Home Case Index All Cases Income Tax Section Wise 2024 2024 (8) This

Law	-- All -- GST Income Tax Benami Property Customs Corporate Laws Securities / SEBI Insolvency & Bankruptcy FEMA Law of Competition PMLA Service Tax Central Excise CST, VAT & Sales Tax Wealth tax Indian Laws
Court	-- Any -- Supreme Court SC Orders / Highlights High Court Appellate Tribunal Tribunal Appellate authority for Advance Ruling Advance Ruling Authority National Financial Reporting Authority Competition Commission of India ANTI-PROFITEERING AUTHORITY Commission Central Government Board DISTRICT/ SESSIONS Court Commissioner / Appellate Authority Other
Citation	--Year-- 2025 2024 2023 2022 2021 2020 2019 2018 2017 2016 2015 2014 2013 2012 2011 2010 2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996 1995 1994 1993 1992 1991 1990 1989 1988 1987 1986 1985 1984 1983 1982 1981 1980 1979 1978 1977 1976 1975 1974 1973 1972 1971 1970 1969 1968 1967 1966 1965 1964 1963 1962 1961 1960 1959 1958 1957 1956 1955 1954 1953 1952 1951 1950 Upto 1949 - -Volume- 1 2 3 4 5 6 7 8 9 10 11 12 -
Landmark	Nil - N/A Referred in >= 2 Cases Referred in >= 4 Cases Referred in >= 5 Cases Referred in >= 10 Cases Referred in >= 15 Cases Referred in >= 25 Cases Referred in >= 50 Cases Referred in >= 100 Cases
Order by	TMI Citation Date of Decision

Advanced Search Options

Case Laws

Showing 21 to 40 of 1563 Records

• 2024 (8) TMI 1543
  

  Entitlement for benefit of Notification dated 01.03.2005, as amended by Notification dated 11.07.2014 - imported “Wireless Access Points/MIMO products” falling under Customs Tariff Item [CTI] 8517 62 90 - HELD THAT:- The matter is covered by a decision of this Tribunal in Commissioner of Customs (Air), Chennai - VII versus Redington (India) Ltd. [2023 (12) TMI 754 - CESTAT NEW DELHI], where it was held that 'WAP imported by the appellant works on technology and does not support LTE standard. Beetal Teletech was, therefore, justified in claiming exemption from the whole of the customs duty under Serial No. 13 (iv) of the notification.'

  It is, however, also pointed out by the learned authorized representative for the department that department has filed Customs Appeal No. 44 of 2024 before the Delhi High Court which is pending but no stay order has been granted.

  Appeal dismissed.

  ---

• 2024 (8) TMI 1542
  

  Recovery of service tax with interest and penalty - Supply of Tangible goods services or not - leasing out of earth station and related equipment to M/s SICCL - cum tax benefit.

  HELD THAT:- The facts and issues involved in the present case are on all fours identical to case in M/S SAHARA SANCHAAR LIMITED VERSUS COMMISSIONER OF SERVICE TAX, NOIDA [2024 (1) TMI 451 - CESTAT ALLAHABAD]. The Chartered accountant appearing for the appellant strenuously sought to distinguish the said order by stating that the said decision is not based on the amended provisions. However there are no merits in the said submission as the perod involved in the said case was upto 31.03.2014, and the Finance Act, 1994 was amended to introduce new taxation regime with effect from 01.07.2014.

  It was held in the said case that 'From the terms of agreement and stipulations, the assets were made available to the lessee for use without transferring the effective control and possession over the said assets to the lessee and hence the service tax under the category of “Supply of Tangible Goods Services” has been rightly demanded from them.'

  The matter for the period after 01.07.2012 has been considered in para 4.10 of the above order and the amended provisions have been taken into account. Thus there are no merits in the submissions made by the appellant on the merits of the case.

  Cum tax benefit - HELD THAT:- It is now settled position in law that benefit of cum tax benefit should have been allowed while computing the taxable value and the tax payable. For limited purpose of computing the tax demand after allowing the cum tax benefit to the appellant matter is remitted back to the original authority.

  Penalties u/s 76 and 77 of the Finance Act, 1994 - HELD THAT:- There are no merits in the submissions made by the appellant in respect of the penalties imposed under Section 76 and 77 of the Finance Act, 1994. The penalties under these Sections are not the penalties u/s 78 which were to be imposed for various offences which required a guilty mind or intent to evade payment of tax. The penalties under these section are for failure to comply with the legal obligations - penalties upheld.

  Demand of interest - HELD THAT:- As the demand of Service Tax upheld, demand for interest under Section 75 follows.

