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Showing 121 to 140 of 1324 Records
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2023 (12) TMI 1204 - CHHATTISGARH HIGH COURT
Addition of Truck, Tripper, Dumper, JCB, Crane, Dozer, etc. to the registration certificate - Rule 13 of the Act, 1957 read with Section 8(3)(b) of the Act, 1956 - HELD THAT:- A registration certificate was issued to the petitioner according to Rule 5(1) of CST (R&T) Act, 1957 on 09.02.2011. It is not in dispute that the petitioner is indulged in the construction of roads etc. and in that process, he had plied various types of equipment, machinery including Trucks, Trippers, Dumpers, JCBs, Cranes, Dozers, Mixers etc. whereas, in the registration certificate, these articles were not included earlier, therefore, he moved an application to include these commodities which was declined by the Commercial Tax Officer, Durg and only Soil (Murum) was allowed to be included in the certificate as the same is the raw material used for construction of the road - Section 8(3)(b) of the Act, 1956 says that a dealer would be entitled to get a rebate in the tax for goods of the class or classes specified in the certificate of registration according to rules made by the Central Government to be used by him in manufacture or processing of goods for sale or mining or in general or distribution of electricity.
The Hon’ble Supreme Court in J.K. Cotton [1964 (10) TMI 2 - SUPREME COURT] while dealing with Section 8(3)(b) of Act 1956 and Rule 13 of the Act, 1957 has clearly held that the intention must be to use the goods as raw materials, as processing materials, as machinery, as plant, as equipment, as tools, as spare parts, as stores, as accessories, as lubricants, as fuels etc. and the restricted interpretation is not warranted. The Hon’ble Supreme Court further held in no uncertain terms that articles used in the process of manufacture would be liable for concessional tax, even though such articles may not be incorporated in the manufactured end-product.
The High Court of Patna in the matter of M/s Larson & Toubro [1994 (12) TMI 313 - PATNA HIGH COURT] and the High Court of Calcutta in the matter of Nagarjuna Constructions [2014 (3) TMI 1043 - CALCUTTA HIGH COURT] while dealing with similar issues included machinery, plant, equipment, tools, spare parts, stores, accessories, fuels, lubricants etc. in the registration certificate according to the provisions of Section 8(3)(b) of Act, 1956 and Rule 13 of Act, 1957.
Thus, the authorities have committed an error of law in rejecting the application moved by the petitioner to include the articles mentioned in the application - the order passed by Deputy Commissioner, Commercial Tax, Durg is hereby set aside and the application moved by the petitioner under Section 8(3)(b) of the Act, 1956 is hereby allowed.
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2023 (12) TMI 1203 - DELHI HIGH COURT
Dishonour of Cheque - restoration of complaint - whether the negligence either on the part of the petitioner or his counsel in prosecution of the complaint can be a ground for not restoring the complaint? - HELD THAT:- The present complaint pertains to cheques total amounting to Rs.89,00,000/- which were dishonoured due to insufficient funds. There is no dispute by the respondent regarding the fact that the said cheques were signed and issued by him and also regarding the dishonour of the cheques on the ground 'Funds Insufficient'. The petitioner is stated to be a qualified doctor. The petitioner was under the impression that he would be adequately represented by his previous counsel. The various orders passed by the trial court are reflecting that the petitioner and his counsel were not diligent in the prosecution of the complaint. However, mere negligence either on the part of the petitioner or his counsel in prosecution of the complaint should not be a ground for not restoring the complaint. The petitioner cannot be allowed to be suffer due to the negligence of his previous counsel.
The impugned order dated 07.12.2016 passed by the trial court is set aside - the complaint is ordered to be restored to its original number before the trial court subject to the cost of Rs.25,000/- to be paid by the petitioner to the respondent on the next date of hearing before the trial court.
The petitioner and the respondent are directed to appear in person before the trial court on 15.01.2024 at 2:30 p.m. for further directions.
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2023 (12) TMI 1202 - HIMACHAL PRADESH HIGH COURT
Dishonour of Cheque - discharge of legal liability or not - Society is not a body corporate - applicability of Section 141 of the Negotiable Instruments Act - HELD THAT:- Section 141 of the Negotiable Instruments Act deals with the liability of the Company and provides that where the offence is committed by a Company, every person who, at the time the offence was committed, was in charge of, and was responsible to the Company for the conduct of its business as well as the company, shall be deemed to be guilty of the commission of the offence. It is apparent from the bare perusal of the provisions that in the case of a Company, the Company as well as the office bearers are liable. Hence, the company is primarily liable and the office bearers are vicariously liable.
