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Showing 101 to 120 of 1564 Records
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2022 (12) TMI 1464
TP Adjustment - ALP for corporate guarantee determined by the Appellant - HELD THAT:- Respectfully following the above said decisions of the co-ordinate benches of the Tribunal in the case of the Appellant for the Assessment Years 2011-12 [2021 (10) TMI 822 - ITAT MUMBAI], 2012-13 [2021 (4) TMI 254 - ITAT MUMBAI], 2013-14 [2021 (10) TMI 453 - ITAT MUMBAI] and 2014-15 [2021 (4) TMI 254 - ITAT MUMBAI], we hold that corporate guarantee commission determined by the Appellant at the rate of 0.35% per cent per annum is at arm’s length not requiring any transfer pricing adjustment. Consequently, the transfer pricing additions made by the AO and confirmed by the DRP is deleted.
Disallowance u/s 14A r.w.r. 8D - mandate of recording dissatisfaction - HELD THAT:- In the present case the dissatisfaction has been recorded, however, the same is not in accordance with mandate of Section 14A(2) of the Act as the Assessing Officer has acted in a mechanical manner based upon conjecture/surmise and has recorded dissatisfaction without having regard to the accounts of the Appellant and/or the computation of suo moto disallowance made by the Appellant u/s 14A of the Act.
The general hypothesis made by the AO fails to meet the mandate of Section 14A(2) of the Act in view of the methodical computation of disallowance furnished by the Appellant taking into the account the actual expenditure incurred by the Appellant. Accordingly, we delete the addition made by AO u/s 14A read with Rule 8D of the Rules. Thus, Ground raised by the Appellant are allowed.
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2022 (12) TMI 1463
Availing wrongful SSI benefit - resorting to the incorrect valuation of the goods cleared - electrical accessories, bells, chokes and street light fixtures - relevant date for assignment of ttrademark - possession of registered trademark - HELD THAT:- The trade mark No. 622155 KALKI registered in the name of Shri Mohanlal Gosar Gosrani and Smt. Hemlata Gosrani has been assigned in the name of Shri Chandrakant Gosrani and this fact has been duly intimated in the affidavit filed before Registrar of Trade Marks, Mumbai. Affidavit of 11.05.2011 also refers to the earlier deed and says that it was assigned on 06.05.2011. Reliance by Commissioner on the affidavit of 2011 to deny the fact of assignment of the trade mark in the name of the appellant on 06.05.2011 is contrary to the facts.
From the perusal of the certificate of registration it is clear that the brand name KALKI was registered in the name of the appellant from 01.07.2009 - Commissioner has given no plausible reason for denying SSI exemption.
Only during the financial year 2009-10 appellant had crossed the exemption limit as provided in terms of Notification No.8/2003-CE dated 01.03.2003. Accordingly central excise duty is demandable only for the said year and value of clearances which is beyond the exemption limit of Rs.1.5 crores.
The total duty demand and interest and penalty under Section 11AC for the duty so short paid would be within the amount already deposited and appropriated by the Commissioner by the impugned order. Learned counsel has undertaken not to claim any refund in respect of the amount of Rs.3,00,000/- deposited and appropriated by the Commissioner - after allowing the benefit of Notification No.8/2003-CE dated 01.03.2003, the appeal is partly allowed.
Appeal allowed in part.
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2022 (12) TMI 1462
Recovery of Tax - waiver of interest - CIT had partially allowed the claim of the petitioner for waiver of interest charged under Section 220(2) - quantum of depreciation on theatre building - As in the two assessment years, the assessee had claimed 15% and 25% respectively, depreciation was allowed by the Assessing Officer to the extent of 10 per cent. only in the two orders of assessment
HELD THAT:- As decided in Anand Theatres [2000 (5) TMI 4 - SUPREME COURT].a building used for running of a hotel or carrying on cinema business could not be held to be a plant.Thus the question decided in favour of the Revenue and against the assessee by holding that the building which is used as a hotel or as a cinema theatre cannot be given depreciation as a plant.
