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Showing 421 to 440 of 1642 Records
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2024 (7) TMI 1222
Disallowance based on reply on third party information - unexplained purchases - Whether information collected from the back of the assessee from a third party, its purchases could be doubted and disallowance of expenditure is to be made? - diversified views among Accountant Member and Judicial Member - Case assigned to the Hon’ble third member through reference u/s 255(4) - HELD THAT:- The Hon’ble third member concurred with the view taken by the Judicial Member in deleting the addition confirmed by the CIT(A) by allowing the appeals of the assessee- appellant disallowance based on third party information gathered by the Investigation Wing of the Department without independent verification of the AO cannot be made.
The information transmitted by the DIT (Investigation) was a material to ignite assessment machinery in motion but it cannot be treated as gospel truth for disallowing the claim of the assessee without independent cross verification of those information by the AO.
Hon’ble Supreme Court in the case of Andaman Timber Industries [2015 (10) TMI 442 - SUPREME COURT] has considered this issue. The Hon’ble Supreme Court has held that if the statement was recorded from the back of the assessee and assessee was not allowed to cross examine the witness by the authorities, then such statement is to be exclude from the evidence.
As per majority view, the impugned order of the CIT(A) is liable to be set aside and the additions are deleted. Decided in favour of assessee.
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2024 (7) TMI 1221
Liability to pay customs duty when the confiscated goods are redeemed after payment of fine under Section 125 of the Customs Act, 1962 - liability to pay such duty will include the liability to pay interest on delayed payment under Section 28AB of the Act otr not - applicability of ratio of the decision in the Jagdish Cancer case [2001 (8) TMI 113 - SUPREME COURT].
Whether there is a liability to pay customs duty when confiscated goods are redeemed after payment of fine under Section 125 of the Act? - HELD THAT:- This issue is no more res integra. The uncertainty about the liability to impose and collect duties in confiscation proceedings was resolved in 1976 by a decision of this court in Union of India v. M/s Security and Finance (P) Ltd. [1975 (10) TMI 30 - SUPREME COURT], hereinafter referred to as Security Finance case, while interpreting identical provisions, as they stood under the Sea Customs Act, 1878. In this case, the court was dealing with confiscation of goods that were imported without a proper license which was and is prohibited by law. Though the goods were confiscated, they were released to the importer, who exercised the option to redeem them under Section 183 of the repealed Act. Consequently, Customs Department sought to collect the duty payable on such goods. The High Court accepted the importer’s challenge to imposition and collection of duty on the ground that Section 183 proceedings authorised only a fine and not customs duty.
The customs duty obligation on once exempted goods, liable to be confiscated for violation of conditions, arises only after the option to redeem them is exercised under Section 125. Once the option is exercised, the acceptance is subject to the conditions specified in Section 125. The primary condition is payment of fine in lieu of confiscation. Thus, this duty obligation is inextricably connected to the option to redeem the confiscated goods. In other words, it is a precondition for redemption.
The decision of this court in Fortis Hospital Ltd v. Commr. of Customs, Import [2015 (4) TMI 348 - SUPREME COURT] affirms this position. In Fortis Hospital case, the owner of the confiscated goods chose not to exercise the option under Section 125. However, the revenue sought to recover the duty payable under Section 28 of the Act. In this was ruled that "this is impermissible".
We conclude by holding that Jagdish Cancer case is not an authority for the proposition that when the liability to pay customs duty has occasioned under Section 125, the calculation, determination or the assessment of such duty cannot be made under Section 28.
The customs duty obligation in confiscation proceedings does not occasion either under Section 12 or 28. It has arisen because of the option available and exercised under Section 125. This obligation should not be confused with the method and procedure by which that customs duty is assessed and determined, which is provided under Section 28. It is in this context that it is needed to consider and explain the decision of this court in Jagdish Cancer case [2001 (8) TMI 113 - SUPREME COURT].
The Jagdish Cancer case is not an authority for the proposition that when the liability to pay customs duty has occasioned under Section 125, the calculation, determination or the assessment of such duty cannot be made under Section 28.
Whether the liability to pay such duty will include the liability to pay interest on delayed payment under Section 28AB of the Act? - HELD THAT:- The text of Section 125(2) clearly provides that, where any fine in lieu of confiscation of goods is imposed under sub-Section (1), the owner of such goods shall be ‘liable to any duty and charges payable with respect to such goods’. The sub-section provides that the liability to any duty and charges, that are payable, shall be paid in addition to the fine - It is held that Section 28 would come into operation for assessing and determining the duty and other charges payable with respect to goods redeemed under Section 125(2). Once Section 28 applies for determination of duty obligation arising under Section 125(2), the interest on delayed payment of duty arises under Section 28AB. The said provision obligates payment of interest in addition to the duty - the interest liability under Section 28 AB is also attracted.
