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Showing 61 to 80 of 17992 Records
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2022 (12) TMI 1451
Principles of Natural Justice - ex-parte order - fair opportunity of hearing not provided - SCN not issued - HELD THAT:- This Court, notwithstanding the statutory remedy, is not precluded from interfering where, ex facie, it is opined that the order is bad in law. This is for two reasons- (a) violation of principles of natural justice, i.e. fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case; (b) order passed ex parte in nature, does not assign any reasons sufficient even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences.
The impugned order set aside - petition disposed off.
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2022 (12) TMI 1450
Seeking permission to withdraw present application - Requirement to furnish security by way of bank guarantee - HELD THAT:- The applicant stated on instructions of the petitioner that the petitioner has been giving up cause and wants to withdraw the present Misc. Civil Application.
The Misc. Civil Application was not pressed and was permitted to be withdrawn - Civil Misc. Application stands dismissed as withdrawn.
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2022 (12) TMI 1449
Exemption from GST - Treated Water obtained from CETP - Sl. No. 99 of the Exemption Notification No. 02/2017-Integrated Tax (Rate), dated 28-06-2017 - taxable at 18 per cent by virtue of Sl. No. 24 of Schedule - III of Notification No. 01/2017-Integrated Tax (Rate), dated 28-6-2017 or not.
HELD THAT:- The intention of the legislature to exempt the water was very clear that any type of water which is usually consumed/drink by the public at large of this country should not be taxed. To meet such objective GST Council has provided exemption under the Entry No. 99 of Not. No. 2/2017-CT (Rate) to Water which is free from all types of impurities supplied in cities and villages across the country either through tap or tanker, water cooler and water tap installed at various places across the country. Whereas aerated, mineral, distilled, medicinal, ionic, battery, de-mineralized and water sold in sealed container is not eligible for exemption from payment of GST under the said entry. This clearly shows the intention of the legislature that any type of water which are being sold in terms of commercial purpose have been kept out of the purview of exemption as provided under entry No. 99 of the Notification.
The treated water obtained from CETP do not cover under the category of 'purified water' then what type of treated water would be i.e. whether cover under the category of aerated, mineral, distilled, medicinal, ionic, battery, de-mineralized water.
It can be concluded that after undergoing out all the process treated water obtained from CETP have micro amount of dissolved minerals and chemical and virtually free from all types of toxic materials. This treated water is used in the various industries viz. Pharmaceuticals, chemicals and leather industries for their manufacturing related process. Looking to the presence of small amount of metal and water obtained after treatment from CETP is covered under 'de-mineralize water'. Hence, the treated water obtained from CETP is not eligible for exemption under Sr. No. 99 of Notification No. 12/2017-CT (Rate) dated 28-6-2017.
The 'Treated Water' obtained from CETP (classifiable under Chapter 2201) is taxable at 18 per cent by virtue of Sl. No. 24 of Schedule - III of Notification No. 01/2017 - Integrated Tax (Rate), dated 28-6-2017 (as amended) as Waters, including natural or artificial mineral waters, and aerated waters, not containing added sugar or other sweetening matter nor flavoured (other than Drinking water packed in 20 liters bottles)'.
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2022 (12) TMI 1448
Deduction u/s 80P - claim denied as assessee not filed it’s return within the due date u/s 139(1) - HELD THAT:- We make it clear that the assessee has indeed quoted Section 80AC(ii) of the Act that although it has been prescribed in the relevant statute to claim the impugned deduction only after filing Section 139(1) return before the due date, this tribunal’s recent coordinate bench in the case of M/s. Krushi Vibhag Karmchari Vrund Sahakari Path Sanstha [2022 (10) TMI 348 - ITAT NAGPUR] has held the foregoing condition(s) as “directory” and not a mandatory one.
We find no merit in assessee’s foregoing arguments claiming Section 80AC(ii) as a mere directory provision in the light of Commissioner vs. Dilip Kumar & Company [2018 (7) TMI 1826 - SUPREME COURT] that provisions in a taxing statute (including deductions) have to be strictly interpreted only.
