|
Advanced Search Options
Case Laws
Showing 301 to 320 of 16576 Records
-
2021 (12) TMI 1229
Dishonor of Cheque - proclaimed offender or not - amicable settlement between the parties- continuation of proceedings under Section 174A I.P.C. - HELD THAT:- It is apparent that the present FIR in question had been registered on account of the petitioner having been declared as proclaimed person vide order dated 17.09.2019 passed by the SDJM in the proceedings under Section 138 of the Act of 1881 which were instituted in pursuance of the complaint filed by Satish Kumar and the said Satish Kumar had given a statement on 16.03.2020 (Annexure P- 4) to the effect that the matter has been compromised and there is nothing due towards the present petitioner and accordingly, vide order dated 16.03.2020, the complaint filed under Section 138 of the Act of 1881 was withdrawn.
Where the main case was dismissed for want of prosecution, it was observed that the continuation of proceedings under Section 174-A of the IPC shall be an abuse of the process of court.
Petition allowed.
-
2021 (12) TMI 1228
Dishonor of Cheque - legally enforceable debt or not - acquittal of the accused - Section 138 of Negotiable Instruments Act, 1881 - HELD THAT:- The trial Court rightly held that the cheque was not drafted by the accused and that the accused is not a rustic man or an illiterate and that if at all the accused issued the subject cheque towards discharge of legally enforceable debt, it should be for ₹ 1,24,000/- since the interest on the amount alleged to be borrowed was 24% per annum and that the circumstances reveal that Ex.P.1 cheque was not issued by the accused towards legally enforceable debt. Further, the admissions of the complainant in his evidence as P.W.1 clearly reveals that the complainant is doing money lending business without license in Telangana area. He did not file a single document to show that he was having a valid license to do money lending business.
The Explanation to Section 138 of N.I.Act clearly states that the dishonoured cheque shall relate to a legally enforceable debt or liability. In the instant case, since the complainant had no valid money lending business, he cannot legally enforce such a debt of liability. Under these circumstances, the Court below rightly concluded that the complainant is not entitled to prosecute the accused for the offence under Section 138 of N.I.Act and therefore, the accused is entitled for acquittal. The conclusions reached by the trial Court are based on evidence on record. There is nothing to take a different view. The accusations against the accused under Section 138 of N.I.Act are not proved beyond reasonable doubt. The contentions raised on behalf of the complainant do not merit consideration.
Criminal Appeal is dismissed.
-
2021 (12) TMI 1227
Seeking grant of Bail - input tax credit - forged documents - HELD THAT:- There is nothing in the record to show whether the input credit actually benefited the applicant. There is no evidence that the applicant was benefited from the aforesaid input credit tax.
Courts have taken notice of the overcrowding of jails during the current pandemic situation. These circumstances shall also be factored in while considering bail applications on behalf of accused persons.
The applicant is entitled to be enlarged on bail - application allowed.
-
2021 (12) TMI 1226
Transitional Input Tax Credit - seeking to allow filing of declaration in form GST TRAN-1 and GST TRAN-2 - seeking to reopening the portal - HELD THAT:- It appears that a second option has been given by the Calcutta High Court to take care of the problems like the one we are tackling with in the present application. The suggestion of the Calcutta High Court is that instead of directing the portal to be opened, the assessees who are facing such kind of difficulties may be permitted to file individual tax credit in the GSTR-3B Forms for the month of January 2022 to be filed in the month of February, 2022 and the concerned Authority/Assessing Officer would be at liberty to verify the genuineness of such claim. We expect the GSTN and the Nodal Officer to explore such possibility also as suggested by the Calcutta High Court.
Some concrete solution is needed so that the directions issued by this Court is meaningfully complied with. The Nodal Officer is once-again present in the Court today. The Nodal Officer has heard the entire order, which has been dictated in his presence. We want the Nodal Officer to look into the second option also and try to find out a viable solution.
Post the matters for further hearing on 12.01.2022. We hope and trust that atleast on 12.01.2022 a positive statement is made that the order/directions passed in the main matter has been fully complied.