  Conclusion - i) The agreement does not transfer the right to use tangible goods with effective possession and control to the lessee, thus constituting a taxable service under Section 65(105)(zzzzj) of the Finance Act, 1994. Demand of service tax with interest and penalties upheld.

  Appeal partly allowed and matter remanded to original authority for recalculating the tax demand with cum tax benefit.

  ---

• 2024 (8) TMI 1541
  

  Money Laundering - cancellation of bail facility allegedly granted by the trial court to the applicants/accused - conspiracy and opening of 386 bank accounts in Syndicate Bank, by misusing the identity documents of various persons - Section 45 of PMLA, 2002 - HELD THAT:- In the decision of Tarsem Lal [2024 (5) TMI 837 - SUPREME COURT], the Hon'ble Supreme Court, after considering the legal provision enunciated in the earlier decision Pankaj Jain vs Union of India and others [2018 (2) TMI 1943 - SUPREME COURT], has held that where a non-bailable arrest warrant has been issued for the presence of the wanted accused while taking action under Section 82-83 of the Code of Criminal Procedure due to his absence, then in such cases such accused is not entitled to get the benefit of Section 88 of the Code of Criminal Procedure as a right, but in the present case, the investigating officer has taken a conscious decision not to arrest all the accused during the investigation, there is no such situation where the accused are evading their arrest or are absconding. According to Section 19 of the 'Act 2002', arrest is possible only on proper and strong grounds.

  It is clear from the guiding decision of Tarsem Lal and the subsequent orders passed that where the option of not arresting the accused has been exercised by the investigating officer by using the provisions of section 19 “Act 2002”, then in such a situation, after the presentation of the complaint, the provisions of section 200-205 of the Code of Criminal Procedure are applicable. Since the accused is not in custody, the question of release on bail does not arise and the provisions of section 45 “Act 2002” are not attracted in any way. If seen on the touchstone of the above legal system, the order passed by the trial court to execute a bond for the regular presence of the accused during the trial does not fall in the category of bail order, hence in such a situation the provisions of section 437, 439 and 439 (2) of the Code of Criminal Procedure are not attracted.

  The Enforcement Directorate has taken a conscious decision not to arrest the present accused, after which their strict attitude is completely opposite at present. Their undue leniency at one time and then adopting a very strict approach towards the accused, arresting some accused related to the same charge and opposing their bail application and deciding not to arrest some including the main accused, this functioning of the Enforcement Directorate cannot be considered fair, whereas in such cases, they are expected to perform their work impartially with full responsibility as per the legal provisions. On the basis of the above-referenced decision passed by the Hon'ble Supreme Court on 08.07.2024 in the case of accused Himansh alias Himanshu Verma [2024 (7) TMI 1610 - SC ORDER], the Enforcement Directorate is definitely required to introspect and introspect on its functioning. Therefore, the office is directed to send a copy of it to the Secretary, Ministry of Finance, Government of India, New Delhi by speed post and email to bring it to his notice.

  Conclusion - The challenged orders have been passed by the trial court under Section 88 of the Code of Criminal Procedure, which are completely in accordance with the facts and law, there is no justification for any interference in them. The present application filed by the Enforcement Directorate under Section 439(2) of the Code of Criminal Procedure is liable to be dismissed.

  Application dismissed.

  ---

• 2024 (8) TMI 1540
  

  Provisional attachment of petitioner's bank Account - wrongful availment of ITC - impugned order has been passed without the respondents initiating any other proceedings - summons u/s 70 of the CGST Act issued but the same was posted after the impugned order was passed - violation of principles of natural justice - HELD THAT:- The fact that the summons u/s 70 of the CGST Act was posted immediately after the date of the impugned order does not mean that the proceedings were not commenced prior to transmission of the summons. The summons is dated 20.05.2024 and thus was issued prior to the impugned order.

  A plain reading of Section 83(1) of the CGST Act indicates that an order of provisional attachment can be passed where proceedings have commenced under Chapter XII, Chapter XIV or Chapter XV of the CGST Act. Chapter XIV of the CGST Act includes Section 67 to Section 72 of the CGST Act. It is apparent that the summons has been issued under Section 70 of the CGST Act - which falls under Chapter XIV of the CGST Act prior to passing the impugned order - There is no cavil with the proposition that before making an order under Section 83(1) of the CGST Act, the Commissioner must necessarily form an opinion that such an order is necessary to protect the interest of the Government revenue. Further, the said opinion must be based on tangible material.

