|
Advanced Search Options
Case Laws
Showing 401 to 420 of 18392 Records
-
2024 (12) TMI 1174
Penalty u/s 271DA - violation of provisions of section 269ST - CIT (A) deleting the penalty levied by AO on the invoice value - HELD THAT:- As noticed from the data submitted before the AO that the date wise bills aggregated by the AO were raised at different point of time. It is further noticed that different sales bills were executed by different sales executives. AO has not stated as to how the bills were in respect of sales to one person only and also that it was against the provisions of section 269ST of the Act.
Apparently, the standalone amount of these bills is less than Rs. 2 lacs. It is also noticed that AO has not brought on record any name/identity of the persons whom he is alleging to be accommodated by the appellant by raising split bills.
Accordingly, it was not justified on his part to presume that there was splitting of cash bills against the appellant with respect to cash sales mentioned. We agree with the contention of the appellant that it is regular phenomena for a brand like appellant company to have such small value cash sales during any particular day.
The provision of section 269ST nowhere permits to aggregate/club different cash sales Invoices in a day and treat the same as violation of the provisions of the Act if the aggregate is Rs. 2 lakhs or more. The violation of the section 269ST by receiving cash from a person of Rs. 2 lakhs or more in a day with respect of single or multiple transactions is essentially connected with the payer, it has to be conclusively proved that the amount is received from a single person in a single day.
In the present case, it is mere the presumption of the AO that the aggregate amount of cash sales in a day might have been received from one person. There is no basis or supporting evidence to justify the presumption.
We do not see any reason to disturb the findings of CIT(A) and accordingly, the order of the CIT (A) is upheld and the ground raised by the Revenue is dismissed.
-
2024 (12) TMI 1173
Bogus long term capital gains - Application of the wrong section for the addition under the Income Tax Act - addition u/s 68 of the Act invoking the principle of human probabilities and suspicious surrounding only - AO has made the addition u/s 68 in the Assessment Order, whereas in the remand proceedings, he specifically asked CIT(A) to consider the additions u/s 69A.
HELD THAT:- We are of the considered view that there is no ambiguity which established the non-application of mind by the lower authorities and vitiates the additions made. Mentioning a wrong section by the AO is not fatal. In a case where income is chargeable under the deeming income provisions the transactions can be overlapping. There is no doubt that for alleged bogus LTCG, additions can be made u/s 68 of the Act, and for that reasons the order of CIT(A) requires no interference.
Allegation of the assessee that the A.O has relied upon certain statements and documents while making the impugned additions in the assessment but they were not provided to the Assessee neither an opportunity of cross examination was afforded to the Assessee - It is a matter of record that the A.O. accepted that the relevant material was not provided to the Assessee during the Assessment and then the A.O. in his remand report has mentioned that he sent all the statement by post to the Assessee on the Address mentioned in the ITR for AY 2018-19. In this regard, it is submitted by the ld. AR that the address of the Assessee was changed and the same was updated in PAN records. Same is certainly established by copy of return available on Page 60-61 of the Paperbook and the said documents should have been sent on the address as per PAN records with NSDL. Then we find that AO forwarded these documents to CIT(A) along with Remand Report with the observations that these documents relied by AO could not be provided to the assessee yet CIT (A) failed to share these documents with the Assessee during appellate proccedings. Thus no doubt certain principle of natural law are violated but we have to examine the issue on merits and then consider that how far absence of this opportunity cross examination of witness or non provision of documents was prejudicial to the assessee.
Bogus LTCG claims - AO has discredited the explanation of the assessee being general in nature. However, the findings and reasoning of the AO are patently very general. No doubt, the test of preponderance of probability would be applicable, but, that would be on the basis of some evidence indicating that some colorable device was used for introduction of unaccounted money through the LTCG Claim. The financials of the two scrips or the movement in the prices are indeed relevant, but, cannot alone be relied for considering the investment to be motivated for preparing false LTCG claim.
When an assessee deposes on oath giving explanation of the reasons and circumstances for investment, the same cannot be brushed aside on the basis of general principles of the modus operandi of bogus LTCG claims.
