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Showing 461 to 480 of 839 Records
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2020 (6) TMI 379
Grant of Anticipatory Bail - respondent had issued notice/summons to the petitioner as per Section 70 of the Central Goods and Service Tax Act, 2017 summoning him to appear before the Authorized Officer finally on 12.05.2020 - HELD THAT:- On bare reading of Section 69 (1) of the CGST Act, where the Commissioner has reasons to believe if a person committed the offence under Section 132 of the CGST Act, he may, by order, authorize any officer of central tax to arrest such person. Therefore, the petitioner has reasons to believe that he may be arrested on accusation for having committed non-bailable offence under sub-section 5 of Section 132 of the CGST Act. Therefore, the petition under Section 438 of the Cr.P.C. is maintainable for the offences committed under the CGST Act and there is no statutory bar for invoking or exercising power under section 438 of the Cr.P.C. for the offence committed under the provisions of the CGST Act. Therefore, the contention of the learned Special Public Prosecutor cannot be accepted.
Summons have been issued by the authorized officer under Section 70 of the CGST Act which clearly goes to show that the petitioner is reasoned to believe that he is apprehending his arrest in the hands of the respondent in case after his appearance before the authorizing officer as per Section 69 of the CGST Act. Therefore, in case the petitioner is arrested, he is likely to remand to the judicial custody, after his production before the Magistrate and by looking to the present COVID-19 situation, if he is remanded to the judicial custody, he will be put to hardship and definitely, his health would likely to affect - The offences are not punishable with death or imprisonment for life. There is no statutory bar in the CGST Act for granting anticipatory bail by exercising power under Section 438 of the Cr.P.C. Merely, there were number of notices/summons issued by the respondent during the lockdown for COVID-19 that itself is not a ground to reject the bail petition. Considering the fact and circumstances of the case, if an anticipatory bail is granted, no prejudice would be caused to the respondent.
The petitioner is ordered to be enlarged on bail in the event of his arrest under Section 69 of the CGST Act by the respondent-Authorised Officer, after enquiry under Section 70 of the CGST Act - Petition allowed.
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2020 (6) TMI 378
Grant of Bail - Input Tax Credit - fake bill entries - HELD THAT:- Considering the facts that claim of input tax credit without there being any transaction directly affects the economy of the country, petitioner has claimed input tax credit to the tune of ₹ 11.6 crores, the bail application is not entertained.
Bail application dismissed.
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2020 (6) TMI 377
Interest u/s 234B and 234C - appellant has offered the cash seized as advance tax against the liability in block assessment - Date of filing the return of income for the purpose of computation of interest under Section 234B and 234C - HELD THAT:- Asessee has offered a sum of ₹ 50 Lakhs on 15.03.2007 towards the advance tax payable for the Assessment year 2007-08. It is also pertinent to mention here that prior to seizure of the cash, the assessee had paid advance tax in four installments on 15.06.2006, 14.09.2006, 14.12.2006 and 08.03.2007, which is evident from statement of total income.
Department did not adjust the aforesaid amount even though the cash was available with the department. The aforesaid amount could have been adjusted against the advance tax. We concur with the view taken by High Court of Allahabad, which has been upheld by the Supreme Court. It is also pertinent to note that Explanation 2 to Section 132B has been held to be prospective in nature and the aforesaid position has been settled by Circular No.20/2017 dated 12.06.2017.
We hold that the tribunal ought to have held the date of payment of tax by the assessee as 15.03.2007 i.e., the date on which the request was made by the assessee to adjust the cash seized against the advance tax payable towards the tax for the Assessment year 2007-08. The first substantial question of law is answered in favour of the assessee and against the revenue. The orders passed by the Income Tax Appellate Tribunal is hereby quashed and it is directed that date of payment of tax shall be taken as 15.03.2007 i.e., the date on which the request was made by the assessee to adjust the cash seized against the advance tax payable for the Assessment year 2007- 08. Appeal allowed.