  In the present case, the impugned order records that the investigation has revealed that the petitioner had made suspicious and fraudulent payments to certain bank accounts and wrongfully availed and passed Input Tax Credit (hereafter ITC) to the extent of ₹87,54,083/ -. The Show Cause Notice dated 20.06.2024 sets out in detail the allegations regarding wrongful availment of the ITC. It is alleged that the petitioner had availed of the ITC from two suppliers namely M/s Brighton Sales Inc. & M/s Caretech System. According to the department, the said suppliers were found to be non-existent. The petitioner allegedly availed of the ITC amount to ₹87,54,083/- during the relevant period from the said suppliers. The petitioner thus has the knowledge of the allegations that he was required to meet - There are no ground to interfere with the impugned order attaching the petitioner's bank account.

  The petitioner has also challenged the issuance of the Show Cause Notice dated 20.06.2024 under Section 74 of the CGST Act on the ground that he had received the intimation dated 05.06.2024 only one day prior to the Show Cause Notice and had replied to the same. However, the same was not considered.

  Conclusion - Validity of the provisional attachment under Section 83 of the CGST Act, upheld.

  List on 22.10.2024.

  ---

• 2024 (8) TMI 1539
  

  Reopening of assessment - Addition u/s 68 r.w.s. 115BBE - HELD THAT:- We find no merits in reopening of assessment in the case of the assessee for the year under consideration on the basis that the assessee has received bogus gains by trading in scrips of NYSSA Corporation Ltd and M/s ACI Infocom Ltd, which was not disclosed, and thus the income chargeable to tax has escaped assessment within the meaning of section 147. Therefore, the entire observation/basis of the assessment is factually incorrect, since the assessment has been reopened on the wrong facts. Thus, the impugned assessment order deserves to be quashed.

  Addition u/s 68 - Even if the total receipt is treated as unexplained cash credit, the AO is required to reduce the said amount from the income side and then proceed further to make an addition under section 68 - Assessee filed its return of income declaring a total loss and if total profit from sale of shares of NYSSA Corporation Ltd and M/s ACI Infocom Ltd is reduced on account of reduction of total receipts from the income side, the same will increase the loss of the assessee, which is required to be set off with the addition made u/s 68 of the Act. Therefore, resulting in the entire exercise being tax-neutral. This position is supported by the CBDT’s Circular No. 11 of 2019, wherein it was clarified that up to the assessment year 2016-17, the losses can be set off from the additions made u/s 68. Decided in favour of assessee.

  ---

• 2024 (8) TMI 1538
  

  Refund claim u/s 54(3) of the CGST Act on account of Income Tax Credit (ITC) accumulated due to inverted tax structure - rejection on the ground that business / activity being carried on by the petitioner was supply of services being construction within the meaning of Clause/Entry 5(b) of Schedule II to the CGST Act and not a composite supply in relation to a works contract as contemplated under Clause/Entry 6(a) of Schedule II to the Act - rejection also on the ground that by virtue of N/N. 20/2017-Central Tax(Rate) dated 22.08.2017, works contract relating to Metro which is the subject matter of the present petition was excluded by the respondents.

  HELD THAT:- A perusal of the material on record including the contract agreement dated 23.05.2017 entered into between the petitioner and BMRCL is sufficient to come to the conclusion that the same was a ‘works contract’ within the meaning of Item / Entry / Clause 6 (a) of Schedule II to the CGST Act and not item / Entry / Clause 5(b) which was not applicable to the supply of services by the petitioner and consequently, the said findings recorded by the respondents for the purpose of rejecting the refund claim of the petitioner deserve to be set aside and the refund claim of the petitioner deserves to be allowed.

  Insofar as the rejection of the refund claim of the petitioner by the respondents by placing reliance upon the N/N. 20/2017 dated 22.08.2017 is concerned, it is relevant to state that earlier, the revenue had issued a Notification bearing No. 15/2017 dated 28.06.2017 which specifically stated that no refund of unutilized ITC shall be allowed under sub-section (3) of Section 54 of the CGST Act in case of supply of services specified in sub-item (b) of Item 5 of Schedule – II of the CGST Act; it is pertinent to note that as per this Notification, only supply of services specified in Item 5(b) were excluded and services contemplated in Item 6(a) were not excluded from claim for refund; it followed therefrom that works contract provided in Item / Entry / Clause 6(a) were not excluded from the claim for refund and consequently, the petitioner would be entitled to refund as claimed in its refund application, which was erroneously rejected by the respondents by passing the impugned orders, which deserve to be set aside on this ground alone.

  In the light of the undisputed fact that the refund claims of the petitioner related to the period from March 2018 onwards, it was the N/N. 1/2018 which was applicable and the same undisputedly including works contract relating to Metro also and since the aforesaid N/N. 20/2017 dated 22.08.2017 ceased to exist from 25.01.2018 upon its substitution by N/N. 1/2018 dated 25.08.2018, the petitioner was entitled to claim refund for the subject period from March, 2018 to July, 2019 and consequently, the impugned orders passed by the respondents deserve to be set aside and the refund claim of the petitioner deserves to be allowed on this ground also.

