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Showing 101 to 120 of 1445 Records
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2024 (3) TMI 1345
Revision u/s 263 by CIT - corpus donations were not enquired of by the AO - HELD THAT:- On the alibi that the Assessing Authority does not seem to have made enquiries the jurisdiction for Revision cannot be assumed by the Ld. CIT(E). The Authority to revise would be available to the Ld. CIT(E) only if he is able to locate a de finite error in the order arising out of the Authority omitting to make the requisite enquiry.
The first observation of the Ld. CIT(E) is that the corpus donations have not been verified by the AO and that he has failed to make the requisite enquiries in that behalf during assessment. That is not quite so in this case. For the purpose of making enquiries the AO had indeed, during the course of the assessment proceedings, issued specific notices to the assessee to explain and to prove the corpus donations. Those solicitations of the AO and the answers thereto provided by the assessee.
The opinion of the CIT(E) that corpus donations were not enquired of by the AO and so they remained unverified is palpably wrong. No mistake of any nature has been identified by the Ld. CIT(E) on this issue in his entire order.
CIT(E) has detailed what according to him should be the method for verification of corpus donations but as pointed out above the AO's discretion and judgment cannot be vetoed by the Ld. CIT(E) without citing a mistake in the action of the AO.
As to the unsecured loans specific query was raised by the AO. After examining of the material and evidence as provided by the Assessee, the AO came to the conclusion that Rs. 2 lacs of loans remained unexplained.
CIT(E) in his order does not point out any error or defect in the assessment order so far as it concerns unsecured loans. The Ld. CIT(E) only allege s lack of enquiry. That impression of the CIT(E) was insufficient to invoke proceedings u/s. 263 of the Act. The said proceedings would get ignited only when there is an error in the order of assessment.
Since, the order has been passed by the AO after conducting due enquiries, we hold that the CIT(E), Chandigarh erred in passing order u/s 263 - Decided in favour of assessee.
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2024 (3) TMI 1344
Denial of Credit of TDS - credit for entire amount as deducted as tax at source U/s. 194Q from the commission income - since the assessee is only a commission agent, the assessee is eligible to get credit of the entire amount deducted as tax at source U/s. 194Q of the Act and therefore pleaded that the grounds raised by the assessee may be allowed - HELD THAT:- Kaccha Arahtias turnover includes only the gross commission and not the sales effected on behalf of their principals. In the present case, it is a fact that the assessee is only a licensed commission agent in Agricultural Market Committee Yard, Guntur which is formed under the rules and regulation of the Government of Andhra Pradesh.
Therefore, the Circular issued by the CBDT No. 452, dated 17th March, 1986squarely applies to the assessee and hence assessee is acted only as an agent (kaccha arahtia) and therefore it is eligible to get credit of the entire amount deducted as tax at source and there is no short fall of TDS as concluded by the Ld. Revenue Authorities. Accordingly, hereby set-aside the orders of Revenue Authorities and direct the Ld. AO to grant credit of the entire amount deducted as tax at source in the case of the assessee. The grounds raised by the assessee are allowed.
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2024 (3) TMI 1343
Violation of principle of natural justice - Challenge to impugned show-cause notice and final adjudication order - authority having lack of jurisdiction - HELD THAT:- Since the impugned order was passed without hearing the petitioner and without considering petitioner’s request for adjournment on the ground of pendency of this writ petition, directly or indirectly violation of principle of natural justice is involved in this writ petition and at the same time, the legal aspect is that the impugned adjudication order is appellable order under the statute, this aspect cannot be ignored. If petitioner is agreeable to pay 10% of the tax demand in that event this court in exercise of its discretionary power may hear this writ petition, otherwise, this Court is of the view that the matter should be remanded to the adjudicating authority concerned to pass a fresh order after giving opportunity of hearing to the petitioner and allowing the petitioner to take all the points before the adjudicating authority concerned which has been raised in this writ petition.
List this matter for further consideration on 2nd April, 2024.
