|
Advanced Search Options
Case Laws
Showing 61 to 80 of 405404 Records
-
2024 (4) TMI 890
Accrual of income in India - Royalty receipts - income earned from licensing/sale of software and subscription received against cloud services offered by assessee - scope of Indo-USA DTAA - delay of 301 days in filing SLP - HELD THAT:- As following the earlier order passed in SLP (C) [2024 (3) TMI 670 - SC ORDER] we condone the delay and dismiss the special leave petitions on the basis of the earlier judgment of this Court in the case of Engineering Analysis Centre of Excellence Private Limited vs. Commissioner of Income Tax and Anr. [2021 (3) TMI 138 - SUPREME COURT]
Pending application(s), if any, shall also stand disposed of.
-
2024 (4) TMI 889
Reopening of assessment u/s 147 - second re-assessment notice u/s 148A - scope of new regime of reopening of assessment after introduction of provisions of section 148/148A - petitioner participated in the initial re-assessment proceedings, thus consequently, re-assessment orde was passed by the Assessing Authority - Without any challenge rais ed by the petitioner to the reassessment order and that order not set aside by any authority or Court, the petitioner has been visited with second re-assessment notice for A.Y. 2017-18 and Assessing Authority has invoked Section 148-A of the Act - HELD THAT:- As it could not be disputed that neither the petitioner challenged that reassessment order nor that order was revised by the Commissioner nor there was any declaration made by the Supreme Court in rem to annul or in all assessment orders other than those that may have been specifically under challenge in the proceedings before the Supreme Court in Ashish Agarwal [2022 (5) TMI 240 - SUPREME COURT]
Since in the present case, re-assessment order had already been passed on 28.03.2022, there was no proceeding pending as may have been influenced or affected or governed by the subsequent order of Supreme Court dated 04.05.2022 in in Ashish Agarwal case.
It is fundamental, there may exist one assessment order for an assessee for one assessment year. In absence of any declaration of law to annul or set aside the pre-existing re-assessment order dated 28.03.2022, we find no jurisdiction existing with the Assessing Authority to again re-issue the impugned notice. The proceedings are wholly without jurisdiction and a nullity.
Accordingly, the re-assessment proceedings initiated in the case of the petitioner for A.Y. 2017-18 under Section 147 read with Section 148 of the Act, vide re-assessment notice dated 30.07.2022 is quashed - WP allowed.
-
2024 (4) TMI 888
Addition of unsecured loans / bogus advances against sales - unexplained cash credit u/s 68 - CIT(A) deleted addition - HELD THAT:- We find that the CIT(A) had categorically observed that the assessee had produced the books of accounts along with day to day purchase, transactions of sales in the succeeding year where sales to these two parties were part of the total sales and declared in the VAT returns which has been accepted. Further the income tax returns of Asst Year 2016-17 also reflected the total sales made by the assessee which admittedly included the sales made to these two parties. The stock registers maintained by the assessee clearly indicated the outflow of stocks from the side of the assessee.
All sales were made through regular banking channels and not through cash. The TIN of these two parties do existed and disclosed in the VAT returns filed by the assessee. F-Forms in the case of the assessee qua the sales made to these two parties were accepted by the VAT authorities.
Hence it is established beyond reasonable doubt that the amounts received from these two parties are not merely loan simplicitor but only advance received for sale of goods. It is a fact that the sale of goods had indeed happened to these two parties from the assessee which was duly accepted by the revenue in Asst Year 2016-17 and also by the VAT authorities. Hence there is no question of treating the amounts received as advance for sale of goods as unexplained cash credit u/s 68 of the Act during the year under consideration. Accordingly, we do not find any infirmity in the order passed by the ld. CIT(A) granting relief to the assessee. Decided against revenue.
Bogus purchases - AO disbelieved the entire contentions of the assessee and proceeded to treat the purchases made from this supplier as ingenuine and disallowed a sum - CIT(A) deleted addition - HELD THAT:- We find that the ld. CIT(A) had given a categorical observation that on perusal of the documents filed by the assessee before the ld. AO, the details of purchase of rice from M/s Prashant Agro Foods and corresponding sales of such purchases were duly verifiable from the day to day stock register which was duly attested by the Market Committee, Karnal. Purchase of goods from M/s Prashant Agro Foods had been shown as goods received in the stock register.