We next observe that the legislature has interpreted “no such deduction” and “unless” in Section 80AC(ii); for the period after 01.04.2018, by way of negative covenants which forms a mandatory stipulation only in light of PRINCIPLES OF STATUTORY INTERPRETATION by Justice G.P. Singh (termed as the treatise on the subject of statutory constructions) under Chapter 5 thereof.
So far as the assessee’s reliance on this tribunal’s learned coordinate bench’s decision (supra) is concerned, the same hardly forms a binding precedent once dealing with assessment year 2009-10 only i.e., before 01.04.2018. We thus uphold the learned lower authorities action under challenge therefore denying sec.80P deduction in issue.
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2022 (12) TMI 1447
Deduction u/s 80P - Assessee had not filed it’s return within the due date u/s 139(1) - HELD THAT:- We make it clear that the assessee has indeed quoted Section 80AC(ii) of the Act that although it has been prescribed in the relevant statute to claim the impugned deduction only after filing Section 139(1) return before the due date, this tribunal’s recent coordinate bench in the case of M/s. Krushi Vibhag Karmchari Vrund Sahakari Path Sanstha [2022 (10) TMI 348 - ITAT NAGPUR] has held the foregoing condition(s) as “directory” and not a mandatory one.
We find no merit in assessee’s foregoing arguments claiming Section 80AC(ii) of the Act as a mere directory provision in the light of Commissioner vs. Dilip Kumar & Company [2018 (7) TMI 1826 - SUPREME COURT] that provisions in a taxing statute (including deductions) have to be strictly interpreted only.
We next observe that the legislature has interpreted “no such deduction” and “unless” in Section 80AC(ii); for the period after 01.04.2018, by way of negative covenants which forms a mandatory stipulation only in light of PRINCIPLES OF STATUTORY INTERPRETATION by Justice G.P. Singh (termed as the treatise on the subject of statutory constructions) under Chapter 5 thereof.
So far as the assessee’s reliance on this tribunal’s learned coordinate bench’s decision (supra) is concerned, the same hardly forms a binding precedent once dealing with assessment year 2009-10 only i.e., before 01.04.2018. We thus uphold the learned lower authorities action under challenge therefore denying sec.80P deduction in issue
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2022 (12) TMI 1446
Penalty u/s 271D - transaction otherwise than by an account payee cheque or use of electronic clearing system through a bank account etc., violated Section 269SS - whether without satisfaction being recorded in the assessment order, penalty can be levied by the Joint Commissioner u/s 271D? - HELD THAT:- We find that petitioner had submitted reply to the show cause notice on 02.06.2022. In his reply, petitioner mentioned that no satisfaction was recorded by the assessing officer in the assessment order as to infraction of Section 269SS of the Act. Therefore, no penalty could be levied u/s 271D of the Act without recorded satisfaction. In this connection, reference was made to the decision of the Supreme Court in Jai Laxmi Rice Mills Ambala City [2015 (11) TMI 1453 - SUPREME COURT] wherein it was clarified that provisions of Section 271E are in pari materia with the provisions of Section 271D.
This aspect of the matter was not considered by respondent No.1 while passing the impugned order. Respondent No.1 relying upon the Kerala High Court decision in Grihalaxmi Vision [2015 (8) TMI 1214 - KERALA HIGH COURT] noted that competent authority to levy penalty is the Joint Commissioner. He has also referred to an earlier decision of the Supreme Court in CIT V. Mac Data Ltd [2013 (1) TMI 574 - DELHI HIGH COURT] wherein it was observed that assessing officer has to satisfy himself as to whether penalty proceedings should be initiated or not. Assessing officer is not required to record his satisfaction in a particular manner or reduce it into writing. Therefore, respondent No.1 imposed the penalty under Section 271D of the Act.
