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Showing 61 to 80 of 1563 Records
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2024 (8) TMI 1503
Assessment u/s 153A - ITAT not treating the statement u/s 132(4) as incriminating in nature and thereby deleting the addition - HELD THAT:- Undisputedly, the assessment was confined to Section 153A and consequently the significance of the incriminating material found in the course of the search alone possibly constituting the basis for any additions.
Since and undisputedly the pen-drive was an article which was not recovered in the course of the search but constituted material which had been obtained by the appellants through the exchange of information route, we find no ground to interfere with the view expressed by the Tribunal.
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2024 (8) TMI 1502
Unexplained income u/s 69A - assessee had deposited cash in the bank account - HELD THAT:- The amount as accepted as the turnover of the assessee and rest amount deposited Specified Bank Notes as unexplained income.
AO has accepted the partial deposits made by the assessee as business turnover and rest as unexplained income without giving any reasons. The AO should have been given the reasons on what material the amount deposited in SBNs was the unexplained income of the assessee when the AO has accepted the amount of Rs 600000/- as his turnover the balance cash in SBNs should have also been accepted the turnover of the assessee. The assessee has discharged the onus that the transaction of the cash deposit was genuine. Assessee appeal allowed.
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2024 (8) TMI 1501
Cash deposited during demonetization not allowed as sales of the appellant by the CIT(A) - HELD THAT:- We are of the considered view that there is no abnormality in deposit of cash in the bank account during the relevant year particularly in view of the finding of the CIT (A) that cash deposits partly prior to demonetization and partly post demonetization are nothing but sales consideration deposited in the bank account.
Hence, following the reasoning given in Ramesh Kochar [2022 (4) TMI 1277 - ITAT DELHI] we hereby hold that the addition u/s 69A of the Act is uncalled for and the CIT (A) is not justified in upholding the same. Consequentially, we delete the addition sustained by the Ld. CIT(A). Appeal of the assessee is allowed.
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2024 (8) TMI 1500
Estimation of income - bogus purchases - HELD THAT:- We find no infirmity in the order of the CIT (A) in which he has directed to restrict the addition to the extent of gross profit at the rate to be applied as the GP rate declared on the genuine purchases. Accordingly, the appeal of the revenue is dismissed and the AO is directed to recompute the addition to be by applying GP rate made in accordance with the directions of the Ld. CIT (A). Appeal of the revenue is dismissed.
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2024 (8) TMI 1499
Maintainability of petition - availability of alternative remedy - Challenge to decision of the adjudicating authority to allow the petitioner’s application for refund of input tax credit - HELD THAT:- Concededly, the petitioner has an efficacious remedy of an appeal under Section 112 of Central Goods and Services Tax Act, 2017, before the Goods and Services Tax Appellate Tribunal.
It is considered apposite to entertain the present petition, leaving it open to the petitioner to avail its statutory remedies - petition disposed off.
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2024 (8) TMI 1498
Revision u/s 263 - Disallowance of LTCG - HELD THAT:- Admittedly, the appeal against the main addition on account of disallowance of LTCG is pending before the CIT(Appeals) and therefore in view of the decision rendered in the case of Smt. Renuka Philip [2018 (12) TMI 129 - MADRAS HIGH COURT] wherein it was held that the assumption of jurisdiction u/s 263 of the Act on a smaller issue, based on the larger issue is un-sustainable, the impugned order is un-sustainable .
Even from the statement and relevant answers given by the Assessee, it clearly appears that the Assessee is well acquainted with the investment in shares and regularly investing in the share market and sold the shares when the price of the shares were increased substantially. Nowhere from the statement recorded u/s 131 of the Act, it appears that the Assessee has ever paid any commission/expenses as alleged by the PCIT for obtaining the said bogus LTCG.
Considering in totality specifically the statement of the Assessee recorded by the AO u/s 131 of the Act as re-produced in the original assessment order and the fact that the main/larger issue/addition on the basis of which the Ld. PCIT has alleged that the Assessee has paid commission, is pending for adjudication before the Ld. CIT (A), we are inclined to set aside the impugned order, consequently the same is set aside. Appeal filed by the Assessee stands allowed.
