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2021 (6) TMI 1072 - DELHI HIGH COURT
Seeking enlargement on bail - allegation is that appellant played an active role in the conspiracy and is one of the 'masterminds' - HELD THAT:- Upon a conspectus of the general law relating to bail and applying these well-worn principles to the present case, though during trial the State will no doubt attempt to marshal evidence and make good the allegations made against the appellant, as we speak now these are mere allegations and, as discussed above, we are not convinced prima facie of the veracity of the allegations so made. Charge-sheet dated 16.09.2020 has already been filed in the matter. Some 740 witnesses have been cited in the subject charge-sheet. Trial is yet to commence. In view of the truncated functioning of courts by reason of the prevailing second wave of the COVID-19 pandemic, it is unlikely that trial will commence anytime soon.
While the presence of the appellant for purposes of trial must be secured, there is no material or basis to suspect; nor is there any reasonable apprehension that the appellant will tamper with evidence or intimidate witnesses. The gravity of the offence alleged would beget the length of sentence, as may be awarded upon conclusion of trial; but an assertion as to the gravity of the offence cannot thwart the grant of bail - apart from militating against the presumption of innocence, pre-trial detention would lead to needless psychological and physical deprivations; and above all, would seriously hamper the appellant from participating in and contributing to the preparation of his defence at the trial. The three cardinal concerns against grant of bail pending trial, namely of evidence tampering, witness intimidation and abscondence, can be addressed by imposition of requisite conditions on grant of bail.
The appellant shall furnish a personal bond in the sum of ₹ 50,000/- with 02 local sureties in the like amount, to the satisfaction of the learned Trial Court - the bail is granted subject to conditions imposed.
Application allowed.
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2021 (6) TMI 1071 - GUJARAT HIGH COURT
Seeking stay of the operation, implementation and execution of the order - HELD THAT:- The order dated 17.01.2019 has been challenged by the applicant by way of First Appeal No.1224 of 2021. The First Appeal came to be admitted by this Court vide order dated 07.06.2021.
Let Notice be issued to the opponent – returnable on 12.07.2021. Till the next returnable date, the opponent shall maintain status quo as regards the nature, character and possession of the attached properties.
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2021 (6) TMI 1070 - GUJARAT HIGH COURT
Maintainability of appeal - HELD THAT:- This appeal is under Section42 of the Prevention of Money Laundering Act, 2002 against the order passed by the Appellate Tribunal for SAFEMA, FEMA, PMLA, NDPS, PBPT Act at New Delhi.
The appeal requires consideration. Admit - Let Notice of admission be issued to the otherside.
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2021 (6) TMI 1069 - DISTRICT COURTS NEW DELHI
Seeking grant of Bail - criminal conspiracy - fraudulent import of fertilizers and other materials for fertilizer production at inflated prices - commission of crime - sham consultancy agreements - fake invoices for consultancy services were prepared - Applicability of twin conditions of Section 45 of PMLA - HELD THAT:- The issue of applicability of twin conditions of amended Section 45 of PMLA has arisen before the various Hon'ble High Courts of this country and divergent view has come across. The Hon'ble High Court of Delhi in the matter of UPENDRA RAI VERSUS DIRECTORATE OF ENFORCEMENT [2019 (7) TMI 576 - DELHI HIGH COURT] and, the Hon'ble Madhya Pradesh High Court in the matter of DR. VINOD BHANDARI VERSUS ASSISTANT DIRECTOR DIRECTORATE OF ENFORCEMENT [2018 (8) TMI 1848 - MADHYA PRADESH HIGH COURT] and the Hon'ble Bombay High Court in the matter of CHHAGAN CHANDRAKANT BHUJBAL VERSUS ASSISTANT DIRECTOR ENFORCEMENT DIRECTORATE AND ANR [2016 (6) TMI 1148 - BOMBAY HIGH COURT] have taken a view that post amendment of Section 45 of PMLA, twin conditions do not get revived and hence, are inapplicable to the bail application filed under the PMLA - However, a contrary view has been taken by the Hon'ble High Court of Orissa at Cuttack in the matter of MOHAMMAD ARIF VERSUS DIRECTORATE OF ENFORCEMENT, GOVT. OF INDIA [2020 (7) TMI 425 - ORISSA HIGH COURT] and by the Hon'ble High Court of Patna in the matter of VIDYUT KUMAR SARKAR VERSUS THE STATE OF BIHAR AND ORS. [2020 (7) TMI 581 - PATNA HIGH COURT].