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2020 (6) TMI 376
Black Money - role of an appellate authority defined under the Black Money Act - Maintainability of appeal - penalty for failure to furnish the return of income and information - HELD THAT:- Whether the impugned order reflects the adherence to the provisions of the circular of 2015 ibid or in terms of the provisions of the Black Money Act, this Court under Article 226 of the Constitution of India cannot exercise the role of an appellate authority defined under the Black Money Act to deal with the controversy if brought into motion. Petitioner is well within the right to assail the aforementioned order, as the impugned order is dated 17.3.2020 and the limitation in the instant case expired during the lock down but as per the Government directive and judgment of the Full Bench of this Court limitation prescribed already stood extended. Petitioner if so advised shall be at liberty to assail the aforementioned order. Any observation hereinabove would not prejudice the right of the petitioner in case the remedy is availed. In view of what has been noticed, this writ petition sans merit and accordingly, dismissed.
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2020 (6) TMI 375
Reopening of assessment u/s 147 - absence of sufficient material to form satisfaction of the AO that income of the assessee had escaped assessment - validity of reason to believe - non independent application of mind by AO - HELD THAT:- AO in this case had received the only information that the assessee had received a high premium along with share application money. However, this information alone, in our view, does not constitute any tangible material or to say any incriminating material to form a belief by the Assessing Officer that the income of the assessee had escaped assessment or to say in other words that the share application money received by the assessee was an unaccounted money of the assessee.
AO has not recorded that he had received any information that the assessee had received share application money from some bogus / paper companies. No information has been pointed out in the reasons recorded or receipt of any bogus transactions undertaken by the assessee. Even the name of the companies form whom the share premium received has not been mentioned nor there is any allegation that those share applicants were not traceable or they were bogus / paper companies indulged in sham transactions. Mere information that the assessee had received a high premium, in our view, cannot be said to be a reason to form the belief that the income of the assessee had escaped assessment.
AO raised a suspicion, as mentioned in the reasons itself, regarding the source of the capital being not genuine or that it may be a modus operandi by the assessee to introduce its undisclosed income by way of share premium , however, this was a mere suspicion of the AO without even an iota of any incriminating tangible material against the assessee or even otherwise.
The powers of Assessing Officer to reopen an assessment, though wide, are not plenary. The words of the statute are "reason to believe" and not "reason to suspect".
AO has wrongly and illegally assumed jurisdiction in this case to reopen the assessment. The reasons pointed out by the AO cannot be said to be the reasons “to form the belief” that income of the assessee had escaped assessment. In view of this, since the assessment order framed by the AO is not sustainable in the eyes of law, the same is accordingly quashed. - Decided in favour of assessee.
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2020 (6) TMI 374
Levy of penalty u/s 271(1)(c) - Defective notice - Whether mere mistake in language used or mere non-striking off of inaccurate portion cannot by itself invalidate the notice under section 274? - addition being the service tax disallowable u/s 43B - HELD THAT:- AO on the basis of the details furnished by the assessee during the course of assessment proceedings, made an addition u/s 43B being the unpaid liability towards service tax. The above liability was shown under the head ‘Current liabilities’ in the balance sheet. The assessee did not prefer any appeal and thereafter penalty was levied u/s 271(1)(c) of the IT Act which has been upheld by the CIT(A).
A perusal of the copy of the notice issued u/s 274 shows that the inappropriate words in the said notice has not been struck off. Even the last line of the said notice only speaks of section 271 and does not even mention section 271(1)(c) . We find, the Delhi Bench of the Tribunal in the case of Sanjay Mittra [2018 (10) TMI 132 - ITAT DELHI] had considered an identical issue and following the decision of the Tribunal in the case of Sahiwal Investment & Trading Co. vs. ITO [2018 (7) TMI 1472 - ITAT DELHI] has cancelled the penalty levied by the AO.
Even on merits also we find, the Hon’ble Delhi High Court in the case of Noble & Hewitt (I) (P) Ltd. [2007 (9) TMI 238 - DELHI HIGH COURT] has held that where the assessee did not debit the amount to the P&L Account as an expenditure nor did the assessee claim any deduction in respect of the amount where the assessee was following mercantile system of accounting, the question of disallowing the deduction not claimed would not arise. We further find the CIT(A) in assessee’s own case for A.Y. 2012-13, deleted the addition of unpaid service tax which was added back by the assessee in its revised computation of income.
Issue as to addition u/s 43B on account of non-payment of service tax liability when the same has not been debited in the Profit & Loss Account nor claimed as an expenditure has become a debatable issue. It has been held in various decisions that penalty u/s 271(1)(c) is not leviable on account of additions which are debatable issues. We, therefore, are of the opinion that penalty u/s 271(1)(c) of the IT Act, 1961 is not leviable on merit also.
