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Showing 141 to 160 of 18008 Records
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2023 (12) TMI 1297
Validity of the order passed u/s. 92CA(3) - period of limitation - TPO will have to pass an order in time before 60 days prior to the date on which the period of limitation referred to in section 153 of the Act expires - HELD THAT:- Though in section 92CA(3A) of the Act it states that the ld. TPO has to pass the order before 60 days of the limitation period mentioned in section 153 which though seems to be only directory and not mandatory but various courts have held that the time limit prescribed for passing of the order by the ld. TPO is mandatory which has to be adhered to strictly while passing the TP order. In the present case, the order of the TPO should have been passed on or before 31.10.2019 and the impugned order dated 01.11.2019 is beyond the time limit stipulated u/s. 92CA(3A) r.w.s. 153 of the Act. Appeal filed by the assessee is allowed.
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2023 (12) TMI 1296
Seeking grant of bail u/s 439 CrPC - Offence punishable under Sections 132(1)(b)(c)(f)(K) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- It appears that petitioner was arrested in the present case on 25.06.2023 and investigation has been completed; there are no antecedents of petitioner and punishment for the alleged offence of evasion of tax is to the extent of five years and fine as prescribed u/s 132(1) of the CGST Act, 2017. The Hon’ble Supreme Court in case of Ratnambar Kaushik [2022 (12) TMI 263 - SUPREME COURT], released the petitioner on bail after undergoing incarceration period of more than four months and in view of fact that conclusion of trial will take some time, Thus considering the period of incarceration of petitioner for about six months, but without commenting on merits of the case, this Court deems it just and proper to release petitioner on bail.
Accordingly, the bail application is allowed and it is ordered that accused-petitioner Rishabh Jain S/o Shri Yogesh Jain shall be released on bail provided.
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2023 (12) TMI 1295
Entitlement of claim of exemption u/s 11 - not filing of Form No.10 and / or 10B within due date as prescribed under the Act - procedural or mandatory lapses - assessee filed revised return of income with the higher claim of deduction under Section 11(2) - HELD THAT:- As in the instant facts, it is not a case where the assessee had not filed Form 10 in the original return of income, before the due date prescribed of filing return of income. It is only a case where the assessee observed that a certain error had crept in the original return of income, wherein the quantum of deduction claimed under Section 11(2) of the Act required correction and accordingly, the assessee filed revised return of income with the higher claim of deduction under Section 11(2) of the Act.
It has been held by various Courts that the requirement of filing Form 10 / 10B is merely directory in nature and failure to furnish Form 10 / 10B before due-date prescribed u/s 139(1) of the Act cannot be so fatal so as to deny they very claim of exemption u/s 11(2) of the Act especially when Form 10 / 10B was available on record when the intimation was passed by CPC u/s 143(1) of the Act - Decided in favour of assessee.
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2023 (12) TMI 1294
Principles of Equity - Challenge to garnishee order issued by the Department of Sales Tax - HELD THAT:- If the case of the petitioner is appreciated on the premise of equity, the action of the respondents can certainly be inequitable. But the fact remain that the respondents are also constrained to act in consonance with the mandate of the statute i.e., tax laws and hence the impact in following the course of law. Hence, the respondents also cannot be entirely faulted for the present state. But it is an admitted fact that the respondents and other arms of the Government seem to be due to the petitioner through the main contractor. The fact that the contractors have executed the Government work and the fact that the petitioner has executed some of those works as a sub-contractor is also an admitted fact.
The instant set of facts are required to be adjudicated equitably and without transgressing the four corners of GST Act.
It is deemed appropriate to modify the garnishee order passed by the respondents by restricting it, in so far as it relates to the amounts in the case of the garnishee namely M/s. Stanch Projects Private Limited. In so far as garnishee order passed by the respondents in respect of the other three garnishees, the same are set aside.
Petition disposed off.
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2023 (12) TMI 1293
Seeking grant of bail - money laundering - applicant and other accused persons in conspiracy with the office bearers of the housing societies have purchased the land which had already been sold to the members - HELD THAT:- So far as the role of this applicant is concerned, he got executed the sale-deed of Rs.2,00,00,000/- by issuing four cheques of Rs.50 – 50 Lacs and out of said four cheques, three were bounced and one cheque of amount of Rs.50 Lacs was transferred and that too in the forged account in the name of society. Thereafter, he took loan of Rs.10 Crores by mortgaging the said land from Allahabad Bank which he invested in C-21 Mall, Bhopal thus, he got benefited to the tune of Rs.8.63 Crores. It is submitted that this is the only case registered against the applicant. He is ready to appear in the trial Court to get the regular bail.