Further, till date, no court has declared the twin conditions mentioned in the amended Section 45 of PMLA to be unconstitutional on the ground of it being violative of Article 14 of the Constitution of India.
Further, having regard to the fact that twin conditions in the amended Section 45 of the PMLA have not been struck down being unconstitutional till date by any court in India, therefore, twin conditions as mentioned in Section 45 of the PMLA are required to be made applicable to the present bail application.
It is apparent that accused played a major role by getting the illegal commission transferred from M/s. Uralkali General Trading, Gibralter and Gulf Marine, Dubai into the account of entities owned by Rajiv Saxena and from there, the said commission was transferred as per his instructions and that of co-accused Pankaj Jain and Sanjay Jain - the accused in his statement under Section 50 of PMLA has not been able to give the source of such huge funds received by him in cash or in the entities owned by him. Therefore, there is a prima facie material to hold that accused is involved in the offence of money laundering and since the Ld. Special Counsel for the ED has opposed the grant of bail, therefore, as per Section 45 of PMLA, accused is not entitled to bail.
The accused is also not entitled to bail as per proviso to Section 45 of the PMLA on the ground of he being a sick and infirm person as there is nothing on record to suggest that accused is sick to that extent that in case he remains incarcerated, then his health condition will further deteriorate.
The investigation is at the stage of collection of evidence regarding identification of proceeds of crime and finding of trail of remaining ill gotten money, which in the case of money laundering is generally routed through a complex web of companies. Therefore, taking into account the above mentioned factors, even if twin conditions mentioned in Section 45 of PMLA are ignored, then also having regard to the serious economic offence committed by accused wherein the alleged amount of ₹ 685 Crores has been laundered, the possibility of tempering with the witnesses, the accused being an influential person and the investigation being at an initial stage, the court is not inclined to release the accused on bail, even as per Section 439 Cr.P.C.
Bail application dismissed.
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2021 (6) TMI 1068 - ITAT PUNE
Accrual of income - Addition on account of accrued interest on seed money loans - Hypothetical income - taxability or otherwise of the interest on the seed money advances given to the entrepreneurs, which are classified as sticky advances - income should be computed either on cash or on accrual basis as per amendment w.e.f. A.Y. 1997-98 - assessee is following the mercantile system of accounting - whether since all items of accounts were maintained as per mercantile system of accounting, there was no basis for accounting said accrued interest income on cash basis as section 145(1)? - HELD THAT:- This issue is identical to the issue of taxability of interest on Non-performing Assets. There is no dispute that the interest had not been recognized in the books of account on sticky advances, the claim is in the nature of interest on doubtful debts, there is an uncertainty as to the recovery of advances as well as principal amount of the advances. The Hon’ble Supreme Court in the case of UCO Bank [1999 (5) TMI 3 - SUPREME COURT] held that no hypothetical income can be brought to tax.
Hon’ble Supreme Court in the case of CIT vs. Shoorji Vallabhdas And Co., [1962 (3) TMI 6 - SUPREME COURT] laid down the principle that what can be taxed is only a real income, in respect of which the right to receive income had accrued, the same principle was reiterated in the case of UCO Bank (supra).
Hon’ble Supreme Court again in the case of CIT vs. Vasisth Chay Vyapar, [2018 (3) TMI 56 - SUPREME COURT] while considering the issue in the context of taxability of interest on Nonperforming Assets held that when interest was not received and the possibility of recovery almost Nil, the interest could not be treated to have accrued.
Thus the issue in the present appeal is identical to the issue of taxability of interest on the non-performing assets. Therefore, the ratio laid down in the above decisions clearly applicable to the facts of present case. Therefore, we do not see any reason to interfere with the order of the ld. CIT(A). Accordingly, the ground of appeal raised by the Revenue is dismissed.