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2024 (8) TMI 1497
TP Adjustment - using multiple air data for the purpose of determining the margins of comparables for the year 2008-2009 - appellant has strenuously argued that the order passed by the TPO was in conformity with the provisions of Rule 10B (2) and 10B(4) of the Income Tax Rules, 1962 and both CIT(Appeals) and the ITAT have erred in setting aside the order - HELD THAT:- TPO on identical facts of the Assessees’ case for the subsequent assessment proceedings of 2010-2011, 2011-2012, 2012-2013 and 2013-2014 had rejected the comparables. Once the TPO himself has not accepted the said comparable which were considered for assessment proceedings in question while examining the subsequent assessment proceedings, we do not find any justification to allow the inclusion of such comparables for the first time for the year 2009-2010. Moreso, as even for the previous years, the comparables which may have taken into consideration as accepted by the TPO, the departure of course be made for each year assessment but as noticed by both the appellate authorities, the Revenue would have to establish compelling reasons for such departure.
No substantial question of law which needs to be examined afresh by this Court after the concurrent findings of the both the appellate authorities.
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2024 (8) TMI 1496
Disallowance of 80G claim - Addition being 50% donation paid to Saint Francies Home (Regd.) Society, Pathankot out of CSR funds - HELD THAT:- Identical issue has been decided in Interglobe Technology Quotient Private Limited [2024 (6) TMI 8 - ITAT DELHI] legislative intent and the rationale of disallowance of CSR expenditure referred to in section 135 of the Companies Act, that such expenditure is application of income and not incurred for the purposes of business. We are of considered view that this in itself justifies the grant of deduction u/s 80G. As CSR expenditure is application of income of the assessee under the Income Tax Act, that means it continues to form part of the Total income of the assessee.
Section 80G(1) of the Act provides that in computing the total income of an assessee, there shall be deducted, in accordance with the provisions of this section, such sum paid by the assessee in the previous year as a donation. Further, section 80G(2) lists down the sums on which deduction shall be allowed to the assessee. Section 80G falls in Chapter VIA, which comes into play only after the gross total income has been computed by applying the computation provisions under various heads of income, including the Explanation 2 to section 37(1) of the Act. Thus, there is no correlation between suo-moto disallowance in section 37(1) and claim of deduction under section 80G.
As with regard to the reasoning that CSR expenditure are not voluntary but mandatory in nature due to penal consequences, we are of considered view that voluntary nature of donation is by nature of fact that it is not on the basis of any reciprocal promise of donee. The CSR expenditures are also without any reciprocal commitment from beneficiary being philanthropic in nature. The Act permits deduction of donations as per Section 80G of the Act, even though, assessee is not gaining any benefit out of any reciprocity from donee. Similar is the case of CSR expenditure. Thus the reasoning of learned Tax Authority, the CSR expenditure is mandatory, does not justify disallowance of these expenditures u/s 80G, if other conditions of section 80G are fulfilled. Assessee appeal allowed.
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2024 (8) TMI 1495
Ex parte assessment order u/s 147 r.w.s 144 - as submitted that the assessee may be given an opportunity to furnish the true and actual facts before the AO - HELD THAT:- We are of the view that the interests of justice will be well-served if the assessee is given an opportunity to present his case before the Assessing Officer. In view of this, the impugned order of the AO is set aside and the matter is restored to the file of the AO for de novo assessment. Appeal of the assessee is treated as allowed for statistical purposes.
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2024 (8) TMI 1494
Money Laundering - disproportionate wealth in the predicate offence - seeking relief to discharge the accused from the offence of Money Laundering as defined under Section 3 and punishable under Section 4 of Prevention of Money Laundering Act - Applicability of principles of double jeopardy - HELD THAT:- The scope of PMLA is independent and cannot be compared with the dealing of offences under other enactments including Prevention of Corruption Act. The very purpose and object of PMLA is to deal with economic offences. Therefore, the provisions are stand alone and the Enforcement Directorate is conferred with the powers to prosecute the persons under Section 3 of the PMLA.
The principles of double jeopardy has no application. The other grounds raised by the petitioner are connected with the merits of the case. Section 24 of the Act provides burden of proof and it lies on the affected persons. Therefore, the petitioner has to establish their innocence during the course of trial through documents and evidences available on record. Grounds touching upon the merits cannot be adjudicated in a discharge petition. The probate value of the evidences cannot be considered while dealing with the discharge petition by the Courts. Any such adjudication would cause prejudice to the interest of either of the parties and result in miscarriage of justice. All such grounds are to be considered during the course of trial elaborately.
Prima facie, there are no reason to interfere with the order impugned, since the respondent could able to establish that there is a prima facie case to invoke the provisions of PMLA and rightly they have done it. It is for the parties to establish their respective case before the trial court in the manner known to law.
The order impugned dated 16.11.2022 in Crl.M.P.No.7727 of 2022 in Spl.C.C.No.3 of 2022 stands confirmed - Consequently, this Criminal Revision Petition stands dismissed.