It is directed that in the event of arrest, the applicant – Keshav Nachani shall be released upon his furnishing personal bond in the sum of Rs.5,00,000/- with one surety in the like amount to the satisfaction of the arresting officer. This order shall be governed by the conditions No.1 to 3 of sub-Section (2) of section 438 Cr.P.C. The applicant shall also co-operate with the investigation.
Application allowed.
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2023 (12) TMI 1292
Revision u/s 263 against reassessment order passed u/s 147 - taxability of capital gain arising out of the sale of the said land - as per CIT AO has accepted the source of cash deposit but did not investigate the nature of land alleged to be sold as agricultural land - assessee stated that AO could not have gone beyond the reasons recorded for reopening the assessment -
HELD THAT:- On a perusal of the notice PCIT himself has referred to the sale deed relating to sale of agricultural land. This very document was examined by the AO as mentioned in his assessment order when he was examining the source of cash deposited in the Savings Bank account.
These facts go on to show that specific queries were raised to which specific reply was filed. Therefore, it cannot be said that the AO did not make any enquiry. Moreover, assessment was reopened with specific reasons for reopening and those specific reasons have been duly examined by the AO before completing assessment.
In our considered opinion, for exercise of power u/s 263 of the Act, it is mandatory that the order passed by the Assessing Officer should be erroneous and prejudicial to the interest of the Revenue. A perusal of the assessment order shows that the returned income was accepted by the AO and no addition was made for reasons recorded at the time of issue of notice u/s 148 of the Act.
This is an undisputed fact that the issues which prompted the AO to reopen the assessment were duly considered and reply of the assessee was accepted and no addition was made. This fact has also not been disturbed by the PCIT in his order u/s 263 of the Act.
In our considered opinion, the AO could not have made the addition on the issues raised by the PCIT in his order as no addition was made on account of reasons recorded for reopening the assessment.
No hesitation in setting aside the order of the PCIT and restore that of the Assessing Officer - Decided against revenue.
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2023 (12) TMI 1291
Revision u/s 263 - Limited scrutiny case of assessee - correct head of income - income from the lease rent ought to have been charged under the head “other sources” instead of “business income” - PCIT holding assessment framed u/s 143(3) as erroneous in so far prejudicial to the interest of revenue - PCIT was of the view that such lease rent income should have been charged to tax under the head “other sources” and therefore other expenses such as remuneration/salary to the partner and other expenses of general in nature should not have been allowed as deduction
HELD THAT:- Case of the assessee was selected for limited scrutiny - On perusal of the notice, the case was selected for scrutiny “whether deduction claim on account of depreciation is admissible” so, it was a case of limited scrutiny and there was no option for the AO to verify anything other than the issue for which the case was selected for limited scrutiny.
Ast here was no possibility for the AO to inquire whether the income shown by the assessee was to be assessed under the head “business income” or “other sources” unless the limited scrutiny is converted to regular scrutiny. Accordingly, we hold that the PCIT cannot exercise his power u/s 263 of the Act, to verify those items which were not subject matter of the scrutiny.
As the contention of the Ld. Counsel that the limited scrutiny was not converted into regular scrutiny was also not controverted by the Ld. DR appearing on behalf of the revenue and that in the earlier AY, the income of the assessee was accepted as income under the head “business and profession” was not controverted by the Ld. DR. In view of the above, we hold that the revisional order passed by the Ld. PCIT is not sustainable. Decided in favour of assessee.
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2023 (12) TMI 1290
Eligibility for refund/ self-credit - Area-based exemption under Notification No.56/2002 dated 14.11.2002 as amended - Department was of the opinion that under Section 3, no refund/ self-credit was available as the said Cesses have not been exempted under the Notification No.56/2002.
The impugned order considers the self-credit taken by the appellants as “erroneous” credit and confirms the demand of the same in terms of Section 11A of Central Excise Act, 1944 along with interest and penalty under Section 11AC ibid.
HELD THAT:- The impugned order cannot be sustained and is accordingly set aside. Hence, the appeal is allowed.