We are inclined to accept the grounds of appeal of the assessee holding that ld. tax authorities below have fallen in error in considering the LTCG claim of the assessee from the two disputed scrips as bogus claim. The appeal of the assessee is allowed with consequences to follow.
-
2024 (12) TMI 1172
Reopening of assessment u/s 147 - final Assessment order u/s 147 r/w section 144 in pursuance to the direction of DRP u/s 144C(5) for the Assessment Year 2013-14 - HELD THAT:- As per notice dated 25.06.2021 u/s 148 of the Act, assessee sold two properties for sale. Assessee in reply dated 31.10.2021 claimed that assessee had 1/6th share in the property. Copies of sale deeds clearly mentioned assessee’s shares as 1/6th i.e. 16.69%. T
AO in compliance of judgment of Hon’ble Supreme Court of Union of India vs. Ashish Aggarwal [2022 (5) TMI 240 - SUPREME COURT] and CBDT Instruction No.1 dated 11.05.2022 converted notice under section 148 into a deemed show-cause notice under Clause (B) of Section 148A of the Act and issued fresh notice dated 01.06.2022. Notice dated 28.07.2022 u/s 148 of the Act for reopening of A.Y. 2013-14 based on income below Rs. 50,00,000/- is contrary to law. Therefore, the directions of DRP dated 26.02.2024 and assessment order dated 22.03.2024 are illegal and are set aside. Appeal filed by the assessee is allowed.
-
2024 (12) TMI 1171
Reopening of assessment u/s 147 - ‘reasons to believe’ - HELD THAT:- The jurisdiction assumed u/s 147 of the Act is in controversy. As pointed out on behalf of the assessee, the ‘reasons to believe’ contemplated u/s 147 has been held with reference to FY 2013-14 relevant to AY 2014- 15 whereas the AY in consideration is AY 2012-13.
Thus the entire foundation of holding the reason to believe has crumbled at the threshold. Besides, it is also noticed that the AO has made reference to certain information received from Investigation Wing based on search and seizure action carried out in ASL Group. However, the reference made to such information is non-descript and cryptic.
Approval for issuing notice was granted by the Addl. Commissioner/Pr. Commissioner of Income Tax - Reasons recorded are shorn of any particulars of information whatsoever. The vague reasons cannot be the basis for assumption of jurisdiction u/s 147 of the Act as held in long line of precedents.
The approval granted based on such reasons is devoid of any objectivity and formation of reasons to believe by AO is in relation to a different AY.
CIT has granted approval under 151 of the Act based on such reasons apparently without application of mind. The approval under s. 151 so granted thus cannot be countenanced in law. The notice issued under s. 148 of the Act based on reasons and approval suffering from the vice of substantive defect is clearly nonest. Thus, the jurisdiction assumed is without meeting the pre-requisites stipulated u/s 147 of the Act. Hence the re-assessment order thus is bad in law. Re-assessment order in question is quashed. Appeal of the assessee is allowed.
-
2024 (12) TMI 1170
Issuance of shares at a value higher than the fair market value - Addition u/s 56(2)(viib) - Rejection of the DCF Method for Valuation of Shares in terms of rule 11UA - fair market value of unquoted shares may be determined either as per Net Assessed Value (NAV) or DCF method as determined by a merchant banker or an accountant - HELD THAT:- Assessee is a ‘start-up’ company, has no past financials and we also observe that the assessee has adopted one of the approved method under Rule 11UA. It is also relevant to note that as per Rule 11UA, option is given to the assessee to adopt one of the approved method for the purpose of valuation of unquoted shares either under Net Assets value or DCF method. As per the above choice of option, assessee has adopted one of the approved method for valuing its shares.
Hon’ble High Court of Delhi held exact similar view in the case of Pr. CIT vs. Cinestaan Entertainment (P) Ltd. [2021 (3) TMI 239 - DELHI HIGH COURT]
AO also proceeded to review the various disclaimers made by the Valuer to reject the method. It is normal that the valuer give various disclaimer such as the values are provided by the management and they have not carried out any verification. This cannot be the basis to reject the method adopted by the assessee.