We are of the considered opinion that no penalty u/s 271(1)(c) of the Act is leviable. - Decided in favour of assessee.
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2020 (6) TMI 373
Addition of protective assessment - Liability on directors - documents were found in the possession of the assessee, in view of provisions of section 292C it was to be presumed that these documents belonged to the assessee - HELD THAT:- It is undisputed that the substantive addition in the hands of the company i.e. M/s. G.L. Litmus Events Pvt. Ltd. has already been deleted by the coordinate bench of this Tribunal in [2019 (7) TMI 528 - ITAT DELHI]
A perusal of the order of the Ld. CIT (A) would further show that he has nowhere confirmed the protective addition on the ground that the said amount was paid by the assessee. Rather, the Ld. CIT (A) has clearly mentioned that the impugned amount related to the company and the protective addition was solely u/s 179 of the Act in the sole event of liability being fastened upon the company and its subsequent non recovery from the company. From this angle, the protective addition u/s 179 stands nullified as the substantive addition stands deleted in the hands of the company.
Protective addition in the hands of the assessee does not have any feet to stand on. Since the protective addition was upheld by the Ld. CIT (A) solely for the purposes of section 179 since the substantive addition has been deleted, the basis for protective addition also goes. Therefore, for the reasons stated above we quash the protective addition in the hands of the assessee. - Decided in favour of assessee.
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2020 (6) TMI 372
Reopening of assessment u/s 147 - non admission of rental receipts from M/s NRI Academy and M/s Reliance Infra Limited - HELD THAT:- In the instant case, the reopening of assessment was made on the belief that rental income had escaped assessment. Whereas the rental income does not belong to the assessee and belonged to the HUF of the assessee. Though the PAN number of the assessee is mentioned in the 26AS, the assessee has not claimed the TDS in the return. These issues clearly show that the AO reopened the assessment without proper appreciation of facts. Therefore, we hold that the reopening of assessment is bad in law, accordingly we quash the notice issued u/s 148.
The assessee’s case is squarely covered by the decision in the case of Swarna Andhra IJMII Integrated Township Development Pvt. Ltd. [2014 (4) TMI 852 - ANDHRA PRADESH HIGH COURT]. Respectfully following the view taken by the Hon’ble High Court of Andhra Pradesh, we hold that once the additions are not made on the issue for which the notice was issued, the AO is not permitted to make any other addition, accordingly we set aside the order of the Ld.CIT(A) and delete the addition made by the AO. The appeal of the assessee is allowed.
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2020 (6) TMI 371
Value of closing stock - assessee had included only land cost, but not included the development cost of plots in arriving at the work in progress/closing stock - AO reworked the value of closing stock including the development cost and made the addition representing the difference amount on account of undervaluation of the stock - AO observed that as per Accounting Standard 2, the inventory required to be valued at cost or net realisable value whichever is lower - HELD THAT:- Though the assessee stated that the entire development cost pertained to the plots sold and ready for sale, the assessee had incurred the expenditure for development of roads, levelling of the land, drainage, water tank, street lights, parks etc., for laying the plots, hence the assessee cannot argue that no expenditure was incurred for unsold plots.
In the absence of the details with regard to the actual expenditure incurred on sold plots and unsold plots, there is no option except to resort for estimation of income and arrive at the value of closing stock. We, find from the order of the AO and the Ld.CIT(A), against the sale price of ₹ 2,500/-, the AO worked out the profit of ₹ 1,676/- per plot which is unreasonable. Since, the assessee did not produce the details of the tracks of the land developed and undeveloped out of the total area we are also unable to accept the contention of the assessee that the expenditure was exclusively laid out for the sold plots. Therefore we hold that the CIT(A) has rightly resorted for estimation of the profit.- The department did not bring any other case establishing that the profit of 15% estimated by the Ld.CIT(A) is less in this line of business. Therefore, we are of the view, that no interference is called for in the order of the Ld.CIT(A) and the same is upheld. The appeal of the revenue is dismissed.