  The N/N. 15/2023 clarifies and elucidates the fact that refund of unutilized ITC is disallowed / excluded only in relation to construction activity intended for the purpose of sale in the real estate sector; in fact, this Notification clearly reinforces and reiterates that works contract are neither disallowed nor excluded from refund claims. This is amply evident from the GST council recommendations in its 52nd meeting which led to the issuance of the notification which states in agenda item 3 (ix) that refund on account of inverted duty structure is denied only for construction services rendered for sale of building in real estate sector and not to other construction or works contract services. In the light of this subsequent event also that has transpired / occurred during the pendency of the present petition, the impugned orders deserve to be quashed and the refund claim of the petitioner deserves to be allowed.

  Conclusion - Works contracts are distinct from service contracts and are not excluded from refund claims under the relevant notifications. The petitioner would be entitled to refund as claimed in its refund application, which was erroneously rejected by the respondents.

  The impugned order is quashed - petition allowed.

  ---

• 2024 (8) TMI 1537
  

  Request from the Assistant Director of the Enforcement Directorate for an extension of three months to issue a notice u/s 37(A) of the FEMA Act - respondent has raised objection to it because a period of more than two years has already passed and otherwise the matter is dragging only to find out the status of investigation. The prayer is made not to grant any further time.

  HELD THAT:- We have considered the rival submissions and find reasons to accept the prayer made by the officer present in the Tribunal and accordingly let this matter be posted on 4th December, 2024 to find out the outcome of the order passed by the Tribunal today.

  ---

• 2024 (8) TMI 1536
  

  Validity of re-assessment proceedings u/s 147 v/s assessment u/s 153A - information received from the DCIT, Central Circle – 1, Pune according to which details emerged during the statement recorded u/s 132(4) of Shri Sachin Nahar and during search and post search enquiries by the Investigation wing and also during the course of enquiries conducted during search proceedings by the Central Circle – 1(1), Pune that the assessee has received cash loan

  HELD THAT:- Certain documents were seized from the premises of Shri Sachin Nahar which contained information relating to the present assessee. Therefore, the provisions of section 153C are applicable as according to the said section, it is applicable if any information contained in the seized document relates to the assessee.

  In view of the detailed reasoning given by the CIT(A) / NFAC based on various decisions, we uphold the order of the Ld. CIT(A) / NFAC that the reopening of the assessment u/s 147 was not valid and the proper course of action that should have been taken by the Assessing Officer was u/s 153C as the provisions of section 153C of the Act are clearly applicable to the facts of the case. We, therefore, uphold the order of the CIT(A) / NFAC on the issue of validity of re-assessment proceedings. The first issue raised by the Revenue is accordingly dismissed.

  Addition made on the basis of the statement recorded u/s 132(4) and no other evidence whatsoever was available with the Assessing Officer except this statement. - As find from the reasons recorded as well as the assessment order that the assessee, according to the AO, has taken loan from Shri Sachin Nahar which is a liability. However, AO has treated the same as income u/s 69A of the Act.

  Once the AO himself has accepted that the assessee has taken loan through Shri Sachin Nahar, although the assessee denies to have taken any such loan, the provisions of section 69A could not have been invoked. Further, as mentioned earlier, neither during the course of assessment proceedings nor during the course of appellate proceedings, the AO has brought on record any evidence based on which the assessment has been made except the statement of Shri Sachin Nahar recorded u/s 132(4).

  We have already mentioned in the preceding paragraphs that the addition cannot be made merely on the basis of the statement recorded u/s 132(4) of the Act as the presumption u/s 132(4A) of the Act is available only in respect of the person from whom the paper is seized. It cannot be applied against the third party and hence, no addition could be made on the basis of evidence found with the third party. CIT(A) / NFAC on this issue, we do not find any infirmity in his order deleting the addition on merit. Accordingly, the order of the CIT(A) / NFAC on this issue is also upheld. Thus, the appeal filed by the Revenue is dismissed.

  ---

• 2024 (8) TMI 1535
  

  Requirement to register FIR under Bharatiya Nyaya Sanhita (BNS) - Requiremnet to follow guidelines under Section 41-A Cr.P.C. for offences punishable with imprisonment up to seven years - what would be the procedure of investigation, if the F.I.R. is registered after the commencement of new criminal laws for the offence committed prior to the enforcement of new criminal laws, as such investigation is not saved by Section 531(2)(a) of the BNSS to be conducted as per Cr.P.C.? - HELD THAT:- From the perusal of Section 6 of the General Clauses Act, it appears that the repeal of Cr.P.C. shall not affect any investigation, legal proceeding or remedy in respect of any liability, penalty or punishment accrued or incurred under the repealed Act and such investigation, legal proceeding or remedy will continue under the repealed Act. It is also clear from Section-6 of the General Clauses Act, the repeal of I.P.C. or Cr.P.C. will not affect any right, liability accrued or incurred under the repealed Act. Therefore, despite repealing of IPC and Cr.P.C., liability to get punishment under IPC will continue and remedy like an appeal under Cr.P.C. will remain as it is but the forum of appeal being procedural in nature will be as per the B.N.S.S.