For the Principal Chief Commissioner or the Chief Commissioner or the Principal Commissioner or Commissioner to exercise jurisdiction under Sub-Section (2A) for reduction or waiver of interest, the said authority must be satisfied that Payment of such amount would cause or has caused genuine hardship to the assessee, Default in the payment of the amount on which interest has been paid or was payable under Sub-Section (2) of Section 220 was due to circumstances beyond the control of the assessee and assessee had co-operated in any enquiry relating to the assessment or any proceeding for the recovery of any amount due from him.
Considering the status of the petitioner, a view can be taken that none of the above pre-conditions were attracted in its case. Nonetheless substantial relief has been granted by the CIT/1st respondent.
Writ petition dismissed considering the status of the assessee, none of the preconditions mentioned in section 220(2A) were satisfied in its case. No good ground to interfere with the order passed by the Commissioner granting partial waiver of interest.
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2022 (12) TMI 1461
Jurisdiction - allegation is that Commissioner of Customs (AA) issuing notice of hearing is the same person and same officer who has filed the alleged offence report against the petitioner customs broker and has passed the interim order of suspension - Suspension of petitioner’s licence - HELD THAT:- This writ petition is disposed of by directing the Chief Principal Chief Commissioner of Customs concerned to appoint another officer having the same rank to hear the case of the petitioner relating to suspension of his licence. Time for personal hearing on the basis of the aforesaid impugned notice dated 22nd November, 2022 is extended by 30 days from date. For the limitation purpose the period from the date of initial notice dated 22nd November, 2022 till the date of issuance of fresh notice for personal hearing shall be excluded.
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2022 (12) TMI 1460
Reopening of assessment - petitioner was a beneficiary of accommodation entries - HELD THAT:- On facts, the case on hand is not the case where the assessee willfully made any false or untrue statement at the time of original assessment or that falsity has come to the notice, which may justify the assessing officer to exercise the powers.
The case is not only of reopening the completed assessment on the same facts without availability of fresh and tangible material, it was reopening acted upon beyond period of four years from the end of the relevant assessment year. The law requires, in such cases, that the reopening is permitted only if the assessee had not disclosed fully and truly all the material facts. There was no failure on the part of the petitioner (i) to make return under section 139 or in respect to notice u/s 142(2) or u/s 148 or that (ii) he had not disclosed fully and truly all material facts necessary for the assessment concerned.
The assessee in the present case furnished complete details in his letter dated 08.10.2014 during the assessment with respect to the transaction occured with Shubh Dristi Complex Pvt. Ltd.[alleged accomodation entry provider] - There was no omission on the part of the petitioner as to full and true disclosure for the year under consideration which were necessary for the assessment concerned.
Thus it has to be held that the action of reopening by the AO was bad in law, mainly for the reason that it was passed on a mere change of opinion on the same set of facts, which was disclosed and considered by the assessing officer during the assessment year 2012-13. Decided in favour of assessee.
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2022 (12) TMI 1459
Reopening of assessment - Validity of order passed u/s 148A - why two PAN numbers were obtained by the appellants / assessee? - HELD THAT:- Order passed u/s 148A(d) is a non-speaking order. Appellants had submitted a reply to the notice issued u/s 148A (b) wherein assessee has pointed out as to how and under what circumstances two PAN numbers were applied and the fact that one of the PAN numbers was surrendered, was also set out.
AO should examine the correctness of the stand taken by the appellants, which according to the appellants, was an inadvertent mistake. As we are satisfied that the order is a non-speaking order, we are inclined to interfere with the same and remand the matter back to the assessing officer for fresh consideration and preserving the direction issued by the learned Single Bench directing the appellants to submit a representation.
Appeal along with the connected application are disposed of by setting aside the order passed u/s 148A(d) of the Act and the matter stands remanded and restored to the file of the assessing officer.
