|
Advanced Search Options
Case Laws
Showing 81 to 100 of 1640 Records
-
2024 (7) TMI 1560
Validity of reassessment proceedings u/s 147 v/s 153C - seized material from third party - HELD THAT:- Addition has been made based on incriminating material found in the course of search of M/s Alankit Group as information pertaining to the assessee herein. Hence, the same becomes a search material/ incriminating material found during the course of search of M/s Alankit Group which pertains to assessee herein. Hence, the right course of action to be initiated on the assessee qua such incriminating material would be initiation of proceedings u/s 153C of the Act and not u/s 147 of the Act.
This has been rightly addressed by the CIT(A) while deleting the addition in the hands of the assessee.
We find that the issue in dispute is squarely covered by the decision of Sri Dinakara Suvarna [2022 (7) TMI 800 - KARNATAKA HIGH COURT] wherein it was held that the provisions of section 153C of the Act are pari materia with Section 158BD of the Act (erstwhile block assessment proceedings under Chapter XIVB of the Act).
Hence, the ratio laid down in the case of Manish Maheshwari [2007 (2) TMI 148 - SUPREME COURT] referred in the context of section 158BD proceedings shall apply mutatis mutandis to Section 153C proceedings also. In the facts of the case before the Hon’ble Karnataka High Court, the ld AO in his order had held that reasons formed to reopen the assessment on the basis of assessee’s voluntary depositions and seized materials are in order and further that assessee’s objection on that aspect has been rejected by his order dated 07.06.2010.
Admittedly, no proceedings were initiated u/s 153C of the Act thereon and hence there was patent non-application of mind on the part of the ld AO. Accordingly assessment was duly quashed by the Hon’ble Karnataka High Court. It is further noted that the Special Leave Petition (SLP) preferred by the revenue against this decision was dismissed by the Hon’ble Supreme Court in [2023 (6) TMI 1175 - SC ORDER]
Thus we hold that the CIT(A) had rightly quashed the reassessment proceedings u/s 147 of the Act in the facts and circumstances of the instant case. We do not find any infirmity in the said order. Accordingly, the grounds raised by the revenue are dismissed
-
2024 (7) TMI 1559
Maintainability of appeal - low tax effect involved in the appeal - HELD THAT:- The dispute between the parties has been referred for determination to the Lok Adalat.
The tax effect of the subject matter of the special leave petitions and the appeals is falling below the threshold contained in the circular dated 22 August 2019 of the Central Board of Indirect Taxes and Customs.
The Special Leave Petition and the Appeals are disposed of as not pressed.
-
2024 (7) TMI 1558
Challenge to action of assessment - HELD THAT:- Prima facie and bearing in mind the undisputed position that that the Resolution Plan under the Insolvency and Bankruptcy Code, 2016 [IBC] came to be approved on 19 July 2023, the action of assessment cannot be sustained. Matter requires consideration.
Till the next date of listing, the respondents are restrained from taking further steps pursuant to the impugned notice dated 30 March 2024.
-
2024 (7) TMI 1557
Appeal against order of adjudication - Import of goods in contravention of Section 17(1) as well as Sections 46(4) and 46(4A) of the Customs Act, 1962 - whether Single Judge had rightly directed release of the consignments and the said order warrants no interference? - HELD THAT:- Inasmuch as an order of adjudication has been passed by the Adjudicating Authority as per the direction of this Court, at this stage, we are not inclined to accept the contentions of learned counsel for the respondents. The respondents may assail the order of adjudication before the appropriate forum, in the manner known to law, of course by raising all the grounds that are raised in the present appeals.
These writ appeals are dismissed. The respondents are granted liberty to raise all the grounds raised in these appeals before the appropriate forum in the appeals to be filed as against the order of adjudication.