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2021 (6) TMI 1067 - MADRAS HIGH COURT
Reopening of assessment u/s 147 - Reliance on new information unearthed - whether very initiation of reopening proceedings is not in consonance with the conditions stipulated under Section 147? - HELD THAT:- When there is a new information of material on the record, the Assessing Officer is empowered to initiate reopening proceedings under Section 147 of the Act. Various circumstances are contemplated under Section 147 of the Act and based on any one of such circumstances, the Assessing Officer has reason to believe, then he is empowered to reopen the assessment. Even under-assessment is a ground for reopen.
Thus, this Court is of the considered opinion that the reopening of assessment in the present case is done based on new information unearthed and such an information is to be clarified by the assessee, by participating in the adjudicating process and this Court cannot go into the details regarding transactions or the intricacies involved in such transactions. All such disputes on facts are to be adjudicated with reference to the original documents and evidences made available between the parties and the scope of the jurisdiction cannot be extended to conduct a roving enquiry in these aspects.
The power of judicial review under Article 226 of the Constitution of India is to scrutinise the processes through which the decision is arrived by the competent authority by following the procedures as contemplated under the law, but not the decision itself. Thus, the petitioner-assessee has to participate in the adjudication. It is needless to state that the respondents are bound to provide opportunities to defend the case by the petitioner. By affording the opportunities, as contemplated, the proceedings are to be concluded. In this view of the matter, the case on hand is not a fit one for the purpose of quashing of the proceeding.
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2021 (6) TMI 1066 - ITAT BANGALORE
Rectification of mistake - assessee challenged segregation and separate benchmarking the intragroup services from the manufacturing and trading segment - HELD THAT:- We have perused the submissions advanced by both sides in light of records placed before us. We note that the said Ground No.1.3 is raised by assessee challenging the segregation of service by Ld.AO/TPO. Therefore observation of this Tribunal deserves to be deleted.
Accordingly we delete the observation in para 14 of the impugned order at page 6. Henceforth para 14 shall be read as under:
“14. The Ld.AR submitted that Ld.TPO has not analysed the services rendered by AE to assessee in the light of evidences filed by assessee. He also submitted that even Ld.CIT(A) summarily rejected submissions of assessee without verifying various evidences filed.”
Disallowance of management fee under section 40(a) of the Act by Ld.AO on protective basis - HELD THAT:- From the records we note that in the impugned order, this Tribunal remanded the issue of computation of arms length price of intragroup services back the Ld.AO, and accordingly this issue becomes academic. We refer to the specific observation of this Tribunal which consider this aspect in para 8 and para 25.Accordingly we reject this plea of assessee.
We thus direct registry to fix the appeal only to adjudicate the additional ground raised by assessee wide application dated 21/09/2020 that reads as under:
“Ground no. 2.5: Deduction in respect of 'education cess on income-tax' and 'secondary and higher education cess on income-tax' for the year under consideration, while assessing the total income of the Appellant
• The Learned Assessing Officer ("Learned AD") and Hon'ble Commissioner of Income Tax ("Hon'ble CIT(A)"), while assessing the total income of the Appellant for the year under consideration, have erred in not allowing a deduction for education cess and secondary & higher education cess (collectively known as "education cess") for the year under consideration
• On the facts and circumstances of the case and in law, the Learned AD and Hon'ble CIT(A) ought to have allowed deduction of education cess for the year under consideration, though not claimed as a deduction by the Appellant while filing its return of income.”
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2021 (6) TMI 1065 - GUJARAT HIGH COURT
Rectification u/s 254 - non maintainability of appeal on low tax effect - apparent error in the order of the ITAT vide which the Tribunal has disposed a large number of cases by a combined order dated 14.8.2019 due to low tax effect relying on the CBDT Circular No.17 of 2019 dated 8.8.2019 - HELD THAT:- HELD THAT:- There is nothing to suggest in the said Circular/ Office Memorandum that they shall have retrospective effect. On the contrary, from the language employed in the said Circular dated 06.09.2019, it clearly transpires that the appeals may be filed on merits as an exception to the other Circulars issued earlier, where the Board by way of special order direct filing of Appeals on merits in the cases involved in organized tax evasion activity.
By virtue of the said Circular dated 06.09.2019, the appeals could be filed on merits, irrespective of the monetary limits fixed in earlier cases, if the Board passes special order for filing appeals in cases involving tax evasion activity. The said Circular speaks about the Appeals that may be filed with the special order of the Board in future, and hence could not be construed to have retrospective effect.