-
2021 (12) TMI 1225
Refund - amount which was credited in the wrong account due to inadvertent mistake - refund of accumulated ITC as per Section 54(3) - mistakenly the consultant had given the bank account details of another client and thus, the details entered in the petitioner’s GST is of one third party wrongly - HELD THAT:- It is not in dispute that due to the mistake of the consultant engaged by the petitioner, the amount has been deposited in the wrong account. The bank details are to be entered under RFD-05. The petitioner also did not raise the grievance immediately and made an application with reference to the said issue after nearly three months. The amount which had gone to the wrong account of M/s. Meet Textiles had been refunded on 09.12.2020 by way of DRC-03 under Section 73(5) by way of voluntary payment. The Deputy State Tax Commissioner Circle-16, Surat vide its communications dated 21.01.2021 and 11.02.2021 had requested the Joint Commissioner of State Tax E-governance, Gujarat State to resolve the peculiar issue on hand.
It emerges that second time when the application had been made by the petitioner, the rejection has come as there is a technical glitch. Even by specifying that the refund is being claimed under the head “others” the system has not permitted the amount to be given by way of refund to the petitioner. Undoubtedly, it was a mistake which was committed by the consultant of the petitioner and therefore, the third party namely M/s. Meet Textiles had been benefited where the amount had been deposited - The amount once again has gone back to the authority by way of DRC-03 on 09.12.2020, hence, the only way out now for availing the legitimate claim of the petitioner is by depositing the amount in his account which he has mentioned.
Let the same be done as the application has already been made. No further application will be necessary at a manual level. The officer concerned shall apply the mind and the deposit shall go directly in the account of the petitioner - Application disposed off.
-
2021 (12) TMI 1224
Seeking direction to allow the presence of applicant’s advocate at a visible but not audible distance during the course of interrogation and/or recording of the statement of the applicant - HELD THAT:- Considering the role attributed to the present applicant in the alleged transaction, the applicant’s advocate is permitted to be present during interrogation of the applicant, but he should be made to sit at a distance beyond hearing range, but within visible distance and the concerned advocate must be prepared to be present whenever the applicant is called upon to attend the interrogation.
Application disposed off.
-
2021 (12) TMI 1223
Refund - amount which was paid during the course of investigation - seeking direction to respondent to pay the amount which was paid by the petitioner during the course when the officers of the respondent visited the premises of the petitioner and investigated - It is the case of the petitioner that the amount was paid under coercion - Wrong availment of Input Tax Credit - HELD THAT:- The amount paid by the petitioner are only deposits pending proper adjudication under Section 73 / 74 of the CGST Act, 2017. It appears that the amounts were collected from the petitioner during March 2021, at the time when summons were also issued to the petitioner, Mahazar was drawn and seizure memo was also issued to the petitioner on the same date. The petitioner also appears to have sent a representation on 01.04.2021.
There is no merits in this Writ Petition at this stage. The amount paid by the petitioner shall be treated as amount paid by the petitioner “under protest” and will be subject to the final appropriation in the proceedings to be initiated under Sections 73 / 74 of CGST Act, 2017. The respondents perhaps are investigating and therefore, seized the documents from the petitioner - the respondent is also directed to return the photo copies of the seized documents to the petitioner, if they have not been already returned to the petitioner.
Petition disposed off.
-
2021 (12) TMI 1222
Violation of principles of natural justice - validity of assessment order - opportunity of personal hearing as is contemplated under Section 75(4) of the Tamil Nadu Goods and Services Tax Act, 2017, not provided - HELD THAT:- Though specifically the petitioner has not requested for a personal hearing in the aforesaid reply/representation, the respondents have proceeded to pass the impugned orders by confirming the demand proposed in the notice. As adverse orders would have been passed against the petitioner, it was incumbent on the part of the respondents to issue a notice of personal hearing to the petitioner. Though in this case, admittedly the petitioner had filed the reply belatedly on 16.08.2021 having considered the reply and having decided to pass an adverse order, it was incumbent on the part of the respondents to call upon the petitioner for a personal hearing.
The impugned orders stand quashed and these cases are remitted back to the respondents to pass a speaking order after giving an opportunity of hearing to the petitioner on the reply/representation made by the petitioner on 16.08.2021 - Writ Petitions stand disposed off.