-
2024 (7) TMI 1556
TDS u/s 195 - Disallowance of the reinsurance premium ceded to NRRs - Addition upto the extent of 15% of the reinsurance premium ceded by the Appellant to non-resident reinsurers (NRRs) u/s 40(a)(i) - HELD THAT:- We find that an identical issue has been dealt in assessee’s own case [2023 (6) TMI 1446 - ITAT CHENNAI] by following the earlier decision of the Tribunal [2022 (8) TMI 1549 - ITAT CHENNAI] in assessee’s own case came to the conclusion that reinsurance premium ceded to NRRs, is not taxable in India under the Income Tax Act, 1961 or under DTAA between India and respective countries, where the NRRs are tax residents, and thus, reinsurance premium cannot be disallowed u/s. 40(a)(i) of the Act, for non-deduction of TDS u/s. 195 of the Act.
Thus, we set aside order of the CIT(A) in restricting the claim of the assessee to 15% of payment made to NRRs of other countries and direct the AO to delete the additions made towards disallowance of reinsurance premium ceded to NRRs u/s. 40(a)(i) for the assessment years 2013-14 to 2016-17 - Assessee ground allowed.
Disallowance of amortization of premium paid on purchase of securities - HELD THAT:- As in assesse’s case for AY 2004-05 [2018 (10) TMI 1096 - ITAT CHENNAI] decided the issue against the assessee by following his own order for assessment year 2003-04. Decided against assessee.
Disallowance of provision for IBNR and IBNER - provision for claims incurred, but were not reported (IBNR) and claims incurred, which were not enough reported (IBENR) - HELD THAT:- As we find that an identical issue has been considered by the Tribunal in assessee’s own case [2018 (10) TMI 1096 - ITAT CHENNAI] for relevant assessment years and after considering relevant facts held that provision for IBNR & IBNER is not deductible u/s. 37(1) of the Income Tax Act, 1961, because such provision is only on unascertained liability, which is not accrued to the assessee for the relevant assessment year.
We are of the considered view that the assessee is not entitled for deduction towards provision created for IBNR & IBNER and thus, we uphold the findings of the learned CIT(A) on this issue for the assessment years 2014- 15, 2015-16, 2016-17, 2018-19 & 2019-20 and reject grounds taken by the assessee. Further, the assessee has also pleaded that with respect to AY 2017-18, the amount disallowable with respect to provisions for IBNR and IBNER claims cannot exceed Rs. 1250.89 crores being the amount debited to the revenue accounts of the assesse.
Assessee submitted that the additional amount of Rs. 1582.58 crores being the amount not debited to the profit & loss account be deleted. We are in conformity with the views of the assessee that amount of monies, as provisions, not debited to the profit & loss account cannot be a part of the disallowance. Accordingly, the AO is directed to recalculate the disallowance with respect to provisions for IBNR and IBNER claims and restrict it to the extent of the amounts debited to profit & loss account as per law during the assessment year 2017-18.
MAT computation - disallowance of provision for IBNR and IBNER claimed by the assessee in its return of income while computing book profit u/s. 115JB - HELD THAT:- We agree with the arguments advanced by both sides that facts relating to provision created for IBNR/IBNER relating to relevant assessment years are not available on record and hence, the matter is to be restored back to the file of the Assessing Officer for fresh adjudication for the reason that in case, if the matter is restored to the file of CIT(A), he has to call for remand report and the details cannot be examined at his level. Hence, we remand this issue back to the file of the Assessing Officer for detailed examination of this issue as to whether provision created by the assessee on account of IBNR/IBNER is ascertained liability or unacertained liability for the purpose of computation of book profit u/s. 115JB of the Act only.
Accordingly, impugned orders of the Assessing Officer and that of the CIT(A) on this issue are set aside and matter is remitted back to the file of the Assessing Officer for fresh adjudication in term of above.
Provision created for reserve for unexpired risk - As Revenue for the assessment year 2013-14 on the issue of creation of reserve for unexpired risk and matter is remitted back to the file of the Assessing Officer to decide the issue afresh as per law, after considering entire facts of this case. In the result, appeals filed by the assessee for the assessment years 2014-15 to 2016-17 & 2018-19 and that of the Revenue for the assessment year 2013-14 on the issue of creation of reserve for unexpired risk are treated as allowed for statistical purposes.