The decision of the High Court upheld - appeal disposed off.
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2024 (7) TMI 1220
Classification of imported goods - various parts and sub-parts or accessories of cellular mobile phones - to be classified under CTH 85177090 or under CTH 39209999? - demand of differential duty alongwith interest and penalty - it was held by CESTAT that 'the rejection of the appellant’s classification of the front cover, middle cover and back cover of mobile phones under CTH 85177090 in the impugned order and their re-classification under CTH 39209999 cannot be sustained and needs to be set aside.'
HELD THAT:- The appeal is dismissed.
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2024 (7) TMI 1219
Classification of Betine Hydrochloride (Betine HCL) - CBIC Instruction vide F. No. 401/92/2022-Cus-III - Commissioner (Appeals) held that the product rightly falls under CETH 230990 and has set aside the confirmed demands under the Order-in-Original - it was held by CESTAT that 'It is seen that Betine HCL 93-98% are classifiable under Animal Feed Grade only'.
HELD THAT:- The view taken by the Customs, Excise and Service Tax Appellate Tribunal, Kolkata is absolutely correct. Hence, the Civil Appeal is dismissed.
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2024 (7) TMI 1218
Transfer of total of 7000 equity shares in the name of the respondents collectively - issuance of prohibitory order under section 45MB (2) of the Reserve Bank of India Act - HELD THAT:- It is an admitted position that the original share certificates of 4000 RIL shares (96 in number) along with transfer deeds are in possession of Shri Anoop Jain. Now the only issue raised is of consideration for these 4000 shares. Shri Anoop Jain has relied on Delhi stock exchange register within the cycle 12.04.1997 to 25.04.1997 to show that he had paid the consideration. He also stated that he got the delivery of the shares on 02.05.1997 along with the original shares and blank transfer deed. He also states that through his proprietorship concern Jain and company, Mr. Anoop Jain made the payment to Delhi Stock Exchange.
In effect the appellants' sole objection is that there is discrepancy in the timeline when the shares were sold by the appellant No. 1, and thereafter sold by broker to the respondent No. 1 in each appeal and that in Mr. Anoop Jain's case the contract notes, bills for delivery of possession of shares and proof of having paid the consideration is not coming forth and in Saraf brothers' case the contract notes, bills for delivery of possession of shares and proof of having paid the consideration were placed on record by them after the order was reserved by the learned Company Court but they did not get any chance to rebut the same.
The matter is remanded back to the learned Company Court only for the limited purpose to inquire when the 4000 shares subject matter of transfer to Mr. Anoop Jain; 1500 shares subject matter of transfer to Mr. Murari Saraf, 900 shares subject matter of transfer to Mr. Banwari Lal Saraf and 600 shares subject matter of transfer to Mr. Bihari Lal Saraf brothers were sold by the Appellant No. 1, CRB Capital Markets Limited and to whom; and that Mr. Anoop Jain, Mr. Murari Saraf, Mr. Banwari Lal Saraf and Mr. Bihari Lal Saraf have paid the consideration for these shares. Once it is established that appellant No.1 had divested itself of the rights in these shares and sale was concluded before 09.04.1997; and that the consideration is paid by the respondent No. 1 in each appeal to the broker from whom they purchased these, the effect of the impugned order shall follow.
Appeal disposed off by way of remand.
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2024 (7) TMI 1217
Seeking winding up of the respondent company on the ground of non-payment of outstanding dues - Section 433 (e) read with Section 439 of the Companies Act, 1956 - HELD THAT:- It is the opinion of this Court, that since no substantive proceedings have been undertaken towards winding up of the company, the present petition does not deserve to be continued before this Court. Although this company petition has been admitted by this Court, it is at a nascent stage and no effective orders as such have been passed towards the winding up of the company. In other words, given the prevailing facts and circumstances, it is but evident that no irreversible steps have been taken pursuant to the winding up of the respondent company.
Hence, the instant petitions is transferred to the NCLT. It is left to the NCLT to consider the matter and pass appropriate orders in accordance with law - The electronic record of the instant petition be transmitted to the NCLT within a period of one week by the Registry.
List before the NCLT on 04.07.2024 - Petition disposed off.