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2022 (12) TMI 1458
Taxability of profits of life insurance business - transfer from Share Holders Account to Policy Holder’s Account and shown as part of ‘surplus’ in the actuarial valuation’ - Whether was only transfer asset and not taxable u/s 44 of the act read with Rule 2 of the First Schedule? - HELD THAT:- Said position qua the issue in question as decided by co-ordinate bench of Tribunal vide order [2017 (3) TMI 1696 - ITAT MUMBAI] has not been controverted by Ld.DR, we are of the considered view that when undisputedly, the assessee is carrying on life insurance business, its income is to be determined u/s 44 of the Act by taking into account total surplus as arrived at by actuarial valuation and further income from share holder account was also to be taxed as part of the life insurance business. So finding no illegality or perversity in the impugned findings returned by Ld.CIT(A), grounds 1 & 2 raised by the Revenue are dismissed.
Addition u/s 10(23AAB) - Loss from Pension Fund - HELD THAT:- As we are of the considered view that Ld.CIT(A) has rightly deleted the addition made by the Assessing Officer on account of loss from Pension Fund being exemption under section 10(23AAB) of the Act. So we find no scope to interfere into the finding by Ld.CIT(A).
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2022 (12) TMI 1457
Reopening of assessment - shorter period to file the reply - HELD THAT:- Writ petitioner-assessee had time till 31.03.2022 to send a reply. To put it in perspective, the writ petitioner-assessee had time till 59 minutes past 23 hours on 31.03.2022. There is also no disputation that the writ petitioner's reply was sent on 31.03.2022 and it has been duly acknowledged by the respondent at 21:19:24 hours but the respondent has made the impugned order about over an hour earlier i.e., at 19:56 hours on the same day. This means that the respondent has made the impugned order before the time given to the assessee for replying to the 148A(b) notice dated 25.03.2022 elapsed. Therefore, the impugned order deserves to be interfered with on this sole ground
Impugned order and impugned notice are set aside on the sole ground that the impugned order has been made before the time for writ petitioner-assessee to reply to the 148A(b) notice elapsed and the writ petitioner-assessee has in fact sent a reply before the time elapsed.
Impugned order and impugned notice are set aside solely to facilitate the de novo drill after taking into account the reply of writ petitioner. To be noted, the impugned notice is a consequence or a product of the impugned order and therefore, impugned notice also perishes with the impugned order.
The respondent shall proceed with the de novo drill from the 148A(b) notice dated 25.03.2022 by taking into account the reply of the writ petitioner-assessee dated 31.03.2022 sent on 31.03.2022 [acknowledged by respondent at 21:19:24 hours].
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2022 (12) TMI 1456
Issuance to the first respondent 72 hours’ notice in the event that the State intends to arrest him on the registration of an FIR making out a cognizable offence - HELD THAT:- The direction issued by the High Court to the effect that 72 hours’ notice should be given to the first respondent in the event that the State finds it necessary to arrest him in connection with any complaint pertaining to a cognizable offence at the behest of the Joint Registrar (Audit) is manifestly incorrect in law. Such a direction could not have been issued by the High Court.
The direction to the effect that 72 hours’ advance notice should be given to the first respondent before effecting an arrest, in the event of a complaint being registered in respect of a cognizable offence, is accordingly vacated and set aside.
The petition is accordingly disposed of.
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2022 (12) TMI 1455
Murder - acquittal of the accused - prove beyond reasonable doubt - circumstantial evidence - HELD THAT:- Undisputedly, the present case is a case based on circumstantial evidence - It has been held by this Court in a catena of cases including SHARAD BIRDHI CHAND SARDA VERSUS STATE OF MAHARASHTRA [1984 (7) TMI 401 - SUPREME COURT], that suspicion, howsoever strong, cannot substitute proof beyond reasonable doubt.
In the present case, if the evidence of Jagdish Chander (PW - 4) is to be appreciated wherein he has stated that the Accused came to his house and informed him that he has killed the deceased-Om Prakash, such statement does not find any mention in the oral report. Apart from this, the delay of 14 hours in lodging the oral report has not been sufficiently explained. The only witness of the last seen theory, i.e. PW-5, has turned hostile and has thus been disbelieved.