Addition to Book Profits u/s 14A - HELD THAT:- As we find that the issue in hand is squarely covered by the decision of Vireet Investments [2017 (6) TMI 1124 - ITAT DELHI] wherein the Special Bench has categorically held that provisions of section 14A read with Rule 8D will not apply while computing the book profit u/s. 115JB of the Act. Respectfully following the Special Bench decision cited above, we delete the disallowance made by invoking the provisions of section 14A read with Rule 8D of Income Tax Rules, 1962 while computing book profit u/s. 115JB of the Act.
Disallowance of expenditure relatable to exempt income u/s. 14A of the Act by invoking Rule 8D - HELD THAT:- Insurance Companies are liable for taxation within the meaning of section 44 of the Act. The said section begins with a non-obstante clause thus precluding application of computation of income u/s. 28 to 43 which has bearing with section 14A. Thus, no interference can be made to the assesse’s income by provisions of section 14A. Decided against revenue.
Addition u/s.36(1)(va) - AO disallowed a sum on account of failure to deposit Employees’ contribution to PF before due date as specified under the Act - HELD THAT:- As CIT(A) correctly confirmed the disallowance of Employee’s Contribution made by the Assessing Officer, as said late payments are not covered u/s. 43B and by following the latest decision of M/s.Checkmate Services [2022 (10) TMI 617 - SUPREME COURT]
Disallowance of amount paid to motor car dealers towards infra payment u/s. 37 - HELD THAT:- In the judgement of the Hon’ble High Court of Madras, it was observed that the addition was made as sequel to information received from the service tax department whose own enquires had not reached finality. The Hon’ble High Court laid down that the Revenue would be free to exercise its authority under the Act in the event of Service tax department holding against the assesse. Respectfully following the said judgement of the Hon’ble High Court of Madras dated 21.06.2019, we confirm the order of the CIT(A) on the issue of infra payments made by the assessee to motor car dealers and reject the grounds raised by the Revenue in assessment years 2014-15 to 2019-20.
-
2024 (7) TMI 1555
Reopening of assessment u/s 147 - reason to believe - information that can be relied upon by the Assessing Officer to reopen assessment of escaped income - mandation of providing reasonable opportunity of hearing - HELD THAT:- It is only with respect to providing reasonable opportunity of hearing as per Circular dated 22.08.2022 of the Central Board of Direct Taxes that this Court has found that such reasonable opportunity of hearing was not given before Order u/s 148(d) was issued.
In our considered opinion, there is no dispute regarding explanation given under Section 148 regarding information that can be relied upon by the Assessing Officer to reopen assessment of escaped income. Revenue Audit Objections can be considered as a valid ground for opening assessment that has concluded.
This Court is of the considered opinion that the reply of the petitioner had specifically asked for documents to be supplied including complete case proceedings and for personal hearing, which was not given. AO has acted in undue haste.
The orders u/s 148A(d) and u/s 148 are set aside. The respondents shall provide all relevant documents that have been asked for by the petitioner in his representation by making payment of necessary fees to the department, within a period of one week from today. The petitioner shall submit his reply within one week, thereafter. A personal hearing shall be given by the AO.
-
2024 (7) TMI 1554
Reopening of assessment u/s 147 - reason to believe - sales treated as deemed income u/s 68 - HELD THAT:- As evident that the discrepancy in the reasons, as pointed out on behalf of the assessee, is clear and admitted, that is to say, the reasons recorded by the AO for issuance of notice of re-opening of the completed assessment have been recorded on wrong facts, in as much as firstly, the date of filing of the return of income of the assessee for the year under consideration has been wrongly mentioned. Then, the declared income has wrongly been shown at Rs.1,62,28,910/- as against the actually declared ‘Nil’ income.
As we hold that the re-opening of the completed assessment in the present case was not valid. The plea of the Department, that the recording of wrong facts by the AO in the reasons was an inadvertent mistake, is of no avail and it does not validate the reasons recorded by the AO.
It is trite that the reasons recorded are to be read as they are, and the reasons recorded in the present case, read as they are, are factually incorrect reasons which could not have led the AO to arrive at a valid satisfaction that income for the year under consideration had escaped assessment. Accordingly, the initiation of the re-assessment proceedings through the incorrect reasons recorded and the entire re-assessment proceedings, culminating in the order under appeal are quashed as void ab initio.