Coming to the issue of review of the actual performance with the projection it is settled law that the AO cannot review the projected figures adopted by the assessee at the time of projections. Therefore, this method of evaluating actual performance with projected figure after 4 or 5 years is not proper.
Assessee has adopted one of the approved method of valuation under rule 11UA. Therefore, the rejection of such method is not proper and unjustified. Accordingly, we direct the AO to accept the valuation provided by the assessee and delete the additions proposed by him. In the result, ground nos. 3 & 4 are allowed.
Addition u/s 68 - issue of shares at Rs. 1 is the same share which are issued by the assessee with share premium -Valuations of shares are proper based on the DCF method. Further, we observe that the shares were issued to the existing shareholders, therefore, the AO cannot invoke the provisions of section 68. In the result, ground no. 5 raised by the assessee is allowed.
-
2024 (12) TMI 1169
Disallowance of exemption claimed u/s 10(34A) - AO while computing the assessed income also treated Long Term Capital Gain (“LTCG”) as income from other sources and thus denied benefit of special rate of tax available to LTCG u/s 112 - CIT(A) found merit in the plea of the assessee for wrongful denial of special rate of tax available u/s 112 of the Act towards LTCG arising to the assessee -
HELD THAT:- CIT(A) has examined the issue threadbare and concluded in favour of the assessee after due consideration of facts and law. In order to avail benefit u/s 10(34A) the conditions therein need to be satisfied which was found to have been met. Thus, based on alleged manipulations on issue price in some earlier concluded years, the benefit of exemption u/s 10(34A) of the Act on transaction recorded in the books and subjected to assessment process in the past, could not be denied by any stretch of imagination. We find no infirmity in the order of the CIT(A) in this regard. Hence, we decline to interfere.
Taxation offered by the assessee as LTCG - CIT(A) found the reasoning of the AO that some unaccounted money was converted into legitimate the money as baseless and unfounded. The assessee has not claimed any benefit of exemption u/s 10(38) of the Act on such LTCG and has merely applied special rate of tax @ 20% as prescribed u/s 112 at LTCG. The purchase transactions carried out in the earlier years could not be disturbed in a subsequent year to deny the concessional rate of tax claimed by the assessee as available under the provisions of the Act. The findings of the Ld.CIT(A) in our view, is based on sound footing and thus, does not call for any interference. The appeal of the Revenue is thus, liable to be struck down on both counts.
-
2024 (12) TMI 1168
Penalty u/s 271(1)(c) - addition being difference in stock - HELD THAT:- Notice u/s 274 r.w.s. 271(1)(c) has not expressed under which limb the penalty is initiated under Section 271(1)(c) of the Act.
The decision in the case of Manjunatha Cotton & Ginning Factory [2013 (7) TMI 620 - KARNATAKA HIGH COURT] is applicable in the present case. Besides this, the assessee has rightly submitted the closing stock details as well as the stock difference was also reflected in the audited accounts and there was no case built up by the Revenue that the assessee has filed inaccurate particulars of income or concealment of income. Thus, AO as well as the CIT(A) was not right in imposing the penalty. Appeal of the assessee is allowed.
-
2024 (12) TMI 1167
Validity of Reopening of assessment - no approval u/s 151 from the competent authority - HELD THAT:- AO at the time of recording reasons in March 2018 was not in possession of any information which could have led him to form a belief that income of the assessee had escaped assessment warranting reopening.
We find that in the case of PCIT Vs. NC Cables Ltd. [2017 (1) TMI 1036 - DELHI HIGH COURT] had also held the same, wherein, the approving authority had merely stated “approved” in the proforma while granting approval in terms of section 151 of the Act. This approval was held to be a mechanical approval.
Thus, we hold that the reopening has been made in the instant case by not taking approval under section 151 of the Act from the competent authority in the manner known to law. Appeal of assessee allowed.