Apart from that, the trial court disbelieved the very same evidence in so far as the other four Accused were concerned. The said acquittal has also been found to be valid by the High Court.
The High Court as well as the trial court were not justified in convicting the Appellant. The appeal is allowed
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2022 (12) TMI 1454
Refund of IGST - Rejection on the ground that Appellant had not made any excess payment of GST in the instant case - time limitation - rejection also on the ground that refund claim had been filed beyond the prescribed period of 2 years and hence, the same was time barred.
Whether the refund application dated 08.09.2021 is time barred or not? - HELD THAT:- The refund to be filed in terms of the provisions contained in Section 54 of CGST Act, 2017 which provides that any person claiming refund of any tax and interest, if any, paid on such tax any other amount paid by him, may make an application before the expiry of two years from the relevant date in such form and manner as may be prescribed. Further, Clause (e) to Explanation 2 of Section 54 defines "relevant date" for the purpose of filing refund application under inverted duty structure as the due date for furnishing of return under section 39 for the period in which such claim for refund arises. The adjudicating authority has calculated the relevant date in accordance with law and the refund application filed by the appellant was beyond the prescribed time limit.
Hon'ble Supreme Court in IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2022 (1) TMI 385 - SC ORDER] has extended the period of limitation excluding the period from 15.03.2020 to 28.02.2022 (lockdown period) - during pendency of this appeal before this office, CBIC vide Notification No. 13/2022-Central Tax dated 05.07.2022 has excluded the period from 01.03.2020 to 28.02.2022 for computation of period of limitation for filing refund application under section 54 or section 55 of the said Act.
Thus, refund application in the present case has been filed on 08.09.2021 is within time extended by the Hon'ble Apex Court and CBIC. And the order of the adjudicating authority is liable to be set aside.
Whether the party has paid excess payment, which has to be refunded or not? - HELD THAT:- The adjudicating authority held that there appears to be no excess payment made by the party. The adjudicating authority did not mention any valid justification about the decision made that "there appears to be no excess payment". The same reply has been submitted by the Assistant Commissioner, CGST Division Panchkula, vide its letter dated 17.10.2022 - thus, neither any calculation any reconciliation has been provided with the O-I-O dated 26.10.2021 - the appellant has paid an amount of Rs. 74,423/- under reverse charge on account of Ocean Freight. The entry of the said amount has been duly made in the Electric Credit Ledger on dated 18.04.2022. The appellant vide their explanation letter dated 17.11.2022 clarified that out of 74,423/-, Rs. 41,870/- was paid through Challan dated 18.04.2019 and balance amount of 32,553/- was paid vide cash deposited in the form of TCS.
The levy of IGST on struck down by Supreme Court in case of UNION OF INDIA & ANR. VERSUS M/S MOHIT MINERALS PVT. LTD. THROUGH DIRECTOR [2022 (5) TMI 968 - SUPREME COURT], on the grounds that such levy created a double taxation and is violation of principles of composite supply under Section 2 (30) read with section 8 of the CGST Act. The payment made against the Entry ID of the Notification No. 10/2017 — Integrated Tax (Rate) dated 28th June 2017, was not required to pay by the appellant, hence the amount so paid Rs. 74,423/- (reverse charge), is available to be refunded to the appellant.
Refund allowed - appeal allowed,
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2022 (12) TMI 1453
Addition u/s 40A(3) - payment has been made in cash in excess of Rs.20,000/- per day - making cash payment to suppliers, who are principal suppliers / traders and not agent of any farmer, grower etc.- AO noted that the rule refers to agricultural ‘produce’ and not to agricultural ‘product’ and therefore, the claim could not be accepted since the rice could not be termed as agricultural ‘produce’ - HELD THAT:- From the fact, it emerges that the assessee is a corporate entity and this is the first year of its operations. Therefore, the submissions that the suppliers insisted on cash payment before delivery of rice and the payment was made as per regular trade practice could not be disregarded. The assessee would have no option but to follow the existing rice trading practice to carry on its business.