-
2024 (7) TMI 1553
Reopening of assessment u/s 147 - addition u/s 68 of unsecured loans - HELD THAT:- AO has failed to make further enquiries and relied on the statement recorded, overlooking the factual aspects that the assessee has discharged the initial burden placed by furnishing the details.
AR referred to the copy of details of unsecured loans provided by the lenders and subsequent repayment of loans along with the financial statements, confirmations and bank statements filed by the four unsecured loans creditors directly with the assessing officer in lieu of notice issued u/sec 133(6) of the Act in the assessment proceedings.
Whereas the A.O has ignored the information, evidences and audited financial statements and unilaterally made addition u/sec 68 of the Act only on the basis of statement provided by third party without any iota of evidences discrediting the evidence furnished by the assessee and the statement of Shri Vipul Vidur Bhatt has been retreated which cannot use as reliable evidence.
Information submitted by the assessee satisfied the three ingredients of provisions of Sec. 68 - the loan transactions are not believed and alleged as non genuine and treated as unexplained cash credit u/sec 68 of the Act and these unsecured loans were repaid through account payee / banking channels in the subsequent years which is not disputed.
AR submitted that the assessee has substantiated the stand by submitting the details before the AO and CIT(A) and discharged the burden. We set-aside the order of the CIT(A) and direct the Assessing officer to delete the addition of unsecured loans and allow these grounds of appeal in favour of the assessee.
-
2024 (7) TMI 1552
Money Laundering - seeking grant of bail on medical grounds - second bail application - HELD THAT:- Since a panel of doctors headed by Dr. Jaya Nawani, HOD, Department of Psychiatry, Government Doon Medical College, Dehradun has reported that the applicant is not a Psychopathology patient and she has no signs of depression and she does not require any medication for that purpose, there is no reason to consider releasing the applicant on this ground. Therefore, the second bail application of the applicant deserves to be rejected.
The second bail application is rejected.
-
2024 (7) TMI 1551
Disallowance of business expenses relating to business of money lending merely on the ground that no interest income has been earned in this year - Engagement of the assessee in the business of money lending - Whether Tribunal has erred in holding that business of money lending was an afterthought merely on the ground that no interest income has been earned in this year?
HELD THAT:- As decided in SHRI ASHOK J. THAPAR HUF [2023 (12) TMI 1026 - ITAT DELHI] the averments in the complaint do not at all indicate that the money claimed to have been standing as a loan was ever given as a loan for the purpose of money lending business. In fact, in AY 2012-13, there was an issue of undisclosed income wherein the AO had made an addition on the ground that the assessee had been showing interest income from M/s Sunil Mantri Realty Ltd. on actual basis. M/s Sunil Mantri Realty Ltd. had paid interest and deducted tax which was reflected in 26AS, but, there was lack of reconciliation.
We are of the considered view that what ld. AR has relied in regard to the previous or subsequent years about the money lending business of the assessee is not sustainable in the facts discussed above from the perspective of ld. CIT(A) and we do not consider that there is any error in the sustenance by ld. CIT(A).
-
2024 (7) TMI 1550
TDS u/s 194J/195 - payment of leased line /data link charges paid by the assessee for non deduction of tax at source by invoking the provisions of section 40(a)(ia) - HELD THAT:- This issue is no more res integra as the same is settled in favour of the assessee in the case of CIT Vs. Kotak Securities Ltd. [2016 (3) TMI 1026 - SUPREME COURT] wherein it was held that the charges paid towards leased line are not in the nature of Technical services within the meaning of section 9(1)(vii).
Thus, we hold that no TDS is required to be made on the payment towards leased line/data link charges. Therefore, the order of NFAC is hereby reversed. The grounds of appeal raised by the assessee stands allowed.
-
2024 (7) TMI 1549
Addition u/s 68 - no identity of the lender, genuineness of the transaction and the credit worthiness of the lender provided - As argued assessee has filed the details in respect of the loans/inter corporate deposits and submitted the confirmation of the loan creditors along with other supporting details - HELD THAT:- Assessee has cooperated in submitting the information in the assessment proceedings, whereas the A.O has ignored the information, evidences and audited financial statements and unilaterally made addition u/sec 68.