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2023 (12) TMI 1289
Money Laundering - predicate offence - forgery - purchase of the land by Shri Anil Parab from Mr. Sathe - allegations are that by exerting pressure building permissions are illegally obtained - applicability of rigours of Section 45 of the PMLA - HELD THAT:- There are no substance in the submission of the learned senior advocate Shri Desai that the accusations in the present case of money laundering involve a sum of less than Rs. 1 Crore for enabling the applicant to claim the benefit of the first proviso to section 45 of the PMLA. It is for this reason that the estimation of proceeds of crime as set out in the complaint is reproduced hereinbefore. Though learned senior advocate Shri Desai was at pains to point out that the accusations of money laundering against the applicant are for a sum of less than one crore rupees, having regard to the materials in the complaint, it is opined that arriving at this conclusion will entail a detailed fact-finding exercise which may not be permissible at the stage of considering the bail application.
No doubt, the challenge to the order passed by the revisional Court quashing the process is pending in this Court but the order of the revisional Court has not been stayed. The applicant can not, therefore, be deprived of the fruits of the order passed by the revisional Court merely because the Writ Petition challenging the revisional Court’s order is pending in this Court. It is always open for the respondent to take such steps in accordance with law in case the MoEF succeeds in the Writ Petition.
It is the submission that the act of registering FIR No. 177 of 2022 is malafide action on the part of the respondent. A reading of the MoEF complaint and the FIR No. 177 of 2022 indicates that though the property may be the same but the allegations made are in different context on the basis of the complaint filed by the separate entities. It is not possible to render a finding of malafide at this stage.
No doubt this Court while considering twin test of Section 45 of the PMLA has to consider the broad probabilities of the case, however, having regard to the nature of the accusations and the materials on record, it is not possible to record a satisfaction that there are reasonable grounds for believing that the applicant is not guilty of such offence - application dismissed.
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2023 (12) TMI 1288
Failure to discharge service tax liability properly for the taxable services rendered - Business Auxiliary Services - Goods Transport Agency Services - short payment of service tax on Custom House Agency Services - Time Limitation - Suppression of facts or not - difference of opinion.
HELD THAT:- In view of the difference of opinion between the Members of the Bench regarding Service tax payable on Business Auxiliary Service (BAS) and on Custom House Agent Service (CHA), the following issues which arise from the appeal are framed for resolution:
(i) Whether the demand of service tax on BAS and CHA services is liable to be set aside on the basis of submissions made and following the ratio of judgments / case laws submitted.
OR
(ii) Whether the Tribunal being the last fact-finding authority is required to examine the facts, written agreement / contract between the parties and in its absence remand the matter to the Original Authority for giving an opportunity to the appellant to adduce evidence as may be found necessary for determining the issue.
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2023 (12) TMI 1287
Refund claim/Claim of input tax transition of credit - TDS amount remitted by the contractor of the petitioner - whether such amount can only be claimed through a refund application and is ineligible to be transitioned to GST regime credit, and such amount cannot be claimed in TRAN-1 as credit? - HELD THAT:- Section 17(5) which has been placed reliance does not have applicability in respect of the claim of input tax transition of credit in TRAN-1. Section 17(5) is only in respect of non-availability of the input tax credit in certain transactions, it has nothing to do with the claim of input tax credit on eligible transaction.
The TDS which is tax deducted by the contractor on execution of the contract of the petitioner, cannot be said to be input tax credit. Such tax deducted at source is reflected in the electronic cash register and not in the electronic credit ledger. Only the amount which is reflected in the electronic credit ledger is to be treated as input tax credit and not any amount of tax which is reflected in the electronic cash register can be treated as the input tax credit.
The two judgments relied by the learned Counsel for the petitioner of other High Courts, i.e. one by the Madras High Court in the case of DMR Constructions v. Assistant Commissioner, Commercial Tax Department [2021 (4) TMI 261 - MADRAS HIGH COURT] does not take note of the proviso to Section 140, and without taking note of the proviso to Section 140, the judgment has been rendered. Therefore, the said judgment would not be applicable while reading the provisions of the GST Act, including the definition as provided in Sections 2(62) and 2(63), as well as the proviso to Section 140 of the CGST/SGST Act - The next judgment of Jharkhand High Court in M/s Subhash Singh Choudhary and M/s Bhilai Engineering Corporation Ltd v. The State of Jharkhand, Joint Commissioner of State Tax (Administration) [2023 (1) TMI 1023 - JHARKHAND HIGH COURT] Jharkhand High Court also does not take into account the definition of ‘input tax’ and ‘input tax credit’.