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2020 (6) TMI 370
Validity of the assessment on the reasoning that it was framed in the name of non-existent company - Admission of additional evidence - HELD THAT:- Admittedly the additional ground of appeal was not raised by the assessee before the authorities below. However, all the facts related to the additional ground of appeal are arising from the order of the authorities below and no additional fact needs to be referred. Further, we also note that the issue raised by the assessee in the additional ground of appeal is legal in nature which can be admitted at any stage during the proceedings in view of the judgment in the case of NTPC Ltd Vs.CIT [1996 (12) TMI 7 - SUPREME COURT]. Accordingly, we admit the additional ground of appeal raised by the assessee and proceed to adjudicate the same.
Transfer pricing adjustment on specified domestic transactions of sale of finished goods undertaken with the AE - HELD THAT:- In the case of a company, the ld. Commissioner was required to issue a show cause notice against a juridical person contemplated in section 2(31) of the Income Tax Act and if a juridical person ceases to exist then it would not be construed as a person within the meaning of section 2(31) against whom any action can be taken. The Commissioner would not assume proper jurisdiction and such type of defect would not be cured with help of section 292B of the Act, because it is not a procedural irregularity which could be cured. We also note that this Tribunal in the case of Snowhill Agencies Pvt. Ltd. Vs. Pr. CIT [2020 (1) TMI 1029 - ITAT AHMEDABAD] involving identical facts and circumstances has decided the issue in favour of the assessee.We note that the assessment framed under section 143(3) r.w.s. 92CA of the Act is not sustainable. Hence the additional ground of appeal of the assessee is allowed.
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2020 (6) TMI 369
Disallowance u/s 14A read with rule 8D - HELD THAT:- Admittedly the own fund of the assessee exceeds the amount of investment. Accordingly presumption can be drawn that the borrowed fund was not utilised for such investments. Accordingly there cannot be any disallowance of any interest expenses in view of PCIT v. Shreno Ltd.[2018 (12) TMI 1145 - GUJARAT HIGH COURT] held that if the assessee can demonstrate availability of surplus interest free funds for making investment generating tax free income, disallowance under Section 14A of the Act would not be justified.
Regarding the disallowance of administrative expenses we find that there was no argument advanced at the time of hearing on such disallowance. Accordingly we confirm the addition towards the administrative expenses. Hence the ground of appeal of the assessee is partly allowed and the ground of appeal of the revenue is dismissed.
Disallowance on account of prior period expenses - HELD THAT:- DR at the time of hearing has also not brought anything on record contrary to the argument advanced by the learned AR. Hence respectfully following the principle laid down in the own case of the assessee by this tribunal, we set aside the finding of the learned CIT (A) and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is allowed.
Set off of the unabsorbed depreciation against the income of the current year - HELD THAT:- We find merit in the argument advanced by the assessee. Accordingly we set aside the issue to the file of the AO with direction to allow the set off of the unabsorbed depreciation of the earlier years after considering the appeal of the assessee for the assessment year 2009-10. Hence the ground of appeal of the assessee is allowed for the statistical purposes.
Addition for the advance against depreciation - HELD THAT:- It is the case of the assessee that such advances to be adjusted with the power so supplied in the future. We, thus, having regard to the facts and circumstances of the case find no infirmity in the order passed by the Learned C1T(A) in making such direction upon the Ld. AO with the guidelines framed therein in order to grant relief to the assessee if permissible under the law, so as to warrant interference. Hence, we confirm the order passed by the Ld. C1T(A). - Decided against assessee.
Disallowance of depreciation on account of change in accounting method - whether the assessee can claim depreciation on the capital spares under the provisions of section 32 of the Act, instead of amortizing the same - HELD THAT:- The assessee can claim the depreciation as per the provisions of section 32 of the Act. The assessee is entitled for the depreciation on the capital spares at the rate of 15% whereas there is no provision under the statute to amortize the capital spares over the period of 14 years. Thus we are of the view that the assessee has changed the accounting policies with respect to the capital spares within the provisions of law. Thus, such change does not contravene any of the provisions of section 32 - Accordingly we hold that there is no infirmity in the action of the assessee for changing its method of depreciation with respect to capital spares. we hold that the order of the learned CIT (A) is not sustainable. Accordingly, we set aside the same and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is allowed.