-
2021 (12) TMI 1221
Cancellation of registration of registration of petitioner - non filing of returns for a continuous period of six months - non-deposit of interest liability against late discharged cash payment - HELD THAT:- The appellant has filed and submitted copies of GSTR-3B return for the period April-2020, and May-2020, June-2020, July-2020, August-2020, and September-2020 respectively and also submitted copy of Form DRC-03 ARN No. AD0802210113550 dated 22.02.2021 amounting to ₹ 61,064/- towards payment of due interest liability.
The appellant has filed returns upto date of cancellation of registration hence, the appellant has substantially complied with the said provisions of the CGST Act/Rules, 2017 in the instant case. Therefore, the registration of appellant may be considered for revocation by the proper officer.
The proper officer to consider the revocation application of the appellant after due verification of payment particulars of tax, late fee, interest and status of returns - Appeal disposed off.
-
2021 (12) TMI 1220
Validity of Section 194A(3)(ixa) - tax deducted at source on the interest payable under an award of the Motor Accident Claims Tribunal (“MACT”) - petitioner had filed a writ petition initially before the High Court of Delhi which was disposed of by granting him liberty to move the Central Board of Direct Taxes (“CBDT”) in a representation - fresh writ petition challenging the decision of the CBDT was dismissed both on the grounds of locus and delay with liberty to file a public interest litigation.
HELD THAT:- The petitioner is not personally aggrieved by the award of the MACT. A challenge of this nature would have to be brought before the Court by a person aggrieved. We see no reason to entertain a petition which is styled one filed in public interest. In the circumstances, this Court is not expressing any opinion on the question of law raised. The petition is dismissed on the grounds which are set out above.
-
2021 (12) TMI 1219
Validity of assessment u/s 144B - main contention of the Petitioner as denied the opportunity of personal hearing before passing the assessment order - HELD THAT:- As Petitioner had made an oral request for personal hearing. However, the said request was turned down without assigning any reason. It is, in these circumstances and to comply with Section 144B the Petition deserves to be allowed and remitted back to the Respondent No.1.
The following order is passed Assessment Order dated 17/8/2021, passed under Section 143(3) r/w Section 144B of the Income Tax Act, 1961 passed by the National Faceless Centre is, hereby, quashed and set aside. The matter is remanded to the Respondent No.1 to complete the assessment proceedings by following due procedure as contemplated by Section 144B of the the Income Tax Act, 1961.
-
2021 (12) TMI 1218
Exemption u/s 10(10C) - seeking for condonation of delay to file a revised return by an application u/s 119(2)(b) - Period of limitaiton of 6 years - Earlier the request for rectification of mistake was rejected - HELD THAT:- Taking note of the peculiar facts of the case, the fact remains that the entitlement of exemption under Section 10(10C) of the Act was noticed by the Assessing Officer. In fact the petitioner had also sought relief of rectification by way of letter dated 18.03.2008. As no order appears to have been passed on the letter of 18.03.2008, the petitioner decided to seek for condonation of delay to file a revised return by an application u/s 119(2)(b) of the Act. If an order had been passed as regards the rectification application, the assessee may have got relief at that end itself. As no order was passed, the assessee then decided to explore the possibility of filing a revised return.
Unfortunately, the assessee’s application u/s 119(2)(b) has been rejected on the ground that the same was filed beyond the period of 6 years, while observing that the Circular 9/2015 dated 09.06.2015 does not permit condoning the delay beyond 6 years.
Letter that could be construed to be a rectification application is not decided, noticing the merits of the claim for exemption, a fit case is made out for consideration of the revised return on its merits.
Accordingly, it would be appropriate to set aside the order of 119(2)(b) and condone the delay. It is also to be noticed that the reasons assigned while seeking condonation of delay are also satisfactory.
Accordingly, the impugned order at Annexure-G dated 17.02.2017 is set aside, the delay is condoned and the application under Section 119(2)(b) of the Act is allowed. It is however clarified that as regards to the grant of refund, eventually in light of the delay, there would be exclusion of interest on the amount of refund. It is also clarified that the order is passed taking note of the peculiar facts and circumstances of the case and accordingly, may not be considered to have laid down the law as regards the aspect of condonation of delay under Section 119(2)(b) of the Act or on other issues dealt with herein.