We are afraid respondent No.1 had completely overlooked the decision of the Supreme Court in Jai Laxmi Rice Mills Ambala City (1 supra). In the said decision as extracted above, Supreme Court had concurred with the view taken by the High Court holding that satisfaction must be recorded in the original assessment order for the purpose of initiation of penalty proceedings under Section 271E of the Act. We have already discussed above that provisions of Section 271E and 271D of the Act are in pari materia. When there is a decision of the Supreme Court, it is the bounden duty of an adjudicating authority, be it an income tax authority or any other civil authority or for that matter any court in the country, to comply with the decision of the Supreme Court.
Article 141 of the Constitution of India is clear that law declared by the Supreme Court shall be binding on all courts within the territory of India. This is further clarified in Article 144, which says that all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court. We are therefore, of the unhesitant view that respondent No. 1 overlooked the relevant considerations while passing the impugned order dated. 29.11.2022.
Further, issue in the present writ petition is not the competence of the Joint Commissioner in issuing the order of penalty. Therefore, reference to Grihalaxmi Vision (2 supra) was wholly unnecessary. WP allowed.
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2022 (12) TMI 1445
Penalty u/s 271D - HELD THAT:- When the attention of learned Senior Counsel was drawn to the fact that impugned order is an appealable one and why petitioner has not filed appeal, he submits that issue involved in the matter is squarely covered by a decision of Jai Laxmi Rice Mills Ambala City [2015 (11) TMI 1453 - SUPREME COURT] This aspect was specifically brought to the notice of the first respondent by making written submission on 02.06.2022. However, ignoring the above, impugned order came to be passed.
Issue short notice to the respondents. Income Tax Department waives notice for both the respondents.
List this matter on 23.12.2022 for admission hearing high on board when an endeavour may be made to hear the matter.
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2022 (12) TMI 1444
Suit for recovery - misreading the relevant and admissible evidence available on record - in the absence of respondent/plaintiff being registered and licensed money lender, the suit for recovery filed at his instance was liable to be dismissed or not?
HELD THAT:- Once the Courts below recorded concurrent findings as regards the validity of execution of Ex.D-1 i.e. receipt dated 15.10.2007 by Balkar Singh, the same was required to be read and considered in conjunction with the cross-examination of respondent/plaitniff Mukhtiar Singh who specifically stated therein that the calculations with regard to the principal money as well as interest were being done by his brother Balkar Singh. He even further deposed that he along with his brother Balkar Singh were jointly calculating the principal amount as well as interest. He was not even specific and categoric while denying the receipt Ex.D-1 except for a vague and uncertain assertion in this regard - in view of the deposition made by the respondent, it can easily be traced out that the amount of loan taken by the appellant-defendant was duly returned against the receipt Ex.D-1 which even binds the respondent/plaintiff as well. Based thereupon, it is apparent that the most relevant admissible evidence in the shape of deposition of plaintiff No.1 himself being PW-1 had not been taken into consideration by Courts below while passing the impugned judgments and decrees which itself compells this Court to interfere with the same.
Maintainability of suit - HELD THAT:- A perusal of Section 3 of the Act makes it clear that a suit by money lender for recovery of loan based on a pronote after the commencement of the 1938 Act can’t be entertained and is thus liable to be dismissed unless the money lender, at the time of institution of the suit or at the time of decreeing the same or deciding the execution application, is registered and holds a valid license as required under Section 4 of the 1938 Act. In the facts and circumstances of the present case, from the deposition of PW-1 plaintiff himself it has been duly established on record that he was regularly and consistently lending money on interest and thus, was not merely a casual or occasional lender - Admittedly, in the present case respondent/plaintiff though running the business of money lending neither got himself registered under Section 4 of the 1938 Act nor even possesses any license under the said Act. Accordingly, the suit for recovery filed at his instance being based on pronote and a receipt itself was liable to be dismissed being not maintainable, in the facts and circumstances of the present case.
The impugned judgments and decrees passed by the Courts below are hereby set aside thereby resulting in dismissal of the suit filed at the instance of respondent/plaintiff - appeal allowed.