AR emphasized that the assessee has discharged its burden by submitting the financial statements of the lenders where the payment is made through banking channel and identity, creditworthiness and genuineness of the lender company was proved in the assessment proceedings. Assessee has submitted the audited financial statements, confirmations, Bank statements of lender company, copy of the income tax returns, ledger account, and the repayment details to substantiate the genuineness and credit worthiness of loan creditors.
AR demonstrated the bank statement of the Lender company having opening balance Rs. 23 Crores (appx) before granting Unsecured loan/ inter corporate deposit of Rs. 20 Crores in September 2014. Further the Ld.AR has filed the audited financial statements of the lender company for F.Y. 2014-15 & F.Y. 2015-16 to substantiate the identity and Net worth of the company and at page 109 of the paper book, the lender company has disclosed the loan under “Long Term Loans and Advances”. AR demonstrated the copy of bank statements reflecting the repayment of unsecured loan/inter corporate deposit which is not disputed by the revenue. Further, the A.O has failed to make further enquiries and over looked the factual aspects that the assessee has discharged the initial burden placed by furnishing the details. The information submitted by the assessee satisfied the three ingredients of provisions of Sec. 68 of the Act. Further the A.O. dealt on the loan transactions and alleged as non genuine and treated as unexplained cash credit U/sec 68 of the Act. Whereas the unsecured loan was repaid through account payee / banking channels in the subsequent financial year which is not disputed by the revenue and in the year of repayment of loan, the revenue has accepted returned income of the assessee and passed the order u/sec 143(1).
Thus, Assessing officer is directed to delete the addition of unsecured loan and allow the grounds of appeal in favour of the assessee.
-
2024 (7) TMI 1548
TP Adjustment - comparable selection - exclusion of Acropetal Technologies Ltd., Eclerx Services Ltd., Infosys BPO Ltd. and TCS E-Serve Ltd. from the list of comparables - HELD THAT:- Insofar as Infosys BPO Ltd. and TCS E-Serve Ltd. is concerned, it could not be disputed before us that they were mega entities and could not have been included in the list of comparables bearing in mind the judgment rendered in CIT v. Agnity India Technologies Pvt. Ltd [2013 (7) TMI 696 - DELHI HIGH COURT]
Acropetal Technologies Ltd. - We find that DRP has excluded the same from the list since it was also engaged in software development. Tribunal had upheld the exclusion of that comparable. We however note that it had taken a slightly divergent view insofar as Accentia Technologies Ltd. is concerned and which too was found to be engaged in software development.
Eclerx Services Ltd. - Respondents would contend that it was essentially engaged in providing Knowledge Process Outsourcing [‘KPO’] services and could not have been included as a comparable insofar as the assessee was concerned and which stood confined to providing BPO services. According to Mr. Rai, however, the aforesaid segmentation has not been examined or accorded consideration.
We consequently admit the instant appeal on the following questions of law:-
A. Whether on the facts and circumstances of this case, the Tribunal was correct in rejecting the company M/s Acropetal Technologies Ltd. as comparable company, ignoring the fact that the Transfer Pricing Officer [‘TPO’] had ruled engineering and design services are under Information Technologies Enabled Services [‘ITES’] services which is comparable to the functions of the assessee?
List on 30.09.2024.
-
2024 (7) TMI 1547
Priority of the charge of the respondent State over the sale proceeds realized by the respondent no. 6-Bank on sale of the secured assets - recovery of outstanding dues of the borrower under Section 13(2) and 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 read with the Security Interest (Enforcement) Rules, 2002 - Liability of the auction purchaser to discharge statutory dues - Validity and subsistence of statutory charge post-auction sale.
Whether the charge mutated in the revenue records by the Sales Tax/ VAT Department as per provision of Section 48 of the VAT Act would continue even after the auction sale conducted by the respondent no. 6 Bank while exercising the powers under the provision of Securitisation Act and Securitisation Rules or not?