-
2024 (12) TMI 1166
Deduction u/s. 10AA on account of voluntary adjustment made to arm’s length price (ALP) of international transaction pursuant to the Advance Pricing Agreement (APA) - HELD THAT:- We find that for AY 2014-15, identical issue arose in assessee’s own case which was decided by the coordinate Bench [2020 (9) TMI 68 - ITAT BANGALORE] and hold that the ALP adjustment made pursuant to APA by the assessee in respect of Gurgaon SEZ unit results in increase in profits of the business of the undertaking/unit, the increased profits of the assessee being eligible for deduction under section 10AA of the Act given the wide nature of the expression used in section 10AA i.e. 'Profits of the business of the undertaking/unit' and that the proviso to section 92C(4) is not a bar to allowing such a claim.
Thus, appellate order passed by the ld. CIT (A) is following the decision of coordinate bench in assessee’s own case where in the decision of honorable Karnataka high court [2014 (6) TMI 1007 - KARNATAKA HIGH COURT] is followed.
Accordingly, this ground of appeal raised by the ld. AO is dismissed and the order of the ld. CIT(A) is upheld.
-
2024 (12) TMI 1165
Disallowance u/s. 14A - Addition being 1% of the average of the investment - HELD THAT:- Since the disallowance made by the AO of Rs. 1,56,10,238/- is right as per the provisions of Rule 8D(2) related to disallowance u/s. 14A of the Act, we decline to interfere with the order of the CIT(A) on this issue. In the result, the appeal of assessee on this ground is dismissed.
Disallowance u/s. 36(1)(va) - Delayed employees' contributions to provident funds - HELD THAT:- This issue has been settled by the order of the Hon’ble Apex Court in the case of Checkmate Services Pvt. Ltd. [2022 (10) TMI 617 - SUPREME COURT] observed that there is a marked distinction between the nature and character of the two amounts viz., the employers' contribution and employees' contribution required to be deposited by the employer. The first one is the employer's liability is to be paid out of its income whereas the second is deemed an income, by definition, since it is the deduction from employees' income and held in trust by the employer.
As the issue of payment of employees’ contribution towards the PF has been settled by the judgment of Hon'ble Supreme Court, the appeal of the assessee on this ground is liable to be dismissed.
Disallowance u/s. 40(a)(i) - TDS u/s 195 - commission paid to non-resident agents as no TDS was effected on the commission payment - HELD THAT:- The amounts have been paid to non-resident agents who are not tax payable entities in India for the services rendered abroad. The commission agents who have been paid commission do not have any permanent establishment in India. Hence, no disallowance u/s. 40(a)(i) of the Act, is attracted as the entities were not situated in India. Decided in favour of assessee.
Disallowance u/s. 36(1)(iii) on account of Capital Work In Progress (CWIP) - as submitted the assessee has sufficient own funds which can be utilized as capital work in progress and for capital advances - HELD THAT:- From the detailed examination of the borrowings of the assessee and payment of interest since no loan amount has been raised and utilized for the purpose of Capital Work in Progress (CWIP), since the assessee’s own funds far exceed the value of the CWIP by 14 times, no addition is called for in this account. The notional interest calculated by the Assessing Officer on the closing balance of CWIP cannot stand test of legal scrutiny.
-
2024 (12) TMI 1164
Addition u/s 69B - undisclosed stock - HELD THAT:- Closing stock worked out by the CIT(A) was Rs 10,20,91,121/- and the correct closing stock ought to have been worked out by the search party as per Table A supra was Rs 10,12,53,736/-. Hence, there is no deficit in stock at all. Accordingly, there is no case for making any addition on the ground of excess closing stock by the CIT(A).
Hence we have no hesitation in deleting the addition made on account of closing stock by holding that there is no excess stock at all even as per the workings of CIT(A) and by adopting the correct closing stock as on the date of search after eliminating the profit element on finished goods. Accordingly, the Ground Nos. 1 to 3 raised by the assessee are allowed.