Tribunal interpreting the said Circular/ Office Memorandum in the impugned order has rightly observed that in respect of each case or category of cases whether an appeal should be filed in view of the Circular dated 06.09.2019 or not shall be decided by the Board by way of special order, and thus a specific requirement of issuance of special order by CBDT is a must. The Tribunal therefore has rightly held that the CBDT Circular No. 23/2019 dated 06.09.2019 should be read along with the Office Memorandum dated 16.09.2019, in respect of the appeals to be filed pursuant to such special orders of CBDT and shall apply to all the appeals filed on or after 16.09.2019 by the revenue, where the tax effect may be low but the appeal could still be filed by the revenue on merits.
Appeals including the appeal in case of the respondent, which were disposed of by the Tribunal vide the common order dated 14.08.2019 could not be said to have been filed pursuant to the special order of the CBDT in view of the Circular dated 06.09.2019 read with the Office Memorandum dated 16.09.2019, and therefore it could not be said that the Tribunal had committed any mistake apparent from the record, which would require rectification as envisaged in Section 254(2) of the said Act.
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2021 (6) TMI 1064 - MADRAS HIGH COURT
Validity of assessment order - exercise of jurisdiction erroneously - errorneous application of provisions of the Tamil Nadu Value Added Tax Act, 2006 by Assessing Officers - HELD THAT:- Jurisdictional error should not result in exoneration of liability. Jurisdictional error, if any committed, is technical, and thus, rectifiable. In such circumstances, the Courts are expected to quash the order passed by an incompetent authority and remand the matter back for fresh adjudication. Contrarily, if an assessee is exonerated from liability, undoubtedly, the purpose and object of the Act is defeated - The growing practice in the High Court is to file writ petitions under Article 226 of the Constitution of India without exhausting the statutory remedies provided under the Act. The points raised in this regard are statutory violations. However, even such statutory violations can be dealt with by the Appellate authorities or the Appellate Tribunals. This apart, in a writ petition, if such orders are passed with jurisdictional errors and quashed without any remand, then an injustice would be caused to the very spirit of the statute enacted for the benefit of the public at large. Thus, Courts are expected to be cautious, while granting exoneration of liability merely on the ground of jurisdictional errors, if any committed by the authorities competent.
The authorities competent are not expected to commit such jurisdictional errors in a routine manner. In these circumstances, review of such orders by the higher authorities are imminent to form an opinion that there is willful or intentional act for commission of such jurisdictional errors, enabling the assesses to get exonerated from the liability. Liability and jurisdictional errors are distinct factors, and therefore, Courts are expected to provide an opportunity to the Department to decide the liability on merits and in accordance with law with reference to the provisions of the Act and Rules and guidelines issued by the Department.
Large number of writ petitions are filed without exhausting the statutory appeal remedies and High Court is also entertaining such writ petitions in a routine manner. Keeping such writ petitions pending for long time would cause prejudice to the interest of the assessee also. Thus, such statutory provisions regarding the appeal are to be decided at the first instance, enabling the litigants to avail the remedy by following the procedures as contemplated under law. Such writ petitions are filed may be on the ground of jurisdiction or otherwise - the Courts shall not provide unnecessary opportunities to the assessee to escape from the liability merely on the ground of jurisdictional error, which is rectifiable.
This Court has no hesitation in arriving a conclusion that the petitioners are bound to exhaust the statutory appellate remedy as contemplated under the provisions of the TNVAT Act. Thus, the petitioners are at liberty to approach the appellate authority by filing appeal/revision and by following the procedures contemplated - Petition disposed off.
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2021 (6) TMI 1063 - ITAT BANGALORE
Disallowance made u/s 14A - As contended before the A.O. that it did not incur any expenditure to earn the exempt income - AO Computed the disallowance under Rule 8D consisting of interest disallowance under Rule 8D(2)(ii) of the Act and expenses disallowance under Rule 8D(2)(iii) HELD THAT:- We notice that the own funds available with the assessee was ₹ 355.57 crores while the value of investment in partnership firm mutual funds and shares aggregated to ₹ 251.82 crores. In view of the decision rendered by Hon’ble Karnataka High Court in the case of CIT Vs. Micro Labs Ltd. [2016 (4) TMI 219 - KARNATAKA HIGH COURT] no disallowance out of interest expenditure is called for - we confirm the deletion of disallowance of interest expenses of 8D(2)(ii) of IT Rules.