HELD THAT:- The Division Bench of this Court in case of Kalupur Commercial Cooperative Bank [2019 (9) TMI 1018 - GUJARAT HIGH COURT] after analyzing provisions of Section 31B of the RDB Act and provisions of Section 26E of the SARFAESI Act with regard to the preferential right of the State to recover the debts over the other creditors held 'The language of Section 48 of the VAT Act is plain and simple and the phrase 'any amount payable by a dealer or any other person on account of tax, interest or penalty' therein assumes significance. The amount could be said to be payable by a dealer on account of tax, interest or penalty once the same is assessed in the assessment proceedings and the amount is determined accordingly by the authority concerned. Without any assessment proceedings, the amount cannot be determined, and if the amount is yet to be determined, then prior to such determination there cannot be any application of Section 48 of the VAT Act.'
The Full Bench of the Bombay High Court has therefore rightly held that Section 31B of the RBD Act can only be invoked when there is determination of debt due and payable as provided under the RDB Act with the intervention of the Court and in that scenario, it was observed with regard to the decision of this Court in case of Kalupur Commercial Cooperative Bank.
The secured creditor with a view to recover its dues after taking possession of secured assets under Section 13(4) of the SARFAESI Act is required to follow the procedure prescribed in Rule 8 and Rule 9 of the Securitisation Rules for conducting the auction sale. As per the Clause (f) of Sub-Rule 7 of the Rule 8, the secured creditor is required to disclose as a part of terms and conditions which are necessary for a purchaser to know the nature and value of the property. The respondent no. 6-Bank which is secured creditor is therefore bound by the provision of Rule 8 (7)(f) of the Rules to disclose the nature and value of the property - In absence of such disclosure by the secured creditor made in the auction sale notice, as a part of terms and conditions of the sale and only mentioning “as is where is, whatever basis” is not sufficient so as to enable the participants in the auction sale to put to notice about the charge subsisting on the property which is put to auction sale.
The auction purchaser shall not be duty bound to make any payment, even if the charge subsist over the property, except what is stated in the sale agreement or sale deed executed between the parties.
It would be useful to refer to provisions of Section 100 of the Transfer of Property Act as extracted herein above which provides for the ‘charge’ which means that where immovable property of one person is by act of parties or operation of law made security for payment of money to another and transaction does not amount to a mortgage, the latter person is said to have a charge on the property and all the provisions would apply which applied to simple mortgage would apply to the charge. Therefore, once the secured creditor has realised its dues by sale of the property, then further charge would not subsist over such property as the entire value of the property would stand realised.
In such circumstances, the question, therefore would arise as to whether the respondent State would be entitled to recover any amount from the Bank, having the priority over the charge for sale consideration which was realized on the sale of the property, as the property once sold, then charge would be shifted to the sale consideration realized and therefore it would be between the respondent State and the secured creditor as to who will have first right to recover such sale consideration. It may happen that even though the secured creditor may have the first charge over the property and respondent State might have sold the property then in that circumstances also the question would arise whether the secured creditor would be entitled to recover such sale consideration from the State Authority by virtue of first charge over the property - In such circumstances, as held by this Court in case of Kalupur Commercial Cooperative Bank and as per the decision of the Full Bench of the Bombay High Court, the secured creditor would have the first charge in view of the priority of the charge as prescribed in Section 26E of the SARFAESI Act and Section 31B of the RBD Act as the case maybe.
Now the question would arise whether the subsequent decision of the Hon’ble Apex Court in case of Rainbow Papers Ltd. [2022 (9) TMI 317 - SUPREME COURT] would be applicable to the issue as to the priority of the charge of the secured creditor visa-vis the provision of Section 48 of the VAT Act or not as in the said decision the Hon’ble Apex Court has considered the provisions of the IBC vis-a-vis the provision of Section 48 of the VAT Act. It would be therefore necessary to revisit the provisions of IBC as extracted herein above to ascertain whether the contention of the respondent State that in view of the decision of the Hon’ble Apex Court in case of Rainbow Papers Ltd, the decision of this Court in case of Kalupur Commercial Cooperative Bank requires relook or not.