Similarly when those goods are sold, corresponding outflow of stock entry was duly recorded in the stock register. We find that the ld. CIT(A) had referred to the yield of rice that could be derived by the assessee and had compared the same with comparable instances.
CIT(A) had even compared the yield of rice derived during the year at 68.36% which was 67% in the immediately preceding assessment year. CIT(A) also observed that the books of accounts and the book results were not rejected by the ld. AO and purchases from M/s Prashant Agro Foods alone had been doubted by the ld. AO. Even for this disputed purchases, the corresponding sales had been accepted by the ld. AO. Accordingly, he deleted the disallowance of purchases correctly - Decided against revenue.
-
2024 (4) TMI 887
Deduction u/s 80P(2)(d) - interest received from the investments with the cooperative bank - HELD THAT:- As considered the order of the Ld. CIT(A) for the A.Y. 2017-18. We find that identical grievance was raised before the Ld. CIT(A) on identical set of facts and after considering the facts and the submissions and drawing support from various judicial decisions, the Ld. CIT(A) allowed the claim. It is true that revenue has not filed any appeal against the order of the Ld. CIT(A) which means the issue has attained finality in the previous assessment year.
On finding parity of facts, we do not find any reason why the similar claim of deduction under section 80P(2)(d) of the Act should not be allowed during the year also. Therefore, we direct the Assessing Officer to allow the impugned claim of deduction. Appeal filed by the assessee is allowed.
-
2024 (4) TMI 886
Reopening of assessment u/s 147 - non independent application of mind by AO - Scope of borrowed satisfaction - information received from Asst. DIT-(Investigation), Unit – 2(1), Kolkata, AO was informed that large value of cash was deposited into several bank accounts maintained with ICICI Bank which were immediately transferred to other bank accounts - HELD THAT:- Entire reopening is based on the assumption that assessee has been benefited by the impugned / alleged colorable transactions but without any backing of any demonstrative evidences to show that the assessee has purchased cheque from Wheelers Developers Pvt Ltd., by paying cash to it.
We find that the entire process of reopening is based upon only and only the investigation report from ADIT (Investigation), Kolkata. We are of the considered view that the AO has not applied his mind before issuing notice u/s 148. Assuming, yet not accepting, that the assessee is a beneficiary, then we are unable to understand how a loan amount can be a matter of escapement of income u/s 148 for the simple reason that loan amount is a capital receipt and the only liability cast upon the assessee is to discharge the onus cast upon it by the provisions of section 68 - We find that the conclusions of the AO are at best the reproduction of the conclusions in the investigations report and indeed it is a “borrowed satisfaction”.
The impugned notice issued u/s 148 of the Act is bad in law and accordingly, we set-aside assessment order framed pursuant to the said notice is quashed. The appeal of the assessee is allowed.
-
2024 (4) TMI 885
Assessment u/s 153A - Deemed dividend addition u/s 2(22)(e) - incriminating material found in the course of search or not? - HELD THAT:- The issue is no longer res integra. The judgment rendered by the Hon’ble Apex Court in the case of Pr.CIT vs. Abhisar Buildwell (P.) Ltd. [2023 (4) TMI 1056 - SUPREME COURT] would squarely apply to the facts of the case and thus the scope of assessment under Section 153A is restricted to the incriminating material found in the course of search of the assessee owing to the fact that such assessment stood concluded / completed and thus do not get abated by operation of law.
Guided by the principles laid down in the case of Abhisar Buildwell (supra), we find force in the legal plea raised on behalf of the assessee. Hence, in the absence of any incriminating material found in an unabated assessment, the additions made by the AO in the captioned appeal require to be quashed. Appeal of the assessee is allowed..
-
2024 (4) TMI 884
TDS u/s 194H - Commission paid to Primary Agriculture Cooperative Society (PACS) - Non deduction of TDS - Higher rate of TDS @20% in absence of PAN - HELD THAT:- Since assessee corporation is paying commission to PACS which are working as agents, we are inclined to hold that commission paid by assessee to PACS is liable for deduction of tax at source u/s 194H of the Act. We, however, notice that assessee did not get proper opportunity of hearing before the assessing officer and even before ld. CIT(A). We also note that the assessing officer has calculated the TDS at the maximum rate of 20% on account of non-availability of PAN even though all PACS are having bank accounts.