It was laid down by the Hon'ble Supreme Court in ANEETA HADA VERSUS GODFATHER TRAVELS & TOURS (P.) LTD. [2012 (5) TMI 83 - SUPREME COURT] that it is not permissible to prosecute the Directors in the absence of the Company - in view of the binding precedents of the Hon'ble Supreme Court, the submission that the prosecution of the Company is necessary before prosecuting its office bearers has to be accepted as correct.
It is an admitted position that the Himalayan Mahila Avam Jan Kalyan Sansthan is registered under the Societies Registration Act. Section 14 of the H.P. Societies Registration Act provides that every Society shall be a body corporate by the name under which it is registered having perpetual succession and a common seal - This Section specifically provides that the Society shall be a body; hence, the submission that the Society is not a body corporate is not acceptable.
The complainant could not have filed a complaint against the petitioner and respondent no. 3 without impleading the Company to an accused. The prosecution of the petitioner in the absence of the Company is bad - the complaint titled Mukesh Kumar vs Anjana Kumari and another quashed qua the petitioner pending before the learned Additional Chief Judicial Magistrate, Sarkaghat against the petitioner and the consequent proceedings arising out of the same are ordered to be quashed qua the petitioner.
Petition allowed.
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2023 (12) TMI 1201 - SC ORDER
Detention of goods and vehicles while in transit with valid invoices - Onus on the purchase to prove the genuineness of transaction - Revenue initiated proceedings against seller / supplier of goods - suspension of registration of the supplier - High Court has held that, In essence, the petitioners (purchaser) have to establish their own credentials but not the 4th respondent (supplier of goods). In that view, the 1st respondent (GST Department) is not correct in roping the petitioners in the proceedings initiated against the 4th respondent without initiating independent proceedings U/s 129 of CGST/APGST Act against the petitioners. - However, liberty was granted to initiate proceedings against the petitioners U/s 129 of CGST/APGST Act, 2017.
Held that:- Having heard learned counsel for the petitioner(s), we are not inclined to interfere in the matter.
The Special Leave Petitions (SLP) filed by the revenue dismissed.
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2023 (12) TMI 1200 - ITAT DELHI
Validity of AO’s order with no DIN number mentioned - Communications emanating from the revenue - HELD THAT:- A perusal of the AO’s order shows that it is clear in the body of AO’s order, no DIN number is mentioned nor there is any reason of not mentioning the DIN number in order of the AO. In such a situation, the AO order will lose its validity. Subsequent separate communication of DIN is a superfluous exercise.
As regards, reference to the decision of Hon’ble Madras High Court by the ld. DR for the Revenue, we find that Hon’ble Supreme Court in the case of CIT v. Vegetable Products Ltd. (1973 (1) TMI 1 - SUPREME COURT] has held that if two views are possible one in favour of the assessee is to be adopted. In this regard, we are referring to the decision of the Hon’ble Delhi High Court in the case of CIT vs Brandix Mauritius Holdings Ltd. [2023 (4) TMI 579 - DELHI HIGH COURT] as held that no communication shall be issued by any income tax authority relating to assessment, appeals, orders, statutory or otherwise, exemptions, enquiry, investigation, verification of information, penalty, prosecution, rectification, approval etcetera, to the assessee or any other person, on or after 01.10.2019 unless it is allotted a computer-generated DIN. Decided against revenue.
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2023 (12) TMI 1199 - ITAT SURAT
Gain on sale of land - nature of land - assessment order passed by treating the land as capital asset as it falls in the City limit - HELD THAT:- We find that Assessing Officer made reference for DVO for valuation of assets on the date of transfer however, report of DVO was not received, the Assessing Officer brought the surplus earn to taxation under the head “short term capital gains”. The Ld.CIT(A) on filing detailed written submission, though called the remand report on various submissions and evidences of the assessee, however, still the action of the Assessing Officer was confirmed. We find that the main contention of assessee right from the beginning is that the impugned land situated in rural area of village Lajpore, which does not fall within the limit Surat Municipal Corporation. Merely, State Government declared the area of village Lalpore for industrial use would not if so facto will not bring the area in a Municipal limit.