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2022 (12) TMI 1443
Seeking release on bail - HELD THAT:- Once the investigation is complete, the petitioner shall be at liberty to approach the Trial Court for his release on bail, and such a petition shall be considered as per its own merit without being influenced by the orders passed by the High Court or this Court.
SLP disposed off.
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2022 (12) TMI 1442
Ineligibility for participation in the procurement of 1000 M.W of Round-the-Clock (RTC) Power from Grid Connected Renewable Energy (RE) Power Projects by the respondent under the request for selection document (RFS) - petitioner has been excluded from the bidding process without intimating any reasons for the same and without providing any opportunity for hearing - principles of natural justice - HELD THAT:- Issue notice.
The learned counsel appearing on behalf of the respondent accepts notice.
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2022 (12) TMI 1441
Application and entitlement of Section 43B - Tribunal confirming the disallowance of service tax payable u/s 43B, particularly when the same was not charged to the Profit and Loss Account or claimed as a deduction in the computation of income - whether there is any evidence or material on record for the Tribunal to substantiate its finding that the service tax payable represents service tax collected by the Appellant? - As argued the liability becomes payable when it is received and accounted for by the assessee. Therefore, applying Section 43B to the case on hand is illegal - alternatively argued that having regard to the jurisdictional limitations of this Court in an appeal u/s 260A when a patent error is pointed out in the circumstances considered by the Tribunal, the assessee should be afforded an opportunity before the Tribunal to canvass what the claim was and why the disallowance made by the AO is illegal and unsustainable.
HELD THAT:- We have perused the order of the Assessing Officer, CIT (Appeals), and excerpted the mistake committed by the Tribunal from the material on record. We are of the view that the questions now formulated are substantial in nature, for conclusions are recorded on an erroneous appreciation of the reply of the assessee.
Therefore, for statistical purposes, the questions are answered in favour of the assessee and against the Revenue.
The common order is set aside and remitted to the Tribunal for consideration and disposal in accordance with the law.The parties, if so advised, are given the liberty to bring on record such material as respective parties may deem fit in support of their contentions.
Assessee also claims the application of Section 145A of the Act. For the view we have expressed above, it is clear that we have not examined the availability or the extent to which the assessee’s case could be considered under Section 145A. All contentions are left open to be considered by the Tribunal.
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2022 (12) TMI 1440
Classification of services - Supply of Tangible Goods Service - leasing out Power Generating and Heat Recovery Equipments to various parties under various Lease Agreements - transaction between the Appellant and its customers would involve the transfer of right of possession and effective control or a transfer of right to use or not - HELD THAT:- The appellant supplies Power Generating Equipments / gas genset (Plant) to Customers on standby charges and variable charges basis under the agreement. We find that during the subsistence of the agreement, the lessee alone has the right to use the Plant and even the Appellant cannot trespass that right of the lessees/ customers. The Lessees fix the pattern in which the plant is to be used and the time when it will function. All the permission to be obtained from the statutory authorities to be obtained such as Electrical, Pollution, CCR have to be taken by the Customers, the lessee shall ensure the safety of the plant in a manner similar to its own plant. Customers have to provide fuel, Jacket water & feed water, the site and other facilities.
On going through the clauses of agreement, it is found that the appellants had handed over the "Goods‟ possession to the lessee as also the right to use. Therefore the transaction of appellant does not satisfy the condition of “without transferring right of possession and the effective control of such machinery, equipment and appliances”. Hence the activity does not fall under the definition of “Supply of tangible goods for use”.
The adjudicating authority has held that since as per contract the equipment will remain sole property of equipment provider and skilled manpower supplied by the Appellant are responsible for maintenance operations of gas genset/plant, it is clear that the legal right and effective controls rests with the appellant - There is separate service agreement entered between the Appellant and customer under which various services are provided on which service tax has been discharged by the Appellant. Once the control and possession of gas genset/equipments was transferred to the customers, mere supply of manpower for maintenance will not change the nature of the transaction. All these factors are to be taken into consideration while determining the nature of service. Therefore finding of the impugned orders in present matters legally not correct.