  In the case of Hitendra Vishnu Thakur & Others Vs. State of Maharashtra & Others [1994 (7) TMI 343 - SUPREME COURT], the Hon’ble Supreme Court considered the effect of repealed provision by way of amendment in pending cases and summarised the law relating to the effect of the amendment of procedural and substantive law. Hon’ble Supreme Court in the case of Hitendra Vishnu Thakur [1994 (7) TMI 343 - SUPREME COURT] observed that while right to forum and limitation is procedural in nature, while right of appeal or right of action is substantive in nature and further observed that litigants have a vested right in substantive law but no such right exists in procedural law.

  Similarly, in the case of Neena Aneja & Another Vs. Jai Prakash Associates Ltd. [2021 (9) TMI 1155 - SUPREME COURT], Hon’ble Supreme Court again observed that the amendment on the matter of procedural law will be retrospective unless a contrary intention emerges from the statute.

  Thus, it is clear that if any offence is committed prior to the enforcement of new criminal laws, then if the F.I.R. is registered after the enforcement of new criminal laws, then the same will be registered under the provision of I.P.C. in view of the Article 20 of the Constitution of India, but the procedure for the investigation will be as per the BNSS. Similarly, in case the offence is committed after the enforcement of new criminal laws and thereafter the F.I.R. is registered, then the investigation would be conducted as per the BNSS. However, in case the offence is committed prior to the enforcement of new criminal laws, and F.I.R. is also registered prior to the enforcement of new criminal laws then the procedure of investigation would be as per the Cr.P.C. in view of Section 531(2)(a) of the BNSS. Therefore, the procedure of investigation provided by the circular dated 7.4.2024 of the Police Technical Services Headquarter, U.P. is absolutely correct.

  It has been pointed out that in view of the statement of the victim recorded under Section 164 CrPC, Section 376 (2)(n) has been deleted and all other offences are punishable with imprisonment upto seven years - Although the prayer for quashing of FIR has been made, but without insisting on the same, only submission is that all alleged offences are punishable with imprisonment upto seven years, therefore the police authorities are bound to follow the procedure laid down under Section 41-A Cr.P.C. The petitioners have been wrongly implicated and should not be arrested.

  Conclusion - The FIR should be registered under the IPC, but the investigation should follow the BNSS. Additionally, the guidelines under Section 41-A Cr.P.C. must be followed for offences punishable with imprisonment up to seven years.

  Petition disposed off.

  ---

• 2024 (8) TMI 1534
  

  Penalty u/s 271(1)(c) - as per report of the investigation wing, there were preponderance of probabilities of the long-term capital gains being claimed as bogus - HELD THAT:- It has been held time and again that matters relating to the assessment and penalty are different proceedings. So far as the matter relating to quantum additions made during the assessment proceedings is concerned, the same can be made on the basis of preponderance of probabilities, however, to attract the penal provisions of levy of penalty u/s 271(1)(c) the stricter yardstick of culpability is required to be established.

  As assessee had claimed a small amount of long-term capital gains and under the circumstances, the possibility cannot be ruled out that the assessee might be a bona fide beneficiary of the long-term capital gains. Though the additions have been made/confirmed on the basis of preponderance of probabilities in this case, however, to establish the allegation of concealment of income/ furnishing of inaccurate particulars of income to invoke penal provisions of section 271(1)(c) of the Act, stricter proof is required, which, in our view, is missing in this case.

  Hence, giving the benefit of doubte assessee should not be burdened with penal consequences of provisions of section 271(1)(c) of the Act. Decided in favour of assessee.

  ---

• 2024 (8) TMI 1533
  

  Addition u/s 68 - addition made towards share capital and share premium - HELD THAT:- AO has not bothered to discuss or point out any defect or deficiency in the documents furnished by the assessee of the share subscribing companies.

  These evidences furnished have been neither controverted by the AO during the assessment proceedings nor anything substantive brought on record to justify the addition made by him. Ld. AO has simply added the amount of share capital and share premium on the ground that assessee has not produced its directors.

  Thus, going by the records placed by the assessee of all the share subscribing companies, it can be safely held that the assessee has discharged its initial burden and the burden shifted on the Ld. AO to enquire further into the matter which he failed to do so. It is also noted from their audited financial statement and chart extracted above that all the investing companies have sufficient own funds available with them to make investment in the assessee.

