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2024 (12) TMI 1294
Challenge to order of re-assessment passed by Respondent No. 1 u/s 39 (1) of the Karnataka Value Added Tax Act, 2003 on the ground of being barred by time limitation - case of appellant is that Section 40 of the Act of 2003 provided for a period of limitation for passing an order of assessment or re-assessment - whether the learned Single Judge is justified to hold that the limitation for the purpose of re-assessment would start running from the date of passing of the order by the Commissioner under Section 64 (2) of the Act of 2003?
HELD THAT:- There is no dispute that, we are concerned with the tax period between April 2007 to September 2007, and the Assessing Authority has passed an order of re-assessment on 16.01.2010. The Appellate Authority exercising jurisdiction under Section 62 of the Act, had allowed the first appeal filed by the appellant vide order dated 31.05.2010. Pursuant thereto, even the Revisional Authority had by initiating the suo-moto revision, has dropped the proceedings on 13.06.2012. It is only on 17.07.2014 the Commissioner of Commercial Taxes had initiated the proceedings under Section 64 (2) of the Act and set aside the order of the Appellate Authority and the Revisional Authority, and remanded the matter to the Assessing Officer for re-verifying the taxable contract receipts for the period of April and May of 2007 and to do the re-assessment.
It follows that the period taken for disposal by different authorities like Appellate Authority/Revisional Authority/Commissioner of Commercial Taxes in the manner depicted by the appellant, which we have reproduced above, need to be excluded. In other words, as stated above, if 07 years of limitation for assessment or re-assessment need to be computed, the same shall expire on 31.05.2014, but, if 391 days are added to the same, then the period will come to an end just five days before 30.06.2015. So in other words, the re-assessment cannot be carried out after 26.06.2015.
In the present case, the re-assessment was done only on 30.05.2018, much after 26.06.2015. Hence, in that sense, the bar under proviso to Section 40 of the Act of 2003 shall come into play.
The appellant is also justified in relying upon the judgment of the Hon’ble Supreme Court in the case of Jaipuria Brothers Limited [1964 (10) TMI 57 - SUPREME COURT]. In the said case the facts were, on March 20, 1952, the Sales Tax Officer, Kanpur, issued a notice under Section 21 of the Uttar Pradesh Sales Tax Act 1948, calling upon the appellant/Company to file a return of its turnover for the Assessment Year 1948-49 on the ground that the turnover had escaped assessment. On March 31, 1952, the Sales Tax Officer has made a best judgment assessment and determined the taxable turnover of the appellant/Company at Rs. 50/- for the year 1948-49 and determined the appropriate tax liability.
In the judgment reported, as the Assessing Authority, Amritsar and another [1969 (5) TMI 49 - PUNJAB AND HARYANA HIGH COURT] the Full Bench of Punjab and Haryana High Court was considering the reference made to it on the question whether the jurisdiction of the Commissioner under Section 21(1) of the Punjab General Sales Tax Act, 1948 is subject to period of limitation prescribed under Section 11(A) of the Act. In the said case also, the Commissioner while disposing of the revision under Section 21 of the Act had set aside the Order of Assessment and ordered the Assessing Authority to make a fresh assessment in accordance with law. The court held the proceedings are governed by the period of limitation prescribed in subsections (4), (5) and (6) of Section 11 or Section 11(A) of the Punjab General Sales Tax Act, 1948 - The Court held that, the view is well-founded based on the judgment of the Hon’ble Supreme Court in Jaipuria Brothers Limited. It was also held that once the Commissioner while exercising revisional powers decided to direct the Assessing Authority to make a reassessment in accordance with law, the proceedings for re-assessment were fresh proceedings which were governed by the period of limitation prescribed under Section 11(A) of the Act and accordingly, the appeal was dismissed.
Conclusion - The reassessment done by the Assessing Officer leading to impugned orders dated 30.05.2018 is without jurisdiction, being beyond the statutory limitation period, and accordingly the impugned order of the learned Single Judge is set aside, and consequently, the orders of the Assessing Authority and the demand made thereof, are also set aside.
Appeal allowed.