Assessee before us has explained that the AO picked up the word ““shehri sankul aavali chhe”, the real meaning of such words is that land falls in urban development area. On appreciation of such contention, we find merit in the submission of Ld. AR for the assessee that mere falling of land within the urban development area or notified area for industrial development of said area would not automatically bring the area in municipal limit unless and until a separate notification is not issued by State Government for including a particular area within municipal limit.
No such material was brought on record by AO and he simply assume the jurisdiction on the basis of certain recital in the sale deed and formed his opinion that the impugned land falls in city limit.
Assessee has filed sufficient evidence in the form of Land Revenue Record that said land was used for agricultural purposes by the certificate of Land Revenue Authority. Further, the assessee has filed certificate of Gram Panchyat that village Lajpore is not under the area of Surat Municipal Corporation. The assessee has also filed notification of State Government about extension of limit of municipality from time to time, copy of which is available at page No.72 to 81 of paper book, wherein the village Lajpore is not included in Surat Municipal Corporation. The assessee has also filed extract / details from the website of Home Department of Government of Gujarat, wherein the village Lajpore is administered under Panchayat Raj Act and administered by Sarpanch, meaning thereby the provision of Village Panchayat is not ceased to exist. The population of village is less than 10,000 as per Population Census,2011, copy of such details are available on page No.82 to 84 of the paper book. The assessee has also filed notification of Revenue Department of State Government, wherein the land of village Lajpore (Lajpore) is declared as reserve for non-agricultural and industrial development. As recorded above, that by mere declaration of area under industrial development, it would not be automatically include in municipal limit. For bringing the area in municipal limit a separate notification of State Government is required. In the notification placed on record about extension of Municipal limit of Surat Municipal Corporation, the area of village Lajpore is not included in municipal limit.
Thus on the basis of the various evidence filed thus concluded the assessee has sold agriculture land which cannot be considered as capital asset and the surplus earned on its sale would not be taxable. So far as reliance by ld CIT(A) on the case law of Sarifa Bibi Mohamed Ibrahim & Other (supra) is concerned, we find that the facts of said case are different with the facts of the case in hand. Thus, the ground of the appeal is allowed.
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2023 (12) TMI 1198 - ITAT RAIPUR
Best judgment assessment u/s 144 - treating cash deposits in the assessee’s bank account as its unexplained money u/s.69A r.w.s.115BBE - HELD THAT:- We find that it is not a case where the CIT(Appeals) had discarded any material available on the record and summarily dismissed the assessee's appeal in limine for want of prosecution. Instead, it is a case where in the absence of any evidence whatsoever, whether documentary or otherwise, which would substantiate that the A.O was unjustified in treating the cash deposits in the assessee’s bank account as its unexplained money u/s.69A of the Act, the CIT(Appeals) had sustained the addition made by the A.O u/s 144 of the Act, dated 11.12.2019.
Now, when the assessee society, as per its volition, had not filed any return of income for the year under consideration A.Y 2017-18, i.e., either u/s 139 or in compliance to notice u/s 148 of the Act; or appeared before the A.O during the assessment proceedings or placed on his record any written submission or filed replies to the queries that were raised vide notice(s) issued u/s.142(1) of the Act; nor despite sufficient opportunities participated in the proceedings before the CIT(Appeals), then, in the absence of any evidence whatsoever, whether documentary or otherwise, which would reveal that there was no justification for treating the cash deposits in the assessee’s bank account as its unexplained money u/s.69A of the Act, we are of a firm conviction that no infirmity emerges from the order of the CIT(Appeals) who had rightly approved the order passed by the A.O u/s 144.
Although Section 253 of the Act, inter alia, vests with an assessee a statutory right to assail before the Income-Tax Appellate Tribunal an order passed by the Commissioner (Appeals), but a careful perusal of the aforesaid statutory provision reveals that the same can be triggered only where the assessee appellant is, inter alia, aggrieved with “ any order of assessment”. Thus, considering the scope of Sec. 253 of the Act, it transpires that the same lays down as a pre-condition a grievance of the assessee appellant arising from the order passed by the Commissioner (Appeals).