-
2021 (12) TMI 1217
Revision u/s 263 by CIT - Violation of principles of natural justice - no opportunity of hearing to the assessee given - HELD THAT:- The procedure followed by the Principal Commissioner in passing the impugned order without giving an opportunity of hearing to the assessee is in clear violation of Section 263 of the IT Act and in breach of principles of natural justice. Thus, on this score alone, we allow this Writ Petition by setting-aside the impugned orders and remand the matters before the Principal Commissioner of Income-Tax (Central), Visakhapatnam, who is directed to give an opportunity of hearing to the assessee and pass appropriate orders in accordance with law. Such exercise shall be concluded within three (3) months from the date of communication of this order and the assessee shall not seek un-necessary adjournment in the matter. We further make it clear that we have not expressed any opinion with regard to merits of the case, which is kept open to be decided by the respondent-Principal Commissioner, independently
-
2021 (12) TMI 1216
Reopening of assessment u/s 147 - income of Assessee escaped assessment in the subject Assessment year - HELD THAT:- It is not the case of Revenue that the subject matter of the notice under Section 147 was not the subject matter before the Appellate Authority. Therefore, in all fours, the second proviso is attracted to the case on hand.
After the reading of the second proviso to Section 147 of the Act and the consideration by the CIT(Appeals) and the Tribunal, we are of the view that the distinction sought to be introduced by the Standing Counsel fails, for the very reasons recorded by the Authorities in the orders under appeal. We are of the view that the re-assessment proceedings in the subject assessment year, has been initiated contrary to second proviso to Section 147 (1) of the Act. For the above reasons and expressing full agreement with the the findings recorded by the CIT(Appeals) and Tribunal, we answer the question against Revenue and in favour of the Assessee.
Addition on electricity duty and short provision of interest on Government loan made u/s 43B - HELD THAT:- Question No.2 is covered by the judgment of this Court in Kerala State Electricity Board V. Deputy Commissioner of Income Tax [2019 (8) TMI 727 - ITAT COCHIN] against the Revenue and in favour of Assessee.
-
2021 (12) TMI 1215
Reopening of assessment u/s 147 - assessment as reopened beyond a period of four years - Availability of tangible material to initiate reopening - HELD THAT:- Mere availability of tangible material would be sufficient for the purpose of invoking the powers under Section 147 of the Act. This failure on the part of the petitioner was considered for reopening of assessment and the finding is given that the assessee company has misleading the assessing authorities by furnishing incorrect particulars. However, this Court cannot arrive a finding in this regard. It is for the assessee to establish his case during the course of reassessment proceedings. The writ petition is filed, challenging the reopening proceedings.
Objective satisfaction would be sufficient for the purpose of allowing the Assessing authority to proceed with the reopening proceedings. Once, the materials are available and such materials were not taken into consideration by the original assessing authority, or any findings are given in the assessment order, which would be sufficient for the purpose of reopening of assessment and once such reopening is made based on tangible materials, then the assessee has to defend his case by furnishing further particulars or explanations or documents during the course of reopening proceedings.
High Court cannot form any opinion in respect of such findings to be made. Only endeavour of the High Court is to ensure that, whether the conditions stipulated and the process adopted for the purpose of reopening of assessment in consonance with the provisions of the Act and in accordance with the Directives of the Hon’ble Supreme Court of India in the case of GKN Driveshafts [2002 (11) TMI 7 - SUPREME COURT] are not. If the conditions are fulfilled, then it is for the assessee to defend their case in the manner known to law.
The reasons furnished in the case of the petitioner would be sufficient for the purpose of reopening of assessment as the case of the petitioner is initiated beyond a period of four years and therefore, the petitioner is bound to participate in the reopening proceedings for the purpose of defending their case by availing the opportunities to be provided by the authorities in accordance with law.
-
2021 (12) TMI 1214
Compounding of the alleged offence u/s 279 (2) - belated filling of returns - HELD THAT:-Since there has been belated filing of income tax return, which can attract the penal provisions, therefore, the prosecution in this regard can be launched. On perusal of the sanction order passed by the first respondent dated 06.02.2017 in this regard, it discloses that the return of income tax for the assessment year 2013-14 should have been filed on or before 3/1.07.2013 u/s 139(1) since the same has not been filed, which was belatedly filed, it attracts the penal provisions u/s 276 CC (ii) and therefore, Sanction u/s 279 was given. Insofar as the belated filing of income tax return for other year, that is, assessment year 2012-13, no such prosecution was launched, it seems.