  From the perusal of the paper book and the documents placed therein, it is vivid that all the share applicants are (i) income tax assessees, (ii) they are filing their income tax returns, (iii) share application form and allotment letter is available on record, (iv) share application money was made by account payee cheques, (v) details of the bank accounts belonging to share applicants and their bank statements, (vi) in none of the transactions there are any deposit of cash before issuing cheques to the assessee, (vii) all the share applicants are having substantial creditworthiness represented by their capital and reserves, (viii) details relating to ‘source of source’ also placed on record by the subscribers.

  We find that assessee has discharged its onus to prove the identity and creditworthiness of the share subscribing companies and the genuineness of the transactions towards sum received during the impugned year. Accordingly, we set aside the order of the ld. CIT (A) and delete the addition made towards share capital and share premium u/s. 68. Accordingly, grounds taken by the assessee in this respect are allowed.

  ---

• 2024 (8) TMI 1532
  

  Penalty u/s 43 of Black Money Act - non disclosure of foreign assets from A.Y. 2016-17 - HELD THAT:- Admittedly, the Assessee has not disclosed the foreign assets in particular schedule i.e. FA Schedule, however, it is a fact that the Assessee has duly disclosed the foreign assets i.e. ESOP and its value in “Schedule AL” of the income tax return and the employer of the Assessee has also deducted the TDS on the value of the foreign asset/ESOP and shown the details/value of the same in Form No.16 Part–B as well as in Form No.12BA. Hence, it cannot be said that the Assessee has not disclosed the foreign assets in any manner.

  As decided in M/s. Ocean Diving Centre Ltd. [2023 (12) TMI 54 - ITAT MUMBAI] considering the fact that the Assessee has disclosed the foreign assets may not be in form FA but otherwise in its return of income ultimately held that the penalty is not warranted.

  As it is not the case of the Revenue Department that the foreign asset/ESOP remained undisclosed entirely and there was malafide intention or ulterior motive for hiding the foreign assets from disclosing ; and as in the case of Hindustan Steel Ltd. [1969 (8) TMI 31 - SUPREME COURT] has laid down the dictum that simply on the technical or venial breach of the law the penalty is not automatically leviable - Decided in favour of assessee.

  ---

• 2024 (8) TMI 1531
  

  Penalty u/s 271 (1) (c) - Allegation of defective notice - non specification of clear charge - HELD THAT:- We observe from the notices above that the limb on which the penalty has been imposed is not specified. The inappropriate portion of the notice has not been struck off. It is discernible that the AO had not striked off either of the two limbs i.e. concealment of the particulars of income; and furnishing of inaccurate particulars.

  As in Mohd. Farhan A. Shaik[2021 (3) TMI 608 - BOMBAY HIGH COURT (LB)] considered this very issue. Answering the question in affirmative, the full bench held that a defect in notice of not striking the inappropriate words vitiates the penalty even though the AO had properly recorded the satisfaction for imposition of penalty in his order u/s 143 (3) of the Act.

  The Hon'ble Karnataka High Court in SSA Emeralds Meadows [2016 (8) TMI 1145 - SC ORDER] also echoed the view that if the charge of penalty is not specific in the notice issued to the assessee u/s 274 r.w.s.271 (1) (c) meaning thereby if such notice is ambiguous as to whether penalty is levied for concealment of income or for providing of inaccurate particulars of income, then such notice is void ab initio and bad in law.

  As relying on Manjunatha Cotton & Ginning Factory [2013 (7) TMI 620 - KARNATAKA HIGH COURT] wherein the court had enshrined that levy of penalty is altogether different from assessment procedures. The penalty cannot be levied in a routine manner. The principles of natural justice must be followed wherein the notice served on the assessee must clearly and unambiguously specify the charge on which the Department proposes to levy the penalty so that the assessee can be ready with his defence and prepare his case and submissions accordingly. Decided in favour of assessee.

  ---

• 2024 (8) TMI 1530
  

  Challenge to order directing the issuance of a Sale Certificate and distribution of proceeds - grievance of the Appellant is that now before the Adjudicating Authority the amount which was noticed by this Tribunal has crystallised is to be re-examined - HELD THAT:- The ends of justice would be served in issuing the Notice in the Appeal.

  Let Reply be filed within two weeks. Rejoinder be filed within further two weeks.

  ---

• 2024 (8) TMI 1529
  

  Challenge to E-Auction Sale Notice published by the Liquidator for sale of the Corporate Debtor as a “going concern” scheduled on 04.04.2024 - realization of secured Assets as per Section 52(3) of IBC - extension of time period to pay to the Liquidator the costs as more particularly mentioned in Regulation 21(A) of the Liquidation Regulations - HELD THAT:- In view of the stand now taken by the liquidator by filing an affidavit before the Adjudicating Authority, there is no necessity of considering any issue which has arisen in this appeal. The appellant having been offered to pay the amount of Rs. 39,30,54,422/-.