Disallowance while computing the profit u/s 115JB - computation of Income under section 14A r.w.r. 8D - HELD THAT:- We hold that the disallowances made under the provisions of Sec. 14A r.w.r. 8D of the IT Rules, cannot be applied to the provision of Sec. 115JB of the Act as per the direction of the Hon'ble Calcutta High Court in the case of CIT v. Jayshree Tea Industries Ltd. [2014 (11) TMI 1169 - CALCUTTA HIGH COURT]
We note that there is no mechanism provided under the clause (f) to Explanation-1 of Sec. 115JB of the Act to make the disallowance independently. Therefore our action for restoring back the issue to the file of AO would unnecessarily cause further litigation. Thus we limit the disallowance on an ad-hoc basis @ 1 % of the exempted income under the clause (f) to Explanation-1 of Sec. 115JB of the Act subject to the condition that the disallowance shall not exceed the amount of disallowance determined by the authorities below under the provisions of section 14A r.w.r. 8D of Income Tax Rules. Hence, the ground of appeal of the assessee is partly allowed.
Deduction under section 80-IA (4) - HELD THAT:- Assessee did not claim the deduction under section 80-IA (4) of the Act, for the reason that there was no positive income. However, in our considered view if there any positive income in the hands of the assessee on account of the disallowances made by the AO in the assessment proceedings then the assessee in our considered view should be entitled for the deduction under section 80-IA(4) of the Act, as per the provisions of law. As such we do not find any infirmity in the direction of the learned CIT (A). Hence the ground of appeal of the revenue is dismissed.
Order being pronounced after ninety (90) days of hearing - COVID-19 pandemic and lockdown - HELD THAT:- Taking note of the extraordinary situation in the light of the COVID-19 pandemic and lockdown, the period of lockdown days need to be excluded. See case of DCIT vs. JSW Limited [2020 (5) TMI 359 - ITAT MUMBAI]
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2020 (6) TMI 368
Capital gain computation - application of Sec. 50 - Short Term Capital Gains - whether the profit on sale of immovable property is liable to tax as short term capital gains ‘STCG’ or long term capital gains ‘LTCG’? - CIT in treating the profit on sale of asset (vacant land) as Short Term Capital Gains holding that it formed part of block of assets in companies' book - HELD THAT:- Bench observed that the audited accounts and computation of income is required to appreciate the arguments of the ld. AR of the assessee but the ld. AR insisted on hearing the appeal without the said documents. In the absence of any documentary evidence in support of assesee’s claim that the property sold in question was not a depreciable asset, we find no reason to interfere in the order of the ld.CIT(A).
Appeal of the assessee is dismissed.
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2020 (6) TMI 367
Assessment in the name of a non-existent amalgamating company and under a non existent PAN - HELD THAT:- We are in considered agreement with the views so expressed by the coordinate bench, in the light of Maruti Suzuki [2010 (7) TMI 84 - DELHI HIGH COURT]. These observations are in the context of the revision proceedings but the principle remains the same, i.e. an entity, which does not exist any longer, cannot be subjected to being framed assessment on.
In the present case, assessee, on which assessment is framed and the PAN number used for the said purpose, did not exist in the eyes of law. To this extent, the issue is squarely covered in favour of the assessee. There can be minor variation on the facts of each case, but these minor variations, without having substantive issue on the main facts, donot really matter. The principle laid down in the judicial precedents clearly applies on these facts.We hold that the assessment on a non-existent entity was bad in law. We accordingly set aside the same.
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2020 (6) TMI 366
Cessation of liability u/s 41(1) - liability is being carried forward for years and the assessee is not able to completely prove the genuineness of the trading liability - HELD THAT:- Genuineness of the trade payables or creditors has to be examined in the year in which they originate and that unless the liability becomes unenforceable or is written off by the assessee or is given up by the other party or something is brought on record that there is cessation of liability, the same cannot be brought to tax u/s 41(1) of the Act. Therefore, they are very much applicable to the facts of the case before us and respectfully following the same, since there is no evidence that there is a cessation of liability during the relevant A.Y, we hold that it cannot be brought to tax u/s 41(1) of the Act during the relevant A.Y. The addition is accordingly deleted. - Decided in favour of assessee.