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2024 (12) TMI 1293
Entitlement to recall or set aside an assessment order issued under the Kerala Value Added Tax Act, 2003 based on a subsequent order issued due to a mistake - benefit of an Amnesty Scheme - HELD THAT:- The petitioner is not entitled to any relief in the present writ petition. It is not disputed before that Ext. P2 order, which is issued under Section 25 (1) of the KVAT Act on 15.12.2018, has not been set aside or modified in any proceedings. If that be the case, the provisions of Section 25 (1) of the KVAT Act does not permit the Assessing Authority to pass a fresh order for the same assessment year. If such course of action is permitted, it would result in contradictory orders being passed without the original order being set aside or modified in a manner known to law. In such circumstances, there are no hesitation to hold that the second assessment order (Ext. P3) dated 29.03.2021 is non-est in law and cannot be sustained. Therefore, in that view of the matter, it is not necessary to consider the question as to whether the prayer to recall the earlier assessment order dated 15.12.2018 was maintainable under Section 66 of the KVAT Act.
The petitioner is not entitled to any reliefs as sought for in the writ petition. The writ petition will stand dismissed.
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2024 (12) TMI 1292
Dishonour of Cheque - vicarious liability of petitioner, as an additional director - petitioner was neither the signatory of the cheques in question nor the managing direction of the respondent no. 3 company - Section 141 of the NI Act, 1881 - HELD THAT:- In the case of State of Haryana v. Bhajan Lal [1990 (11) TMI 386 - SUPREME COURT], the Hon’ble Supreme Court had set out the broad categories of cases in which the inherent powers under Section 482 of the Cr.P.C. could be exercised - From the judgment, it is clear that the Court may quash a complaint under Section 482 of the CrPC if it is satisfied that the allegations made against the accused in the complaint, even when they are taken at face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused. Further, the Court may also invoke its extraordinary powers to quash a complaint if the allegations made in the complaint are so absurd and improbable that no prudent person may reach a conclusion that there is sufficient ground for proceeding against the accused.
In the present case, this Court is concerned with the determination of criminal liability arising due to dishonour of cheques. As can be clearly established from various provisions that in case of a company, the vicarious liability as contemplated under Section 141 of the NI Act extends criminal liability under Section 138 of the NI Act to every person who at the time of the commission of the said offence was in charge of, or responsible for the conduct of the business of the said company - it is well-established that in order to subject a person to criminal proceedings under Section 141 of the NI Act, a clear case should be spelled out against the accused with necessary averments in the complaint that the accused is involved in the commission of the said offence.
In the present case, it is undisputed that the respondent no. 3 company issued cheque 1 on 28th September, 2014 and cheque 2 on 30th September, 2014 in favour of respondent no. 2. Both the cheques were returned unpaid on 18th December, 2014 by the payee bank due to insufficiency of funds, and subsequently, a notice was issued was issued on 15th January, 2015 demanding the payment of the cheque amount, which was not paid even after the expiry of the timeline of 15 days after the receipt of the notice of demand.
Conclusion - This Court is of the considered view that the petitioner had ceased to be an additional director at the time of the commission of the said offence under Section 141 of the NI Act and there is nothing on record to show that he was in control of or managing the conduct of the business or day-to-day affairs of the respondent no. 3 company during the relevant timeline of the commission of the said offence. Therefore, no offence is prima facie made out against the petitioner under Section 141 of the NI Act from the uncontroverted allegations made against the petitioner in the instant complaint.
This Court finds it a fit case to exercise its extraordinary powers under Section 482 of the CrPC for quashing of the Criminal Complaint - Petition disposed off.
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2024 (12) TMI 1291
Dishonour of Cheque - vicarious liability - petitioner's involvement in the company's affairs or not - whether this Court can exercise inherent powers under Section 482 of the Code (Section 528 of the BNSS) for quashing of the complaint bearing no. 7369/2022 and summoning order dated 6th January, 2020? - HELD THAT:- It is pertinent to understand the contention of the petitioner that the said complaint and the summoning order are liable to be quashed as the petitioner is not involved in the day-to-day affairs of the company and was unaware of the cheques issued to the complainant, hence, the offences under Section 138 and 141 of the NI Act are not made out.