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2024 (8) TMI 1493
Refund claim for 4% Additional Duty of Customs leviable u/s 3(5) of Customs Tariff Act, 1975 - lower authority has rejected the claim for non-fulfilment of condition 2(b) and 2(e) of the Notification No. 102/2007-Cus dated 14.9.2007 on the ground that the sales invoices do not bear the mandatory indication “no credit of the additional duty of customs levied under sub-section (5) of section 3 of the Customs Tariff Act, 1975 shall be admissible” as required under condition No. 2(b) of Notification No. 102/2007-Cus., dated 14.9.2007.
HELD THAT:- The appellant is a trader importer issuing commercial invoices while trading in imported computer and electronic items. For availing CENVAT credit, an invoice would have to indicate the quantum of duty paid separately for each type of duties in terms of the CENVAT Credit Rules. Where a commercial invoice shows no details of the duty paid, no credit can be availed by the receiver of the goods. Moreover, the Chartered Accountant Certificates shows that the Appellant has not passed on the burden of SAD paid by them to their customers.
The said Certificate has not been challenged or found fault with by revenue. Hence the conditions of the notification are ratified. In the circumstances the refund could not have been rejected by the lower authority.
Judicial discipline requires that a Bench of lesser quorum should not doubt the correctness of a view taken by a Bench of larger quorum. Hence apart from my findings above also humbly defer to the views of the Larger Bench.
We set aside the impugned order and allow the appeal. Appellant is eligible for consequential relief, if any, as per law. The appeal is disposed of accordingly.
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2024 (8) TMI 1492
Default in payment of duty beyond thirty days from the due date as prescribed in sub rule (1) of Rule 3 of Cenvat credit Rules 2004 - Violation of Rule 8(3A) of Central Excise Rules 2002 - main argument of appellant is that Rule 8(3A) of Central Excise Rules, 2002 has been struck down as unconstitutional by the Hon’ble High Courts and therefore the confirmation of demand cannot sustain - HELD THAT:- The Hon’ble High Court in the case of INDSUR GLOBAL LTD. VERSUS UNION OF INDIA & 2 [2014 (12) TMI 585 - GUJARAT HIGH COURT] has struck down Rule 8(3A) as unconstitutional on the ground that the prescribed Rule which says that the duty has to be paid without using the Cenvat credit is arbitrary and infringement of substantive right of Cenvat credit.
The Hon’ble High Court in the case of M/S. MALLADI DRUGS & PHARMACEUTICALS LTD. VERSUS THE UNION OF INDIA, THE COMMISSIONER OF CENTRAL EXCISE [2015 (5) TMI 603 - MADRAS HIGH COURT] had declared the provision to be unconstitutional. Once the provision is declared by any High Court as unconstitutional then the said provision is non-existent.
The demand cannot sustain. In the result, the impugned order is set aside - The appeal is allowed.
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2024 (8) TMI 1491
Wrongful availment of CENVAT Credit on capital goods - contravention of provisions of Rule 4(2)(a) of CCR, 2004 - HELD THAT:- In the present case, the appellant had transferred the capital goods from their Vellore factory to the appellant unit situated in Ranipet on account of shifting of the entire factory. Rule 10 of CCR, 2004 allows transfer of credit in case of shifting of factory. Hower, the appellant had opted to raise an invoice for shifting the capital goods to their unit at Ranipet. They paid the duty on the capital goods as per the invoice raised while shifting and the credit of such duty was availed in the Ranipet unit. Being shifting of the capital goods, the appellant took entire credit in the same year. The allegation is that the appellant ought not to have taken entire credit in the same financial year. For this reason, 50% of the credit to the tune of Rs. 26,97,256/- has been denied by the Department and the said amount has been confirmed alleging violation of Rule 4(2) of Central Excise Rules, 2002. It is to be noted that even if the appellant is entitled to take only 50% credit in the first financial year, they would be able to take the balance credit in any subsequent year. The error is only with regard to the procedure of taking credit - When the appellant is eligible to take the balance credit in subsequent financial year and has paid the interest and penalty in this regard, the Department ought not to have issued any Show Cause Notice. In any case, it is only a procedural infraction, and the appellant having paid interest as well as the penalty, the demand of duty confirmed along with interest and penalties in this regard requires to be set aside.