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2020 (6) TMI 365
MAT Computation u/s 115JB - Not allowing the adjustment of lower of the unabsorbed depreciation or business losses while calculating book profit under MAT provision - whether the financial statements prepared by the assessee are amount the books of accounts? - HELD THAT:- To our mind, the financial statements i.e. balance sheet and profit and loss account are compilation of the various figures of the income and expenditure account, fixed assets, investments, sundry debtors, inventories, share capital, loans and liabilities, current liabilities etc which are prepared at the end of the accounting period for providing the information to various interested parties/stakeholders. As such, these financial statements cannot be referred as the books of accounts as alleged by the AO. In holding so, we draw support and guidance from the judgment of Hon’ble Madras High Court in the case of CIT vs. Taj Borewells [2007 (4) TMI 203 - MADRAS HIGH COURT].
Assessee has already suffered the tax on the accumulated profit and therefore same profit should not be made subject to tax again under the provisions of MAT. In holding so we draw support and guidance from case of CIT vs. Sumi Motherson Innovative Engg. Ltd. [2010 (10) TMI 33 - DELHI HIGH COURT].
The amount of losses incurred by the assessee for the previous year’s 2012-13 and 2011-12 should be set off against the future income in the manner as specified under section 115 JB of the Act. Thus we hold that the assessee has rightly reduced the amount of income for the year under consideration from the brought forward losses/unabsorbed depreciation pertaining to the previous year’s 2012-13 and 2011-12. Accordingly, we are not convinced with the finding of the authorities below. Accordingly we set aside the order of the learned CIT (A) and direct the AO not to levy the tax under the provisions of MAT. Hence the ground of appeal of the assessee is allowed.
Business loss and unabsorbed depreciation - Claim not be allowed to be carried forward for set off while determining the profit under the provisions of MAT - HELD THAT:- At the outset we note that we have already directed to the AO to allow the set off of the brought forward losses/unabsorbed depreciation pertaining to the years 2012-13 and 2011-12 against the income of the current year - Accordingly, we direct the AO to allow the claim of the assessee against the income of the future years until and unless it is exhausted as per the provisions of law.
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2020 (6) TMI 364
Levy of penalty - HELD THAT:- Since the very basis for levy of penalty i.e. issue of quantum has been set aside to the file of the learned AO, we are of the considered opinion that penalty based on such non-existent ground does not survive. In the fitness of things, we set aside the impugned order and remand the issue of penalty to the file of the AO to take a view in consonance with the view to be taken on the aspect of quantum. Appeal of the assessee is allowed, for statistical purposes.
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2020 (6) TMI 363
Application of the respondent for obtaining licence under CBLR - Conditions to be fulfilled by the applicants as per clause 5(f) of CBLR - HELD THAT:- The words 'or' in clause (ii) of clause 5(f) of the CBLR, makes the two parts mutually exclusive and independent - Therefore, the words 'possess a professional degree such as Masters', without any specification of the subject in the said clause, could encompass, in our opinion, the Masters Degree in Science also, which the petitioner did admittedly satisfy. The words 'such as' before the words 'Masters' cannot obliterate the words 'or' and the respondent cannot be compelled to have Masters Degree in Accounting/Finance/Management.
Apparently even a partner or director of a partnership firm or a company having sufficient experience, can apply provided, he is a graduate and holds a Masters Degree in any subject or an equivalent degree in Accounting/Finance or Management, CA/MBA/LLB. etc.
Before the words 'is having atleast two years experience in transacting Customs Broker work as G-Card holder;' also, there is another “or” in clause (ii) of clause 5(f) of CBLR. Thus, obviously clause (ii) is in three parts and it permits a person holding (1) Master Degree in any subject or (2) an equivalent to Masters Degree in Accounting/Management/Finance etc., or (3) having an experience of two years as G Card holder, thus a mixture of three categories with no watertight silos in these categories, are given as criteria to apply for such Customs Broker License under CBLR - the contention of the learned counsel for the appellant/Revenue that the words 'such as' before the words 'Masters' in part of clause (ii) should be read with the subjects like Accounting/Finance or Management is not found to be a tenable contention.
The respondent herein, Mr.T.Radhakrishnan, prima facie appears to be a highly qualified person or rather overly qualified to hold the Customs Broker Licence, and he fulfills the criteria of eligibility as given in clause 5 of CBLR itself - Appeal dismissed.