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2024 (3) TMI 1342
Grant of anticipatory bail - Money Laundering - proceeds of crime - complaint filed under Section 447 of the Companies Act - allegation of recurring cause - responsibility of Directors of the Company for the offence committed by the Company - HELD THAT:- It is apparent that there is still outstanding of loan, which is to be recovered and the said outstanding of loan is offshoot of Joint Venture Agreement as well as supplementary Agreement as per the allegations levelled in the complaint. Such outstanding of loan has caused recurring loss to shareholders of the Company.
A perusal of Explanation (ii) to Section 3, reflects that the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime. The aforesaid section covers all the activities within its scope till the person is being directly or indirectly benefitted by the proceeds of crime. This aspect has been taken into consideration by the Apex Court i n Vijay Madanlal Choudhary and others Vs. Union of India and others [2022 (7) TMI 1316 - SUPREME COURT] wherein the Apex Court held that 'The Explanation inserted to Section 3 by way of amendment of 2019 does not expand the purport of Section 3 but is only clarificatory in nature. It clarifies the word "and" preceding the expression projecting or claiming as "or"; and being a clarificatory amendment, it would make no difference even if it is introduced by way of Finance Act or otherwise.'
Hence, the complaint prima facie discloses recurring cause and hence the contention as regards prosecution being based on Ex Post Facto amendment, is unsustainable.
Section 45 of the PMLA specifically provides that the offences under the Act are non-bailable and cognizable and no person accused of an offence under the Act is entitled for bail unless the Public Prosecutor is given a liberty to oppose the application and the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail - The Apex Court in the case of Vijay Madanlal Choudhary and others Vs. Union of India and others [2022 (7) TMI 1316 - SUPREME COURT] has also held that provision of Section 45 are applicable to the bail applications under Sections 438 and 439 of Cr.P.C. The Apex Court in Paragraph 187 (xiii)(d) as under:- (xiii)(d) As regards the prayer for grant of bail, irrespective of the nature of proceedings, including those under Section 438 of the 1973 Code or even upon invoking the jurisdiction of Constitutional Courts, the underlying principles and rigours of Section 45 may apply.
The complaint prima facie discloses commission of aforesaid offence and it is also undisputed that the offence in question is a continuing offence. Investigation is still going on and on account of act in question, losses of colossal amount have been sustained by the shareholders of the Company. Even the foreign investors have also sustained loss, which is evident from Paragraph 7 of the complaint.
In the present case, the complaint prima facie discloses commission of offence by the applicant as well as co-accused, therefore, this Court does not find any reasonable ground to believe that the present applicant is not guilty of crime.
Application dismissed.
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2024 (3) TMI 1341
Levy of service tax - Supply of Tangible Goods as defined by Section 65 (105)(zzzzj) of the Finance Act, 1994 or not - supply of wagons by private players to Railways in terms of “Own Your Wagon Scheme” or “Wagon Investment Scheme” or “Liberalized Wagon Investment Scheme” - period of dispute in the present appeal is from 2008-09 to December 2011 - HELD THAT:- Under the Sales Tax Act, there is transfer of possession and effective control in goods for levy of sales tax, while there is no such transfer of possession and effective control under the Finance Act for levy of service tax - In the present case, the transaction between appellant and the Railways would qualify as transfer of right to use the wagons with the Railways having possession and effective control over the wagons leased by the appellant. It would, therefore, result in a deemed sale having taken place.
In GS. LAMBA AND SONS VERSUS STATE OF ANDHRA PRADESH [2011 (1) TMI 1196 - ANDHRA PRADESH HIGH COURT], the issue that arose before the Andhra Pradesh High Court was whether the contract with M/s. Grasim Industries Limited for transporting the Ready Mix Concrete was for transfer of the right to use Transit Mixers and it was held that 'The entire use in the property in goods is to be exclusively utilised for a period of 42 months by Grasim. The existence of goods is identified and the Transit Mixers operate and are used for the business of Grasim. Therefore, conclusively it leads to the only conclusion that the petitioners had transferred the right to use goods to Grasim.'
A conjoint reading of all the relevant terms of the lease Agreement dated 12.06.2009 leaves no manner of doubt that the wagons have been leased out by the appellant to the Railways with transfer of right of possession and effective control and the essential requirements of a deemed sale having taken place stand satisfied.