From the above observations of the Hon’ble Apex Court, it is clear that the Apex Court has considered the provisions of Section 53 of the IBC vis-a-vis Section 48 of the VAT Act and has come to the conclusion that Section 53 of the IBC does not override the provisions of Section 48 of the VAT Act and outstanding dues of the State Act as per the provisions of Section 48 of the VAT Act would be at pari passu with the dues of the secured creditor as provided under Section 53(1)(d)(2).
Thus, the charge in respect of the property in question created for sales tax dues or VAT dues is of no avail and has no efficacy in law in view of the provisions of SARFAESI Act and the RDB Act. The property in question was sold by respondent no. 6-Bank under the provisions of SARFAESI Act and the petitioners were successful purchasers and the sale certificate is issued and sale deed is also executed by which the petitioners have become absolute owners of the property and therefore considering the existing position of law, the charge created by the respondent State over the property in question in the year 2018, cannot be sustained and is accordingly quashed and set aside and as a consequence the mutation entries in revenue records also stands deleted.
Petition allowed.
-
2024 (7) TMI 1546
Seeking quashing of SCN and consequential summary of SCN - reply to SCN is yet to be considered - Violation of principles of natural justice - HELD THAT:- The issue involved in this writ petition has already been decided by this Court in M/S. PADAM KUMAR JAIN VERSUS THE STATE OF JHARKHAND; JOINT COMMISSIONER OF STATE TAX; ASSISTANT COMMISSIONER OF STATE TAX; STATE TAX OFFICER, CHAIBASA CIRCLE, JHARKHAND [2024 (7) TMI 1537 - JHARKHAND HIGH COURT] where it was held that 'Considering the contentions made by the learned counsels for the parties, without going into merits of the case, the writ application is disposed of permitting the petitioner to proceed in accordance with law and file an appeal also raising the very issue of jurisdiction that has been raised in this writ petition.'
This writ petition stands disposed of in terms of the observations and directions issued in above case - application disposed off.
-
2024 (7) TMI 1545
Eligibility to claim IGST Input Tax Credit (ITC) for the period July 2017 to March 2023 - delay in taking credit beyond the stipulated period as contemplated under Section 16(4) of the CGST Act, 2017 - HELD THAT:- The petitioner would be entitled to availment of ITC and cannot be deprived of the same or fastened with liability to pay interest on account of his claim having been filed belatedly as can be seen from the circular No.211/5/2024-GST, dated 26.06.2024. The aforesaid circular completely supports the claim of the petitioner especially in the light of the judgment of the Apex Court in the K.P.VARGHESE Vs. INCOME TAX OFFICE, ERNAKULAM, AIR 1981 SC 1922 to the effect that a CBIC circular is binding upon the respondents. However, since the said circular was issued during the pendency of the present petition and the respondents did not have the benefit of the said circular at the time of issuance of the Show Cause Notice, it is deemed just and appropriate to dispose of this petition and direct respondent No.2 to consider the objections to be filed by the petitioner and proceed further in accordance with law, bearing in mind the aforesaid circular and take appropriate decisions/pass appropriate orders in accordance with law.
The petition stands disposed of.
-
2024 (7) TMI 1544
Initiation of contempt proceedings against the respondents for disobedience of order - Sections 11 & 12 of the Contempt of Courts Act, 1971 read with Article 215 of the Constitution of India - HELD THAT:- In compliance of order dated 10.07.2024, the counsel for respondent-Bank has submitted that the order, qua which contempt was asserted, has since been complied with by de-freezing the account of the petitioner-corporation. The petitioner can now operate its bank account as per its will. No further action is required in the matter. Accordingly, the present petition has been rendered as infructuous.
Petition dismissed as having been rendered infructuous.
-
2024 (7) TMI 1543
Non-service of SCN - SCN not uploaded in the manner required inasmuch as the impugned order does not show up on the asseseess portal under the tab "view notices and orders" - Violation of principles of natural justice - HELD THAT:- At present, it does appear that the petitioner is entitled to a benefit of doubt. No material exist to reject the contention being advanced that the impugned order was not reflecting under the tab "view notices and orders".