In the instant case, the complainant presented the said cheque for the second time on 19th October, 2019, which was dishonored vide memo dated 21st October, 2019 for insufficiency of funds. As required by Section 138 of the NI Act, the complainant issued a demand notice dated 2nd November, 2019, which was issued well within the statutory period of 30 days. However, despite intimating the accused persons, including the petitioner, regarding the dishonor of the cheque and payment of the due amount, the accused persons including the petitioner failed to pay the said amount, thereby, making out an offence under Section 138 of the NI Act. Accordingly, the aforesaid complaint was filed - Section 141 of the NI Act merely states the liability of certain people for the offences committed by the company, which needs to satisfy the test of who is “in charge of” or “responsible for the conduct of company’s affairs”. However, the extent of their liability is discussed elaborately in a catena of judgments.
In the instant case, even though the petitioner is not an authorised signatory of the cheque, she is an officer of the company, holding a directorial position at the respondent no.4-company. Therefore, not being an authorised signatory does not absolve her from the liability of the commission of offence as long as the requisites under Section 138 and 141 of the NI Act are met - this Court has observed a prima facie case against the petitioner for her involvement in the day-to-day activities of the conduct of the company affairs at the time of commission of the offence under Section 141 of the NI Act and her knowledge in issuance of the said cheque to the complainant.
Conclusion - This Court is of the view that the learned MM has rightly issued summons against the petitioner after being satisfied that a prima facie case is made out under Section 138 of the NI Act. Moreover, sufficient reasons were given in the summoning order, wherein, the learned MM observed that payment was not made by the petitioner despite the issuance of the demand notice dated 2nd November, 2019 - this Court is of a considered view that the learned MM has not committed any error or illegality in passing the summoning order and therefore, this Court does not find any reason to exercise its inherent powers under Section 482 of the Code (Section 528 of the BNSS).
Petition dismissed.
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2024 (12) TMI 1290
Violation of principles of natural justice - Jurisdiction to issue SCN - wrongfully availing the benefit of an exemption on the supply of "Kulcha" by misclassifying it as "bread" under S. No. 97 of N/N. 02/2017-Central Tax (Rate) dated June 28, 2017 - denial of reduction of the Petitioner’s outward tax liability based on credit notes issued for deficient services and destroyed goods - suppression of facts or not - violation of principles of natural justice.
HELD THAT:- Upon a thorough examination of the documents presented to the Court and taking into account the arguments put forth by the parties, this Court finds that the writ petition is not maintainable. This Court shall refrain from adjudicating or delving into the merits of the case as the issues raised in the present writ petition pertain to complex questions of fact and law that are squarely within the jurisdiction of the adjudicating authority under the Central Goods and Services Tax (CGST) Act, 2017. The petitioner’s grievances primarily relate to the invocation of the extended period of limitation, allegations of misclassification of goods and denial of Input Tax Credit (ITC). Each of these issues necessitates a detailed factual inquiry, which is outside the purview of this Court in its writ jurisdiction.
In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others [1998 (10) TMI 510 - SUPREME COURT], the Hon’ble Supreme Court explained that writ petitions may be entertained against show cause notices where the petitioners seek enforcement of any fundamental rights, where there is a violation of principles of natural justice or where the order or proceedings are wholly without jurisdiction or where the vires of the Act is itself challenged. None of these circumstances are made out in the present petition. Simply alleging that the impugned SNC are without jurisdiction because, according to the petitioners’ perception, the exemption covers them, or the nil tax rate notification is insufficient. The usual adjudicatory process, where such a matter can be effectively adjudicated upon, cannot be scuttled by rushing to the writ court and securing stays on the adjudicatory process.
It is well-settled that writ courts do not interfere in cases where statutory remedies are available unless there is a clear violation of fundamental rights, lack of jurisdiction, or procedural perversity leading to manifest injustice. The petitioner has not demonstrated any such exceptional circumstances warranting this Court's intervention. Instead, the statutory framework under the CGST Act provides adequate mechanisms for addressing the petitioner’s concerns, including responding to the SCN, participating in adjudication proceedings and availing appellate remedies if dissatisfied with the outcome.