It could also be seen that agriculture produce is nowhere defined in the Act. In such a case, the assistance could be taken from the provision of Tamil Nadu Agricultural Produce Marketing (Regulation) Act, 1987 which define agricultural produce to mean any produce of agriculture whether processed or unprocessed as specified in the schedule. The schedule specifies ‘Rice in all forms’ as agricultural produce under Cereals. The same would support the case of the assessee in terms of Rule 6DD(e)(i).
The application of Rule 6DD(k) as applied by CIT(A) is duly supported by the decision of this Tribunal in Shri K. Babu [2019 (7) TMI 1995 - ITAT CHENNAI] from which an analogy could be drawn that the rice mill acted as agent for the assessee. Therefore, the same could not be faulted with.
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2022 (12) TMI 1452
Rectification of mistake - as per assessee gross total income of the assessee cannot be made subject to tax without allowing the corresponding expenses - As per CIT(A) the income shown by the assessee does not require any expenditure to be incurred against such income but it is the surmise and conjecture of the learned CIT-A in the absence of necessary details - HELD THAT:- For instance, if the impugned income shown under the head other sources represents the income from interest out of the own interest free fund available with the assessee, then the question of making the deduction of the corresponding expenses under the provisions of section 57 of the Act does not arise. But this fact has to be established which could have been done easily by the authorities below by writing a later to the bank for collecting the information under the provisions of section 133(6) of the Act.
But it has not been done so but the entire blame has been put on the head of the assessee without carrying out necessary verification to appreciate the facts in the right perspective. Thus, we are of the view that the ITAT has also passed the order without appreciating the facts and upheld the order of the authorities below. Thus, we are of the view that the order of the ITAT suffers from the mistake apparent from record as it was given without appreciating the fact about the exact nature of the income.
It is also important to note that the ITAT in the subsequent order in the case of Shri Naranrai Rambhai Zala [2022 (9) TMI 1515 - ITAT RAJKOT] has rightly set aside the issue to the file of the AO for fresh adjudication as per the provisions of law. In view of the above, we recall the order passed by the ITAT with the direction to the registry to fix the same for fresh hearing under intimate to both the parties. Hence the MA filed by the assessee is allowed.
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2022 (12) TMI 1451
Principles of Natural Justice - ex-parte order - fair opportunity of hearing not provided - SCN not issued - HELD THAT:- This Court, notwithstanding the statutory remedy, is not precluded from interfering where, ex facie, it is opined that the order is bad in law. This is for two reasons- (a) violation of principles of natural justice, i.e. fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case; (b) order passed ex parte in nature, does not assign any reasons sufficient even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences.
The impugned order set aside - petition disposed off.
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2022 (12) TMI 1450
Seeking permission to withdraw present application - Requirement to furnish security by way of bank guarantee - HELD THAT:- The applicant stated on instructions of the petitioner that the petitioner has been giving up cause and wants to withdraw the present Misc. Civil Application.
The Misc. Civil Application was not pressed and was permitted to be withdrawn - Civil Misc. Application stands dismissed as withdrawn.
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2022 (12) TMI 1449
Exemption from GST - Treated Water obtained from CETP - Sl. No. 99 of the Exemption Notification No. 02/2017-Integrated Tax (Rate), dated 28-06-2017 - taxable at 18 per cent by virtue of Sl. No. 24 of Schedule - III of Notification No. 01/2017-Integrated Tax (Rate), dated 28-6-2017 or not.
HELD THAT:- The intention of the legislature to exempt the water was very clear that any type of water which is usually consumed/drink by the public at large of this country should not be taxed. To meet such objective GST Council has provided exemption under the Entry No. 99 of Not. No. 2/2017-CT (Rate) to Water which is free from all types of impurities supplied in cities and villages across the country either through tap or tanker, water cooler and water tap installed at various places across the country. Whereas aerated, mineral, distilled, medicinal, ionic, battery, de-mineralized and water sold in sealed container is not eligible for exemption from payment of GST under the said entry. This clearly shows the intention of the legislature that any type of water which are being sold in terms of commercial purpose have been kept out of the purview of exemption as provided under entry No. 99 of the Notification.