We also note that commission has been calculated by applying the rate of Rs. 31.25/- on the transaction for F.Y. 2011-12 but the said rate of Rs. 31.25/- was finalised on 26.07.2013 which indicates that correct amount of commission has not been calculated by the ld. AO. It is also observed that deductee, PACS are having banking facility and certainly must be having PAN and had the details of the same been made available to the assessing officer, TDS may not have been calculated at the maximum rate of 20%.
Therefore, considering all in order to compute the correct amount of commission paid and in order to ascertain the correct amount of tax to be deducted at source u/s 194H of the Act, the matter is restored to the file of the AO for carrying out necessary verification and calculation. Assessee is also directed to provide full co-operation to the assessing officer by placing all relevant material in order to get the needful information about correct amount of commission and correct amount of TDS u/s 194H of the Act. Accordingly, effective grounds of appeal raised are allowed for statistical purposes.
-
2024 (4) TMI 883
Validity of assessment order u/s. 147 r.w.s 144 - AO proceeded to complete the assessment by treating the difference amount between the SRO value and the actual sale consideration paid as income from other sources - HELD THAT:- AO ought to have considered the submissions, explanations and the evidences submitted before him while making the addition. It is also pertinent to mention here that during the assessment proceedings, if at all the AO is not convinced with the submissions made by the assessee with regard to the valuation of the property, AO is supposed to refer the matter to the Valuation Cell to obtained the market value of the property purchased by the assessee which was not done by the Ld. AO in the present case. Appeal filed by the assessee is allowed for statistical purposes
DRP ought to have considered the submissions and the evidences produced before the Ld.AO, which were stated to be not properly appreciated by the Ld. AO, while rejecting objections raised by the assessee.
Considering the prayer and the submissions of the AR and the nature of issues involved in the appeal, in the interest of justice, we hereby remit the matter back to the file of Ld. AO for de-novo consideration thereby providing one more opportunity to the assessee of being heard in accordance with the principles of natural justice. Appeal filed by the assessee is allowed for statistical purposes.
-
2024 (4) TMI 882
Estimation of income - bogus purchases - CIT(A) confirmed disallowance/ addition to the extent of 12.5% - HELD THAT:- As apparent that assessee has purchased material from party A and procured bogus bills of the same material from party B. In this circumstance all the judicial precedents cited before us shows that only profit element embedded therein should be added.
Therefore, AR has submitted that the profit element in case of assessee in Steel and Pipe business is merely 2 to 3 %. Therefore, over and above the normal profit earned by the assessee, there are certain other expenses and credit of the taxes and duties which is required to be added to the total income of the assessee. We deem it appropriate and fit to adopt the addition to the extent of 4% of bogus purchases in the hands of the assessee. Appeal of the assessee is partly allowed.
-
2024 (4) TMI 881
Denial of deduction u/s. 10(23C) - Form 10B essential for claiming exemption was not furnished - intimation u/s. 143(1) - no exemption u/s. 11 of the Act was claimed rather the assessee had claimed exemption u/s. 10(23C)(iv) - as argued while filing the return, the above exemption was wrongly claimed u/s. 10(23C) of the Act instead of Section 11 in the return of income and as issue was debatable in nature and did not fall within the purview of “prima-facie adjustment”, as envisaged u/s. 143(1) - According to the Ld.AR, the claim of exemption u/s. 11 of the Act was maintainable and the Audit Report in Form 10B necessary for claiming this deduction was subsequently filed during the appellate proceedings before the Ld. JCIT(A) and, therefore, the denial of the genuine claim was not justified.
Additional claim of deduction u/s. 11 of the Act made before the Ld.JCIT(A) was not entertained, who while rejecting the claim had directed the assessee to avail the remedy u/s. 119
HELD THAT:- There is no denial to the fact that the claim for deduction u/s. 11 of the Act was not made in the return of income. The assessee had claimed deduction u/s. 10(23C) of the Act in the return. As the Form 10B essential for claiming exemption u/s. 10(23) was not furnished, the CPC had rightly rejected the claim. Therefore, the adjustment as made by the CPC, while processing the return, cannot be faulted. The contention of the assessee that the issue was debatable has no substance. The matter was only factual in nature and the CPC had made the adjustment u/s. 10(23C) as the mandatory Form 10BB was not available. As no deduction u/s. 11 of the Act was claimed in the return, the CPC never had the opportunity to examine the admissibility or rejection of this claim.