The petitioner is advised to exhaust the statutory remedies provided under the CGST Act, 2017 including submitting a detailed response to the SCN. This Court reiterates that it shall not interfere in matters requiring fact-finding and adjudication, which fall squarely within the statutory domain.
Petition dismissed.
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2024 (12) TMI 1289
Challenge to dismissal of appeal under Article 226 of the Constitution of India - time-barred appeal - HELD THAT:- Upon a thorough examination of the documents presented to the Court and taking into account the arguments put forth by the parties, this Court allows the writ petition as statutory provisions on limitation should be interpreted liberally in cases where genuine hardships are demonstrated, particularly in light of judicial precedents supporting such relief.
In S.K. CHAKRABORTY & SONS VERSUS UNION OF INDIA & ORS. [2023 (12) TMI 290 - CALCUTTA HIGH COURT] the Hon’ble Division Bench held that 'since provisions of Section 5 of the Act of 1963 have not been expressly or impliedly excluded by Section 107 of the Act of 2017 by virtue of Section 29(2) of the Act of 1963, Section 5 of the Act of 1963 stands attracted. The prescribed period of 30 days from the date of communication of the adjudication order and the discretionary period of 30 days thereafter, aggregating to 60 days is not final and that, in given facts and circumstances of a case, the period for filling the appeal can be extended by the Appellate Authority.'
In light of the procedural irregularities and the arbitrary nature of the actions, this court finds the petitioner’s case to be meritorious. Accordingly, the writ petition is allowed, and the appellate order dated 30.08.2024 is quashed.
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2024 (12) TMI 1288
Non-disclosure of relied upon documents to the petitioner by the respondent authorities - representation dated 15th February, 2024 has not been acted upon by the respondent authorities till date - withholding sensitive information in the interest of national security and third-party commercial interests - HELD THAT:- Perused the writ petition as well as the judgment of the Bombay High Court. This Court holds that sensitive information gathered by the Intelligence Department, forming the basis of a search operation, should not be disclosed to the petitioners. It is determined that withholding such sensitive information does not violate the principles of natural justice. The source of information collected by the Intelligence Department of Revenue is crucial for maintaining confidentiality and the integrity of investigative processes.
In T. TAKANO VERSUS SECURITIES AND EXCHANGE BOARD OF INDIA & ANR. [2022 (2) TMI 907 - SUPREME COURT] the Hon'ble Supreme Court emphasized the importance of safeguarding sensitive information obtained during investigations. The Court recognized that such reports may encompass a wide range of market-sensitive information, including details of financial transactions and interactions with other entities. Disclosure of such information could infringe upon third-party rights, destabilize the securities market, and affect investor interests. The Court, therefore, clarified that the principles of natural justice do not entail a right to indiscriminate or unrelated disclosures, particularly where sensitive third-party interests are involved. The investigative authority must balance the noticee's right to disclosure with the imperative to protect third-party rights and maintain market stability.
Based on these precedents and considerations, this Court concludes that the withholding of sensitive information in the present case is justified and does not breach the principles of natural justice as all the relied upon documents have already been handed over to the petitioner by the respondent authorities.
Petition disposed off.
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2024 (12) TMI 1287
Challenge to impugned order passed by Sales Tax Officer - seeking quashing of N/N. 56/2023-Central Tax dated 28th December, 2023 and N/N. 56/2023-State Tax dated 11th September, 2024 on the grounds of it being ultra vires of Section 168-A of the Central Goods and Services Tax Act, 2017 read with Delhi Goods Services Tax Act, 2017 - failure to declare correct tax liability in the annual returns of GSTR-09 - non-consideration of contentions raised by the Petitioner - non-application of mind - violation of principles of natural justice.
HELD THAT:- It is seen that none of the contentions raised by the Petitioner in response to the Show Cause Notice have even been adverted to in the impugned order. The order is completely silent on the grounds and the reasons for which the reply of the Petitioner has not been considered or has been rejected.
