|
Advanced Search Options
Case Laws
Showing 121 to 140 of 1499 Records
-
2023 (3) TMI 1379 - SUPREME COURT
Qualifications for appointment of President and members of the State Commission - Constitutional Validity of Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) of the Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of President and Members of State Commission and District Commission) Rules, 2020 - HELD THAT:- By the impugned judgment and order the High Court has declared Rule 3(2)(b) and Rule 4(2)(c) and Rule 6(9) of the Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of President and Members of State Commission and District Commission) Rules, 2020 as unconstitutional, arbitrary, and violative of Article 14 of the Constitution of India. Rule 3(2)(b) and Rule 4(2) (c) and Rule 6(9) of Rules, 2020 are declared to be unconstitutional.
The selection of persons as Presiding Officers and as Members of the fora lacks transparency without a fixed criteria for selection. The Committee has justification, proposed that a written test should be conducted to assess the knowledge of persons who apply for posts in the District Fora. Issues of conflict of interest also arise when persons appointed from a local area are appointed to a District Forum in the same area.
This Court directed that the State Governments shall frame appropriate Rules in exercise of the rule-making power Under Section 30 of the Consumer Protection Act, 1986 in accordance with the Final Draft Model Rules submitted by the Union of India. It appears that thereafter many States notified the Consumer Protection (appointment, salary, allowances and conditions of service of President and Members of the State Commission and District Forum) Rules, 2017. Rules, 2017 which were adopted provided that in every cases, the selection of Members of the District Fora and State Commission shall be on the basis of a written test of two papers (Rules 5 and 7). It appears that even the State of Maharashtra also adopted and approved the model Rules on 24.05.2019 and framed Rules, 2019 which had a written examination of 200 marks -
the High Court in the impugned judgment and order has rightly observed and held that Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) of the Rules, 2020 which are contrary to the decisions of this Court in the cases of UPCPBA [2017 (4) TMI 306 - SUPREME COURT] and the Madras Bar Association [2020 (12) TMI 3 - SUPREME COURT] are unconstitutional and arbitrary.
Rule 6(9) lacks transparency and it confers uncontrolled discretion and excessive power to the Selection Committee. Under Rule 6(9), the Selection Committee is empowered with the uncontrolled discretionary power to determine its procedure to recommend candidates to be appointed as President and Members of the State and District Commission. The transparency and selection criteria are absent Under Rule 6(9). In absence of transparency in the matter of appointments of President and Members and in absence of any criteria on merits the undeserving and unqualified persons may get appointment which may frustrate the object and purpose of the Consumer Protection Act - It is always desirable that while making the appointment as Members of the District Fora and/or the State Commission there is a need to assess the skill, ability, and the competency of the candidates before they are empanelled and recommended to the State Government. The Rules, 2020 do not contemplate written examination so as to test the merits of the candidate.
It is required to be noted that under provision 4(1) of Rules, 2020, a person who is eligible to be appointed as a district judge (having minimum experience of 7 years) is qualified to be appointed as President of the District Commission but in order to be appointed as a Member, Section 4(2)(c) mandates a minimum experience of 15 years which is rightly held to be violative of Article 14 of the Constitution - to provide 20 years' experience Under Rule 3(2)(b) is rightly held to be unconstitutional, arbitrary and violative of the Article 14 of the Constitution of India. We are in complete agreement with the view taken by the High Court.
There are no reason to interfere with the impugned judgment and order passed by the High Court declaring Rule 3(2)(b), Rule 4(2)(c) and Rule 6(9) of the Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of President and Members of State Commission and District Commission) Rules, 2020 as arbitrary, unreasonable and violative of Article 14 of the Constitution of India - The qualifying marks in each paper shall be 50 per cent and there shall be viva voce of 50 marks. Therefore, marks to be allotted out of 250, which shall consist of a written test consisting two papers, each of 100 marks and the 50 marks on the basis of viva voce.
Petition disposed off.
-
2023 (3) TMI 1378 - BOMBAY HIGH COURT
Transmission of shipping bills from Systems’ backend to DGFT for MEIS benefits - HELD THAT:- A joint meeting had taken between the officers of the Customs Department and Director General of Foreign Trade and not only the issue regarding the petitioner therein has been resolved but the changes in the software system have been brought about.
Stand over to 12 April 2023, to be heard along with O.S.Writ Petition No.3202 of 2022.
-
2023 (3) TMI 1377 - ALLAHABAD HIGH COURT
Maintainability of the writ petition - Availability of statutory alternative remedy of preferring appeal under Section 107 of the Act - Submission is that since such statutory alternative remedy has not been availed, therefore, the writ petition is not liable to be entertained - HELD THAT:- There are substance in the preliminary objection taken to the maintainability of the writ petition by learned State Counsel.
Since, the statutory alternative remedy of appeal has not been availed, as such, the order passed by the competent forum at the first instance need not be challenged.