The transfer of right to use gas genset/ plant on lease charges basis is a deemed sale in terms of Article 366(29)A of the Constitution, which is exclusive from service. Since the nature of transaction under dispute is deemed sale, no service tax can be demanded, as held in various judgments and relied upon by the Appellant in the present matter.
The demand raised cannot sustain and requires to be set aside - Appeal allowed.
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2022 (12) TMI 1439
Estimation of income - bogus purchases - addition sustained by the ld. CIT(A) at the rate of 5% of bogus purchases - HELD THAT- We note that the issue under consideration is squarely covered by the judgement of the Co-ordinate Bench in the case of Pankaj K. Chaudhary [2021 (10) TMI 653 - ITAT SURAT] wherein the Co-ordinate Bench of Surat has sustained the addition at the rate of 6% of bogus purchases. Thus we dismiss the appeals of the assessees and we allow the appeals of the Revenue partly.
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2022 (12) TMI 1438
Provisional release of goods - Section 110 A of the Customs Act, 1962 - HELD THAT:- A similar order in M/S. EXCELLENT BETELNUT PRODUCTS PVT. LTD. THROUGH ITS DIRECTOR VERSUS DIRECTORATE OF REVENUE INTELLIGENCE, NAGPUR REGIONAL UNIT; COMMISSIONER OF CUSTOMS, ICD BORKHEDI, NAGPUR [2021 (12) TMI 1454 - BOMBAY HIGH COURT] could be passed in the present case, where it was held that We are of the opinion that purposes of this petition shall be served if this petition is treated as an application made under Section 110 A of the Customs Act, 1962 and decide appropriately.
Petition disposed off.
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2022 (12) TMI 1437
Levy of penalty - Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Discharge Certificate of SVLDRS-4 - HELD THAT:- The Tribunal in the case of P.B. VYAS VERSUS COMMR. OF CENTRAL EXCISE, MUMBAI-III [2021 (3) TMI 1305 - CESTAT MUMBAI] has held that insistence of payment of penalty by a co-noticee, when the main party has settled the issue under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019, defeats the spirit of the scheme itself.
The penalty imposed on the Accountant, Mr. Sasthi Charan Banerjee being a co-noticee, is set aside - Appeal disposed off.
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2022 (12) TMI 1436
Assessment u/s 144C r.w.s. 144B - Corporate Social Responsibility (CSR) - Disallowance of deduction u/s 80G - DRP concluded that even though deduction for CSR Expenses was not allowable u/s 37 (in view of the Explanation 2 to Section 37 of the Act inserted by the Finance Act, 2014, with effect from 01.04.2015), there was no bar for allowance of the same under Section 80G of the Act (except for the donations made to the Swach Bharat Kosh and the Clean Ganga Fund), provided all the other conditions of Sec. 80G are fulfilled.
HELD THAT:- DRP issued specific direction to allow deduction u/s 80G of the Act after verifying whether the other conditions specified u/s 80G were fulfilled. As per mandate of Section 144C(13) of the Act, upon receipt of directions issued by DRP the Assessing Officer was required to complete the assessment in conformity with the directions issued by the DRP.
We hold that the Final Assessment Order, passed by the AO was not in conformity with the directions issued by the DRP and is therefore, set aside, being contrary provisions of Section 144C(13) of the Act. The issue is remanded back to the file of AO with the directions to pass the Final Assessment Order in conformity with the directions issued by the DRP. Appeal allowed.
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2022 (12) TMI 1435
Seeking grant of Regular Bail - smuggling - Ganja - procedure for collection of sample, faulty - violation of standing order 1/88 of the guidelines of NCB - HELD THAT:- As mandated by the Hon'ble Supreme Court in judgment of UOI. VERSUS BAL MUKUND & ORS. [2009 (3) TMI 914 - SUPREME COURT], standing order 1/88 has been opined to be a "requirement of law" - The standing order 1/88 mandates that the transferring of content of all packets into one and then drawing a sample from the mixture is not permitted.