Recently, in the case of Indian Highways Management Company Limited v. Assistant Commissioner Delhi Department of Trade And Taxes And Anr., Order [2024 (12) TMI 131 - DELHI HIGH COURT] a Coordinate Bench of this Court has already taken note of similar orders and has set aside the same. This Court in Chetak Logistic Ltd. vs. Union of India & Ors. [2024 (12) TMI 874 - DELHI HIGH COURT] had occasion to consider another previous order of the same officer, which had identical language and complete non-application of mind wherein this Court had observed 'These petitions were allowed by the coordinate Bench of this Court and a perusal of the said orders would show that the wording is almost identical. In fact, the impugned order lacks reasons and also lacks any application of mind to the reply given by the Petitioner. Show-cause notices which seek to impose further liabilities upon assesses, including, penalties etc,. have to be decided on merits and not in such a cavalier manner.'
In view of the lack of reasoning, non-consideration of the reply and non-application of mind in passing the impugned order dated 31st August, 2024, it is held that the impugned order is not tenable and deserves to be set aside - matter is remanded for fresh consideration of the Show Cause notice and the replies given by the Petitioner.
Petition disposed off by way of remand.
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2024 (12) TMI 1286
Maintainability of petition - availability of alternative remedy - Rejection of petitioners’ appeal on the ground of alleged shortfall of Rupees Two Lakhs in the pre-deposit required under Section 107 (6) of the Central Goods and Services Tax Act - HELD THAT:- Though the petitioner has an alternate remedy in this matter, it is proposed to entertain it because it is satisfied that this is a case of failure of natural justice. Besides, petitioner pointed out that the GST Tribunal is not functional, and therefore, the petitioner does not currently have an efficacious remedy.
In somewhat similar circumstances, the impugned order is interfered with, which was the subject matter of challenge in Delphi World Money Ltd. Vs. The Union of India and ors [2024 (11) TMI 781 - BOMBAY HIGH COURT] where the matter was remanded to Respondent No. 2 for de novo consideration.
The impugned order in appeal dated 31 July 2024 set aside and the petitioners’ appeal restored before the Commissioner (Appeals). If the pre-deposit has any deficiencies, the petitioner is granted two weeks to remedy them. If, according to the Respondents, the deficiencies still persist, the respondents must inform the petitioner within two weeks, and the petitioner must remedy them within two weeks of being so informed.
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2024 (12) TMI 1285
Cancellation of GST registration - appellant is ready and willing to pay the tax, interest, late fee, penalty and any other sum required to be paid for the return form of his client to be accepted by the department - HELD THAT:- Reliance placed in M/s. Mohanty Enterprises [2022 (11) TMI 1521 - ORISSA HIGH COURT] where it was held that 'In that view of the matter, the delay in Petitioner’s invoking the proviso to Rule 23 of the Odisha Goods and Services Tax Rules (OGST Rules) is condoned and it is directed that subject to the Petitioner depositing all the taxes, interest, late fee, penalty etc., due and complying with other formalities, the Petitioner’s application for revocation will be considered in accordance with law.'
The writ petition is disposed of.
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2024 (12) TMI 1284
Challenge to impugned adjudication order - adjudication order and SCN barred by time limitation or not - seeking declaration that N/N. 9/2023-Central Tax dated 31.3.2023 as well as N/N. 56/2023-Central Tax dated 28.12.2023 through which the time period has been extended up till 30.8.2024 for the purpose of sec 73(10) for the year 2019-20 not only rub against sec 168A of the CGST Act but are also contrary and in conflict with the mandate of sec 168A of the CGST Act - HELD THAT:- The proceedings under Section 73 have come to be finalized with the response of the writ petitioner being perfunctorily rejected by merely observing that it has not been found to be satisfactory. Since the final order as framed fails to engage with the reply which was submitted by the writ petitioner or disclose any reasons in support of the ultimate conclusions which have come to be rendered, the same cannot be sustained.
The impugned order dated 28 August 2024 is hereby quashed - petition allowed.