This has been exactly pointed out by the learned counsel for the petitioner that the reason for non-filing of return or belated filing of return for the two or three assessment years consecutively is because of the calamities, which he pointed out in his representation, taken place in his family, where there has been a lot of litigations, which had to be faced by the family of the petitioner, hence he could not concentrate on filing of returns.
Whether these reasons have been considered in a proper perspective before rejecting the said reason by analyzing the same, has to be looked into and in this context, when we read the impugned order, no such consideration seems to have been shown by the first respondent except the generalized comment as stated supra in the impugned order.
This Court feels that, the reason cited by the petitioner, after giving him an opportunity, can once again be considered and accordingly, a fresh order can be passed by considering all these aspects in a proper perspective by the first respondent. For the said purpose, this Court feels that, the impugned order can be set aside and remanded back for fresh consideration.
This Court is inclined to dispose of this writ petition with the following order: that the impugned order is set aside and the matter is remitted back to the first respondent for re-consideration. While reconsidering the same whatever the reasons cited by the petitioner in his representations to invoke Section 279 (2) for compounding the offence and also further inputs if any to be supplied in this regard, for which, an opportunity of being heard be given to the petitioner assessee, the first respondent can consider the said aspects objectively and pass a reasoned order to that effect.
-
2021 (12) TMI 1213
Correct head of income - nature of receipt from lease/ rent - assessee moved BIFR for rehabilitation scheme - rental income received by the assessee from Apollo Tyres Ltd.- whether constitutes business income or income from other sources? - HELD THAT:- AO preferred to decide the contemporaneous activity undertaken by the assessee by referring to the lease agreement and absence of a clause in the lease agreement about the revival of business of assessee. This consideration throughout weighed with AO for reaching the final conclusion. The fallacy in this behalf is further evident that the AO, inspite of noticing that all the terms and conditions are governed by the scheme sanctioned by the BIFR, declines to give effect to the working of scheme by observing that the scheme is not clear on what would happen after the expiry or completion of lease period.
Under the scheme, the assessee has reduced its overhead expenditure by closing down the head office, sales and marketing offices. With the closure of these divisions, there is no chance of revival of business of the assessee as Tyre manufacturer. These observations are very centric or influenced the conclusion. We are, prima facie, of the view that there is no objective consideration of the modus operandi or working of the scheme, the statutory obligation under which the assessee had come by filing an application before BIFR. The subtle difference between a voluntary arrangement between parties and arrangement approved as part of a statutory consideration for revival is not noticed by the AO, while concluding that the lease rental income shall be computed under the head income from other sources. The Appellate Authority has confirmed the order of AO and the dismissal of first appeal resulted in filing of appeal before the Tribunal.
Tribunal in the impugned order first appreciated the scheme approved by BIFR, agreement between parties for irrevocable lease for 8 years of assessee's plant, machinery, land etc. and held that inspite of the agreement with ATL the assessee continues to exist as a corporate entity. The additional investment of 110 crores by ATL for eight years is to modernise the plant and again to make the manufacturing viable, the induction of a few directors from ATL in Board of the assessee is merely change in administration and of administrative officers, such changes could not be understood as the existence of assessee as corporate entity has disappeared or the assessee ceases to exist. The taking over of the manufacturing activity by ATL is not to take over the assessee company. The consideration of future happening of reviving the business by assessee is not a circumstance in the facts of the case. Finding is recorded that the lease rental receipt is income of business of the assessee.