Apropos, the claim of the Ld. A.R. that the matter in all fairness be restored to the file of the A.O. for fresh adjudication, the same does not favor us. As observed by us herein above, the grounds based on which the order of the CIT(Appeals) has been assailed before us are devoid and bereft of any merit; therefore, the appeal is liable to be dismissed on the said count itself. Apart from that, we are of a firm conviction that the right vested with an appellant to approach the tribunal by preferring an appeal before it is for a limited purpose, i.e. a grievance that the assessment framed by the AO, or for that matter, order of the CIT(Appeal) were not according to law.
In no case can the Tribunal be taken as a forum for an appellant who, as per his volition, had either adopted an evasive or lackadaisical approach before the lower authorities and not participated in the assessment or appellate proceedings to come up with its case for the first time before the Tribunal and, as a matter of right seek restoring of the impugned order to the file of the lower authorities for fresh adjudication. Assessee appeal dismissed.
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2023 (12) TMI 1197 - MADHYA PRADESH HIGH COURT
Validity of SCN - jurisdiction of the assessing officer - justifiabilty of demand - non-reversal of excess ITC availed - HELD THAT:- Once petitioner has subjected itself to jurisdiction of the authority by filing reply, it is not deemed proper to address on the contentions raised by the petitioner touching the jurisdiction as well as merits of the show cause notice. Petitioner if so advised, may file additional reply incorporating the submissions as advanced before this Court.
This Court hopes and trusts that the authority concerned shall address on the issues raised in the reply/ additional reply and pass an order with due advertence to the record keeping in mind the provisions of GST Act maintaining judicial discipline.
The writ petition disposed off.
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2023 (12) TMI 1196 - DELHI HIGH COURT
Seeking permission to travel abroad for a period of 12 months - HELD THAT:- This Court deems it appropriate to modify the condition (i) of order dated 07.07.2022 to the extent, that instead of prior permission to be obtained from the I.O., the same be read as “prior permission of the Trial Court”.
Accordingly, the applicant/ petitioner is granted permission to travel abroad i.e. Dubai, UAE, for a period of two months, on the same terms and conditions imposed vide order dated 31.12.2022 by the learned Trial Court, to the satisfaction of the learned Trial Court.
Application allowed.
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2023 (12) TMI 1195 - MADRAS HIGH COURT
Levy of penalty and interest without any jurisdiction - extension of time limit - HELD THAT:- The time limit fixed by the learned Judge for filing appeal with required pre-deposit, is extended by further period of eight weeks, which will take effect from today. Accordingly, the appellant shall file an appeal before the first respondent along with pre-deposit of 10% of Rs. 14,88,370/-, as directed by the learned Judge in the impugned order passed in the writ petition, within the time extended today. On filing of such appeal, the first respondent shall consider the same, without raising any issue relating to limitation, if any and pass appropriate order, on merits and in accordance with law, after affording an opportunity of hearing to the appellant, as expeditiously as possible.
Appeal disposed off.
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2023 (12) TMI 1194 - GUJARAT HIGH COURT
Seeking grant of anticipatory bail - scam of availing bogus input tax credit on the basis of forged documents - HELD THAT:- The public exchequer has been cheated. It also appears that upon documents of some other persons registration of the GST has been made to avail false input tax credit. Bogus bills are also prepared for the same and thus the present applicant has played an important role in commission of the offence of economic nature. It also surfaces that money is transferred from one account to another account and such huge loss has been caused to the government exchequer by the petitioner. Hence, serious economic offence is made out against the petitioner, which has wide effect on the society. Thus, the petitioner has failed to make out a case to allow this application and grant of pre-arrest bail. No case is made out to exercise the judicial discretion in favour of the applicant-accused. There is no whisper to indicate that petitioner has been falsely implicated in the offence.
To be noted that, this is an economic offence having huge magnitude needs to be viewed with different approach and to be considered seriously, as it is eroding economic death of the country.
Without expressing any opinion on the merit of the case, this Court is of the view that petitioner cannot be released on pre-arrest bail - Petition dismissed.