Section 140 of the CGST/SGST Act is in respect of the transitional credit of input tax and not every tax paid under the VAT regime. Therefore, there are no much substance in the present writ petition, which is hereby dismissed. However, the petitioner may apply for a refund of TDS in accordance with the law if he is so advised, and such claim shall be processed in accordance with the law - petition dismissed.
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2023 (12) TMI 1286
Seeking grant of regular bail - input tax credit claimed on bogus billings during the assessment period of 2011-2012 - fraudulently obtaining refund by using false and fabricated documents - HELD THAT:- It transpires that the petitioner is behind the bars since 29.05.2023 and has been granted bail by learned Sessions Judge, Sirsa vide order dated 27.10.2023 (Annexure P-4) in one of the FIR’s i.e. FIR No. 650 dated 24.10.2020 and this Court granted regular bail to the petitioner in FIR No. 657 dated 24.10.2020 (Annexure P-3) vide order dated 09.10.2023 passed in CRM-M-49998-2023. The Investigating Agency has already completed the investigation and filed the final report under Section 173 of Cr.P.C. on 25.09.2023 and the trial has not made any progress as none of the 30 prosecution witnesses, as cited by the prosecution, has been examined so far.
In view of the ratio of law laid down by Hon’ble Supreme Court in Prabhakar Tiwari Vs. State of UP and Anr. [2020 (1) TMI 1528 - SUPREME COURT] and Maulana Mohd. Amir Rashadi Vs. State of U.P. and Others [2012 (1) TMI 407 - SUPREME COURT], it has been held that pendency of any other criminal case against the accused cannot be the sole ground to deny him the concession of bail.
The petitioner -Gopi Chand Chaudhary is ordered to released on regular bail in this case only, if not required in any other case, subject to his furnishing requisite bail bonds/surety bonds to the satisfaction of the concerned trial Court/Chief Judicial Magistrate/Duty Magistrate - petition allowed.
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2023 (12) TMI 1285
Assessment u/s 153A - Addition u/s 69 for unexplained investments in land - addition made being in respect of entry appearing in the assessee’s accounts - HELD THAT:- The assessee stating that no incriminating material was found during search is without basis on facts. Notice u/s. 153A r/w s. 153C in case of a person other than the persons searched, as the assessee in the instant case, can only be on the basis of a satisfaction recorded as to the books of account or documents or assets seized or requisitioned have a bearing on the determination of the total income of another person.
That is, the jurisdiction to frame an assessment u/s. 153A r/ws. 153C, can, as the law always stood and explained, is only on the basis of such material, i.e., incriminating in nature. This jurisdiction has not been assailed at any stage, including before us, i.e., the second round before the Tribunal.
The challenge to the satisfaction note, on the basis of which the assumption of jurisdiction could be questioned, is conspicuous by its absence, even as Sri. Mathew, the ld. counsel for the assessee, was specifically queried in its respect during hearing. It is the assessments in case of the person searched, that the Hon’ble Apex Court has in Abhishar Buildwell (2023 (4) TMI 1056 - SUPREME COURT) reading down the provision held as obtaining only on the strength of incriminating material, which was always the case for an assessment u/s. 153A r/w s. 153C, i.e., in case of a person other than the person searched. In other words, the said decision impacts only an assessment u/s. 153A, i.e., in the case of the person searched, and reliance thereon is misplaced qua a s. 153C, which obtains in the instant case.
The assessee is merely trying to take advantage of the said decision, clearly inapplicable in the facts of it’s case. No books of account were found maintained during search or even produced during assessment proceedings. In fact, in the absence of the returns filed, as indeed accounts, the entire material found during the search is liable to be regarded as incriminating.
In concluding whether the income would or would not have disclosed, reliance, it explained, is to be placed on the surrounding facts and circumstances of the case.
The only manner for disclosing income, it went on to explain, on the part of the assessee, is filing a return as stipulated in the Act. The non-filing of the return by the assessee was thus regarded by it as a fair inference as to the satisfaction of the condition that the income would not have been disclosed.
Applicability of section 68 or 69 is, again, contrived and, in any case, of no consequence, even as clarified by the courts, as in Namdev Arora[2016 (8) TMI 219 - PUNJAB AND HARYANA HIGH COURT] as and when this issue came up before them. No books of account were found during the search, nor indeed presented during the original assessment proceedings. That produced in the set aside proceedings in 2013 incorporating the investment in properties, documents in respect of which were found during the search, is, thus, only aruse so as to bring the additions in their respect in assessment under, as against section 69, under section 68, so as to be able to contend, on that basis, that the investment is recorded in the books. In the absence of any explanation as to the source thereof, the basis of the addition continues to be the unexplained nature and the source of the investment.
