revision under Section 401 Criminal Procedure Code Reference may be made to Section 320(6) Criminal Procedure Code in this regard.'
This Court in Vatsa Electronics Vs. Pala Ram & Anr. [2022 (4) TMI 353 - PUNJAB AND HARYANA HIGH COURT] has also held that once a settlement is being effected, then in terms of Section 147 of the Negotiable Instruments Act and Section 320 Cr.P.C., the accused ought to be acquitted as the offence stands compounded.
Since, the parties have voluntarily settled the disputes between themselves, it is a fit case for allowing them to compound the offence.
The revision petition is allowed and subject to payment of 15% of the cheque amount to be deposited with Spinal Rehab Centre, Chandigarh Plot No.1, Madhya Marg, Sector 28- A, Chandigarh, as well as the judgment of conviction and order of sentence passed by the Judicial Magistrate 1st Class, Pehowa, are hereby set aside. The petitioner is acquitted of the charge under Section 138 of the Negotiable Instruments Act.
-
2024 (5) TMI 1218
Refund claim - HELD THAT:- Taking into consideration the submission of learned counsel for the petitioner that proceedings by way of impugned show cause notice could not be drawn unless an order of refund granted under Section 54, sub-section (3) of the Rajasthan Goods and Services Tax Act, 2017 is reversed either in an appeal under Section 107 of the Act or in revision under Section 108 of the Act by the competent authority under the law, further proceedings pursuant to impugned show cause notice shall remain in abeyance.
List the matter on 21.05.2024.
-
2024 (5) TMI 1217
Abatement of appeal - CIRP - Continuance of Proceedings After Liquidation Order - Rule 22 of Custom, Excise & Service Tax Appellate Tribunal Procedure Rules, 1982 - HELD THAT:- Undisputedly in terms of the order dated 20.09.2018, National Company Law Tribunal has directed for winding up of the appellant company and have appointed official liquidator in the matter. No application as per Rule 22, has been made by the official liquidator appointed by the NCLT in the matter for continuance of this appeal before tribunal even after expiry of more than five years from the date of NCLT order. Thus the appeals should abate in terms of the above referred rule.
Appeal abates in terms of Rule 22 of Custom, Excise & Service Tax Appellate Tribunal Procedure Rules, 1982.
-
2024 (5) TMI 1216
Permission for release of the confiscated goods - condition for release of confiscated goods - pre-deposit under Section 107 of GST Act - HELD THAT:- Under Section 107 of the GST, the assessee is liable to make pre-deposit of 10% of the total value. This position was not considered while granting the interim order. Therefore, on deposit of Rs.2,71,000/- in addition to the penalty and fine amounts, the confiscated goods shall be released on the conditions imposed - the respondents shall not take steps for auctioning the confiscated goods and conveyance till next Friday i.e. 24th May 2024.
Petition allowed.
-
2024 (5) TMI 1215
Issues involved:
The issues involved in the judgment are the contravention of Section 168A of the Central Goods and Services Tax Act, 2017, the setting aside of an order of adjudication under Section 73 of the Act, issuance of an injunction, and any other relief deemed fit in the circumstances.
Contravention of Section 168A:
The Petitioner Firm sought a declaration that Notification No. 56/2023 Central Tax dated 28.12.2023 issued by Respondent No. 4 is in contravention of Section 168A of the Central Goods and Services Tax Act, 2017 read with the Jharkhand Goods and Services Tax Act, 2017.
Setting aside of order of adjudication:
The Petitioner Firm requested a writ of Mandamus to quash the order of adjudication in FORM GST DRC 07 dated 29.04.2024 issued by Respondent No. 3 under Section 73 of the Central Goods and Services Tax Act, 2017 for the FY 2018-19, following a show cause notice in FORM GST DRC 01 dated 26.12.2023.
Issuance of injunction:
Additionally, the Petitioner Firm sought an order of injunction restraining the respondent authorities from giving effect to the order of adjudication in FORM GST DRC 07 dated 29.04.2024 until the disposal of the writ petition.
Other relief sought:
The Petitioner Firm also requested any other relief, order, or direction deemed appropriate in the circumstances of the case.