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2024 (7) TMI 1216
Seeking dissolution of the company - seeking that the Official Liquidator be discharged as its Liquidator - Section 481 of the Companies Act, 1956 - HELD THAT:- In view of the facts and circumstances of the present case, these liquidation proceedings warrant to be brought to an end.
The company (in liquidation) – M/s. Moradabad Syntex Ltd., stands dissolved and the Official Liquidator is hereby discharged as its Liquidator - the present application is allowed.
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2024 (7) TMI 1215
Seeking dissolution of the respondent company (in liquidation) - seeking that Official Liquidator be discharged as its Liquidator - Section 481 of the Companies Act, 1956 - HELD THAT:- Keeping in mind the import of Section 481 (1) of the Act and the facts and circumstances of the present case, these liquidation proceedings warrant to be brought to an end. The Official Liquidator has sought to be exempted from carrying out the publication of the citation of the final winding up, and without further ado the same is allowed and such exemption from publication is granted. Further, the Official Liquidator is permitted to close the books of accounts of the company after adjusting expenses and losses from the CPL - the company is thereby dissolved and the Official Liquidator is discharged.
Failure to file Statement of Affairs of the respondent company - Section 454(5) and 5(A) of the Companies Act, 1956 - HELD THAT:- The Official Liquidator has moved CO.APPL. 641/2023 under Section 481 of the Companies Act, 1956 seeking dissolution of the company (in liquidation) wherein it has been stated that the Official Liquidator has no knowledge of any other recoverable asset, either moveable or immoveable from which any money may be realized for the company (In liquidation). The same has been allowed and disposed of, and the company (in liquidation) stands dissolved accordingly.
Petition disposed off.
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2024 (7) TMI 1214
Refund of the earnest money deposited by the petitioner - It is alleged that the petitioner filed a belated appeal before the National Company Law Appellate Tribunal (NCLAT) which was dismissed on the point of limitation which order remained undisturbed even before the Supreme Court - invocation of writ jurisdiction under 32 of the Constitution of India - HELD THAT:- The prayer for tagging has been opposed and it has been submitted that since the petitioner has already lost up to the Supreme Court in the previous round no such indulgence ought to be granted to her.
Keeping the issue of the maintainability of the writ petition open, this writ petition it is directed to be tagged with Civil Appeal No. 7943 of 2023.
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2024 (7) TMI 1213
Classification of service - commercial or industrial construction service or works contract service - activity of the appellant namely, turnkey contract for development of ash pond - penalty.
Classification of service - HELD THAT:- On going through the scope of work and the agreement placed by the appellant, clearly shows that the services rendered by them include supply of materials also, which is appropriately classifiable under the category of “works contract service”, which is taxable with effect from 01.06.2007.
Admittedly, in the case on hand, the service rendered by the appellant falls under the category of “works contract service”, which came into effect from 01.06.2007 and the period involved in this case is prior to the said date. Therefore, it is observed that for the said activity, no service tax is payable by the appellant. In these circumstances, it is held that whole of the demand is not sustainable against the appellant under the category of “commercial or industrial construction service”, which qualified as “works contract service”.
Penalty - HELD THAT:- In the facts and circumstances of the case, no penalty is imposable on the appellant.
The impugned order is set aside - appeal allowed.
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2024 (7) TMI 1212
Dishonour of Cheque - insufficient funds - vicarious liability under Section 141 NI Act - HELD THAT:- Apart from the bald averment made in the complaint as well as during the course of submissions that the petitioner is the deemed owner of the firm, no other evidence has been produced/placed on record to show that the petitioner is the deemed/real owner or that he was in charge or responsible for the business of the firm at the time of the commission of the offence. On the other hand, the petitioner has placed on record a certificate of acknowledgement of registration from the Deputy Registrar of Firms. The said document nowhere shows the present petitioner as a partner in the said firm. Further, a perusal of the complaint would show that the cheque was issued on account of the firm and was signed by Sh. Hoshiyar Singh and not the present petitioner.
There is no evidence on record to show that the petitioner was a partner of the firm or that he was the signatory of the cheque. In the absence of any such evidence to bring the petitioner within the fold of Section 138 r/w Section 141 NI Act, forcing the petitioner to stand trial solely on the basis of a bald averment, that too unsubstantiated, would amount to an abuse of the process of law.
Considering the entire factual matrix including the fact that the petitioner has presented an unimpeachable and incontrovertible material in the form of certificate of acknowledgement issued by the Deputy Registrar of Firms, which clearly shows that he is not a partner in the accused firm as well as the fact that the respondent has failed to produce any evidence to the contrary, the present petition is allowed.