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2024 (12) TMI 1283
Challenge to order passed u/s 73 of the Central Goods and Services Tax Act, 2017 Act - lack of reasoning and non-application of mind by the Assistant Commissioner - violation of principles of natural justice - HELD THAT:- It is constrained to observe that the order as passed follows lines identical to those which have come here and have fallen for notice on earlier occasions. The Assistant Commissioner has clearly adopted a template where the only reason assigned is that the reply filed was “not comprehensible, conceivable, not perspicuous and is ambiguous”. This clearly exhibits an abject non-application of mind and the officer repeatedly employing identical phraseology to deal with such matters.
Despite caution having been sounded, of the said language having attained the status of a template and the concerned officer having chosen to replicate an identical pattern while framing orders, in INDIAN HIGHWAYS MANAGEMENT COMPANY LIMITED VERSUS ASSISTANT COMMISSIONER DELHI DEPARTMENT OF TRADE AND TAXES AND ANR. [2024 (12) TMI 131 - DELHI HIGH COURT], it is found that the officer has failed to make any amends.
The impugned order of 16 August 2024 is quashed and set aside - Petition allowed.
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2024 (12) TMI 1282
Penalty u/s 271(1)(c) - Concealment of income - validity of notice - HELD THAT:- Having regard to the peculiar facts of this case inasmuch as the High Court [2017 (10) TMI 1400 - KARNATAKA HIGH COURT] has followed CIT Vs. Manjunatha Cotton and Ginning Factory [2013 (7) TMI 620 - KARNATAKA HIGH COURT] we are not inclined to interfere in the matter. The reason being that the aforesaid judgment in Manjunatha Cotton and Ginning Factory case (supra) has been relied upon in M/s SSA’s Emerald Meadows [2015 (11) TMI 1620 - KARNATAKA HIGH COURT] and the said judgment has been sustained by this Court in SLP [2016 (8) TMI 1145 - SC ORDER] inasmuch as the said special leave petition was dismissed.
Therefore, we are not inclined to go into the question of law, if any, as such raised in these Special Leave Petitions, the same is kept open.
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2024 (12) TMI 1281
Exemption of LTCG claimed u/s. 10 (38) - computation of book profits for the purpose of determination of MAT under Section 115JB - HELD THAT:- Section 10 (38) of the Act was added by virtue of the Finance Act, 2006 to abundantly clarify that the income from capital gains on certain assets, which are excluded from the income under Section 10 (38) of the Act, would nonetheless, be included in computing book profits for the purposes of Section 115JB of the Act.
Proviso to Section 10 (38) of the Act cannot be read in the reverse to mean that if the gains are not included as book profits under Section 115JB of the Act, the same are liable to be included as income for the purposes of assessment to tax under the normal provisions, notwithstanding that the gains are required to be excluded from income chargeable to tax under Section 10 (38) of the Act.
No fault with the decision of the CIT(A) as well as the ITAT in rejecting the Revenue’s contention.
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2024 (12) TMI 1280
Addition u/s 69B - assessee had not discharged the burden of proof and rebutted the presumption available to the revenue u/s 132(4A) - ITAT held that the assessee was found to be the owner of the valuable article and the amount of investment on such valuable article shall be deemed to be the income of the assessee in the financial year in which such valuable article was found.
HELD THAT:- Admittedly, the search operation took place on 21.01.2003 and the revenue authorities found the share certificates and the assessee was the owner of the valuable article i.e., share certificates.
Record discloses that the assessee has not placed any iota of evidence to establish that the investment was made in the year 1994. It is trite law that the initial burden lies upon the assessee to prove the claim that the investment was made in the year 1994 and the same is not pertaining to the block period. The findings of fact recorded by the authorities under the Act are based on meticulous appreciation of evidence on record.
Tribunal while dismissing the appeal, confirmed the order of the CIT (Appeals) as well as the order of the Assessment Officer, by giving cogent reasons taking into account of the provisions of the Act.
This Court in an appeal u/s 260A of the Act cannot interfere with the findings of fact until and unless the same are shown to be perverse or based on no evidence. The findings of fact recorded by the authorities cannot be termed as perverse. Decided against assessee.
