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2023 (6) TMI 232
Seeking defreezing of Bank Account of petitioner - more than one year has already elapsed since the date of the letter (order of attachment) and therefore, in terms of Section 83(2) of the CGST Act, the said order has ceased to operate - HELD THAT:- The present petition is disposed of by declaring that the order pursuant to which the communication dated 10.03.2021 was issued, is no longer operative by virtue of Section 83(2) of the CGST Act. The concerned bank will not interdict the operation of the bank account of the petitioner on the basis of the communication dated 10.03.2021 - It is clarified that this order will not affect any other order(s) that may have been passed, which have not been placed on record. However, if there are any such orders, the same would be immediately communicated to the petitioner. Petition disposed off.
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2023 (6) TMI 231
Correction of mistakes in (FORM GSTR-3B) returns - erroneous typing of liability for tax under the Central Goods and Services Tax Act, 2017 as ₹32,33,36,855/- instead of ₹3,23,36,855/- - HELD THAT:- The petitioner clarified the reasons for the mismatch by a communication dated 18.01.2023. Thereafter respondents scheduled a personal hearing on 20.04.2023 and the petitioner was afforded a personal hearing on that date. The petitioner also filed an additional submission dated 27.04.2023 explaining the reasons for reversing the excess amount of ITC - Notwithstanding the explanation provided by the petitioner, respondent no. 1 issued a show cause notice dated 12.05.2023 raising an aggregate demand of ₹55,39,99,352/- as mentioned in the intimation dated 19.12.2022. Surely, if there is an inadvertent or typographical erro....... + More
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2023 (6) TMI 230
Maintainability of petition - availability of alternative remedy of appeal - requirement of compliance with the pre-deposit - time limitation - HELD THAT:- The petitioner had filed the writ petition under Article 226 of the Constitution of India, in M/s Classic Decorators v. Assistant Commissioner, CGST Division Ors. [ 2023 (2) TMI 235 - DELHI HIGH COURT] , impugning the order in original passed by the Adjudicating Authority. The said petition was disposed of on 31.01.2023 on the ground that the petitioner has an equally efficacious alternate remedy. This Court had also observed that, prima facie, the petitioner s contention that the order-in-original is barred by limitation is merited. The amount of pre-deposit required is 7.5% of the total demand, which is not a large sum. There is no averment that the requirement of pre-deposit....... + More
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2023 (6) TMI 229
Seeking release of the goods seized by the police on Supardari - concealment of goods in the vehicles which were without any bill - evasion of payment of tax in connivance with officials of Excise and Taxation Department - HELD THAT:- A perusal of the impugned order would show that the trial Court has accepted the application on the premises that the applicant claims himself to be the owner of the goods which in fact is an incorrect observation inasmuch as there is no specific averment as regards ownership of goods in the application made by the respondent for release of the articles on supardari. In any case, it goes without saying that the articles some of which would be of semi-perishable nature ought to be released on supardari lest the value of the same may be drastically diminished. Since, no person has come forward to stake ....... + More
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2023 (6) TMI 228
Levy of GST - duty free shops at various airports - Petitioner submitted that, they state that they are a subsidiary of a Malaysian company which has a long experience in running such shops throughout the world. The petitioner had taken on lease the premises within the precincts of the fourth respondent under an agreement dated 05.04.2017. - HELD THAT:- It is brought to the notice of this Court that the issue has been set at rest and is no longer res integra, in the light of the judgment of the Hon'ble Supreme Court in COMMISSIONER OF CGST AND CENTRAL EXCISE MUMBAI EAST VERSUS FLEMINGO TRAVEL RETAIL LTD [ 2023 (4) TMI 613 - SUPREME COURT] , wherein the Hon'ble Supreme Court has held that Duty Free Shops, whether in the arrival or departure terminals, being outside the customs frontiers of India, cannot be saddled with ....... + More
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2023 (6) TMI 227
Method of apportionment of common expenditure - AO s computation of income from agricultural activity and income from trading activity was modified - Tribunal justification in holding that common expenditure for own production and sale of seeds and trading in other seeds can be apportioned between both on the basis of Cost of Goods Sold (CoGS) as against the turnover of each for arriving at profits - HELD THAT:- According to the Tribunal, view taken by CIT(A) was a reasonable one and cannot be termed as perverse. More so, in view of the seasonal nature of the business carried out by the assessee and the short shelf life of the seeds, Tribunal has held that it is imperative for the assessee to take into account the quantity of unsold seeds at the end of the year and the need to re-validate their further utility and to take them into sto....... + More
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2023 (6) TMI 226
Assessment u/s 153A - Assessee claimed that the AO had not given copies of the seized materials extracted from the hard disk and the pen drive - violation of the principles of natural justice - ITAT has noted in the impugned order that the AO has simply reproduced the appraisal report and has not undertaken any analysis of the seized materials. Even the hard disk with the working copy was not seen by the AO. The seized material had neither been opened nor examined. The expert report also failed to point out that the software was hardware specific . HELD THAT:- In the impugned order the ITAT has concluded that the CIT(A) was right in holding that the additions made in the all three AYs was in total violation of the principles of natural justice and that the additions have been made clearly on estimate basis. With there bein....... + More
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2023 (6) TMI 225