The treated water obtained from CETP do not cover under the category of 'purified water' then what type of treated water would be i.e. whether cover under the category of aerated, mineral, distilled, medicinal, ionic, battery, de-mineralized water.
It can be concluded that after undergoing out all the process treated water obtained from CETP have micro amount of dissolved minerals and chemical and virtually free from all types of toxic materials. This treated water is used in the various industries viz. Pharmaceuticals, chemicals and leather industries for their manufacturing related process. Looking to the presence of small amount of metal and water obtained after treatment from CETP is covered under 'de-mineralize water'. Hence, the treated water obtained from CETP is not eligible for exemption under Sr. No. 99 of Notification No. 12/2017-CT (Rate) dated 28-6-2017.
The 'Treated Water' obtained from CETP (classifiable under Chapter 2201) is taxable at 18 per cent by virtue of Sl. No. 24 of Schedule - III of Notification No. 01/2017 - Integrated Tax (Rate), dated 28-6-2017 (as amended) as Waters, including natural or artificial mineral waters, and aerated waters, not containing added sugar or other sweetening matter nor flavoured (other than Drinking water packed in 20 liters bottles)'.
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2022 (12) TMI 1448
Deduction u/s 80P - claim denied as assessee not filed it’s return within the due date u/s 139(1) - HELD THAT:- We make it clear that the assessee has indeed quoted Section 80AC(ii) of the Act that although it has been prescribed in the relevant statute to claim the impugned deduction only after filing Section 139(1) return before the due date, this tribunal’s recent coordinate bench in the case of M/s. Krushi Vibhag Karmchari Vrund Sahakari Path Sanstha [2022 (10) TMI 348 - ITAT NAGPUR] has held the foregoing condition(s) as “directory” and not a mandatory one.
We find no merit in assessee’s foregoing arguments claiming Section 80AC(ii) as a mere directory provision in the light of Commissioner vs. Dilip Kumar & Company [2018 (7) TMI 1826 - SUPREME COURT] that provisions in a taxing statute (including deductions) have to be strictly interpreted only.
We next observe that the legislature has interpreted “no such deduction” and “unless” in Section 80AC(ii); for the period after 01.04.2018, by way of negative covenants which forms a mandatory stipulation only in light of PRINCIPLES OF STATUTORY INTERPRETATION by Justice G.P. Singh (termed as the treatise on the subject of statutory constructions) under Chapter 5 thereof.
So far as the assessee’s reliance on this tribunal’s learned coordinate bench’s decision (supra) is concerned, the same hardly forms a binding precedent once dealing with assessment year 2009-10 only i.e., before 01.04.2018. We thus uphold the learned lower authorities action under challenge therefore denying sec.80P deduction in issue.
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2022 (12) TMI 1447
Deduction u/s 80P - Assessee had not filed it’s return within the due date u/s 139(1) - HELD THAT:- We make it clear that the assessee has indeed quoted Section 80AC(ii) of the Act that although it has been prescribed in the relevant statute to claim the impugned deduction only after filing Section 139(1) return before the due date, this tribunal’s recent coordinate bench in the case of M/s. Krushi Vibhag Karmchari Vrund Sahakari Path Sanstha [2022 (10) TMI 348 - ITAT NAGPUR] has held the foregoing condition(s) as “directory” and not a mandatory one.
We find no merit in assessee’s foregoing arguments claiming Section 80AC(ii) of the Act as a mere directory provision in the light of Commissioner vs. Dilip Kumar & Company [2018 (7) TMI 1826 - SUPREME COURT] that provisions in a taxing statute (including deductions) have to be strictly interpreted only.