Disallowance out of expenditure under rule 8D(2)(iii) - We notice that CIT(A) has deleted the disallowance by accepting the submissions of the assessee that the assessee has cross charged a sum of ₹ 1.19 crores out of operating and other expenses to the respective partnership firms. We are unable to agree with the view of Ld CIT(A) on this aspect. The cross charging of expenses is normally made in respect of services/facilities availed by one concern from another concern, Accordingly, the amount of ₹ 1.19 crores cross charged by the assessee to other concerns, would represent facilities/services availed by the partnership firms from the assessee.
Object of provisions of section 14A of the Act is to disallow expenses relatable to exempt income, i.e., it is required to segregate the expenses debited to the Profit and Loss account as relatable to “taxable income” and “exempted income”. Hence, what is required to be considered for the purpose of section 14A of the Act is the amount finally debited to profit & loss account. The actual expenses incurred by the assessee would have been reduced by the amount cross charged to the partnership firms and the net amount would have been charged to the profit & loss account. The disallowance u/s 14A of the Act is called for out of the above said net amount.
Provisions of rule 8D need not be applied for computing the disallowance out of general expenditure. Accordingly, we are of the view that a lumpsum disallowance of ₹ 15 lakhs may be made out of general expenditure and the same, in our view would meet the requirements of section 14A of the Act. Accordingly, we set aside the order passed by Ld. CIT(A) on this issue and direct the A.O. to restrict the disallowance under 14A of the Act to ₹ 15 lakhs. Appeal filed by the revenue is partly allowed
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2021 (6) TMI 1062 - MADRAS HIGH COURT
Entitlement u/s 10B - Valid approval from eligible authority granted or not - HELD THAT:- In view of the orders passed in [2021 (6) TMI 770 - MADRAS HIGH COURT] wherein held a perusal of the entire approval order would reveal that the said approval is no way connected with the provisions of the Income Tax Act nor such an approval can be directly relied upon for the purpose of seeking exemption under Section 10-B - thus no further orders are required in this Writ Petition and accordingly, this writ petition stands dismissed.
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2021 (6) TMI 1061 - BOMBAY HIGH COURT
Provisional attachment of property in cash - person against whom action is taken, is found to be in possession of proceeds of crime or not - concealment of such proceeds or not - confiscation under Chapter III of the PML Act - search and seizure proceedings - HELD THAT:- It is important to note that in the present case, the property was seized, after a search was carried out under Section 17 of the PML Act on 23 March, 2021, and on 9 April, 2021, that is to say, within about a fortnight of such seizure, the Director, who was of the view that there was a sufficient case to proceed under Section 5 of the PML Act, ordered its provisional attachment. There is no substance in the Petitioners’ contention that having seized the property under Section 17 of the PML Act, the State was bound to apply for continuation of seizure under sub-section (4) of that section, and not exercise powers under Section 5 of the PML Act.
The initial search followed by seizure may well be under Section 17 of the PML Act, but if the Director had reason to believe that the seized property was proceeds of crime and was likely to be dealt with by the person from whose possession it was seized, the Director may still choose to act under Section 5 of the PML Act and order its provisional attachment - The two provisions, namely, Sections 5 and 17 are not mutually exclusive alternative powers; there is no reason why they cannot be simultaneously resorted to - The fact that the property seized was hard cash, by itself and without anything more, did give rise to a reason to believe that it was likely to be transferred or dealt with by the person in whose possession it was found.
There is adequate compliance with both pre-conditions of Section 5 of the PML Act for the Director to pass the impugned order of provisional attachment - Petition dismissed.
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2021 (6) TMI 1060 - ITAT AMRITSAR
Reopening of assessment u/s 147 - addition on account of cash deposit in bank account - assessee challenged reopening on non-complying with mandatory requirement and conditions envisaged under section 151 - HELD THAT:- JCIT, Range-1, Jalandhar recorded the satisfaction in a mechanical manner without application of mind reopening under section 148 of the Act on the basis of mechanical approval without applying the mind by the Ld. Pr.CIT was not valid. Therefore, in the present case, the reopening of the assessment on the basis of notice under section 148 of the Act is quashed.