Case for revival and rehabilitation of its business before BIFR - The assessee, under approved scheme is obligated to exploit the business assets, earn income, adjust/get off accumulated losses/unadjusted depreciation, and turn as a positive company. Any other view in a situation as the present is unavailable and again counterproductive to an approved scheme under Act, 1985. Sequentially enquired, it transpires that the assessee was obligated to work under a statutory approved scheme; the lease of eight years is to ATL, which is into the same business and lease was for utilising the Plant, Machinery etc. for manufacturing tyres; the actuals are reimbursed to assessee by ATL; the work force of assessee has been deployed for manufacturing tyres; the total production from the assessee unit is taken over by ATL; over all affairs of assessee company are made viable by entering into settlement etc; at this juncture, we are convinced that coupled with all other primary circumstances, the assessee employed commercial assets to earn income. Unless and until the income is treated as business income, the scheme does not result on expected lines for losses; unavailed depreciation etc. will continue to be present in the accounts of assessee. The scheme is appreciated as one providing a solution to business problem of the assessee. From the above discussion we are convinced that the claim of lease rental receipt as income of business is justifiable for the subject assessment years and the findings of the Tribunal even if treated as mixed question of law and fact, we hold that the findings are justifiable and warranted in the circumstances of the case. Hence substantial question as answered in favour of the assessee and against the revenue
-
2021 (12) TMI 1212
Addition u/s 68 - Estimation of rate of commission - CIT(A) observed that in the interest of Justice and revenue to tax the assessee by adopting the brokerage rate on various bogus transactions at 0.75% is proper - HELD THAT:- The assessee is an accommodation entry provider and his real income is only towards the commission/brokerages, we are of the considered opinion that the estimate shall be reasonable having regard to the business conducted by the assessee. In the case of JRD stockbrokers [2008 (7) TMI 449 - ITAT DELHI-C] it was held to be appropriate at 0.6% whereas in the case of Adonis financial services private limited it was held to be at 0.5%. Inasmuch as the assessee accepted the commission at 0.6% by not preferring any appeal against the impugned order, we are not inclined to disturb the findings of the Ld. CIT(A) in this matter to the effect that the commission at 0.6% is appropriate. On this premise, we uphold the findings of the Ld. CIT(A) and find the grounds of appeal of the Revenue is devoid of any merits. Accordingly, the appeal of the Revenue is liable to be dismissed.
-
2021 (12) TMI 1211
Bogus LTCG - undisclosed income u/s. 69 - HELD THAT:- The factual contentions of the assessee, vis-à-vis the addition made on account of alleged bogus Long Term Capital Gain pertaining to the investment made in the securities therein as detailed in the reasons recorded for reopening the case of the assessee as reproduced was never considered either by the A.O. or the Ld. CIT(A). This despite the fact that the assessee had filed all documents before them in support of its contention that it had never claimed any Long Term Capital Gain or for that matter the impugned investment did not relate to it at all.
We are of the view that the issue needs to be reconsidered and decided in the light of the factual contentions made by the assessee after duly verifying the same. The issue is therefore restored back to the A.O. to consider both the factual contentions of the assessee as stated above regarding no claim of any Long Term Capital Gain made by it nor any such investment ,as stated in the reasons recorded ,being made. The A.O. is directed to verify the claim of the assessee and thereafter adjudicate the issue in accordance with law. . Appeal of the assessee is therefore allowed for statistical purpose.
-
2021 (12) TMI 1210
Addition made on account of deemed rental income on unsold flats / units held by the assessee as ‘stock in trade’ - HELD THAT:- We hold that no addition on account of deemed rental income could be made in respect of unsold stock of flats held as ‘stock in trade’ upto A.Y.2017-18. However, the amendment has been brought in the statute in Section 23(5) from A.Y.2018-19 providing a moratorium period of two years. Hence, no addition could be made even for A.Y.2018-19 also. Accordingly, the ground raised by the assessee for all the three years in respect of addition made on account of deemed rental income of unsold stock of flats as ‘stock in trade’ are allowed.
Addition u/s.69A on account of alleged unaccounted cash - whether any protective addition could at all survive when no substantive addition at all were made in the hands of any other person? - HELD THAT:- Admittedly, no substantive addition was made by the revenue either in the hands of M/s Fisher Health Resorts Pvt ltd or in the hands of any other person. In Respectfully following the aforesaid decision of VIKASH IRON & STEEL PRIVATE LIMITED [2015 (7) TMI 1394 - ITAT KOLKATA] since no substantive addition was made, the protective addition made in the hands of the assessee company does not survive. Hence, we have no hesitation in directing the ld. AO to delete the addition made in the sum of ₹ 13,86,600/- on protective basis u/s.69A of the Act for A.Y.2018-19. Accordingly, the ground raised by the assessee is allowed.
............
|
9911796707