-
2023 (3) TMI 1376 - ITAT MUMBAI
TP adjustment - MAM - export of finished goods by applying internal TNMM - Comparables - HELD THAT:- Though assessee had filed detailed benchmarking analysis of the comparable companies as given in the TP Study Report (TPSR) and certain submissions were also made with regard to exclusions of comparables suggested by TPO. TPO has not analysed those comparables on the ground that he has gone with internal TNMM for making the adjustment and there is no analysis or reasoning for accepting or rejecting external comparables selected by the assessee.
We agree with the contention of the ld. DR that this issue should be restored back to the ld. TPO to analyse the comparable companies selected by the assessee and decide this issue afresh
TP adjustment for payment of Central Fee for Services - HELD THAT:- The assessee has given all the detailed submission and analysis not only demonstrating the rendition of central services but also commensurate benefits derived from such services to the assessee.
It cannot be held that either there was no rendition or no benefit as observed by the ld. TPO. Apart from that the CUP analysis done by the assessee by taking four comparables in both the assessment years in providing advisories, management advisory, strategic planning, business administration services, marketing plan, protocols, procedures, etc., wherein mean margin determined was 2.75% in A.Y.2015- 16 and 5.75% in A.Y.2016-17; whereas the assessee has made payment at 0.50% in A.Y.2015-16 and 0.75% in 2016-17. Thus, the payment made by the assessee for Central services are at ALP and the adjustments made by the ld. TPO is deleted.
Disallowance u/s. 14A r.w.r. 8D - Necessity of recording satisfaction - assessee demonstrated that assessee had sufficient own funds as compared to the quantum of investment - HELD THAT:- We are in tandem with the contentions of assessee because in so far as investment made in A.Y.2015-16 is concerned, these are mostly growth options of UTI mutual funds which does not yield any dividend income but are taxable as capital gains, hence, the same cannot be taken up for computing the disallowance u/s 14A.
If the average investment of Rs.0.29 Crores is taken into consideration, then disallowance would work out under Rule 8D(2)(iii) would be only Rs.1.45 lakhs which is much less than the suo-moto disallowance made by the assessee. Similarly, in A.Y.2016-17 also the investment in Kotak Mahindra Mutual Fund-Direct Growth and Reliance Mutual Fund-Direct Plan Grown which yields taxable income and therefore, same cannot be taken as part of computation for the purpose of disallowance. Once, these are excluded from the disallowance, then according to Rule 8D(2)(iii), the disallowance in A.Y.2016-17 would be Rs.1.45 lakhs.
AO has mechanically applied Rule 8D without having recorded his satisfaction or examining the nature of investments whether they have yielded any exempt income or not, thus, such disallowance made by the ld. AO are to be deleted.
Disallowance u/s. 37(1) of unrealized foreign exchange - assessee has incurred an unrealized foreign exchange loss - HELD THAT:- Since, this issue is similar to the appeal decided by the Tribunal in the case of Unilever Industries Private Limited. [2023 (1) TMI 1263 - ITAT MUMBAI] following the same, we direct the ld. AO to allow the deduction.
Disallowance of Employee Share Option Scheme Expense - HELD THAT:- As for Assessment Year 2009-10 onwards the Assessing Officer has permitted the deduction of ESOP expenses and in view of law laid down by Supreme Court in Radhasoami Satsang [1991 (11) TMI 2 - SUPREME COURT] the revenue cannot be permitted to take a different stand with regard to the Assessment Year in question In view of preceding analysis, the substantial questions of law framed by a bench of this court are answered against the revenue and in favour of the assessee.
Excess levy of interest u/s. 234B - AO has not granted credit for self-assessment tax paid u/s 140A by the assessee on 30/11/2016 while computing the shortfall in payment of advance tax as required by the provisions of section 234B(2) of the Act. Accordingly, the ld. AO is directed to rectify the error and compute the correct interest payable as per Section 234B.
-
2023 (3) TMI 1375 - CALCUTTA HIGH COURT
Levy of penalty - Detention of goods alongwith vehicle - expired E-way bill - HELD THAT:- The reason for the vehicle of the appellant along with the goods for being detained was that the e-way bill had expired at 11:59 hours on 22nd April, 2022. As per the statute, the owner of the goods / transporter had eight hours time to revalidate the e-way bill, which would have been at 8 a.m. on 23rd April, 2022. However, the said date was a Saturday and the vehicle was intercepted at 8.52 a.m., when it was travelling towards the destination and at a distance of about 20 kilometers from the destination. There is no other allegation made against the appellant.
There is no lack of bona fide on the part of the appellant to state that there was wilful misconduct committed by the appellant while transporting the goods. There is every possibility that even if an application was made for extension of the e-way bill within the time permitted, 23rd April, 2022 being a Saturday, the e-way bill, in all probabilities, would not have been revalidated within the eight hours period.