Disallowance of car running and maintenance expenditure and car depreciation thereon - HELD THAT:- The book results declared cannot be disturbed unless certain deficiencies are found thereon and there is no need to make any ad hoc disallowance thereon. The partners have their own personal vehicles for their personal usage, which fact was brought to the knowledge of Learned CIT(A) and the same had not been disputed by the revenue. Hence the action of the Learned CIT(A) in restricting the disallowance on account of car maintenance expenses to Rs 2 lakhs on an ad hoc basis is devoid of merit and deserves to be deleted at once.
Car depreciation - CIT(A) had rightly held that it is an allowance statutorily provided to the assessee in the Act and the same cannot be disturbed by alleging that there is personal usage of the vehicle. The element of personal usage of the vehicle had already been answered to be non-existent in the previous paragraph. Hence, we hold that the CIT(A) had rightly granted relief to the assessee by allowing the depreciation on car, on which we do not find any infirmity. Accordingly, the Ground Nos. 1 and 2 raised by the revenue are dismissed and Ground No. 4 raised by the assessee is allowed.
Addition made u/s 69A - HELD THAT:- When there are unaccounted sales mentioned in the seized document, there should be obviously unaccounted purchases, as without purchases there cannot be any sales. Hence, only the profit element needs to be brought to tax. In the instant case, the Learned CIT(A) had estimated the gross profit at the rate of 28.10% by taking cognizance of the fact that the same rate has been offered by the assessee during the year under consideration. It is also pertinent to note that assessee has accepted to the CIT(A) order by not preferring any further appeal. Hence, there is no other better gross profit rate that could be applied in the facts of the case. Hence we hold that the adoption of gross profit rate of 28.10% on the unaccounted sales is in order. The Learned CIT(A) had rightly applied the same, on which we do not find any infirmity.
-
2024 (12) TMI 1163
Deduction u/s 54F - no evidence for construction was filed, no evidence of ownership of land on which construction was claimed to be made was filed - Assessee initially submitted that house was constructed in the name of his son but subsequently it was contended that it was constructed in his name - HELD THAT:-Valuation of the house property constructed by assessee which shows that construction was done between the period of Jan, 2013 to July, 2015 with value of Rs. 1,25,20,000/-. Aksh, Sizra and Jamabandi of the ancestral land showing the ownership of assessee.
Copy of Certificate issued by Councillor, Gurgaon, Copy of cash flow statement of assessee and reply filed by the assessee mentions the residential house on ancestral land for a sum of Rs. 1,25,20,000/- was constructed in 3 years. The house situated in Lal Dora of the village Mohammedpur, Jharsa, Gurgaon. Nothing was brought on record by AO to disregard the above evidence produced by assessee. It is a material fact that assessee had sold agricultural land and received Rs. 4,31,25,000/- by selling agricultural land and sufficient fund. Assessee deserves benefit of section 54F of the Act, therefore, the findings of learned CIT(A) deserves to be set aside.
Disallowance of exemption u/s 54B - Details of purchase of land by assessee for Rs. 3,08,33,650/- is at page 24 of the paper book. Sale deed agreements executed by assessee for purchase of agricultural land. The assessee claims to be illiterate and was not aware of the income tax laws and was suffering from serious diseases since 2012. Before learned AO assessee submitted that land was purchased in the name of wife to save stamp duty.
In view of the above material facts and well settled principle of law, the assessee having purchased agricultural land was eligible for deduction under section 54B of the Act. Therefore, the findings of learned CIT(A) denying benefit of deduction under section 54F of the Act, is set aside.
Unexplained cash credit on account of unsecured loan received by assessee from his brother Shri Brahm Singh, assessee filed copy of affidavit of Brahm Singh and cash flow statement - Agreement of sale dated 26.12.2012. In view of the above, said affidavit, cash flow statement and agreement to sale, it is evident that Shri Brahm Singh had paid Rs. 40,00,000/- on behalf of assessee for purchase of land as same was outstanding as on 31.03.2023. Assessee had made payment on behalf of Shri Brahm Singh for purchase of another land and thus squared off the transaction. In light of above facts, the addition consider as unexplained cash credit on account of unsecured land deserves to be deleted.