Exemption u/s. 11 of the Act claimed in the appellate proceedings before the Ld.JCIT(A) was not entertained - It is seen from the intimation u/s. 143(1) of the Act that Form 10B was filed along with the return of income. However, no exemption u/s. 11 of the Act was claimed rather the assessee had claimed exemption u/s. 10(23C)(iv) of the Act as appearing at Sl.No.1 of the intimation. It is found from the Sl.No. 5 and 6 of the intimation that there was a common column for claim of exemption u/s. 10(23C)(iv) of the Act as well as for exemption u/s. 11 of the Act. Therefore, it was not apparent as to whether the total exemption as appearing in Sl.No.6 of intimation was in respect of section 11 or u/s. 10(23C)(iv) of the Act.
CPC did not allow the claim of the assessee, but in the notes there is no mention as to why the claim of the assessee as made in the return was disallowed. However, there was a note at Sl.No.5 which stated that if the assessee considered that any part of the intimation was required to be rectified, then rectification u/s. 154 of the Act may be filed. Assessee in place of filing the rectification, preferred an appeal before the Ld.JCIT(A) and claimed for deduction u/s. 11. As already mentioned earlier, the Ld.JCIT(A) did not allow the claim of the assessee and advised to avail the remedy u/s. 119 of the Act.
As already mentioned earlier, it is not clear from the intimation as to why the adjustment of Rs. 12,16,737/- was made while processing the return u/s. 143(1) of the Act. The exact reason for disallowing the claim of the assessee has also not been mentioned in the intimation. The audit report in Form 10B is a common audit report for deduction u/s 10(23C) and for section 12A of the Act, which entitles for deduction u/s 11 of the Act. Therefore, the CPC may have made a query as to under which section the deduction was claimed before disallowing the claim of the assessee.
Revenue is, therefore, directed to intimate the exact reason for disallowing the claim of the assessee while processing the return. Thereafter, the assessee may file an application u/s. 154 of the Act to rectify the mistake in the intimation, as deemed proper. The assesse is also free to avail the remedy u/s. 119 of the Act, if he so desires. Appeal filed by the assessee is partly allowed.
-
2024 (4) TMI 880
Rectification u/s 154 - Characterization of receipts - Exemption of interest on enhanced compensation from tax denied u/s. 10(37) - HELD THAT:- Sections 56(2)(viii) and 57(iv) came on the statute w.e.f. 01.04.2010, i.e., AY 2010-11 onwards. The decision in Ghanshyam (HUF) [2009 (7) TMI 12 - SUPREME COURT] is for AY 1999-00. The said decision by the Hon'ble Apex Court thus has no bearing on the said provisions, invoked by the AO in bringing the impugned interest to tax.
Even as observed by the Bench during hearing, it is only where a Constitutional Court declares the same as ultra vires the Act (i.e., on a view that interest u/s. 28 of LAA is capital in nature), that would entitle the assessing authority to disregard the same.
The Hon'ble Apex Court per it’s Constitutional Bench decision in Punjab Distilling Industries Ltd. [1965 (2) TMI 6 - SUPREME COURT] explained that there is no conflict between a receipt being capital in nature and, by fiction of law, an income chargeable to tax under the Act. That is, the nature of the receipt as capital, which is the purport of the decision in Ghanshyam (HUF) (supra), would not per se preclude interest from being, at the same time, subject to tax.
Further, per it’s larger bench decision in Sham Lal Narula (Dr.)[1964 (4) TMI 10 - SUPREME COURT], not referred to in it’s later decision in Ghanshyam (HUF)(supra), the Apex Court held the provisions of s. 28 and 34 of LAA as analogous, i.e., compensatory, and, thus, not part of compensation.
The decision in P.V. Kurien [1962 (3) TMI 123 - KERALA HIGH COURT] holding interest on enhanced compensation as capital in nature, was negated by the Hon’ble Court. The upshot thereof is that even de hors s. 56(2)(viii), applied by the AO, it may not be possible to say that interest u/s. 28 of LAA is not income, much less of it being regarded as so by him as ‘mistaken’, liable to be rectified u/s. 154. Assessee’s appeal is dismissed.
-
2024 (4) TMI 879
Reopening of assessment u/s 147 - absence of valid approval to be obtained u/s 151 - who is competent authority for approval in this case? - notice issued beyond period of four years - Principal Chief Commissioner of Income Tax/ Chief Commissioner of Income Tax Principal Commissioner of Income Tax/ Commissioner of Income Tax OR Additional Commissioner - HELD THAT:- The erstwhile provisions of Section 151 postulates permission of Pr.CCIT/CCIT/Pr.CIT/CIT before issuance of notice u/s 148 of the Act after the lapse of 4 years. Ostensibly, the re-assessment proceedings u/s 147 r.w. Section 148 in the instant case has been initiated without valid approval u/s 151 of the Act.