On an analysis of the terms of the Agreement between MSPL and the Railways, the Tribunal recorded a categorical finding that the right of possession and effective control of the wagons was with the Railways and not with MSPL. The Tribunal also recorded a categorical finding that the transaction entered into between MSPL and the Railways constituted a deemed sale under article 366(29A) of the Constitution and MSPL also paid VAT to the State Government. The Tribunal also noticed that the Ministry of Railways had also clarified in the letter dated 11.06.2014 that this would be a deemed sale which would attract VAT and no service tax would be payable.
The lease of wagons by the appellant to the Railways in terms of the Agreement dated 12.06.2009 transfers the right of possession and effective control of the wagons to the Railways and, therefore, cannot be subjected to levy of service tax under section 65(105)(zzzzj) of the Finance Act.
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2024 (3) TMI 1340
Recall of an order - seeking removal of the Appellant as RP - Application filed on the ground that RP in spite of request has not convened the meeting, hence he may be removed - it was held by NCLAT that 'There are no good ground or reasons to interfere with the impugned order in this Appeal' - HELD THAT:- There are no good ground and reason to interfere with the impugned judgment and hence, the present appeal is dismissed.
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2024 (3) TMI 1339
Validity of assessment u/s 153C - Proceedings initiated on the basis of an excel sheet found from the computer of a person, associated with the Developer Company in the premises of whom the search was conducted - excel sheet, according to the learned Counsel for the Revenue, contained the details of payment made by the assessee to the developer, with respect to which tax had been paid by the developer before the Settlement Commissioner
HELD THAT:- There is no basis for conducting proceedings against the assessee merely for the fact that the developer had paid tax on the amount shown in the excel-sheet. There is no adjudication with regard to the payment, which was shown in the excel-sheet to the effect that the same was actually paid by the assessee to the developer.
Even otherwise, the concurrent findings returned by the CITA and ITAT are that the document found from the premises of the third party namely excel-sheet, which is the basis of the proceedings was without any signature and there is no corroborative material to substantiate the said document.
The nature of the document has not been explained by the AO while proceeding against the assessee. The statements of the persons recorded during search with reference to the alleged, seized material, was not provided to the assessee and hence, the entire proceedings under Section 153C stood vitiated. No substantial question of law arises to entertain this appeal.
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2024 (3) TMI 1338
Challenge to impugned adjudication order dated 30th November, 2023 being annexure P/3 to the writ petition passed on the basis of notification dated 5th July, 2022 being annexure P/11 and notification dated 31st March, 2023 - extension of time limit to pass order under Sub- Section 9 of Section 73 of the CGST/WBGST Act, 2017 - wrongful exercise of power under Section 168A read with Section 73(10) of the said Act - HELD THAT:- The issues involved in this writ petition require adjudication on exchange of affidavits by the parties and petitioner has also been able to make out a prima facie case for interim relief.
Considering the facts and circumstances of this case and submission of the parties and in view of involvement of pure question of law this writ petition is admitted - List this matter for final hearing in the monthly list of July, 2024.
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2024 (3) TMI 1337
Seeking to restrain the Respondent Nos. 1 to 5 from convening and conducting of the proposed Extraordinary General Meeting - direction to the Respondent No. 1 to urgently disclose by way of an affidavit by its Chief Executive Officer - HELD THAT:- The R-1 Company, in response vide letter dated 15.02.2024 (which is placed on record at page no. 1330 of the main CP) informed that the Respondent company had no objection in providing the information and the same will be provided to the Petitioners/Shareholders in the next five business days. However, the same was not furnished.
It is not required to stay the conducting of the EGM proposed to be held on 29.03.2024. However, all the contentions raised in the main CP are kept open for being argued and consideration before this Tribunal when the main CP is taken for hearing on 04.04.2024.
Application disposed off.
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2024 (3) TMI 1336
Seeking to initiate Insolvency Resolution Process against Personal Guarantor of the Corporate Debtor - Application filed u/s 95 of the IBC, 2016 read with Rule 7(2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019 - time limitation.