  There are no reason to keep the appeal pending. The appeal is disposed of.

  ---

• 2024 (8) TMI 1528
  

  Condonation of delay of 425 days in filing the Original Application - imposition of penalty of stoppage of one increment with cumulative effect - HELD THAT:- It is an undisputed fact that appellant was issued with the article of charge alleging that he had deserted his wife and two school going children and was residing along with another lady. The said disciplinary proceedings came to be initiated on account of a complaint lodged by the wife of the appellant. When the Inquiry Officer commenced the inquiry, she filed an affidavit stating thereunder that she had filed the complaint under mistaken notion and she withdrew the complaint. In fact, in the articles of charge issued to the appellant she was cited as a witness by the respective authority and neither she appeared before the Inquiry Officer nor she had deposed in the inquiry proceedings. Though, she had already filed an affidavit withdrawing her complaint against the appellant, yet the Inquiry Officer proceeded with the inquiry and submitted the report, holding appellant guilty of the charge of deserting his wife and children and exonerating him of charge of residing with another lady.

  If negligence can be attributed to the appellant, then necessarily the delay which has not been condoned by the Tribunal and affirmed by the High Court deserves to be accepted. However, if no fault can be laid at the doors of the appellant and cause shown is sufficient then both the Tribunal and the High Court were in error in not adopting a liberal approach or justice oriented approach to condone the delay.

  Conclusion - i) The delay in filing application was sufficiently explained, and the failure to condone it was an error. ii) The penalty imposed on the appellant was unjustified due to the lack of evidence and the withdrawal of the complaint.

  Matter remanded back to the Tribunal or High Court or to the disciplinary authority for reconsideration of the matter - appeal allowed by way of remand.

  ---

• 2024 (8) TMI 1527
  

  Penalty u/s 271(1)(c) - defective notice u/s 274 - non specification of clear charge/Default - as decided by HC [2023 (8) TMI 1373 - DELHI HIGH COURT] it is not clear whether the AO intended to levy a penalty on the respondent/assessee for concealment of particulars of his income, or furnishing inaccurate particulars, thus issue is covered against the appellant/revenue - HELD THAT:- There is gross delay of 245 days in filing this Special Leave Petition. The reasons assigned are neither satisfactory nor sufficient in law to be condoned.

  Special Leave Petition also stands dismissed on the ground of delay.

  ---

• 2024 (8) TMI 1526
  

  Valuation of goods cleared by the appellant - related persons under Section 4(3)(b) of the Central Excise Act, 1944 - Applicability of Rule 9 read with Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 - HELD THAT:- During the entire period of dispute it is not even the case of the revenue that entire goods cleared by the appellant were cleared by the appellant to M/s Maruti Udyog Limited - Rule 9 of the Valuation Rules, 2000 as it existed during the relevant time clearly stated “When the assessee so arranges that the excisable goods are not sold by an assessee except to or through a person who is related in the manner specified in either of sub-clause (i), (ii) or (iv) of Clause (b) of sub-section (3) of Section 4 of the Act,”. Thus in terms of the above rule it is evident that the said rule applies only in case were the assessee was selling the entire goods through the related person. In the present case when the appellant had sold the goods to unrelated buyers and also to related buyers then the said rule would not apply.

  Even if the appellant and M/s Maruti Udyog Ltd. are held to be interconnected undertaking and hence related in terms of Section 4 (3) (b) of the Central Excise Act, 1944 then also Rule 9 cannot be invoked for determination of the value in the present case.

  In the present case the demand has been determined by application of Rule 9 read with Rule 8, in a unique manner whereby 10% notional profit has been added to the assessable value determined either on the basis of transaction value or in terms of Section 4A. The logic behind the same is not understood as the said rule itself lays down that assessable value shall be 110% percent of the Cost of Production - there are no legal provision which supports the manner of determination of assessable value by just adding 10% notional profit to the value of clearances as per Section 4 (1) (a) or assessable value determined as per Section 4A of the Central Excise Act, 1944.

  Conclusion - i) The impugned SCN rightly alleges that the party i.e. M/s Denso India Ltd. & Ms Maruti Udyog Ltd. are inter-connected undertakings and have mutual business interest and therefore, they qualify as 'related parties'/ related person under Section 4(3)(b) of the Central Excises and Salt Act, 1944. ii) There are no legal provision which supports the manner of determination of assessable value by just adding 10% notional profit to the value of clearances as per Section 4 (1) (a) or assessable value determined as per Section 4A of the Central Excise Act, 1944.