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2024 (7) TMI 1211
Territorial Jurisdiction of Chief Metropolitan Magistrate (CMM) - jurisdiction of DRT to assess whether the enforcement of security by the secured creditor - HELD THAT:- The DRT has the jurisdiction to assess whether the enforcement of security by the secured creditor is in accordance with the provisions of the Act.
This Court notes that Section 14 of the SARFAESI Act categorically states that the Chief Metropolitan Magistrate or the District Magistrate has the authority to assist the secured creditor in possession of the secured asset. However, the said section further provides that the Chief Metropolitan Magistrate or the District Magistrate, within whose jurisdiction any such secured asset or other documents related thereto, may be situated or found to take possession thereof, then said Chief Metropolitan Magistrate or the District Magistrate, as the case may be, shall upon application made in this regard by the secured creditor, take possession of such asset.
Perusal of Section 14(1) of the SARFAESI Act manifests that the learned CMM has the authority to take action and issue directions for taking over the secured assets, where such secured asset is situated within the jurisdiction of the said CMM - In the present case, the order passed by the learned CMM is clearly without jurisdiction, since as per the submission of the learned Additional Standing Counsel for the GNCTD, the area in question where the property is situated, falls for civil and criminal jurisdiction under the North District.
This Court is of the view that the petitioner ought to approach the learned DRT since there is an efficacious remedy available under Section 17 of the SARFAESI Act.
Since in the present case, it has come to the fore that the impugned order dated 09th January, 2024 passed by learned CMM, North-West, Rohini Courts is without any jurisdiction, therefore, in order to balance the equities, the order dated 09th January, 2024 is suspended for a period of one week, in order to grant opportunity to the petitioner to approach the learned DRT under Section 17 of the SARFAESI Act.
The petition is disposed off.
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2024 (7) TMI 1210
Dishonour of Cheque - vicarious liability u/s 141 of the NI Act - HELD THAT:- In the present case, the issue whether the statutory notice was issued, in view of the factual situation wherein the respondent states that the petitioner refused to accept notice while the petitioner states that no such notice was received, is a matter of trial. However, the complaint case must fail owing to a more fundamental issue. The subject cheque, copy of which has been placed on record, was signed only by petitioner’s late husband- Arvind Gupta. Although it is conceded that the cheque was issued from an account jointly in the name of the Arvind Gupta and Neeta Gupta (petitioner herein) however, it is a matter of fact that the said cheque is not signed by the petitioner.
The criminal complaint filed against the present petitioner is clearly an abuse of process of law and the same is liable to be quashed and set aside - Consequently, the present petition is allowed and the criminal complaint against the petitioner is quashed.
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2024 (7) TMI 1209
Validity of assessment u/s. 143(3) - jurisdiction assumed by the A.O., ITO-4(2), Raipur - HELD THAT:- No order of transfer u/s.127(1) of the Act had been shown to have been passed, therefore, it is a clear case of invalid assumption of jurisdiction by the ITO-4(2), Raipur who in absence of any valid assumption of jurisdiction had framed the assessment vide his order u/s. 143(3) dated 27.12.2017.
As the facts and issues involved in the present appeal remain the same as were involved in the aforesaid cases, therefore, following the same parity of reasoning, quash the assessment framed by the ITO-4(2), Raipur u/s. 143(3) dated 27.12.2017 for want of valid assumption of jurisdiction on his part.
As have quashed the assessment framed by the AO, i.e ITO-4(2), Raipur u/s. 143(3) for want of valid assumption of jurisdiction, therefore, refrain from adverting to and dealing with the grounds of appeal raised by the assessee, based on which, the additions made by the AO have been assailed before me, which, thus, are left open. Appeal of the assessee is allowed.
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2024 (7) TMI 1208
Unexplained investment in the immovable property - addition by just relying on the statement recorded during search without any corresponding incriminating evidence / documents - HELD THAT:- There is no specific incriminating document to prove the payment over and above the cheque payment by the Assessee for the purchase of the immovable property. In fact, there are some note pads which indicate where from the Assessee has got money for the purchase of this property but they cannot be treated as incriminating document to prove the cash payment for the purchase of this property.
Though it is true that the Assessee in his statement recorded during the search has stated to have paid Rs. 36,00,000/- as total consideration for the purchase of this property but other than his statement the Department could not bring any incriminating document on record to substantiate its claim of cash payment.