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2024 (12) TMI 1279
Interest u/s 220(2) after expiry of four years from the date of assessment and as per Section 154 - HELD THAT:- Contention of the appellant that the Tribunal as well as Commissioner without considering the grounds raised by the assessee in respect of charging of interest invoking the provisions of Section 220(2) of the Act beyond period of limitation of four years dismissed the appeal, is not tenable on the ground that the Tribunal as well as Commissioner after due verification of the records and also the provisions of the Act and law passed the order.
The principles laid down in the above said judgment is squarely applicable to the facts and circumstances of the case on hand on the ground that the assessee in spite of the demand notice issued u/s 154 demanding an amount which is payable to the Department, has not paid the said amount within the stipulated time i.e., a period of 30 days.
As per the provisions of Section 220(2) assessee is liable to pay interest, especially as there is no specific time for fixation of time limit for charging interest. The power to levy the interest, in the facts and circumstances of the case, has been exercised within a reasonable time.
Substantial question of law is answered against the assessee and in favour of revenue.
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2024 (12) TMI 1278
Disallowance of the claim of interest converted to equity u/s 43B - conversion of outstanding interest liability into loan i.e., funding interest or into equity does - HELD THAT:- In M.M.Aqua Technologies Limited [2021 (8) TMI 520 - SUPREME COURT] and held that the liability of the assessee to pay interest had ceased on account of issue of equity shares. The assessee was held entitled to benefit of Section 43B of the Act.
It is not the case of the Revenue that liability of the assessee to pay interest has not ceased to exist on issuance of equity shares. The claim of the assessee for deduction u/s 43B of the Act has been denied on the ground that the actual payment has not been made.
In view of the interpretation put forth by the Supreme Court on Section 43B of the Act, as the liability of the assessee to pay interest ceased to exist on issue of shares in favour of APIDC, the same would tantamount to actual payment within the meaning of Section 43B of the Act. The assessee, therefore, is entitled to benefit of Section 43B of the Act.
Substantial question of law is answered in favour of the assessee.
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2024 (12) TMI 1277
Statutory right to claim rebate - PIL petition - direction to the respondents to modify the system developed and put in place by the Tax Department for filing income-tax returns for AY 2024-2025 so as to allow the assessees at large to take complete benefit of the rebate available u/s 87A of the Income Tax Act, 1961 - whether the utility in the form of software can take away the statutory right to claim rebate as per the proviso to Section 87A and is it necessary for an assessee to make a claim for seeking rebate?
HELD THAT:- The rebate u/s 87A is inherently linked to the total income and tax liability of the taxpayer. The responsibility lies with the tax authorities to ensure proper implementation of the rebate, as long as the taxpayer fulfills the statutory criteria. Procedural changes, such as those in utility software or instructions issued by the tax department, cannot override the substantive right to the rebate. Any action or inaction on part of the tax authorities that limits the ability of taxpayers to avail of this statutory benefit is arbitrary and violative of the rule of law. Taxpayers should not bear the consequences of administrative inefficiencies or unilateral executive actions that undermine the legislative intent behind Section 87A.
It is well-settled that statutory benefits must be extended in a manner that aligns with the objectives of the legislature. In this regard, procedural changes that deprive taxpayers of such benefits warrant judicial intervention to rectify the anomaly and ensure justice. Tax authorities must act as facilitators to help taxpayers comply with the law rather than creating impediments through technical or procedural hurdles. Ensuring fairness, equity, and transparency in tax administration is crucial for upholding public confidence in the system.
By way of interim relief, the respondent Central Board of Direct Taxes is hereby directed to forthwith issue requisite notification u/s 119 of the Act extending the due date for e-filing of the income-tax returns in relation to the assessees who are required to file a return of income by December 31, 2024, at least to January 15, 2025. This extension is to ensure that all taxpayers eligible for the rebate u/s 87A are afforded the opportunity to exercise their statutory rights without facing procedural impediments.