The learned counsel for the Petitioner Firm referred to Notification No. 09/2023--Central Tax dated 31st March 2023, which was stayed by several High Courts, to argue that Notification No. 56/2023--Central Tax dated 28th December 2023 was issued on similar lines. Furthermore, attention was drawn to an order dated 24th April 2024, indicating that the order passed on 29th April 2024 by the Deputy Commissioner of State Tax has become vulnerable.
The learned counsel for the respondent no. 3 requested 4 weeks' time to file a response to the writ petition. The matter was scheduled for further hearing on 26th June 2024, with an ad interim stay of the operation of the order dated 29th April 2024. The Petitioner Firm was granted liberty to implead the appropriate authority of the Central Government. Additionally, W.P.(T) No. 958 of 2024 was ordered to be tagged along with the instant writ petition.
-
2024 (5) TMI 1214
Maintainability of petition - availability of alternative remedy - Violation of principle of natural justice - physical service of order not done - time limitation - HELD THAT:- On perusal of the records, it appears that the impugned order was passed on 07.12.2021 under Section 74 of the OGST Act, 2017 by the adjudicatory authority, which has been challenged before this Court in the present case only on 18.04.2024. Thus, the order having been passed on 07.12.2021, the present writ petition has been filed after the period of limitation prescribed under the Act. It is also not in dispute that against the order impugned the petitioner has not exhausted the alternative remedy by way of filing appeal, as available under the statute. As such, the present writ petition, having been filed without availing the alternative remedy, cannot be entertained.
In Assistant Commissioner (CT) LTU, Kakinada [2020 (5) TMI 149 - SUPREME COURT], the apex Court held 'the fact that the High Court has wide powers, does not mean that it would issue a writ which may be inconsistent with the legislative intent regarding the dispensation explicitly prescribed under Section 31 of the 2005 Act. That would render the legislative scheme and intention behind the stated provision otiose.'
Relying on the aforesaid decision of the apex Court, the High Court of Judicature for Rajasthan in Malik Khan [2023 (5) TMI 883 - RAJASTHAN HIGH COURT] dismissed the writ petition which was filed after eight months of expiry of limitation.
In the present case, even though the petitioner has not been communicated with the order physically, but since the same was made available on the common portal, it is deemed to have been served on him. Therefore, such plea is of no use for the petitioner.
This Court is of the considered view that since the petitioner has not filed any statutory appeal before the appellate authority within the limitation period and has directly filed this writ petition before this Court after two years and five months of passing of the impugned order, the writ petition filed by the petitioner cannot be entertained as being not maintainable.
Petition dismissed.
-
2024 (5) TMI 1213
Maintainability of petition - availability of an alternative and efficacious statutory remedy - Non-issuance of the summary of notices / orders electronically on the portal - non-uploading of the forms FORM GST DRC-01 and FORM GST DRC-07 - Issuance of Demand-cum-Show Cause Notice and Order-in-Original by different authorities
Maintainability of petition - availability of an alternative and efficacious statutory remedy - HELD THAT:- It is settled that availability of an alternative remedy does not always operate as a bar to the maintainability of a writ petition under Article 226 of the Constitution of India. Even if a writ petition is maintainable, the High Court in its extra-ordinary and discretionary jurisdiction may not entertain a writ petition - Availability of an alternative remedy does not operate as an absolute bar to the ‘maintainability’ of a writ petition. It has, thus, been observed that ‘entertainability’ and ‘maintainability’ of a writ petition are distinct concepts. While an objection to the ‘maintainability’ goes to the root of the matter, the question of ‘entertainability’ is entirely within the realm of discretion of the High Courts.
Non-issuance of summary of notices/orders electronically on the portal - HELD THAT:- Service of the notice or the order, as the case may be, under Section 73, CGST Act, 2017, by giving or tendering it directly or by a messenger to the taxable person or the addressee, etc. in the manner, is a statutorily permissible mode of service. By making the notice or the order available on the common portal is another statutorily permissible mode of service - The duty is cast on the proper officer to issue notice to the person concerned of the proposed action to be taken. The notice is not in the nature of a public notice nor any person other than the person against whom the proceedings are initiated has any right for such a notice. Thus, this right of notice being personal to the person concerned, the same can be waived by that person.