Needless to say, Section 151 of the Act serves as a cardinal safeguard for valid initiation of re-assessment proceedings and requires to be strictly followed. The satisfaction on an escaped income by Principal Chief Commissioner / Chief Commissioner / Principal Commissioner / Commissioner of Income Tax u/s 151(1) is thus incumbent before the proceedings u/s 147 is set in motion.
In the instant case as noted, the approval has been obtained from Addl. CIT not competent for granting requisite approval u/s 151 of the Act. Such remissness on the part of the AO have rendered the entire re-assessment proceedings invalid and bad in law.
As held in the case of Dr. Sashi Kant Garg [2005 (8) TMI 81 - ALLAHABAD HIGH COURT] the irregularity in obtaining the sanction of the competent authority is the substantive defect incurable under the provisions of the Act. Consequently, the re-assessment order stands quashed as pleaded on behalf of the assessee at the threshold. In view of such conclusion, other aspects of grievances are thus not required to be addressed. Appeal of the assessee is allowed.
-
2024 (4) TMI 878
Revision u/s 263 - taxability of interest received by the Assessee on the enhanced compensation u/s 28 of the Land Acquisition Act - scope of debatable issue - AO while passing the order u/s 154 of the Act by accepting one of the views, deleted the addition - HELD THAT:- As the taxability of interest received by the Assessee on the enhanced compensation u/s 28 of the Land Acquisition Act is a debatable issue, wherein two views are plausible. The A.O. while passing the order u/s 154 of the Act by accepting one of the views, deleted the addition. It is well settled law that when two views are plausible and the issue is also a debatable one, the PCIT cannot assume jurisdiction as held by the Jurisdictional High Court in the case of CIT Vs. Hindustan Coca Cola Beverages Pvt. Ltd.[2011 (1) TMI 138 - DELHI HIGH COURT] in view of the above discussion, we find no error in the order made under Section 154 of the Act by rectifying the mistake apparent from the record and the Ld. PCIT committed error in quashing the said order by invoking the provision of Section 263 of the Act. Accordingly we quash the impugned order of the Ld. PCIT by allowing the Grounds of appeal of the Assessee.
-
2024 (4) TMI 877
Deduction u/s 80P2(a)(i) - allowance of interest on deposits earned by the cooperative society from fixed deposits in various bank accounts - HELD THAT:- On similar set of facts, this Tribunal in the case of The Kakateeya Mutually Aided Thrift and Credit Coop Society Ltd. [2023 (9) TMI 211 - ITAT VISAKHAPATNAM] held in favour of the assessee, relying on the decision of Vavveru Co-operative Rural Bank Ltd [2017 (4) TMI 663 - ANDHRA PRADESH HIGH COURT] as held assessee has invested surplus funds out of the activities carried out as per the provisions of section 80P(2)(a) of the Act. We therefore are of the view that interest income should be allowed as deduction U/s. 80P(2)(a)(i) of the Act and thereby the Ld. CIT(A)- NFAC has rightly held by deleting the addition made by the Ld. AO and hence we find no infirmity in the order of the Ld. CIT(A) -NFAC. Appeals of the assessee are allowed.
-
2024 (4) TMI 876
Smuggling - Gold - suppression of bill for the purchase of gold despite its seizure from his bag - retraction of statement given under section 108 of Customs Act - reliability of the statements - accused admitted the commission of offence or not - validity of judgment of acquittal of the accused - it was held by High Court that The prosecution had not examined any witness or produced any document to show such previous conduct by the accused, and on the other hand, the evidence of DW1 indicates that the accused had been coming down to Kerala for business purposes, which evidence could not be dented by the prosecution during cross-examination. Therefore, the impugned judgment cannot be said to be perverse or impossible - HELD THAT:- There are no reason to interfere with the impugned order(s) - SLP dismissed.
-
2024 (4) TMI 875
Revocation of Customs Broker license - forfeiture of security deposit - levy of penalty - gold smuggled in a consignment of medical equipment, Air Nebulizer - violation of Regulations 10(a), 10(d), 10(m) and 10(n) of CBLR.