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2024 (12) TMI 1276
Reopening of assessment - validity of impugned notice u/s148 and to reject the objections as raised by the petitioner to the reasons for reopening of the assessment by the impugned order - anonymous donations received by the petitioner - HELD THAT:- Reading of the reasons for reopening that the same have been issued on the materials already available and on the record of the AO in the course of the assessment proceedings and to his knowledge. It was not a fresh discovery to the AO that the petitioner was receiving anonymous donations in a cash and in kind.
He also could not have been oblivious to the provisions of Section 115BBC and Section 11 (5) or Section 13 of the IT Act, in finalizing the petitioner’s assessment for the assessment year in question. On such backdrop, on a plain reading of the reasons for reopening as furnished to the petitioner, it is clear that the AO has sought to reopen the assessment on a change of opinion in the application of the provisions of the IT Act or on interpretation of law differently, on facts which were abundantly within his knowledge at the time of original assessment. This is certainly not permissible.
Hence, such reopening of the assessment, being not on any fresh tangible material, the Assessing Officer would not have jurisdiction to proceed with the re-assessment, as this would be purely in the realm of a review and / or on a mere change of opinion.
As decided in Shree Saibaba Sansthan Trust-Shirdi [2024 (10) TMI 546 - BOMBAY HIGH COURT] held that the petitioner was a religious charitable trust and hence the assessee rightly and legitimately claimed an entitlement under sub-section 2 (b) of Section 115BBC of the Act that the anonymous donations as received in hundi are not liable to be taxed.
Other ground to reopen the assessment by applying the provisions of Section 13 on the issue of accepting donations in the form of ornaments and not investing in the prescribed form as mandated by Section 11 (5) is of no consequence in view of the order passed in Rajendra Bhausaheb Gondkar & Anr. [2012 (10) TMI 1280 - BOMBAY HIGH COURT] wherein specifically directed that the auction in respect of such precious items / articles stands stayed and suspended forthwith. The Court also injuncted and restrained the petitioner from converting precious metals in any form or melt it in any form. If this be so, as to how the Assessing Officer can reopen the assessment on such ground cannot be understood.
Thus once tangible material during the course of assessment proceedings was available with the AO and the same was considered in passing the assessment order u/s 143 (3) AO in the absence of any fresh material, could not have proceeded to reopen the petitioner’s assessment on similar materials. Decided in favour of assessee.
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2024 (12) TMI 1275
Condonation of delay of 799 days filed by the petitioner in filing Form 9A - whether there is a power coupled with statutory discretion conferred upon the commissioners/competent authority under Section 119 (2) (b) authorizing them to admit belated filing of Form 9A? - petitioner uploaded a revised computation of income dated 09 November 2019 with a view to rectify certain computation mistakes
HELD THAT:- There is undoubtedly a delay in filing Form 9A on part of the petitioner, however, as observed by us above, such delay appears to be completely bona fide.
The principles which are paramount and jurisprudentially accepted in the case of Jyotsna Mehta [2024 (9) TMI 585 - BOMBAY HIGH COURT] in our opinion mandates their application in the present facts in condoning delay under the umbrella of section 119 (2) (b) of the IT Act. It is pertinent to reiterate that in a fact situation as the present, to dissuade an assessee to file return can be counter-productive to the very object and purpose, the tax laws intend to accomplish. In cases such as this, where the delay is sufficiently explained the same ought to be condoned.
Pursuant to the filing of such Form 9A under Rule 17 (1), by the petitioners though belatedly, it had duly submitted two letters addressed to the respondent no. 1 justifying such delay. A perusal of the Impugned Order for the A.Y. 2017-2018 indicates that the jurisdictional assessing officer has totally lost sight of the first two letters of the petitioner. Though the Impugned Order refers to the letter of the petitioner dated 21 September 2023, there is no finding much less reasoning reflected in the order except to harp on the issue that the delay in filing Form 9A belatedly, was not a procedural lapse and thus, cannot be condoned. We do not find force in such hyper technical approach taken by the assessing officer in rejecting the belated filing of Form 9A by the petitioner,
In the present case, the delay is of 799 days on the part of the petitioner in filing Form 9A supported by sufficient cause, deserves to be condoned.
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