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2020 (6) TMI 362
Import of Palm Oil - Validity of test reports sent by the chemical examiner of the Customs Department and the reports given by the Port Health Officer - Benefit of N/N. 21/2002-Cus as amended - denial of benefit on the ground that the imported oil is not of Edible Grade - HELD THAT:- Determining the importability of the oil in question and if it is not importable, acting against the imported goods and the importer is the responsibility of the Customs officers. No action has been initiated in the imports which are the subject matter of these appeals because the Revenue accepted the test report of the PHO that it meets the standard as per A 17.19 of the Appendix to the Prevention of Food Adulteration Rules. This is also explicit in the denovo order of the original authority. Having accepted that the consignment meets this standard, Revenue took a diametrically opposite stand with respect to the same consignments and the same standards while determining the eligibility of the exemption notification. In our considered view, such as a contradictory stand is not sustainable.
The assessing officer cannot hold that the consignment meets standard as per A17.19 while deciding the importability and hold that it does not meet the same standards while deciding the eligibility of the exemption notification. It would have been a different case if the standards prescribed for the exemption notification are different from that for determining the importability but such is not the case - Revenue, having accepted that the consignments meet standards A17.19 and hence are edible and accepting their importability cannot take a stand that the consignments do not meet the same standards and are therefore not edible, while deciding the eligibility of exemption notifications.
Appeal allowed - decided in favor of appellant.
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2020 (6) TMI 361
Import of cartridges for use in Rifle with spare barrel by the person who is the shot/sportsmen and a coach - Restricted itmes - Whether original authorization from DGFT for import of goods being cartridges etc. was required and submission of the same in original to the Custom authorities for clearance is sine qua non, for getting clearance?
HELD THAT:- The production of the import license issued by DGFT was necessary for clearance of the goods, being cartridges etc. filed under Bill of Entry No. 8071705 dated 22 January 2015. However, in view of the status of the appellant, being renowned shot/sportsmen and a coach of international repute, winner of Draunacharya Award from the Government of India, there is no reason to disbelieve the appellant that he has not imported any other consignments under the said import license, which has finally expired on 31.1.2015. Admittedly, the Bill of Entry was filed on 22.1.2015 when the import license was valid, satisfying the condition of import for ‘restrictive goods’. Further, I find that the Principal Commissioner have issued utilization certificate dated 23 June 2016, which clearly states that the appellant have only imported one consignment earlier on 25 May, 2013 (Rifle with spare barrel), and hence is legally entitled to import the goods under the present bill of entry under dispute. Further non-import of cartridges, more than that permitted under the ‘Import License’, is also corroborated from the original ‘Arms License’, produced at the time of hearing.
The cartridges imported under present bill of entry dated 22.1.2015, is within the quantity permitted under the Arms License as well as the import license issued by DGFT, which is not disputed - the order of confiscation of the consignment under Bill of Entry No. 8071705 dated 22.1.2015 is uncalled for and accordingly, is set aside along with the penalty.
The Custom Department is directed to release the goods under Bill of Entry 8071705 dated 22.1.2015 forthwith to the appellant within a period of one month from the date of production or receipt of this order - Appeal allowed.
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2020 (6) TMI 360
Whether Section 391 (6) of the Act empowered this Court to interdict the process, set in motion by the complaint, dated 15th February, 2019, addressed by NSDC to the EOW?
HELD THAT:- The criminal proceedings cannot be stayed, under Section 391 (6) of the Act. “Civil proceedings” alone can be so stayed.
In the present case, pursuant to the complaint, dated 15th February, 2019, addressed by NSDC to the EOW, the record reveals that the EOW is merely looking into the matter, for which purpose it had called the applicant, to appear before it, vide the notice dated 23rd April, 2019 supra. The said notice cannot even be termed a “show cause notice”, as it merely states that the complaint of NSDC was being looked into, and requested the applicants to appear, before it, in that regard. No action, prejudicial to the applicant, has been proposed in the said communication. The EOW has not called upon the applicant to show cause, with respect to any of the allegations of NSDC, or against any action, proposed to be taken against the applicant pursuant thereto. It is not possible for this Court, therefore, to hold that, at this stage, any “proceeding”, civil or criminal, is pending against the applicant, as could be stayed under Section 391 (6) of the Act.
It is deemed appropriate to express any final opinion thereon, as the complaint, of NSDC, is presently under consideration with the EOW, which would, doubtless, take a view thereon.
In the opinion of this Court, no “proceeding”, as could be stayed under Section 391 (6) of the Companies Act, 1956, initiated by the NSDC, can be said to be presently pending against the applicant - Petition dismissed.
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9911796707