Violation of of Regulation 10(a) - failure to check whether third person Shri Ravindra Sonar (from whom CB accepted the documents) is an authorised representative of the importer firm M/s Albela Traders and has power to authorize the appellants CB for filing the documents or not - HELD THAT:- In the absence of any document to prove the claim of that the appellants had acted in an unauthorized manner in mis-declaration of the goods or in smuggling of the contraband, it is difficult for fastening such liability on the appellants CB for holding them responsible for violation of Regulation 10(a) ibid.
Violation of Regulation 10(d) ibid - HELD THAT:- In the instant case, the smuggling of gold in imported consignment was found by the department only on the basis of specific investigation conducted by the DRI authorities, and it was a case of concealment of gold in the declared imported goods. It is also a fact that there was no misdeclaration in any of the documents or in the imported goods. Hence, the appellants CB cannot be found fault for the reason that they did not advise their client importer to comply with the provisions of the Act. The act of smuggling is a conspiracy created by the smuggling syndicate in which there was no role of appellants CB. Further, the voluntary statement given by Ms. Priya Hemant Bandarkar, Proprietor of the appellants CB firm on 04.04.2019 clearly show that such smuggling activity in the imported consignment was not known to the appellants CB. Thus, there is no possibility for the appellants CB to bring it to the notice of the Deputy Commissioner of Customs (DC) or Assistant Commissioner of Customs (AC) about the misdeclaration of imported goods involving smuggling of gold - the violation of Regulation 10(d) ibid, as concluded in the impugned order is not sustainable.
Violation of Regulation 10(m) - HELD THAT:- There is no case of importer or any other person having complained about the inefficiency or delay in clearance of the imported goods by the appellants CB. In the DRI investigation report recorded in inquiry proceedings also it was brought out that the smuggling of gold has been orchestrated by a syndicate in which none of the appellants CB’s employees or proprietor is involved. Therefore, the conclusion arrived at by the learned Commissioner of Customs that the appellants have failed to discharge their obligations cast on him under Regulation 10(m) ibid is factually not supported by any evidence and thus it is not legally sustainable.
Violation of Regulation 10(n) - HELD THAT:- In the present case, the appellants CB had obtained the KYC documents and submitted the same to the Customs Department. Thus, there are no legal basis for upholding of the alleged violation of Regulation 10(n) ibid by the appellants in the impugned order on this basis.
There are no merits in the impugned order passed by the learned Principal Commissioner of Customs (General), Mumbai in revoking the CB license of the appellants; and for forfeiture of entire security deposit, inasmuch as there is no violation of Regulation 10(a), 10(d) and 10(m) of the CBLR, 2018, and the findings in the impugned order is contrary to the facts on record. However, in view of the failure of the appellants to have acted in a proactive manner in fulfillment of the obligation under Regulation 10(n) ibid, particularly when they had received the documents from importer through intermediary, we find that it is justifiable to impose a penalty of Rs.10,000/-, which would be reasonable.
The impugned order is set aside - appeal allowed.
-
2024 (4) TMI 874
Valuation of exported CD ROMS - Import of goods by availing excess export promotion benefits i.e. DEBP/DEEC Credits - intention of fraudulently obtaining excess DEBP/DEEC Credits, which were subsequently utilized for duty free import thereby causing loss of the Customs Duty - mis-declaration of value - suppression of facts - whether the duty foregone amount is liable to recovered from the respondents? - HELD THAT:- The transaction value declared is fair and the exports are genuine, the second allegation that respondents are not eligible for the DEPB entitlements, automatically loses its sanctity. Since the issue is no longer res integra, the instant revenue’s appeals can not be sustained.
The department’s appeal does not allege that the licences had been cancelled by the Additional Directo rGeneral of Foreign Trade in the instant case. Clearly, the facts are on record that the DGFT has not cancelled the DEPB credit scrips and same were valid in the eyes of law. The DGFT has still not cancelled or modified the DEPB licences already granted. So it is clear that DGFT does not agree with the contention of the department.
The allegation of the revenue that the exports have been misdeclared and DEPB scrips have been sought for and obtained fraudulently and imports have been made using invalid DEPB scrips, cannot be agreed upon. If it is the case of the department that DEPB scrips are fraudulently obtained by the respondents, It would have been appropriate that the department and customs authorities should have taken steps to get the DEPB scrips cancelled by making reference to the DGFT authorities who issued the scrips. Without taking any such action, to say that the DEPB scrips issued by competent authorities are invalid and fraudulently obtained is not proper and legal.