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2023 (12) TMI 1193 - TELANGANA HIGH COURT
Validity of SCN issued under Section 73 of the CGST Act, 2017 - Non-application of mind - respondent authorities have alleged that there appears to be non-payment of tax by the petitioner @ 28% and for which also, the explanation has been sought for by the petitioner - violation of principles of natural justice - HELD THAT:- A plain reading of the Show Cause Notice itself would give a clear indication that the Show Cause Notice lacks necessary information, source and the materials on the basis of which the authority concerned found the necessity for issuance of the Show Cause Notice. The Show Cause Notice, from the plain reading, seems to be one which has been issued in a mechanical manner without application of mind and without any cogent sufficient materials available or even the basic scrutiny or the investigation which were required for the authority concerned in reaching to the conclusion that certain transactions which have been carried on by the respondents appear to have been the transactions where there is evasion of tax or where there is suppression of material facts or atleast there was reasonable suspicion on the transactions so made by the petitioner.
This Court also finds sufficient force in the submissions made by the learned counsel for the petitioner when they say that since the proceeding has been initiated under Section 73 of the Act, the very provision of Section 73 of the Act starts with the words where it appears to be for the authority concerned which by itself means that at the time where the authority appears to found it necessary for initiating the proceedings, there ought to had been some material, information or even sort of a complaint available with them as regards the suspicious transactions or the alleged evasion of tax made by the petitioner.
Ex. P1 – Show Cause Notice, dated 30.09.2023 would not be sustainable as they are bereft of facts and materials and the same deserves to be and is accordingly set aside/quashed - petition allowed.
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2023 (12) TMI 1192 - ORISSA HIGH COURT
Maintainability of petition - availability of alternative remedy - non-constitution of the tribunal - HELD THAT:- Since the petitioner wants to avail the remedy under the provisions of law by approaching 2nd Appellate Tribunal, which has not yet been constituted, as an interim measure subject to the petitioner depositing entire tax demand within a period of fifteen days from today, the rest of the demand shall remain stayed during the pendency of the writ petition.
The I.A. stands disposed of - List this matter along with W.P.(C) No.6684 of 2023 on the date fixed therein.
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2023 (12) TMI 1191 - ORISSA HIGH COURT
Maintainability of petition - availability of alternative remedy - non-constitution of the tribunal - HELD THAT:- Since the petitioner wants to avail the remedy under the provisions of law by approaching 2nd Appellate Tribunal, which has not yet been constituted, as an interim measure subject to the petitioner depositing entire tax demand within a period of fifteen days from today, the rest of the demand shall remain stayed during the pendency of the writ petition.
The I.A. stands disposed of - List this matter on 31st October, 2023.
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2023 (12) TMI 1190 - SC ORDER
Income taxable in India - Fees for Technical Services (FTS) and hence exigible to tax u/s 44DA and Section 115Aof the Income Tax Act, 1961 - PE in India - whether Section 44BB of the Act would be applicable to the respondent/assessee, who is a second line contractor? - HELD THAT:- Delay condoned. We are not inclined to interfere in the matter. The Special Leave Petition stands dismissed.
However, liberty is reserved to the petitioner to raise the issue which arises in this Special Leave Petition, in the event any adverse final order is passed by the High Court against the petitioner herein.
Pending application(s) shall stand disposed of.
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2023 (12) TMI 1189 - MADRAS HIGH COURT
Compounding of case u/s 279 (2) - alleged offences under Sections 276C and 277 of the Act - Ld' Judge after finding that the Contempt Petition had no merits, proceeded to direct the authority to re-examine the application filed by the respondent herein, in the light of the fresh circular dated 14.06.2019, which provides for a more liberal policy - HELD THAT:- The order of the learned Single Judge insofar as it remits the matter back to the 4th appellant to compound the case by fixing the compound fee, does not warrant interference. We say so, inasmuch as we find that the learned Judge [2019 (9) TMI 59 - MADRAS HIGH COURT] even while remanding the matter, had made it clear that the judgment in Prem Dass case [1999 (2) TMI 6 - SUPREME COURT] would apply to the respondent, and further, the respondent herein is entitled to the benefit of Section 279 (1A) of the Act. The revenue having failed to challenge the above order is bound by it.
Ld' Judge had found that the Respondent herein was entitled to compound in terms of Section 279(1A) of the Act, which provides that the assessee would be entitled to compound if the penalty stood reduced or waived under Section 273A of the Act. Importantly, the Supreme Court in Prem Dass case [1999 (2) TMI 6 - SUPREME COURT] while construing Section 279(2) of the, Act had rejected the argument that the reduction of penalty by an appellate authority not being an order under Section 273A of the Act, the assessee/applicant would not be entitled to the benefit of Section 279(1A) of the Act and it was held that it may not be appropriate to adopt a literal construction of provisions of Section 279(1A) of the Act.