HELD THAT:- It is pertinent to note that nowhere in the report of RP there is mentioning of revival letter dated 19.09.2017 given by the respondent which creates doubt about signing of revival letter by the respondent. Therefore, contention of the respondent shows that she has never signed any such revival letter appears to be genuine. No reason is given by the applicant for non-filing of revival letter along with the petition or giving to the RP as it is not mentioned in the RP report nor copy annexed - The revival letter as well as acknowledgement of service of notice was not filed along with application. No reason given for not filing the same. Those were filed later-on, which creates doubt of their genuineness. Hence, the application is not within the period of limitation without revival letter. However, it will be in the interest of justice to decide the matter on other aspects so as to avoid remand of matter.
Time Limitation - HELD THAT:- There is no explanation how the date of default has been changed from 30.06.2018 to 24.12.2019. It is also pertinent to note that the applicant has issued notice under SARFAESI Act on 14.06.2019 and are relying upon same. No further notice is issued by the applicant, when they have mentioned date of default as 24.12.2019 there was no reason for the applicant to issue notice prior to default i.e. on 14.06.2019. It means that the applicant has issued notice dated 14.06.2019 without there being default in repayment. Therefore, to consider default dated 24.12.2019, notice dated 14.06.2019 cannot said to be invocation of guarantee by the applicant. If we consider date of default as 24.12.2019, no further notice of invoking guarantee was issued thereafter to the guarantor. Considering these important dates, it appears that the guarantee is not invoked when the default occurred so the petition is liable to be dismissed.
The case in hand, the date of default mentioned is 30.06.2018 and the date of demand notice is 14.06.2019. When a limitation period is expired during the period between 15.03.2020 to 28.02.2022 the directions are specifically given in para-III of the order. The directions clearly give 90 days further period from 01.03.2022. It is also mentioned that in the event of actual balance period of limitation remains is greater than 90 days from 01.03.2022 in that case longer period shall apply. So if the date of default is taken into consideration as 30.06.2018 the applicant will have only 90 days limitation period to file an application. If the date of notice is considered, i.e. 14.06.2019, the applicant has the actual balance period remaining i.e. 106 days to file the application. If date of default as per application as 24.12.2019 is considered there is no invocation of guarantee.
The petition itself is defective as well as not within the period of limitation - Petition dismissed.
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2024 (3) TMI 1335
Seeking withdrawal of the special leave petitions - Money laundering - proceeds of crime - issuance of summons - it was held by High Court that 'This Court finds prima facie case and balance of convenience in favour of the petitioners and hence, considering the serious prejudice that is likely to be caused on account of repeated summons being issued by the respondents to the petitioners in these writ petitions, is inclined to grant interim protection' - HELD THAT:- The special leave petitions are dismissed as withdrawn.
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2024 (3) TMI 1334
Seeking for substitution of Resolution Applicant with another entity, which has been rejected by the Adjudicating Authority - Asset Reconstruction Companies - Resolution Applicant or not - HELD THAT:- The present Appeal has been filed against the order by which application filed by the Appellant has been rejected and the reasons given by the Adjudicating Authority for rejecting the application filed by the Appellant for substituting another Resolution Applicant in place of the Appellant, fully agreed upon - When plan of the Appellant as Resolution Applicant was approved, the Adjudicating Authority rightly refused to substitute another Resolution Applicant, in which order no infirmity is found.
In so far as submission of the Appellant that some way forward has to be looked into. It is always open for the Monitoring Committee as well as the Appellant to make appropriate application before the Adjudicating Authority to find out a way forward and to proceed further and it is for the Adjudicating Authority to take call on said applications and decide the same in accordance with law.
Appeal dismissed.