Non-uploading of the forms FORM GST DRC-01 and FORM GST DRC-07 - HELD THAT:- In the considered view of this Court, by not whispering anything in its Reply to the Show Cause Notice, submitted on 04.12.2023, by the petitioner company, it had, by implication, waived the requirement of uploading of the notice electronically on the portal. It is well settled in law that ordinarily, a mandatory provision of law requires strict compliance but there are situations / exceptions where even if a provision is mandatory, non-compliance would not result in nullification of the act. For example, if a certain requirement or condition is provided in a statute for the benefit or interest of a particular person, the same can be waived by him if no public interest is involved. The ultimate result would be valid even if the requirement or condition is not performed - Service of the notice or the order, as the case may be, under Section 73, CGST Act, 2017, by giving or tendering it directly or by a messenger to the taxable person or the addressee, etc. in the manner, is a statutorily permissible mode of service. By making the notice or the order available on the common portal is another statutorily permissible mode of service.
Issuance of Demand-cum-Show Cause Notice and Order-in-Original by different authorities - HELD THAT:- As a statutory appeal is considered to be continuation of the original proceedings, determination of disputed questions of fact would fall within the province of the appellate authority, as the appellate authority has the jurisdiction to decide both on the facts as well as in law - the Demand-cum-Show Cause Notice had specifically indicated to the petitioner-assessee before whom it was called upon to show cause. When in such situation, an Adjudicating Authority was required to adjudicate on the basis of the grounds mentioned in the Demand-cum-Show Cause Notice and the grounds urged in the written Reply to the Demand-cum-Show Cause Notice, the contention raised that one authority had issued the Demand-cum-Show Cause Notice and another authority had passed the Order-in-Original is not to be accepted, more so, when the Order-in-Original has addressed on the grounds raised in the Demand-cum- Show Cause Notice.
This Court is of the unhesitant view that the petitioner has not been able to make out any exceptional case to interfere with the Demand-cum-Show Cause Notice dated 22.09.2023 and the Order-in-Original dated 14.12.2023 in the extra-ordinary and discretionary jurisdiction under Article 226 of the Constitution of India. In such view of the matter, this Court has found that the instant writ petition is not to be entertained - Petition dismissed.
-
2024 (5) TMI 1212
Condonation of delay in filing the review petition - delay in re-filing - grounds for review of the order - HELD THAT:- Two reasons have been provided for the delay in re-filing. The first that the counsel was indisposed and the second is that the Petitioner is a Government Department and a number of procedural formalities are involved in drafting, finalization and signatures of Petitions, including the present case.
One of the reasons stated in the application for condonation of delay in re-filing the review petition is the verbatim copy of the ground as stated in the application seeking condonation of delay in filing - It cannot be countenanced seeking condonation of delay in such casual manner apart from finding the said reason inadequate for explaining protracted delays. However, the ill health of the counsel is a persuasive ground to condone the delay in refiling. Thus, the application is allowed and the delay in re-filing stands condoned.
In the present case as well, it is not the case of the respondents that cash seized was stock in trade. The tax payee is in the business of optical lenses and it is not the review petitioner’s case that the cash seized was stock in trade.
There are no ground to review the order dated 22.08.2023 - application for condonation of delay in re-filing is allowed.
-
2024 (5) TMI 1211
Recovery of Refund - misclassification of supply of solar power generating system - authority to put the petitioner to notice or take a different view - petitioner submits that once an order under Section 54 of the CGST Act is passed, it can be annulled only in a proceeding filed under Section 107 (appeal) or under Section 108 (revision) - HELD THAT:- The Madras High Court considered the decision of Asian Paints (India) Limited v. Collector of Central Excise, Bombay [2002 (4) TMI 62 - SC ORDER] which was approved by Supreme Court of India and came to hold 'Unless, the Annexure-I certificate is cancelled or rejected by the competent Authority, by following the procedure under Section 35E, it is not permissible for the respondents to invoke Section 11A of the Act. Therefore, we are of the considered opinion that the issuance of show cause notices is without jurisdiction and is liable to be struck down.'
Till next date of hearing, no coercive action be taken against the petitioner pursuant to the Order-in-Original dated 10.01.2024.
List on 22.07.2024.
............
|
9911796707