Stay petition - garnishee proceeding - two appeals have been preferred by the petitioner, one against the intimation u/s 143(1) and the second one against the order passed u/s 154 - petitioner has not paid the outstanding dues as per the intimation as rectified - HELD THAT:- From Stay petition, we find that the same has been filed u/s 220(6) of the Act, as per which provision such a petition is required to be filed before the assessing officer. An appellate authority which is competent to hear an appeal has also the power to grant interim relief relatable to the appeal. Power to grant stay is incidental and ancillary to the power to entertain an appeal. Notwithstanding wrong mentioning of the provision, we are of the view that since an application has been filed by the petitioner before the 4th respondent appellate authority, th....... + More
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2023 (6) TMI 224
Addition on account of low GP rate - GP rate in year under consideration[ 2015 - 16] was 0.41% as compared to GP rate of 8.59% in A. Y. 2014 - 15 - sole ground/allegation taken by AO for enhancing GP rate from 0.41% to 1% of turnover is that there was significant rise in the turnover of jewellery segment but the GP rate was reduced abnormally - HELD THAT:- It is a well accepted principle tax jurisprudence that the Assessing Officer cannot sit on the arm chair of a businessman assessee to replace his business strategy by his own whims and fancies. When the assessee took decision to reduce GP rate with an intention to fetch high turnover resulting into increase in the total net profit and under this strategy the assessee under took turnover of 34 times in comparison to the immediately preceding year taking sky high increase in the turnov....... + More
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2023 (6) TMI 223
Validity of re-assessment - as argued notice u/s 143(2) was not issued by the AO - whether curable u/s 292BB? - HELD THAT:- From the contents of the Assessment Order, it appears that the show cause notice was represented and the assessee s case was validly assessed though mentioning of the Section 143(2) was not there on record. Yet, opportunity of representing the assessee was given during the assessment proceedings. Prima facie, from the assessment order, it appears that notice u/s 143(2) of the Act was issued to the assessee and the observations of the CIT(A) needs no interference. Hence, ground no.1 is dismissed. Cash seized during the course of search - onus to prove - HELD THAT:- AO has not doubted the books of accounts which was produced before the AO on 18.12.2013 during the course of assessment proceedings. On the contrar....... + More
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2023 (6) TMI 222
Delay in filing the Misc. Applications by 887 days - HELD THAT:- Though the Hon ble Supreme Court has extended the period of limitation till 28.02.2022, the Ld. DR could not explain the delay from 14.09.2019 till 15.03.2020 (date from which Covid-19 restrictions were imposed) and from 28.02.2022 till the filing of present Misc. Applications which is 05.08.2022. Despite the extension granted by the Hon ble Supreme Court, the Revenue has filed the Misc. Application after five months from the period of extension granted and also six months after the original order dated 14.09.2019 was passed. Therefore, the delay in present Misc. Applications cannot be condoned.
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2023 (6) TMI 221
Disallowance of prior period expenses - CIT-A allowed claim - HELD THAT:- We find that the ld. AO had not doubted the genuineness of prior period expenditure and prior period income while making the disallowance on net basis. There is no change in tax rates in the year under consideration and earlier year. Further, we find that the assessee has been incurring continuously huge losses. Hence it would not make any difference with regard to allowability of expenditure in one year or the other. See National Cooperative Consumers Federation of India Ltd case [ 2012 (9) TMI 433 - ITAT, DELHI] - No infirmity in the order of the ld. CIT(A) granting relief to the assessee. Decided against revenue. Disallowance on account of extraordinary items written off - expenditure incurred on abandoned project - CIT(A) granted relief to the assesse....... + More
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2023 (6) TMI 220
Validity of the notice issued u/s. 143(2) - statutory time limit to issue notice - notice after expiry of six months from the end of the financial year - HELD THAT:- As per the proviso to section 143(2), no notice shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished. In the present case, the assessee has filed his return of income for the AY 2019-20 (FY-2018-19) on 18/08/2019 and the notice U/s. 143(2) ought to have been served on or before 30/09/2020. Whereas the AO has issued notice u/s. 143(2) on 12/10/2020 after expiry of six months from the end of the financial year (FY 2019-20) in which the return is furnished. It therefore, in our considered view, attracts the proviso to section 143(2) in which case the assessment made based on such notice becomes void....... + More
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2023 (6) TMI 219
Revision u/s 263 - long term capital gains returned by the assessee with a direction to AO to re-do the same by referring to the valuation of the property to DVO and also to reclassify the income as business income instead of long term capital gains as returned by the assessee and after giving an opportunity of hearing to the assessee - HELD THAT:- In the instant case, the assessee has not disputed the value of the estate as per the Stamp Valuation Authority but has preferred to adopt sale consideration actually received at Rs. 6,34,23,000/- as against the value of the Stamp Valuation Authority for the purpose of computing Capital gains. It is also admitted that the AO has not looked into these aspects while framing the assessment u/s. 143(3) r.w.s 144C(3) of the Act. Since the Ld. AO has failed to cause any enquiry on the above i....... + More
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2023 (6) TMI 218
Disallowing 50% of depreciation on vehicle - vehicle was registered in the second half of the relevant previous year - HELD THAT:- We find force in the argument of AR that since the assessee had paid for the entire purchase cost and had vehicle in its possession before 30.09.2014 and simply because the registration was done on 22.11.2014, the assessee cannot be denied the benefit of depreciation for the full year. We find support in the decision of National Thermal Power Corporation Ltd. [ 2012 (10) TMI 720 - DELHI HIGH COURT ] wherein as held that used or the purposes of the business would include the asset which is kept ready for use but actually not put to use. Before us, Revenue has not pointed to any contrary binding decision in its support. In such a situation, we hold that assessee is entitled for deprecation for entire year. Direct the AO to allow the claim of depreciation for the entire year. Thus the ground of assessee is allowed.