-
2024 (12) TMI 1162
Validity of Assessment u/s 153A - based on incriminating material or no incriminating material in the case of an unabated assessment - primary contention is that incriminating material is necessary for framing such an assessment - HELD THAT:- Admitted facts are that the nature of additions made by the Assessing Officer (i) unsecured loans, unsecured cash credits, expenditure noted in the profit and loss account, and advances from customers, i.e, suspense account, which is part of account of the assessee, are disclosed in the financials of the assessee.
It means that the addition is based on the accounts of the assessee filed in the financial statements along with return of income originally. It means that there is no incriminating material or seized material pertaining to these four assessment years, and the addition is based on the financials filed by the assessee along with the original return.
An assessment u/s 153A of the Act is linked with the search and requisition made u/s 132 and 132A of the Act, and the objects of Section 153A is to bring under tax the undisclosed income, which is found during the course of search or pursuant to search or requisition.
Hon’ble Supreme Court in Abhisar Buildwell [2023 (4) TMI 1056 - SUPREME COURT] held that only in a case where the undisclosed income was found on the basis of incriminating material, the AO would frame the jurisdiction to assess or reassess the total income for the entire six block assessment year period in the case of unabated assessment.
As there is no incriminating materials in these four appeals, we quash the assessment framed u/s 153A of the Act for all these four years and also set aside the orders of CIT(A). Hence, these four appeals of the assessee are allowed for this jurisdictional issue.
-
2024 (12) TMI 1161
Crypto currency - income earned on account of sale of Bitcoin - whether taxable as capital asset u/s 2(14) of the IT Act, 1961 in as much as the same is defined by FA, 2022 w.e.f 01.04.2022 u/s 2(47A)? - AO proposing to tax the net gains on sale of Bitcoins as ‘Income from other sources’ and accordingly his claim for exemption u/s 54F of the Act was not considered as allowable.
HELD THAT:- Since crypto currency is specifically incorporated in the statute as an asset, it means that even before 01.04.2022 it was an asset and therefore gain on sale of crypto currency has to be taxed under the head capital gain and not under the head income from other sources before the law maker made the specific provision in the Act. Even otherwise, looking to the profile of the assessee we note that the only source of income of assessee is from salary and he has invested his savings in shares / crypto currency. He is not regularly dealing in purchase/ sale of shares/ crypto currency. His intention is to hold for long term capital gain which is more evident from the fact that he made investment in crypto currency during FY 2015-16 which was sold in FY 2020-21 and the gain on sale of crypto currency is invested for purchase of house. This proves that intention of the assessee in making investment in crypto currency is to hold it and to earn long term capital gain.
Gain on sale of crypto currency (bitcoin) prior to AY 2022-23 is chargeable to tax as capital gain. Ground no. 1 raised by the assessee is allowed.
Deduction u/s 54F - As we have in ground no. 1 held that the income on sale of crypto currency is chargeable to tax under the head long term capital gain since assessee has hold crypto currency for more than 36 months, therefore, AO is directed to allow claim of deduction u/s 54F of the Act to the assessee. Based on this observation ground no. 2 raised by the assessee is allowed.
-
2024 (12) TMI 1160
Deduction u/s 80P - return filed by the assessee was treated by the CIT(A) as belated return - HELD THAT:- The present case before us pertains to assessment year 2019-20 (previous year 2018-19). It can be readily inferred, therefore, that an assessee will not be hit by provisions of Section 80AC of the Act, having regard to the assessee claim for deductions under Chapter VIA of I. T. Act, while processing the return and making adjustments u/s 143(1) of the Act. It follows accordingly that in the present case before us, the assessee’s claim for deduction u/s 80P of the Act (which falls under Chapter VI-A of the Act) is not hit by Section 80AC of the Act while processing the return and making adjustments under section 143(1) of the Act.
We direct the AO to allow the assessee’s claim under section 80P of the Act. Appeal of the assessee is allowed.