Demand of duty raised alleging violation of Rule 8(3A) of Central Excise Rules, 2002 - HELD THAT:- The Hon’ble High Court of Bombay in the case of THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS NASHIK – II COMMISSIONERATE VERSUS M/S. NASHIK FORGE PVT. LTD. [2018 (9) TMI 1582 - BOMBAY HIGH COURT] has held that Rule 8(3A) to be unconstitutional as it infringes upon the substantive right of an assessee to utilize Cenvat credit. Further, the Tribunal in the case of INDUS TROPICS LTD VERSUS C.C.E. & S.T. -RAJKOT [2023 (3) TMI 950 - CESTAT AHMEDABAD] has followed the decisions of various High Court to set aside the demand alleging violation of Rule 8(3A) of Central Excise Rules, 2002.
The demand raised alleging violation of Rule 8(3A) cannot sustain and requires to be set aside - the impugned order is set aside - The appeal is allowed.
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2024 (8) TMI 1490
Status of the Appellant - Financial Creditor or Operational Creditor? - HELD THAT:- There is no error in the impugned order because the secured creditor can be both operational creditor as well as the financial creditor but financial creditor is altogether different from the operational creditor and since it has been held that a similar authority, namely, Noida Authority is an operational creditor, claiming the same relief on the basis of the lease deed, the Appellant, namely, GNIDA cannot be held to be a Financial Creditor on the same facts and has rightly been held to be an operational creditor.
There is hardly any merit in this appeal for the interference and hence, the same is hereby dismissed.
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2024 (8) TMI 1489
Income deemed to accrue or arise in India - scope of 'make available’ clause - Repairs & Maintenance Services - FTS or not - assessee is a non-resident, TRC holder of USA primarily engaged in the business of providing services in the nature of repair & maintenance of aircraft equipment - DRP held that “repair and maintenance services of aircraft parts is a very specialized field requiring technical expertise skill and experience at every stage, thus fall under ambit of services under Fee for Technical Services - HELD THAT:- We find that it could be technical services but the ‘make available’ clause is totally absent.
The repairs & maintenance services are ‘not made available’ to the clients so that in future they can repair & maintain their own. There is no transfer of technology, no transfer of skill or knowledge or processes. There is no imparting of experience or benefit.
DRP wrongly interpreted that the ‘enduring benefit’ gained by the client by the way of repairs & maintenance is akin to ‘make available’ which cannot be accepted. Rather, it should be the enduring benefit to the clients to undertake repairs & manage the maintenance services, then only it can be considered that the ‘make available’ clause is satisfied. Since, such ‘make available’ clause is not satisfied, the services cannot be treated as FTS as per India-USA DTAA.
Corporate Allocation Charges – FTS or not - assessee submitted that they have incurred various charges such as IT expenses, legal charges, back office support on behalf of Goodrich Aerospace Services Pvt. Ltd. and claimed that such expenses have been reimbursed without any profit element - HELD THAT:- From the facts on record, we find that the amounts have been received by the assessee as reimbursement from Goodrich Aerospace Services Pvt. Ltd. an Indian company and it collected the aforesaid charges on the basis of actual expenses incurred. The assessee was not engaged in providing any kind of ‘technical’ or ‘consultancy services’ or training which would enable the Indian customer to perform the services independently in future. It was merely customer based information and guidance to the recipient. There was no problem solving skill or operations or knowledge or technology which has been made available to the client. Hence, we hold that the provisions of FTS as per the Article of India-USA DTA are not attracted on the services.
Assessee appeal allowed.
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2024 (8) TMI 1488
Maintainability of appeal in High Court against order of ITAT - subtanstial question of law or not? - validity of assessment u/s 143(3) or 153C - ITAT justification in annuling the 143(3) assessment on the ground that the assessment should have been framed u/s 153C - ITAT holding that the mere financials of any entity, which were seized during the search action are incriminating material - HELD THAT:- A bare reading of the Section 260-A , it is apparent that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the Act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements.
A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread. (See : Madan Lal Vs. Mst. Gopi & Anr. [1980 (8) TMI 204 - SUPREME COURT])
This Court refrains from entertaining this appeal as there is no perversity in the order passed by the ITAT since the ITAT has dealt with all the grounds raised by the appellant in the order impugned and has passed a well reasoned and speaking order taking into consideration all the material available on record. The Tribunal being a final fact finding authority, in the absence of demonstrated perversity in its finding, interference with the concurrent findings of the CIT (A) as well as the ITAT therewith by this Court is not warranted.