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2023 (6) TMI 217
Penalty u/s. 271(1)(c) - cash payment in excess of Rs. 20,000 u/s 40A - payment in cash was made for hospital bills as the hospitals did not accept payment through cheques - HELD THAT:- AO was not correct and justified in holding that the assessee has not furnished accurate particulars of income and hence, concealed particulars of income and liable to be imposition of penalty u/s. 271(1)(c) of the Act on account of furnishing of inaccurate particular of income particularly in a peculiar situation in the present case that the assessee has disclosed and recorded entire amount of claim incurred on medical emergencies under commercial expediency in the books of accounts of assessee. As decided in Reliance Petroproducts (P) Ltd [ 2010 (3) TMI 80 - SUPREME COURT] merely because the claim of assessee was not accepted for not found to be a....... + More
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2023 (6) TMI 216
Addition u/s 14A r.w.r. 8D - HELD THAT:- No hesitation in confirming the order passed by the Ld. CIT(A) who deleted the addition of interest expenditure u/s 8D(2)(ii). Administrative expenses under Rule 8D (2)(iii) - Disallowance made under Rule 8D(2)(iii) at 0.5% of the average value of investments made by the assessee, which earned only exempt income is liable to be disallowed u/s. 14A after excluding the investments which earned taxable income. Thus the disallowance to be made under Rule 8D(2)(iii) works out to Rs. 7,53,382/- only, however the assessee already disallowed a sum of Rs. 28,78,876/-, therefore no further disallowance is to be made on this account. Disallowance u/s. 14A read with Rule 8D while computing book profit under section 115JB - HELD THAT:- Recently, the Supreme Court of India in the case of Atria Power....... + More
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2023 (6) TMI 215
Bogus purchases - reason for treating the purchases as non-genuine is the assessee has not produced PAN number, no address proof, no counter-signed ledger account - HELD THAT:- The assessee in fact filed copy of TIN of the supplier to prove the identity and existence of business concern. Therefore, in our view simply because the assessee has not filed PAN, copy of ITR, these purchases cannot be treated as non-genuine. In the case of Shri Kalyan Singh the only ground on which the addition was sustained by the ld. CIT (Appeals) was that the assessee has not deducted the TDS, even though the assessee has furnished copy of ledger account in the books of the assessee company, copy of vouchers and bank statements, copy of ledger for the financial year 2010-11, copy of vouchers and ledger details in respect of the work done by the vendors........ + More
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2023 (6) TMI 214
Disallowance u/s 14A r.w. Rule 8D - whether assessee has not earned any exempt income? - HELD THAT:- AO has clearly stated that the assessee has not earned from equity investments which would yield exempt dividend income and the dividend income earned by the assessee is NIL. Thus, it is clear that the assessee has not earned any exempt income in the relevant assessment year under appeal against the investments. As relying on M/S CHETTINAD LOGISTICS PVT. LTD. [ 2018 (7) TMI 567 - SC ORDER] held that when there was no dividend income earned in the relevant assessment year, the disallowance made by the Assessing Officer in view of the provisions of section 14A r.w.r. 8D was completely contrary to the provisions of that section as Rule 8D only provides for a method to determine the amount of expenditure incurred in relation to income, which does not form part of total income of the assessee. Also confirmed by SC [ 2018 (7) TMI 567 - SC ORDER] - Decided against revenue.
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2023 (6) TMI 213
Disallowance of provision for warranty created in excess of 2.14% of the sales - HELD THAT:- As relying on assessee own case [ 2023 (4) TMI 1053 - KARNATAKA HIGH COURT] we direct the AO to grant deduction of provision for warranty as claimed in the return of income. It is ordered accordingly.
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