Interest u/s. 234A(1) r.w.s 234A(4) up to the date of assessment in the set aside proceedings, i.e., 31.07.2014, is equally without merit. In absence of furnishing any return of income up to the date of assessment on 28.12.2010, the same is the date of regular assessment, up to which therefore the interest u/s. 234A(1), which is for the delayed filing of return of income, is to extend. This interest is to be on the tax as finally assessed, i.e., as per the assessment dated 31.7.2014 (as may be further modified in appeal, which would therefore only be subsequent to), but that would not operate to extend the date up to which the interest is to be charged. The Revenue’s reliance on Mahesh Investment [2020 (10) TMI 428 - KARNATAKA HIGH COURT] is misplaced.
Assessee’s appeals are partly allowed.
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2023 (12) TMI 1284
Demand of IGST wrongly claimed as refund - proceedings initiated against the petitioner resulting in the order impugned is based on a wrong premise - HELD THAT:- It is not in dispute that pursuant to show cause notice issued to the petitioner, the petitioner only on account of pendency of DBCWP No.4465/2021, choose not to respond to the said show cause notice and put forth his response to the said show cause notice and insisted on the adjudication being deferred only on account of pendency of said petition. Apparently, even when the stay petition was rejected on 07.08.2023, despite such rejection also, no response was filed, however, the authority has passed a detailed speaking order dealing with all possible pleas raised by the petitioner.
The submission made pertaining to the entitlement of the petitioner under Section 54 of the Act, which even otherwise is not a jurisdictional aspect, already stands examined and negated by the authority vide impugned order dated 30.10.2023 and the petitioner has to question the validity of said determination in accordance with law including filing of appeal under Section 107 of the Act.
Thus, no case has been made out in the writ petition so as to invoke our extra ordinary jurisdiction under Article 226 of the Constitution of India on the settled parameters, based on which, the same can be invoked by this Court despite availability of remedy of appeal.
Petition dismissed.
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2023 (12) TMI 1283
Cancellation of petitioner's registration before issuance of the notices - petitioner was not granted any time in the notice so issued in GST ASMT-10 - violation of principles of natural justice - HELD THAT:- Since the petitioner's registration had been cancelled before issuance of the said notices, the petitioner did not file reply to the said show cause notices. Otherwise, the petitioner was not granted any time in the notice so issued in GST ASMT-10 and therefore, there has been violation of the principles of natural justice in passing the assessment order, Ext.P5 - there are substance in the submission advanced by the learned counsel for the petitioner. Notice in Ext.P2 disclosed that it is dated 29.9.2023 and on the very next day, Ext.P3 notice under Section 73 was issued. The petitioner was not afforded any time for filing reply to the notice in GST ASMT-10.
There is violation of the principles of natural justice and, therefore, the impugned assessment order, Ext.P5, is unsustainable and the same is hereby set aside. The matter is remanded back to the file of the assessing authority, 1st respondent, to pass fresh a order.
Petition allowed by way of remand.
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2023 (12) TMI 1282
Extension of time period for issuance of the show-cause-notice - applicability of provisions of Section 168A of CGST Act - HELD THAT:- Issue Notice returnable on 8th February, 2024. By way of ad-interim relief, no final order shall be passed by the respondent authority pursuant to the show-cause-notice issued during the period extended by the impugned notification without permission of the Court till the next date of hearing. Direct service is permitted.
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2023 (12) TMI 1281
Determination of quantum of pre-deposit for filing of appeal - deposit of 10% of the disputed tax amount means only tax amount and entire composite amount comprising tax, fine, penalty and fee? - failure to comply the mandate of pre- deposit - HELD THAT:- By isolating "a sum equal to ten per cent of the remaining amount of tax in dispute" in sub-clause (b), the legislator conveys a focused pre-deposit requirement specifically related to the disputed tax amount. This implies that the legislative design prioritizes the financial commitment associated directly with the primary tax liability being contested. This approach aligns with the legal principle that penalties, fines, fees, and interest are subsequent to the determination of tax.
The apex court in the case of PRAKASH NATH KHANNA AND ANOTHER VERSUS COMMISSIONER OF INCOME-TAX AND ANOTHER [2004 (2) TMI 3 - SUPREME COURT], has explained that the language employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistake. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency. Where the legislative intent is clear from the language, the Court should give effect to it.