For the aforesaid reasons, we have no hesitation in holding that no question of law, much less any substantial question of law arises from the order of the Tribunal requiring consideration of this court. There is no merit in the appeal as making addition/deletion cannot be said to be erroneous and prejudicial to the interest of revenue. Thus, in our opinion, the present case does not involve any substantial question of law so as to meet the provisions of Section 260(A) of the Act for admitting the appeal.
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2024 (8) TMI 1487
Initiation of proceedings under Sections 129 and 130 of the KGST Act - release of the confiscated goods - HELD THAT:- The rival contentions as regards proceedings initiated/to be initiated under Sections 129 and 130 of the KGST Act after the amendment to the KGST Act with effect from 28/29.09.2021 requires consideration.
In the meanwhile, by way of an interim arrangement, the respondents are directed to release the subject goods and conveyance in favour of the petitioner, immediately upon the petitioner depositing a sum of Rs.4 Lakhs with the respondents, which shall be subject to the final outcome of the petition.
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2024 (8) TMI 1486
Validity of final Assessment Order as barred by limitation - HELD THAT:- As RELYING ON Fiber Home India Pvt. Ltd. [2024 (2) TMI 1382 - DELHI HIGH COURT] we hold that the Assessment Order is barred by limitation. Appeal of the assessee is allowed.
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2024 (8) TMI 1485
Challenge to order of assessment was passed on self-assessment basis, accepting the returns filed - Denial of exemption on the ground of second sales of cashew kernels - Penalty under Section 16(2) of the Tamil Nadu General Sales Tax Act, 1959 - burden to prove - HELD THAT:- Admittedly, the petitioner has not produced any material, barring invoices, to establish purchases from the alleged sellers. No attempt was made at any stage of the proceedings to produce the three entities who are stated to have effected sales to the petitioner. Moreover, the enquiry conducted by the respondents has established that the dealer registration numbers furnished by the petitioner belonged to other registered dealers and not the entities named as sellers by the petitioner.
The burden of proving a transaction falls upon the entity making the claim in respect of that transaction and thus, the onus of establishing a claim of second sales falls solely upon the dealer making such claim. Section 10(2) specifically states that 'Notwithstanding anything contained in this Act or in any other law for the time being in force, a dealer in any of the goods liable to tax in respect of the first sale or first purchase in the State shall be deemed to be the first seller or first purchaser as the case may be of such goods and shall be liable to pay tax accordingly on his turnover of sale or purchase relating to such goods, unless he proves that the sale or purchase, as the case may be of such goods had already been subjected to tax under this Act.'
In the present case, the dealer could well have produced the alleged vendors to support the claim of second sales. This was never done at any stage of the proceedings and hence of the categoric view that there is nothing to support the assessee's contention in this regard.
In Govindan & Co. [1974 (2) TMI 69 - MADRAS HIGH COURT], there was an inspection of that assessee's premises. Clarifications were sought in regard to certain purchases and the explanation put forth by Govindan and Co., was that the purchases had been made from 12 dealers. Since that dealer had not been in a position to prove the purchases, that turnover had been estimated and brought to tax.
Actual payment of the tax at the point of sale is not necessary to establish a second sale. However, in the present case, the petitioner has not discharged the burden of proving the first sale and thus can draw no benefit from the ratio of Govindan and Co. In light of the discussion supra, the concurrent conclusion of the authorities in rejecting the claim of second sales is unassailable and we uphold the same.
The admitted facts on record establish the position that the petitioner has (i) consciously put forth a claim of exemption on second sales (ii) furnished the details of fictitious dealers in support of the aforesaid claim (iii) the supporting particulars submitted are false to the knowledge of the petitioner as no attempt was made to produce those dealers before the authorities for confirmation of the alleged first sales. The aforesaid factual position would establish fully that the matter falls within the four contours of the phrase 'wilful non-disclosure of assessable turnover'. Hence, the levy of penalty upheld as well.
This writ petition is dismissed.
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2024 (8) TMI 1484
Dismissal of appeal - appeal dismissed on the basis that the appeal has not been signed by authorised signatory and the Appellant has not submitted Board Resolution under the Companies Act, 1956 - HELD THAT:- Appellate Authority who will hear this appeal shall give personal hearing to Appellant, notice whereof shall be communicated atleast 5 working days in advance. The order to be passed shall be a reasoned order dealing with all submissions of Appellant. If the Appellate Authority is going to rely on any order or judgment of any Court or Tribunal or any other forum, a list thereof shall be made available along with the notice for personal hearing. If the order or a judgment is unreported then a copy thereof shall also be made available along with the notice. This is to enable Appellant to deal with/distinguish the judgment or the order.
The appeal shall be disposed by 30th November 2024.
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