-
2024 (12) TMI 1159
Rejection of grant of registration u/s 12AB - charitable activity u/s 2(15) - HELD THAT:- While making the reference of the aforesaid objects of the assessee association, we find that the association is established for the purpose to organize and unite the manufactures of steel Re-Rollers and people of similar business and certain other connected / incidental / ancillary objects referred.
In view of such objects, it can be safely gathered that the association is set up for safeguard of the interest of its members and to deal with matters having common interest of the trade.
Whether such objects shall be treated as trade, commerce and business and not the activities in the nature of charity? - We find force in the contentions raised by the Ld. AR that there was no benefit derived by specified individual. As per law, the benefit is being given to a section of people. We may herein refer to the order of Bar Council of Maharashtra [1981 (4) TMI 8 - SUPREME COURT] wherein it was held that trading bodies have been held to be constituted with a view to advance an object of general public utility because their primary or predominant purpose was to promote and protect industry, trade and commerce and are eligible for exemption u/s 11.
Thus, we find that the assessee association fulfils the conditions requisite to fall within the charitable purpose as defined in section 2(15) of the Act, dehors any other infirmity in the eligibility qualifications of the assessee, which would have alleged by the Ld. CIT(E), we therefore, are of the considered view that the order of Ld. CIT(E) cannot be sustained, we, therefore, reverse the same and direct to grant the registration u/s 12AB. Assessee appeal allowed.
-
2024 (12) TMI 1158
Application seeking condonation for the delay in filing an Appeal under Section 28KA of the Customs Act, 1962 - HELD THAT:- Relying on the Delhi High Court's decision in Commissioner of Customs (Import) AIR Cargo Complex, New Delhi vs Amazon Seller Services Pvt Ltd [2022 (1) TMI 1332 - DELHI HIGH COURT], this Court, in Commissioner of Customs JNCH vs Bag Industries [2024 (12) TMI 102 - BOMBAY HIGH COURT], has held that delay beyond the maximum condonable period referred to in the proviso to Section 28KA of the Customs Act, 1962, cannot be condoned.
Since the delay in this case is beyond the maximum condonable period prescribed in the proviso to Section 28KA, it cannot be condoned.
This Interim Application is dismissed.
-
2024 (12) TMI 1157
Levy of anti-dumping duty on 46.646 MT bearing “Made in Japan” marking - exemption under N/N. 14/2010-Cus dated 20.02.2010 - Department is aggrieved by that portion of the order whereby 19 pallets out of 25 which were having no country of origin mentioned on them and which were imported from Dubai were not subjected to the Anti Dumping duty which was mainly meant for Cold Stainless-Steel Sheet if they originated from China and Taiwan.
HELD THAT:- Ihe instant case Commissioner while writing order has duly considered that there was a mis-declaration involved and enhance the value and subjected the party to the penalty for importation of mis-declared goods, including the duty and penalty thereon. Department is of the view that once misdeclaration is found then it was for the party to prove that 19 pallets were not of Chinese/Taiwanese origin even when the goods have been imported from UAE. Department has also proposed that once something is alleged in show cause notice it is for the party to prove otherwise.
In relation, however, to 19 pallets which were having no marking of country of origin, the department is of the view that they are of Non Taiwanese origin needed to be proved by the party rather than they being asked to prove that such pallets were of Taiwanese origin. The assertion that once department has alleged something in show cause notice then it is for party to prove otherwise is erroneous as a general rule.
In the instant case, there are 3 pallets each of Japanese origin (i.e. non ADD country) and 3 pallets of Chinese /Taiwanese origin (subjected to ADD country), therefore, without bringing in presumption, the remaining 19 cannot be treated as of Taiwanese origin. This is more so, as the consignment has emanated from Dubai which is a 3rd party country. Again department cannot extend the consequences of initial misdeclaration for all purposes including to the Rules of evidence, even when the statute does not provide for it. The scrutiny of the statute does not afford any such scope in favour of the department beyond the listed consequences of extended period of limitation and re-looking at the valuation. The departmental appeal is therefore devoid of merits and order of the Commissioner in the instant case deserves to be upheld.
Departmental appeal is rejected.