Since the A.O. reopened the assessment under section 147 of the Act by issuing the notice under section 148 of the Act, on the basis of mechanical approval, without applying his mind, therefore the said approval was not valid and consequently the reopening of the assessment on the basis of said approval was not valid. We therefore quash the same - Decided in favour of assessee.
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2021 (6) TMI 1059 - ITAT HYDERABAD
ESI/PF disallowance - sum paid before the due date of filing sec. 139(1) return and after the due date prescribed in the corresponding statutes - scope of amendments in Sections 36(va) as well as 43B - HELD THAT:- As factual backdrop that the legislature has not only incorporated necessary amendments in Sections 36(va) as well as 43B vide Finance Act, 2021 to this effect but also the CBDT has issued Memorandum of Explanation that the same applies w.e.f. 1.4.2021 only. It is further not an issue that the forergoing legislative amendments have proposed employers contributions; disallowances u/s 43B as against employee u/s 36 (va) of the Act; respectively. See M/S MERCHEM LIMITED [2015 (9) TMI 560 - KERALA HIGH COURT], GUJARAT STATE ROAD TRANSPORT CORPORATION [2014 (1) TMI 502 - GUJARAT HIGH COURT],OUTH INDIA CORPORATION LTD. [1999 (10) TMI 44 - KERALA HIGH COURT], GTN. TEXTILES LTD. [2002 (10) TMI 9 - KERALA HIGH COURT] and JAIRAM AND SONS. [2003 (10) TMI 16 - KERALA HIGH COURT]
However, keeping in mind the fact that the same has been clarified to be applicable only with prospective effect from 1.4.2021, hold that the impugned disallowance is not sustainable - The impugned ESI/PF disallowance is directed to be deleted - Decided in favour of assessee.
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2021 (6) TMI 1058 - ITAT HYDERABAD
Long Term Capital Gains - addition invoking section 50C - transfer of the vendor’s limited right in respect of land and building - HELD THAT:- As assessee had sold / executed sale / transfer deed dated 14/2/2011 wherein the subject matter of her right is in favour of vendee as against any land or building component for issuing part therein - although the Revenue has sought to justify the impugned transfer of the assessees’s right as an admission of the same being a capital asset, the fact remains that we are dealing with section 50C only wherein the twin categories of capital asset(s) is only land and building than such a right.
As decided in SMT. D. ANITHA [2015 (4) TMI 723 - ITAT HYDERABAD],SRI TUMMALA VIDYAPAL REDDY [2016 (5) TMI 628 - ITAT HYDERABAD],TARA CHAND JAIN AND VICA-VERSA [2015 (12) TMI 45 - ITAT JAIPUR], SMT. DEVINDRABEN I. BAROT [2016 (7) TMI 275 - ITAT AHMEDABAD] ad MRS. REKHA AGARWAL [2017 (4) TMI 759 - ITAT JAIPUR] that such a transfer of the vendor’s limited right in respect of land and building than the twin categories of assets, as the case may be, does not come within the purview of application of section.50C - thus delete the impugned Long Term Gains addition - Decided in favour of assessee.
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2021 (6) TMI 1057 - ITAT PUNE
Rectification of mistake u/s 254 - grounds nos. 3 and 4 of appeal memo regarding disallowance of commission payment remains un-adjudicated - HELD THAT:- It is a settled position of law that non-disposal of the grounds of appeal raised by the appellant is a mistake apparent from the record, capable of being rectified under Sec.254(2) - Accordingly, the appeal is recalled for the limited purpose of adjudicating of grounds of appeal. The Registry is directed to fix the appeal of hearing in due course. Accordingly, the Miscellaneous Application filed by the Revenue stands allowed. 5. In the result, the Miscellaneous Application filed by the Revenue is allowed.
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2021 (6) TMI 1056 - BOMBAY HIGH COURT
Validity of Reopening of assessment u/s 147 - applicability of the newly inserted provisions of Section 148A and the amendments brought inter alia in Section 149 - violation of mandatory provisions for issuance of notice, which have been effective from 1st April, 2021. HELD THAT:- As Petitioner drew our attention to the notice annexed at Exhibit ‘L’ with reference to the provisions of Section 148A of the Act, which requires the assessing officer to conduct the inquiry and also provide an opportunity of being heard, which has not been apparently done. He, therefore, seeks stay of further proceedings in the matter.