Thus, in the present case, the instructions in 1/88 has not been followed and the sample has been drawn after mixing the contents of various packets into one container. The same has caused serious prejudice to the case of the applicant. Since the collection of sample itself is faulty, the rigours of Section 37 of the NDPS Act will not be applicable - applicant is in custody since 26.02.2022 and has no criminal antecedents. He has no criminal cases of any nature pending against him.
The applicant is entitled to be released on bail u/s 20/29 of the NDPS Act registered at PS Crime Branch on the subject to terms and conditions fulfilled - application allowed.
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2022 (12) TMI 1434
Approval of Resolution Plan - Section 30(6) read with Section 31(1) of the Insolvency & Bankruptcy Code, 2016 read with Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 - HELD THAT:- All requirements provided under Section 30(2) of Code and Regulation 36 to 39 of CIRP Regulations, 2016 have been complied with - It is also found that the Resolution Plan addresses the cause for default and contains measures to run the Corporate Debtor in future - it is also found Resolution plan is both feasible and viable as held by CoC and it also contains provision for its effective implementation.
The approved Resolution Plan shall become effective from the date of passing of this order - the order of moratorium dated 01.09.2020 passed by this Adjudicating Authority under Section 14 of the Code shall cease to have effect from the date of this order.
Application allowed.
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2022 (12) TMI 1433
Accrual of income - reliance on documents seized in search - In view of the admitted facts, AO, FAA, and ITAT having concurrently recorded findings of the fact against the assessee
HELD THAT:- Having considered the review petition on both merits and delay, we find no grounds to interfere.
Review petition is dismissed.
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2022 (12) TMI 1432
Stay of demand - petition by directing the appellant to deposit 20% of the tax - high pitched assessments - HELD THAT:- Admittedly, the assessments are high pitched assessments and when such high pitched assessments are appealed against and an order of stay is sought for either before the AO by filing an application u/s 220(6) orders are passed by the assessing officer either keeping the notice of recovery in abeyance and not treating the assessee as an assessee in default till the appeal is disposed of.
There are yet another set of cases where the AO for reasons to be recorded imposes certain conditions as a condition for grant of stay. The appellant’s case falls under the second category where the assessing officer has directed 20% of the demand to be paid by the assessee for being entitled to grant of stay.
It is an undisputed fact that as against the impugned assessment order, appeal has been filed before the CIT (Appeals), second respondent on 25th January, 2018. It is not clear as to why the appeal is pending before the Commissioner (Appeals) for more than two years. Identical issues have come up for consideration before various High Courts and we would refer to two of the decisions of the High Court of Delhi, namely, Valvoline Cummins Limited [2008 (5) TMI 20 - HIGH COURT OF DELHI] and Soul [2008 (8) TMI 502 - DELHI HIGH COURT].
In both these cases, the Hon’ble Division Bench of the High Court of Delhi has considered high pitched assessments and has also taken note of the instruction issued by the CBDT and have held that when the assessments are unreasonably high pitched, the notices of recovery should remain stayed till the disposal of the appeal by the first appellate authority. In cases on hand, the return filed by the assessee was a loss return. However, the assessing officer has assessed the income and it is definitely a high pitched assessment. That apart, we find that the appeal was filed before the Commissioner of Income Tax (Appeals) well within the period of limitation and is pending since 25th January, 2018.
We are informed by the Advocate appearing for the appellant that till date the notice of demand has not been enforced on the assessee. Thus, considering the peculiar facts and circumstances of the case, we are of the view that the appeal itself should be directed to be disposed of by the Commissioner of Income Tax (Appeals) at an early date and until then, recovery proceedings should be kept in abeyance.
Appeals are allowed and the order passed in the writ petitions is set aside with a direction to keep the recovery notices issued by the assessing officer kept in abeyance and direct the CIT(Appeals), the appellate authority, to disposed of the appeals on merits.
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