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2024 (3) TMI 1333
Condonation of delay of 12 days in filing appeal - clear-cut stand of the Petitioner/Appellant, is that the period of limitation and for filing instant Appeal, shall be computed from 07.12.2022 and the 30 days' time period for filing instant Appeal expires on 06.01.2023 - HELD THAT:- Admittedly, in the instant case, the Petitioner/Appellant, had not applied for a Certified Copy as per Section 76 of the Indian Evidence Act, 1872, contemplated under Rule 2(9)of the National Company Law Tribunal Rules, 2016, and has not obtained the certified copy, on payment of, Requisite Fee, as per Rules. Therefore, the Free Cost copy of the Impugned Order dated 24.11.2022 passed by the Adjudicating Authority/Tribunal is not a Copy Certified, contemplated as per Rule 22 of the National Company Law Appellate Tribunal Rules, 2016.
A provision is made in Section 76 of the Indian Evidence Act, 1872 that for securing those Certified Copies by enacting that every Public Officer having the custody of a public document, which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefor, together with a Certificate Written, at the foot of such copy, that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal; and such copies so certified shall be called certified copies.
As far as the present case is concerned, the delay of 12 days has computed by the 'Petitioner/Appellant', in her 'Application', from the date of receipt of 'free copy' on 07.12.2022 cannot be accepted and as per Rule 150 of the National Company Law Tribunal Rules, 2016, the 'Pronouncement date' can only be the date on which the 'order' was pronounced on 24.11.2022 by the 'Adjudicating Authority/Tribunal'. If calculated from the date on which the instant 'Appeal' came to be filed through 'e-portal' on 19.01.2023, the actual delay comes (after the expiry of 30 days in preferring an 'Appeal') will be 26 days. In all there is a delay of 26 days which is 'beyond the condonable period of (30 + 15 = 45 days) being the outer limit', as provided under Section 61(2) of the Insolvency and Bankruptcy Code, 2016.
Appeal dismissed.
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2024 (3) TMI 1332
Validity of impugned SCN - Failure to abide by the requirement of the pre-show cause notice consultation as provided in Master Circular dated 10th March 2017, as demand of duty involves more than Rs. 50,00,000/- - impugned SCN in this petition is issued without following the mandatory requirements of the Master Circular - HELD THAT:- It was also pointed out by learned advocates for both the sides that the matter is also subjudice before the Hon’ble Supreme Court with regard to the issue of limitation if the impugned show cause notice is quashed and set aside by this Court.
The respondent authorities are directed to undergo the process of pre-consultation keeping the impugned show cause notice in abeyance on record before the next date of hearing. Such exercise shall be completed within four weeks.
Stand over to 18th April 2024.
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2024 (3) TMI 1331
Validity of assessment u/s 153C beyond period of six years from the end of the financial year - HELD THAT:-These appeals are disposed of in terms of the decision of this Court in Jasjit Singh [2023 (10) TMI 572 - SUPREME COURT]
Accordingly, notices u/s 153C of the Income Tax Act, 1961 will be valid for a period of six years from the end of the financial year preceding the date on which the satisfaction was recorded.
The appeals are disposed of in the above terms.
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2024 (3) TMI 1330
Disallowance of expenses written off - debts written off is only allowable if the assessee offers the same as income in previous years, which the assessee failed to prove - ITAT deleted addition - HELD THAT:- The issue is squarely covered by the decision of the Apex Court in TRF Limited [2010 (2) TMI 211 - SUPREME COURT] and also Oman International Bank [2009 (2) TMI 54 - BOMBAY HIGH COURT] - there can be no substantial question of law on this issue. We have considered the same and also Mr. Suresh Kumar agrees.
Additional grounds raised - expenses on windmill be allowed as Revenue expenditure - ITAT had restored the issue back to the Assessing Officer (“AO”) for fresh consideration and AR/Assessee states, the AO, while giving effect to the order of the ITAT has allowed depreciation on windmills and, therefore, this will be a non-issue. Thus assessee agreed.