As Respondent-Revenue submits that she needs time to file reply in the matter, we are inclined to stay the proceedings in connection with notice dated 7th April, 2021 under Section 148 of the Income Tax Act for the assessment year 2013- 2014. Till the next date, there shall be ad-interim stay to the proceedings in connection with notice dated 7th April, 2021.
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2021 (6) TMI 1055 - MADRAS HIGH COURT
Validity of assessment order - assessments were not completed, by operation of law as per the amendment under Section 22(2) of the Tamil Nadu Value Added Tax Act, 2006 - deemed assessments - allegation is that the impugned orders were (passed) without any jurisdiction - HELD THAT:- The petitioner has questioned the correctness of the reassessment order dated 16.11.2016 and 08.12.2016 for the Assessment Years 2008-2009 and 2009-2010 under the provisions of the Central Sales Tax Act, 1956 respectively. For the purpose of assessment under the provisions of the Central Sales Tax Act, 1956, the provisions of the Tamil Nadu Value Added Tax Act, 2006 has been made applicable.
The petitioner had been issued with notices dated 28.12.2011 for the assessment year 2008-2009 and notice dated 06.11.2014 wherein the petitioner was called upon to furnish Form C in respect of which the petitioner had paid Central Sales Tax at concessional rate of duty under Section 8 of the Central Sales Tax Act, 1956. Though, notices were issued to the petitioner on the date mentioned above, the petitioner however failed to respond the same.
It is not clear why the petitioner failed to furnish the records earlier to substantiate sale effected to register dealers outside the State against Form C. It is also not clear as to why, the petitioner did not respond to the notices issued earlier even though the respondent has filed documents/postal acknowledgments evidencing service of the respective notices issued to the petitioner calling upon the petitioner to file Form C - from the documents that have been filed before this Court, what is discernible is that the petitioner has attempted to take advantage of alleged fire accident on 13.08.2012 in one of its godown and the flood that ravaged the city of Chennai in November-December, 2015 to its advantage.
Barring an averment in the affidavit, there is no document to substantiate the fire accident. There is also no explanation forthcoming from the petitioner as to why the documents were not furnished earlier even though notices were served on the petitioner - there was no excuse for the petitioner to not to file Form C. It cannot shy away from its statutory liability and responsibility to establish that the transactions in respect of which claimed concession Inter-State sale against Form C to registered dealers outside the State of Tamil Nadu and still not file the same.
In the present case, though reassessment notice dated 28.12.2011 was served for the Assessment Year 2008-2009 to the petitioner, by virtue of the fiction introduced in proviso to Section 22 (2) of the Tamil Nadu Value Added Tax Act 2006, there was deemed assessment on 30.06.2012 - the respondent could only issue a notice under section 27 of the Tamil Nadu Value Added Tax Act, 2006 to revise the deemed assessment. However, the respondent has proceeded to pass the impugned orders dated 14.11.2016 and 08.12.2016 as if the old provisions were in force.
The impugned orders which stands quashed now by this order shall be treated as notice issued to the petitioner under section 27 of the Tamil Nadu Value Added Tax Act, 2006 for the respective assessment years - Petition disposed off.
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2021 (6) TMI 1054 - TELANGANA HIGH COURT
Vivad Se Vishwas scheme 2020 - petitioner would contend that having regard to the scheme of the Act of 2020 and various clarifications issued by the Central Board of Direct Taxes in exercise of powers conferred under Sections 10 and 11 therein from time to time, the appeal filed by the petitioner before the Tribunal, even though with an application for condonation of delay, has to be considered, as dispute pending as on the “specified date” under the Act of 2020 - HELD THAT:- If Board circular is construed in such a restrictive manner, as is contended by respondents, the same would run contrary to the scheme of the Act of 2020 and the powers exercised by Board under Section 10 and 11 to issue directions or orders in public interest or to remove difficulties.
We are unable to persuade ourselves to confine the benefit of “deemed pendency of appeal” only if an application for condonation is filed on or before 04.12.2020, as in our view no significance can be attached to the said date of issue of the circular, since, what is required to be considered is the pendency of the appeal with an application for condonation and the admission of the appeal as on the date of filing of declaration.