The appellate authority therefore, was not justified in calling upon the petitioner to deposit 10% of not only tax liability, but, also fine which is imposed by the Enforcement Officer equivalent to the value of the goods. If the order passed by the appellate authority under challenge is accepted, then the condition under clause (b) giving an option to the aggrieved person who disputes the entire tax liability to deposit 10% of the remaining amount of tax in dispute would be defeated.
There is no need for the petitioner to deposit any percentage of disputed interest, fine, fee and penalty arising from the impugned order. In essence, the legislative intent as construed from Section 107(6)(b) of the CGST Act is that aggrieved party has to pre-deposit 10% of the tax liability and it does not extend to penalties, fees or interest when the petitioner has contested the entirety of the tax liability.
Petition allowed.
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2023 (12) TMI 1280
Demand of GST u/s 73 of CGST Act, 2017 - input mismatch between GSTR 3B return and GSTR 2A statement - Assessee could not represent his case due to non-receipt of communication - HELD THAT:- The main grievance of the petitioner is that the person/consultant, viz., Mr. Paneerselvam and Mr.Sivakumar, who were engaged by the petitioner for filing the returns passed away on 30.04.2019 and 05.02.2022 respectively and hence the petitioner was not in a position to know about the impugned proceedings initiated against them and the consequential orders and hence, the petitioner was not able to file appropriate application and appear before the authorities concerned and put forth their case by way of reply.
However, since the learned counsel for the petitioner submitted that the petitioner would be satisfied, if this Court grants liberty to the petitioner to agitate their case before the Appellate Authority by way of Appeal, this Writ Petition is disposed of granting liberty to the petitioner to approach the Appellate Authority by way of filing an appeal within a period of thirty days from the date of receipt of a copy of this order, in which case, the authorities concerned shall entertain the same without insisting upon limitation aspect, if any and dispose of the same, in accordance with law, after affording an opportunity to the petitioner.
Petition disposed off.
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2023 (12) TMI 1279
Cancellation of petitioner’s GST registration - failure to furnish the return for the continuous period of six months - HELD THAT:- In terms of Section 29(2) of the Central Goods and Services Tax Act, 2017 (CGST Act), a proper officer has a discretion to cancel a GST registration of a tax payer from such date (including retrospectively), as he considers fit. However, the discretion to cancel the GST registration from retrospective effect cannot be exercised arbitrarily or whimsically. Such decision to cancel the GST registration with retrospective effect must be informed by reason.
In the present case, the impugned order does not indicate any reason for cancelling the petitioner’s GST registration, let alone a reason for doing so retrospectively. Thus, the impugned order is liable to be set aside - In the present case, the petitioner’s GST registration has been cancelled for failure to furnish return for the continuous period of six months. Clearly, this does not warrant cancellation of GST registration for the period during which the returns were filed.
Petition disposed off.
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2023 (12) TMI 1278
Refund of the input tax credit including cess - petitioner’s application was rejected on mere apprehension that its supplier had issued fake invoices - HELD THAT:- This Court had also noted that there are no findings on the basis of the cogent material that the invoices issued by one of the petitioner’s suppliers (M/s Shruti Exports) were fake. It was also noticed that there was no allegation that the petitioner had not exported the supplies in respect of which refund of ITC on inputs was claimed. Accordingly, the petition was allowed and the respondents were directed to process the petitioner’s claim for refund.
An application for refund by a tax payer is required to be examined in entirety. If there are any grounds for requiring further clarification or proof, the concerned officer is at liberty to issue a show cause notice setting out all the grounds on which the application is proposed to be rejected. This affords a tax payer an opportunity to meet the allegations and provide such material to satisfy the concerned officer. Once that exercise is done, the concerned officer has to pass a final order either accepting the tax payer’s claim for refund or rejecting it. The reasons for such rejection are required to be clearly stated in the order - A tax payer has an opportunity to appeal against the said order before the Appellate Authority. It is important to note that the Appellate Authority is required to consider the appeal and pass an appropriate order, however, it cannot remand the matter to the concerned adjudicating authority for considering it afresh.
In the present case, after this Court had passed an order, the adjudicating authority once again issued a show cause notice dated 07.07.2023. This is impermissible. The respondents were required to pass an order for sanctioning the refund in accordance with the law and not to re-adjudicate the application once again.
Application disposed off.
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