Allowability of entertainment expenditure ‘food subsidy coupons ’disallowed u/s 37(2), expenses related payments to schools disallowad u's 40A(9) and advertisement expenditure (deferred revenue) as revenue expenditure - HELD THAT:- Tribunal had relied on assessee’s own case for AY 1996-97 and Revenue had not challenged the decision of the ITAT. Mr. Srihari submitted, relying on the decision of Commissioner of Income Tax v. Excel Industries Ltd. & Anr[2013 (10) TMI 324 - SUPREME COURT] that if question of law has not been raised or if the finding of the ITAT has been accepted by Revenue for a previous year, in the subsequent year, it cannot be raised. It appears from the record that in several assessment years, the Revenue accepted the order of the Tribunal in favour of the assessee and did not pursue the matter any further but in respect of some assessment years the matter was taken up in appeal before the Bombay High Court but without any success. That being so, the Revenue cannot be allowed to flip-flop or the issue and it ought let the matter rest rather than spend the taxpayers money in pursuing litigation for the sake of it.
Thus we dismiss the appeal with no order as to costs.
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2024 (3) TMI 1329
Maintainability of petition - Challenge to report of preliminary inquiry - HELD THAT:- The writ petition is dismissed as premature with liberty to petitioner to file fresh petition in case any adverse order has been passed against the him.
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2024 (3) TMI 1328
Deduction u/s 80P - interest / dividend income earned from deposits - assessment was concluded by AO holding that, the declared Business Income of the assessee was ineligible for deduction u/s 80P of the Act, on the ground that the assessee had transacted with nominal members and that its interest income was chargeable u/s 56 of the Act under Income from other sources - HELD THAT:- It has been rightly submitted by the Ld.AR that the directions of Hon’ble Supreme Court in case of Mavilayi Service Co- operative Bank Ltd. [2021 (1) TMI 488 - SUPREME COURT] is not considered by the NFAC insofar as the deduction u/s. 80P(2)(a)(i) is concerned.
In a subsequent decision in case of Kerala State Co-operative Agricultural and Rural Development Bank Ltd. KSCARDB [2023 (9) TMI 761 - SUPREME COURT], Hon’ble Supreme Court has analysed applicability of section 80P(2)(d) deduction in great detail with regard to interest / dividend income earned from deposits. The NFAC/CIT(A) is directed to consider the claims of the assessee in the light of the aforestated decisions by Hon’ble Supreme Court. In the interest of justice, we remand these appeals back to NFAC / CIT(A) for read judication on merits. Appeal filed by the assessee stands allowed for statistical purposes.
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2024 (3) TMI 1327
Exemption u/s 11 - Condonation of delay application in filing Form 10 under Section 119(2)(b) - delay of 361 days in submitting Form 10 - reason given by petitioner as oversight by the trust’s management - HELD THAT:- Auditor of petitioner [ Mr. Dedhia] explained that since the factum of accumulation of receipts was reported in audit report in Form No. 10B he was under bonafide impression that there was no separate requirement to file a separate statement and that provisions of Section 11(2) of the Act were complied with. He has also stated that due to inadvertence and through oversight he did not consider the provisions of Rule 17 of the Act which required a separate statement in Form No. 10 to be filed apart from the audit report in Form No.10B. Hence, he did not advise petitioner to file Form No. 10. He has also stated that only after the intimation under Section 143(1) of the Act was received on or about 5th June 2020 denying the accumulation and that too during the peak of covid pandemic, Form No. 10 was uploaded on 26th October 2020 and condonation of delay application was filed on 27th October 2020.
Therefore, we are satisfied that the delay was not intentional or deliberate. Further, petitioner cannot be prejudiced on account of an ignorance of the Rules admitted by the professional engaged by petitioner. In our view, this explanation by Mr. Dedhia is a reasonable explanation and should be accepted and delay be condoned.
Petition disposed. The delay in filing Form No. 10 for Assessment Year 2019-20 shall be treated as condoned.
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2024 (3) TMI 1326
Challenge to impugned adjudication order - adjudicating authority had not properly discussed and dealt with the two replies to the impugned SCN - Violation of principles of natural justice - HELD THAT:- Since the impugned order is an appellable order under the statute and this order has been passed after giving opportunity of personal hearing to the petitioner and by recording elaborate reason on merit of the case, this writ court under Article 226 of the Constitution of India cannot act as an appellate authority over such order.
No relief can be granted in this writ petition except granting to the petitioner to file statutory appeal before the appellate authority within two weeks and keeping all the points open before the appellate authority concerned which has been raised in this writ petition.
Petition disposed off.
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