Respondent would be entitled to the benefit of Section 279(1A) of the Act and the judgment of Supreme Court in Prem Dass case in view of reduction of penalty from 300% to 100% by the appellate authority, the failure of the appellant to challenge, in our view, would prove fatal, to any attempt by the revenue to contend to the contrary.
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2023 (12) TMI 1188 - DELHI HIGH COURT
TP Adjustment - International transaction or not? - AMP expenses - HELD THAT:- As we had taken recourse to the decision rendered in Sony Ericsson Mobile Communications India Pvt. Ltd. v. CIT ([2015 (3) TMI 580 - DELHI HIGH COURT] and Maruti Suzuki India Ltd. [2015 (12) TMI 634 - DELHI HIGH COURT]
Thus, having regard to the aforesaid position, the appeal is closed.
We are told that the appellant/revenue has preferred an appeal against the decision rendered in Sony Ericsson Mobile Communications India Pvt. Ltd. v. CIT. [2015 (3) TMI 580 - DELHI HIGH COURT]
Thus as made clear that if the appellant/revenue were to succeed in the pending Special Leave Petition, it would have liberty to approach the court for revival of the instant appeal. Registry will dispatch the copy of the order passed today to the respondent/assessee via all modes, including email.
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2023 (12) TMI 1187 - DELHI HIGH COURT
CIT(A) admitting additional evidence and deleted addition - Best judgment assessment - addition were made u/s 69B based on unexplained investment in time deposits - CIT(A) carried out an inquiry in the matter by exercising his powers under Section 250(4) of the Act and evidence was sought with regard to remittances made to the NRE Account maintained with the Canara Bank - Tribunal dismissed the appeal preferred by the appellant/revenue and CIT(A) had exercised his powers u/s 250(4) of the Act which was co-equal to that of the AO. It also took note of the fact that notice was issued to the concerned branch of Canara Bank under Section 133(6) of the Act and it was only after information was received from Canara Bank and material evidence furnished by assessee, that the addition was deleted
HELD THAT:- According to us, the Tribunal has reached the correct conclusion. Appellant cannot but accept that the CIT(A) has co-equal powers as that of the AO. The enquiry carried out by the CIT(A) revealed a grave factual error committed by the AO, in noting the figure with regard to the time deposits.
In our opinion, since the CIT(A) has returned a finding of fact with regard to the source of funds that were found deposited in the period in issue, i.e., Rs. 9.50 crores, no interference is called for as these findings have been affirmed by the Tribunal as well. Thus, according to us, no substantial question of law arises for our consideration. No substantial question of law arises for our consideration.
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2023 (12) TMI 1186 - TELANGANA HIGH COURT
Exemption u/s 11 - Application for condonation of delay in filing Form 10B u/s 119(2)(b) rejected - non-filing of the audit report in Form 10B would not be so fatal requiring initiation of proceedings so far as denial of exemption u/s 11 - contention of petitioner all along was that filing of the audit report in Form 10B is only a directory and not mandatory in nature and non-filing of the same cannot be fatal to the exemption which the petitioner is otherwise entitled under Section 11 - HELD THAT:- A plain reading of Section 119(2)(b) clearly indicate that the intention of the framers of the law was to provide a liberal approach where there is a delay occurred. What is necessary to be considered at this juncture also is the fact that the petitioner is a registered establishment u/s 12A - Section 12A of the Act provides tax exemption to charitable trust that is registered with the Income Tax Department. So far as registration is concerned, there no quarrel on the same. The dispute in the present case is only in respect of the assessment order for the Assessment Year 2017-18.
The admitted factual matrix from the facts of the case is that the return of income was filed by the petitioner for the Assessment Year 2017-18 on 02.11.2017. Before filing of the said return itself, the accounts of the petitioner were got audited and the audit report was prepared well in time on 20.09.2017. The due date for filing of the return was on or before 31.10.2017 and the petitioner herein did file his return on 31.10.2017. However, on account of certain defects detected, the same was returned and revised return was filed on 02.11.2017. Thus, the return stands submitted within the time. However, there was a requirement for uploading of the audit report. The audit report meanwhile was uploaded though at a belated stage on 21.02.2019, nonetheless the uploading of the audit report was much before (before 2.5 years) the assessment order dated 24.09.2021 was passed. It is in this factual backdrop that the application for condonation of delay filed by the petitioner ought to have been decided by the authority concerned.