On merits, as noted in the earlier orders an other dispute exists whether all replies and annexures to the replies as filed by the assessee were displayed to the assessing officer and whether those have been considered. No useful purpose may be served for keeping this petition pending or calling for a counter affidavit or even relegating the petitioner to the available statutory remedy. The entire disputed amount is lying in deposit with the State Government. Therefore, there is no outstanding demand.
The writ petition is disposed of, with a direction, the assessee may treat the impugned order as the final notice and submit his written reply within a period of two weeks.
-
2024 (7) TMI 1542
Seeking grant of regular bail - recovery of commercial quantity of contraband (Ganja) - Applicability of rigors of Section 37 of the NDPS Act - HELD THAT:- It is settled law that the Court, while considering the application for grant of bail, has to keep certain factors in mind, such as, whether there is a prima facie case or reasonable ground to believe that the accused has committed the offence; circumstances which are peculiar to the accused; likelihood of the offence being repeated; the nature and gravity of the accusation; severity of the punishment in the event of conviction; the danger of the accused absconding or fleeing if released on bail; reasonable apprehension of the witnesses being threatened; etc.
The present case is based allegedly on a chance recovery and it is possible that the Investigating Agency did not get sufficient time to prepare. However, given the crowded nature of the place from where the recovery was made, it is peculiar that no public witness has joined the search - A bald statement has been made, as stated in the chargesheet filed, that 4-5 passers-by were asked, however, they refused to join the investigation and left the spot citing legitimate compulsion related to journey. The recovery in the present case was effectuated at Exit Gate No.1 in front of Coolie Hall, Pahar Ganj Side, New Delhi Railway Station.
In the present case, while the charges have been framed against the applicant, none of the witnesses have been examined yet. As noted above, the applicant has been in custody since 25.12.2021. There is no likelihood of the trial being completed in the near future.'The Hon’ble Apex Court in Badsha SK. v. The State of West Bengal [2023 (9) TMI 1567 - SC ORDER], granted bail to the petitioner wherein who had been in custody for more than two years with the trial yet to begin.
Similarly, in Man Mandal & Anr. v. The State of West Bengal [2023 (9) TMI 1568 - SC ORDER] the petitioner therein had been in custody for almost two years and the Hon’ble Apex Court found that the trial is not likely to be completed in the immediate near future. The petitioner was, therefore, released on bail.
Thus, it is evident that despite the stringent requirements imposed on the accused under Section 37 of the NDPS Act for the grant of bail, it has been established that these requirements do not preclude the grant of bail on the grounds of undue delay in the completion of the trial. Various courts have recognized that prolonged incarceration undermines the right to life, liberty, guaranteed under Article 21 of the Constitution of India, and therefore, conditional liberty must take precedents over the statutory restrictions under Section 37 of the NDPS Act.
This Court is of the opinion that the applicant has made out a prima facie case for grant of bail on the grounds of absence of independent witnesses and prolonged delay in the trial.
The applicant is, therefore, directed to be released on bail on furnishing a personal bond for a sum of ₹50,000/- with two sureties of the like amount, subject to the satisfaction of the learned Trial Court, on the fulfilment of conditions imposed - bail application allowed.
-
2024 (7) TMI 1541
Challenge to assessment orders issued in deceased mother's name - violation of the principles of natural justice - HELD THAT:- Ext. P11 order under Section 73(9) is appealable under Section 107 of the CGST/SGST Act, 2017. A challenge against the assessment order passed under Section 73(9) on the ground of violation of principles of natural justice is also maintainable before the appellate authority. Whether the 19 days’ period granted to the petitioner to reply to the show cause notice was a reasonable period to defend the show cause notice is a matter to be considered by the appellate authority in accordance with the facts of the case, as no time limit is stipulated in Section 73 for responding to the show cause notice.
Since an appeal is provided under Section 107 of the CGST/SGST Act against Ext. P11 order, it will be open to the petitioner to avail the said remedy and all contentions of the petitioner are left open to be considered by the appellate authority.
The writ petition is disposed of.
........
|
9911796707