The Hon’ble Bombay High Court in the case of PRADIP POLYFILS PVT. LTD. VERSUS UNION OF INDIA [2004 (1) TMI 93 - BOMBAY HIGH COURT] considered the scope of jurisdiction of the customs authorities to question the validity of DEPB licences and held Once the licensing authorities have held that the export product is covered under the DEPB Scheme and have issued the DEPB licence, it is not open to the Customs authorities to hold that the said export product is not covered under the DEPB Scheme and have issued the DEPB licence, it is not open to the Customs authorities to hold that the said export product is not covered under the DEPB Scheme.
As valid DEPB scrips have been used for import of the goods by the respondents, there are no reason for demand of duty or confiscation of the goods, or imposition of penalties. In the light of this, no valid grounds have been brought out to interfere with findings of the Ld. Adjudicating authority.
There is no infirmity in the impugned orders and they need to be upheld - appeals filed by the revenue are dismissed.
-
2024 (4) TMI 873
Seeking grant of bail - custody for more than 41 days - Smuggling - Gold - Indian and Foreign currency - HELD THAT:- There is possibility that, there may be more recovery and more involvement of the persons who are yet to be arrested. But it is required to note that as per their statement they themselves were not bringing gold from the Dubai but the part of smuggling. It is not disputed that there is huge recovery of Indian and foreign currency with gold and silver bars. But thereafter no further progress in the investigation is shown. Moreover, no further statement of the accused is recorded on the basis of further investigation. Already there was sufficient time with the respondent to investigate about his further involvement in the alleged smuggling. The prosecution is suspecting that he may again involved himself in similar type of activity. But care can be taken by imposing certain conditions to prevent him from engaging in smuggling activity. Therefore considering all these circumstances and already the seized currency and other goods were with the respondent it is just and proper to enlarge her bail on certain conditions.
Accused is allowed to be released on bail, subject to fulfilment of conditions imposed - bail application allowed.
-
2024 (4) TMI 872
Seeking grant of bail - custody for more than 41 days - Smuggling - Gold - Indian and Foreign currency - HELD THAT:- There is possibility that, there may be more recovery and more involvement of the persons who are yet to be arrested. But it is required to note that as per their statement they themselves were not bringing gold from the Dubai but the part of smuggling. It is not disputed that there is huge recovery of Indian and foreign currency with gold and silver bars. But thereafter no further progress in the investigation is shown. Moreover, no further statement of the accused is recorded on the basis of further investigation. Already there was sufficient time with the respondent to investigate about his further involvement in the alleged smuggling. The prosecution is suspecting that he may again involved himself in similar type of activity. But care can be taken by imposing certain conditions to prevent him from engaging in smuggling activity. Therefore considering all these circumstances and already the seized currency and other goods were with the respondent it is just and proper to enlarge him bail on certain conditions.
Accused is allowed to be released on bail, subject to fulfilment of conditions imposed - bail application allowed.
-
2024 (4) TMI 871
Violation of Section 233 of the Companies Act, 2013 - requirement of holding at least ninety percent of the total numbers of shares, for approval of scheme of amalgamation - non-application of mind - HELD THAT:- In the present case it is evident that the trial Judge has taken cognizance without any application of judicial mind. The order taking cognizance in this case has been only a formality - There is absolutely no application of mind. Cognizance has been taken casually without any prima facie findings.
There is also no reason for the petitioner to commit fraud by making a false statement as the petitioner has the option to take recourse to Sections 233(5), 233(6) and Section 232 of the Companies Act - The Companies are also at liberty to once again convene a meeting of the shareholders, secured creditors and unsecured creditors to comply with the provision of Section 233(1)(b) of the Act, as per the circular/letter no. 2/31/2013-CAA-CL-V-Pt-2 dated 24.08.2017 of the Ministry of Corporate Affairs, New Delhi.
It is clear from the petition of complaint that neither the Company nor the persons, who were in-charge of the day affairs of the company, have been made parties in the case. Without the Company and the persons responsible for the day to day affairs of the Company, the prosecution of the petitioner alone, who acted on behalf of the company is bad in law and thus clearly an abuse of the process of law.
The proceedings pending before the Learned, 2nd Special Court, Calcutta at West Bengal under Section 448 of the Companies Act, 2013 for alleged violation of Section 233 of the Companies Act, 2013, is bad in law and thus liable to be set aside - revision allowed.
........
|