In our view, even after 04.12.2020, if an appeal is filed with an application for condonation of delay and the appeal is admitted by the appellate authority before the date of filing of the declaration, the benefit is to be extended, as otherwise, it would lead to creation of separate class of persons among the declarants, without any reasonable basis, resulting in discrimination thereby violating Article 14 of the Constitution of India.
In the present case, the petitioner having filed an appeal before Tribunal along with an application for condonation and the Tribunal, having heard the matter on 05.02.2021 by condoning the delay, it is to be construed as ‘pending’ appeal as on the date of filing of declaration on 08.02.2021. As a matter of fact, the Tribunal by order dt.15.02.2021, allowed the appeal of the petitioner remitted the matter back by restoring the appeal on the file of CIT, for fresh adjudication.
Once it is considered that the appeal before the Tribunal is deemed as having been filed in time, the same would have to be construed as having been filed before the “specified date”, and thus, an appeal can be stated to be pending before the appellate forum and the petitioner would have to be considered as an ‘appellant’ as defined in Section 2(1)(a)(i) of the Act of 2020, and the tax as assessed would have to be considered as ‘disputed tax’, as defined under Section 2(1)(j)(B) of the Act of 2020.
As noted that since, the last date for filing declaration had been extended up to 31.03.2021 and the Tribunal, having found cogent reasons to condone the delay and allowing the appeal filed by the petitioner and remitting the matter back to the CIT by its order dt.15.02.2021, would automatically revive and restore the appeal, which was dismissed by the CIT by his order dt.18.09.2019. Thus, by order of the Tribunal dt.15.02.2021, the appeal of the petitioner before of the CIT filed on 19.02.2019 would stand revived, and such restoring of appeal relates back the original date of filing, which is within the “specified date” as per Act of 2020.
Thus, considered from any angle, the declaration/application submitted by the petitioner on 08.02.2021 or the revised declaration/application submitted in Form 1 and 2 on 31.03.2021 cannot be considered as ‘invalid’ and liable for ‘rejection’.
As noted above, the Act of 2020 is a beneficial piece of legislation and the benefit under such legislation should enure to the benefit of the assessee and cannot be denied by taking hyper-technical view.
This Court is of the considered view that the remark/reason given by the 1st respondent in rejecting the declaration in Forms 1 and 2 filed by the petitioner on 31.03.2021 as well as on 20.02.2021 cannot be sustained, as the said reasons are not inconsonance with the scheme of the Act and also do not confirm to the intent and purpose of the Legislation.
Writ Petition is allowed and the impugned proceeding of the 1st respondent, dt.22.04.2021, is hereby set aside; the 1st respondent is directed to accept the revised declaration Form 1 and 2 filed by the petitioner on 31.03.2021; process the same in accordance with the Act of 2020; issue Form 3; and accept the payment from the petitioner in terms thereof before the due date as notified.
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2021 (6) TMI 1053 - DELHI HIGH COURT
Smuggling - Heroin - Evidentiary value of statement given by the petitioner under Section 67 of the NDPS Act - statements given by an accused to police officers under various acts including the NDPS Act - HELD THAT:- The material on record, at this juncture, shows the involvement of the petitioner as a part of the drug syndicate. Heroin was concealed in capsules ingested by persons. It shows that the operation was extremely well planned. A total of 770 grams of Heroin was recovered on 20.08.2019 from Noorzai Gul Amin, 220 grams of Cocaine was recovered on 19.12.2019 from House No. 1238, Islampur Village, Sector-38, Gurugram and 3.4 Kgs. of Heroin was recovered on 22.08.2019 from House No. A-27, 1st Floor, Anand Vihar on the basis of the disclosure statement of the petitioner. Photographs of Heroin and capsules, image of passports, image of Currency and chats between Naimitullah Mangal and the petitioner herein and their photographs were found from the phone of the petitioner which demonstrates the complicity of the petitioner in the crime. The well organized operations of this syndicate shows the possibility of the petitioner indulging in the same activity again if he is released on bail. The discrepancy in the seal movement register and its effect would be considered/analysed at the stage of trial and that discrepancy alone is not sufficient for this Court to come to the conclusion that the entire case of the prosecution is false at this stage.
This Court is, therefore, not inclined to grant bail to the petitioner herein - bail application is dismissed.
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