We next observe that the legislature has interpreted “no such deduction” and “unless” in Section 80AC(ii); for the period after 01.04.2018, by way of negative covenants which forms a mandatory stipulation only in light of PRINCIPLES OF STATUTORY INTERPRETATION by Justice G.P. Singh (termed as the treatise on the subject of statutory constructions) under Chapter 5 thereof.
So far as the assessee’s reliance on this tribunal’s learned coordinate bench’s decision (supra) is concerned, the same hardly forms a binding precedent once dealing with assessment year 2009-10 only i.e., before 01.04.2018. We thus uphold the learned lower authorities action under challenge therefore denying sec.80P deduction in issue
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2022 (12) TMI 1446
Penalty u/s 271D - transaction otherwise than by an account payee cheque or use of electronic clearing system through a bank account etc., violated Section 269SS - whether without satisfaction being recorded in the assessment order, penalty can be levied by the Joint Commissioner u/s 271D? - HELD THAT:- We find that petitioner had submitted reply to the show cause notice on 02.06.2022. In his reply, petitioner mentioned that no satisfaction was recorded by the assessing officer in the assessment order as to infraction of Section 269SS of the Act. Therefore, no penalty could be levied u/s 271D of the Act without recorded satisfaction. In this connection, reference was made to the decision of the Supreme Court in Jai Laxmi Rice Mills Ambala City [2015 (11) TMI 1453 - SUPREME COURT] wherein it was clarified that provisions of Section 271E are in pari materia with the provisions of Section 271D.
This aspect of the matter was not considered by respondent No.1 while passing the impugned order. Respondent No.1 relying upon the Kerala High Court decision in Grihalaxmi Vision [2015 (8) TMI 1214 - KERALA HIGH COURT] noted that competent authority to levy penalty is the Joint Commissioner. He has also referred to an earlier decision of the Supreme Court in CIT V. Mac Data Ltd [2013 (1) TMI 574 - DELHI HIGH COURT] wherein it was observed that assessing officer has to satisfy himself as to whether penalty proceedings should be initiated or not. Assessing officer is not required to record his satisfaction in a particular manner or reduce it into writing. Therefore, respondent No.1 imposed the penalty under Section 271D of the Act.
We are afraid respondent No.1 had completely overlooked the decision of the Supreme Court in Jai Laxmi Rice Mills Ambala City (1 supra). In the said decision as extracted above, Supreme Court had concurred with the view taken by the High Court holding that satisfaction must be recorded in the original assessment order for the purpose of initiation of penalty proceedings under Section 271E of the Act. We have already discussed above that provisions of Section 271E and 271D of the Act are in pari materia. When there is a decision of the Supreme Court, it is the bounden duty of an adjudicating authority, be it an income tax authority or any other civil authority or for that matter any court in the country, to comply with the decision of the Supreme Court.
Article 141 of the Constitution of India is clear that law declared by the Supreme Court shall be binding on all courts within the territory of India. This is further clarified in Article 144, which says that all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court. We are therefore, of the unhesitant view that respondent No. 1 overlooked the relevant considerations while passing the impugned order dated. 29.11.2022.
Further, issue in the present writ petition is not the competence of the Joint Commissioner in issuing the order of penalty. Therefore, reference to Grihalaxmi Vision (2 supra) was wholly unnecessary. WP allowed.
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2022 (12) TMI 1445
Penalty u/s 271D - HELD THAT:- When the attention of learned Senior Counsel was drawn to the fact that impugned order is an appealable one and why petitioner has not filed appeal, he submits that issue involved in the matter is squarely covered by a decision of Jai Laxmi Rice Mills Ambala City [2015 (11) TMI 1453 - SUPREME COURT] This aspect was specifically brought to the notice of the first respondent by making written submission on 02.06.2022. However, ignoring the above, impugned order came to be passed.
Issue short notice to the respondents. Income Tax Department waives notice for both the respondents.
List this matter on 23.12.2022 for admission hearing high on board when an endeavour may be made to hear the matter.
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9911796707