-
2024 (12) TMI 1156
Jurisdiction and maintainability of the appeal - Absolute confiscation of prohibited goods - Gold Jewelery - denial of redemption.
Jurisdiction and maintainability of appeal - HELD THAT:- The ‘assessment’ is the primary determinant for clearance of goods under customs law and, consequently, inalienable from the appellate jurisdiction of the Tribunal. Even the excluded jurisdiction, under proviso to section 129A of Customs Act, 1962, other than ‘shortlanding’, operates only to the extent of not being a consequence of assessment or re-assessment, where ‘payment of drawback’ is concerned, under section 17 or section 18 of Customs Act, 1962 and, even if assessment is concerned, as in ‘baggage’, only to the extent that the original authority has ordered by recourse to empowerment in Rules framed under the aegis of section 81 of Customs Act, 1962. Any other interpretation of the amendment effected to Customs Act, 1962 in 1984 for restoration of revision jurisdiction would be contrary to Article 323B of the Constitution besides being arbitrary denial of right to appeal before the highest court of the land.
Reflief of redemption of goods - HELD THAT:- There are no doubt that the appellant was ineligible to import gold jewelry as baggage of person arriving in India from abroad. The appellant had not denied his intent to evade duty that was leviable from the lack of eligibility. The confiscation of goods for non-declaration under section 77 of Customs Act, 1962, implicit in passage through ‘green channel’ and, thereby, empowered by section 111(l) and section 111(m) of Customs Act, 1962, is not to be faulted. There is nothing on record, other than an original finding at the first appellate stage, to suggest that a passenger may not carry ‘gold jewelry’ in excess of entitlement of ‘duty free’ import as long as duty liability is borne - That finding in the impugned order is without reference to any notice issued to the appellant herein; the substance of the finding, too, does not carry the authority of careful consideration of the nature and contents of the stipulation of the Reserve Bank of India (RBI).
The tariff does not determine licencing restrictions but deployment of the same code system enables easy cross referencing; here, if the goods, indeed, are ‘semi-manufactured’, the goods may be restricted for import. There is, however, no evidence to suggest that this suspicion was, at any time, subjected to scrutiny by expert ascertainment; indeed, no effort was on display to establish conformity of goods with the description corresponding to tariff item 7108 1300 of First Schedule to Customs Tariff Act, 1975. The proposition for confiscation on the ground of being prohibited does not sustain.
As a State, the exchequer does not survive on confiscatory proceeds. Gold and articles made of gold are goods and not vested in the government. Illicit import of articles of gold must be deterred but not by alienation of possession from its owner. The cause for restricting import of ‘semi wrought’ gold is monetarily measurable and that would have sufficed as consequence of wrongful import. There was, thus, no justification for absolute confiscation of the impugned goods – either from being restricted or despite being restricted.
It is found appropriate to set aside the absolute confiscation to permit the gold jewelry to be redeemed on payment of fine of ₹ 50,000 and for penalty to be reduced to ₹ 50,000 - Appeal is, accordingly, disposed off.
-
2024 (12) TMI 1155
Exemption under N/N. 43/2002-Cus dated 19.04.2002 on import of duty free raw materials such as HDPE, LDPE granules, Master Batch and High Speed Diesel (HSD) etc. - Department is of the view that since the additional duty of Customs at the rate of Rs. 1 per liter was imposed by the Finance Act, the appellant is not entitled to the benefit of N/N. 43/2002-Cus dated 19.04.2002 - HELD THAT:- The matter is no longer res-integra as this Tribunal has already decided the issue in case of Atlantic Shipping Pvt. Limited vs. Commissioner of Customs, Jamnagar (Prev.) [2018 (9) TMI 458 - CESTAT AHMEDABAD] where it was held that 'the benefit of exemption from additional duty of Customs levied under sub-section (1) of Section 116 of Finance Act, 1999 has to be extended to the goods which are entitled to exemption under Notification No. 94/96-Cus.'
The matter has already been decided in favour of the appellant and therefore, the impugned order-in-appeal is without any merit - Appeal allowed.
............
|
9911796707