Now if we look into the statutory provisions, what is reflected is that the provisions under Section 119(2)(b) has been enacted with a specific purpose empowering the authorities concerned to condone the delay on the part of the assessee in furnishing or in submitting of the returns or an appropriate application within a reasonable period of time. The said provision of law does not provide for any specific period of time within which the application for condonation of delay needs to be filed. The said provision has also been enacted to ensure that genuine hardship which an assessee may face can be avoided by condoning the delay if any that has occurred and an appropriate application seeking for condonation of delay is filed.
We are inclined to allow the writ petition setting aside the impugned order - consequential order passed subsequent to the rejection of the application under Section 119(2)(b) of the Act would also get automatically quashed and the application of the petitioner for condonation of delay stands allowed. Wherefore the respondent No. 3 would be required to pass an appropriate consequential order in accordance with law.
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2023 (12) TMI 1185 - MADRAS HIGH COURT
Validity of reopening of assessment u/s 147 - Shorter period to reply notice - it is the contention of the petitioner that the notice issued under Section 148 A (b) dated 23.03.2022 by post was received by the petitioner only on 28.03.2022 i.e. one day, prior to the time fixed for filing reply/objection and therefore, according to the petitioner, in terms of the said provision, notice granting 7 days' time has not been provided - HELD THAT:- Unable to accept the contention of respondent, for, the terms '‘Notice has been Issued'' attains finality only when the notice has been issued/served on the assessee.
In the present case, though the show cause notice calling forth petitioner's reply within 29.03.2022 was dated 23.03.2022, unfortunately, the said notice was received by the petitioner/assessee only on 28.03.2022. Therefore, from 28.03.2022, the period of 7 days has to be reckoned, whereas, in the present case, the respondent has not considered the said aspect and proceeded to pass orders by stating that the petitioner failed to respond to the notice dated 23.03.2022 and hence, the proposals contained in the show cause notice dated 23.03.2023 is confirmed.
Therefore, as rightly pointed out by petitioner, the impugned order suffers from violation of principles of natural justice, since it blatantly violates the provisions of Section 148 (b), AO has to give time not less than seven days but not more than 30 days to the assessee for furnishing his explanation and further, the respondent, despite knowing fully well that the notice served on the petitioner by post was received by him only 28.03.2022, ought to have granted further time, in terms of Section 148 (b) of the Act of not exceeding 30 days, and waited for the petitioner's reply and before passing the impugned order, heard the petitioner and in the absence of same having been failed to be done by the respondent, not only the impugned Notice dated 23.03.2022 has to be quashed and entire proceedings, initiated in furtherance of the same are also to be quashed.
Therefore, the contention of respondent that notice served on the petitioner through e-portal on 23.03.2022, and the same has to be deemed to be sufficient service and the period of 7 days has to be reckoned from such date of issuance has to be brushed aside, since, in terms of Section 282 (1) notice can be served only by adopting the mode of service by post or such other courier service and notice sent by adopting the mode of service by e-mail or e-portal and the same can be considered and adopted in addition to the service effected by physical mode.
This Court is of the view that the show cause notice issued u/s 148 A (b) is not sustainable. So far as the sustainability of the impugned order on the limitation aspect is concerned, since the petitioner/assessee has taken steps to file returns by showing the source of income and the manner of utilization of sale proceeds of agricultural land, as the said issue pertains to the AY 2015-16, obviously, the period of limitation for the said assessment year has come to an end even for service of notice u/s 148A of the Act on 31st March, 2021, this Court is of the view that the impugned proceedings are not sustainable on limitation aspect as well, inasmuch, as the Department failed to take appropriate action at the appropriate time within the limitation period of six years, which is not directory in nature but mandatory, and the respondent-Department having failed to do so, they cannot, all of sudden, on one fine day, attack the petitioner/assessee.
This Court would like observe herein that the Income Tax Department cannot always have the sword of Damocle's dangling over an assessee all the time.
Accordingly, this Writ Petition is allowed, the impugned order dated 23.03.2022 is quashed
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