As the Hon'ble Supreme Court in ‘CIT Vs. Mantri Share Brokers (P.) Ltd. [2018 (7) TMI 200 - SC ORDER] has held that mere statement recorded during the search cannot be treated as incriminating document for the addition in a search case, therefore, the CIT(A) finding on this issue cannot be sustained. Accordingly, Assessee’s appeal on Ground Nos. 1 to 3 stand allowed.
Addition on the basis of dumb document - HELD THAT:- We find that the Assessing Officer has treated this dumb document as a noting for cash transaction without indicting whether it is receivable or payable.
CIT(A) has not accepted the findings of the AO and he has treated it as a part which he had confirmed as cash paid for the purpose of immovable property. This issue has already been decided by us in the former part of this appeal in Ground Nos 1 to 3 above. Therefore, regarding appeal on this dumb document, as the ld. CIT(A) himself has treated it as part of Rs. 25,85,000/-, therefore, we are of the view that there is no need of any separate adjudication of this issue.
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2024 (7) TMI 1207
Violation of principles of natural justice - petitioner was unaware of the impugned order that came to be passed as notices that preceded the impugned order were hosted in the GST Common Portal and the petitioner being the Proprietary Concern was unaware of the same - HELD THAT:- This Writ Petition is disposed off by remitting the case back to the fourth respondent to pass a fresh order subject to the petitioner depositing 10% of the disputed tax from its Electronic Cash Register within a period of 30 days from the date of receipt of a copy of this order. The impugned order which stands quashed in this order shall be treated as Addendum to the show cause notice issued to the petitioner. Subject to the petitioner complying with the above requirement within a period of 30 days, the fourth respondent shall proceed to pass fresh orders on merits and in accordance with law after hearing the petitioner.
This Writ Petition stands disposed of.
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2024 (7) TMI 1206
Violation of principles of natural justice - seeking one opportunity to explain the position - it is submitted that the petitioner was unaware of the impugned order - HELD THAT:- The petitioner deserves a chance to redress its grievance subject to the fulfilment of conditions imposed - The impugned order stands quashed and the same shall be treated as Addendum to the Show Cause Notices that preceded with the impugned order.
This Writ Petition stands disposed of.
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2024 (7) TMI 1205
Initiation of proceedings u/s 130, read with section 122 of the UPGST Act - case of the petitioner is that once the survey was conducted and alleged excess stock was found, then sections 73 & 74 of the UPGST Act come into play - HELD THAT:- The issue in hand is covered by the judgement of this Court in M/S METENERE LTD. VERSUS UNION OF INDIA AND ANOTHER [2020 (12) TMI 790 - ALLAHABAD HIGH COURT], in which it was held that 'In the present case, the proper officer was empowered to determine the liability of payment of tax in terms of the powers conferred under Section 35 (6) after resorting to the procedure as established under Section 74 of the Act.'
In the aforesaid case, this Court has specifically held that even if excess stock is found, the proceedings under section 130 of the UPGST Act cannot be initiated.
The impugned orders passed by the authorities below in all the writ petitions cannot be sustained in the eyes of law. The same are hereby quashed - Petition allowed.
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2024 (7) TMI 1204
Refund claim - time limitation - sole objection of respondent is that the petitioner has not preferred appeal against the impugned order - HELD THAT:- The case of petitioner is squarely covered by recommendations of GST Council. The respondent is not disputing applicability of aforesaid recommendations of GST Council to case in hand. As soon as period from March’2020 to February’2022 is excluded from limitation period prescribed for filing refund claim, the application dated 29.09.2020 filed by petitioner becomes within limitation period as prescribed under Section 53 (3) of the CGST Act.
The impugned order set aside - the present petition deserves to be allowed and accordingly allowed.
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2024 (7) TMI 1203
Challenge to notices, which were issued in Form GST MOV-01 and MOV-07 - petitioner had not generated e-invoices - transport of PETN explosives from Salem to Vietnam - HELD THAT:- On examining the petitioner's undertaking dated 15.06.2024 and the reply dated 18.06.2024, it is noticeable that the petitioner undertook to pay the penalty. It is also noticeable that the petitioner did not assert that the goods are exempted. In any event, whether goods are exempted or not is a mixed question of fact and law. This is required to be examined by the respondent. Since notices were issued and the petitioner replied thereto, it is just and appropriate that the adjudication process be concluded.
Petition is disposed of by directing the respondent to conclude the adjudication in respect of the penalty proceedings against the petitioner within four weeks from the date of receipt of a copy of this order. The petitioner is permitted to submit a reply to the revised notice within one week from the date of receipt of a copy of this order.
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