  The impugned order set aside - appeal allowed.

  ---

• 2024 (8) TMI 1525
  

  Classification of Iron Ore Fines (IOF) - rate of export duty - Undervaluation - Artificially splitting of consignments to evade higher customs duties - Show cause notices issued demanding differential customs duty - Uniform Customs procedure - determination of Fe contents - Dry Metric Ton (DMT) basis or Wet Metric Ton (WMT) basis - Imposition of penalty under Section 114AA - HELD THAT:- In these set of facts, IOF Fe content is to be determined on WMT basis as held by the Hon’ble Bombay High Court in the case of V.M. Salgaocar Vs. The Assistant Commissioner of Customs (Export), Goa [2022 (9) TMI 1306 - BOMBAY HIGH COURT].

  The said decision has been provided by this Tribunal in the case of M/s. Bagadiya Brothers Pvt. Ltd Vs. Commissioner of Customs (Port) Calcutta & Commissioner of Customs of Bhubaneshwar [2023 (9) TMI 827 - CESTAT KOLKATA], wherein this Tribunal observed as under: held that

  The issue stands decided as early as 1997 by Hon’ble Supreme Court in the case of Union of India Vs Gangadhar Narsingdas Aggarwal [1995 (8) TMI 73 - SUPREME COURT] and subsequent CBEC Circular No. 4/2012- Cus dated 17.12.2012 which was issued for adoption of uniform Customs procedure in all Customs Houses. In the said Circular, it was stipulated that for the purpose of charging of export duty the assessment of Iron ore, determination of Fe contents is required to be made on Wet Metric Ton (WMT) basis which in other words mean deducting the weight of all impurities (inclusive of moisture) out of the total weight/Gross Weight to arrive at Net Fe contents.

  Thus, By following the decisions and Board Circular cited above, We hold that the Fe content is to be calculated on the basis of WMT and the Fe content is calculated on WMT basis same for 5 consignment involved.

  Following the order of M/s. Global Associates Vs. Commissioner of Customs (Preventive), Bhubaneshwar, we hold that the consignment are required to be considered as consolidated consignments and in all the consignments the Fe content is less than 58%. In that circumstances, the Respondent are not required to pay any duty.

  With regard to observation made by the Ld. Adjudicating Authority with respect to shipping bill no. 6005016 dated 11th May, 2017 is contrary to the observations made by the Adjudicating Authority in the impugned order. Therefore, the said observation made by the Adjudicating Authority is bad in law and not sustainable. Therefore, we hold that in all the 5 consignment which has been splitted into 13 consignments the Respondent is not liable to pay any export duty.

  Therefore, no demand is sustainable against the Respondent. As there is no demand of duty sustainable against the Respondent consequently, no penalty can be imposed on the Respondent under Section 114AA of the Customs Act, 1962.

  Accordingly, the appeals filed by the revenue are dismissed and cross objection filed by the Respondents are allowed, with consequential benefit, if any.

  ---

• 2024 (8) TMI 1524
  

  Unexplained cash credits u/s 68 r.w.s. 115BBE - HELD THAT:- The assessee has not field his bank statement showing the pattern of deposit or withdrawal during the earlier or subsequent period.

  We find that CBDT in Circular No. 3/2017 has allowed Rs. 2.50 lacs in case of individual, wherein the cash in the form of 500 or 1000 currency notes were deposited during demonetization period.

  We find that being an individual, the assessee has offered more than Rs. 20.00 lacs for taxation for the year under consideration, thus the assessee is further allowed benefit of Rs. 2.00 lacs.

  Assessee is allowed relief of Rs. 4.50 lacs and rest of the addition of Rs. 8.80 lacs i.e. (Rs. 13,30,000-4,50,000/-) is sustained.

  Addition u/s 115BBE at enhanced rate of tax @ 60% - We find that that Division Bench of this Tribunal in case of Samir Shantilal Mehta [2023 (5) TMI 1279 - ITAT SURAT], Arjunsinh Harisinh Thakor [2023 (6) TMI 770 - ITAT SURAT] and in Jitendra Nemichand Gupta [2023 (6) TMI 1338 - ITAT SURAT] and Punjab Retail Pvt. Ltd [2021 (11) TMI 405 - ITAT INDORE] and Sandesh Kumar Jain [2022 (11) TMI 126 - ITAT JABALPUR] held that applicability of amended provision of section 115BBE is not retrospective. Thus, AO is directed to tax the remaining addition at normal rate of tax and applicable surcharges if any. Thus, the assessee is allowed relief against taxing the addition at higher rate under section 115BBE.

  Appeal of the assessee is partly allowed.

  ---

123456........ 79