Considering the facts and circumstances of the case, the authority could not have imposed penalty on the appellant - the appeal is allowed.
-
2023 (3) TMI 1374 - GUJARAT HIGH COURT
Exemption u/s 11 - non filing the audit report in Form 10B alongwith return of income - procedural omission - HELD THAT:- Filing of audit report is held to be substantive requirement but not the mode and stage of filing, which is procedural. Once the audit report in Form 12B is filed to be available with the Assessing Officer, before assessment proceedings take place, the requirement of law is satisfied. In that view, the Income Tax Tribunal was not justified in dismissing the appeal of the assessee.
The appellant assessee has to be held to be eligible and entitled to exemptions u/s 11(1) and 11(2) of the Act and the alleged ground of non-filing of audit report along with return of income which was at the best procedural omission, could never to an impediment in law in claiming the exemption. Decided in favour of assessee.
-
2023 (3) TMI 1373 - UTTARAKHAND HIGH COURT
Maintainability of petition - availability of alternative remedy of appeal - Appealable order u/s 35 of the Finance Act, 1994 - HELD THAT:- Since, the order impugned in the writ petition is appealable under Section 35 of the Finance Act, 1994; therefore, this Court declines to invoke its extra ordinary jurisdiction under Article 226 of the Constitution of India.
Writ petition is, accordingly, dismissed on the ground of alternate remedy with liberty to the petitioner to approach an appropriate forum.
-
2023 (3) TMI 1372 - ITAT BANGALORE
Revision u/s 263 - cash deposited during the demonetization period - PCIT was of the view that the AO has accepted the explanation of cash deposits without proper verification and assessee has failed to furnish a satisfactory explanation regarding the source of cash deposited in bank - HELD THAT:- As from the perusal of the order of the AO and details furnished by the assessee it is clear that the AO has done a proper verification of the details of cash deposited and has given a clear finding with respect to the same. The PCIT in his order has stated that the AO ought to have conducted further enquiry to check whether the deposits satisfy the test of section 68. This view of the ld. PCIT, in our opinion, is not the right reason for exercising revisionary powers u/s. 263 of Act, as the error envisaged by Section 263 of the Act is not one that depends on possibility as a guess work, but it should be actually an error either of fact or of law.
As relying on the decision of Gabriel India Ltd [1993 (4) TMI 55 - BOMBAY HIGH COURT] PCIT is not justified in setting aside the order of the AO and accordingly we hold that the order of the PCIT u/s. 263 is without jurisdiction and liable to be quashed. Decided in favour of assessee.
-
2023 (3) TMI 1371 - GUJARAT HIGH COURT
Constitutional Validity of Sub Rule (10) of Rule 96 of the CGST Rules, 2017 - ultra vires Section 16 of the IGST Act, ultra vires Section 54 and 164 of the CGST Act, 2017, and ultra vires Articles 14 and 19(1)(g) of the Constitution of India - refund of Integrated Tax paid on goods exported - HELD THAT:- It was pointed out that the petition containing identical controversy to be entertained by Co-ordinate Bench of this court in MESSRS AMVIAN AUTOMOTIVE PVT. LTD. VERSUS UNION OF INDIA [2022 (11) TMI 1366 - GUJARAT HIGH COURT]. It was further pointed out from the said order that interim relief was also granted by directing that the respondent shall not make any coercive recovery.
Notice, returnable on 26.4.2023.
-
2023 (3) TMI 1370 - CESTAT KOLKATA
CENVAT Credit - Department issued Show Cause Notice on the ground that the invoices of M/s. Roshanlal Bhagirathmal show the Name and Address of the Agent as the buyer and the present Appellant is shown as consignee - HELD THAT:- Admittedly, there is no dispute that the goods in question have been received by the Appellant in their factory premises and the same were properly recorded in their Books of Account. Even the Invoices in question clearly show the details of the Appellant along with their ECC Number and Central Excise Range and Division etc. The Tribunal in the case of KUNSTSTOFF POLYMERS LTD. VERSUS COMMISSIONER OF C. EX., BHOPAL [2009 (5) TMI 743 - CESTAT, NEW DELHI] has held just because the invoices issued by M/s. SC Enviro Agro India Pvt. Ltd. mention M/s. Sumitomo Chemicals India Pvt. Ltd. as the customer, while at the same time mentioning the appellant as the consignee, will not become invalid document for taking Cenvat credit, we therefore, hold that the impugned order is not sustainable.
The Appellant is eligible for the Cenvat Credit - Appeal allowed.
-
2023 (3) TMI 1369 - CESTAT MUMBAI
Refund of Excess Service Tax paid - rejection on the ground of being time barred - Sub Rule (1A) of Rule 6 of Service Tax Rules, 1994 - HELD THAT:- Whatever has been paid in excess of due is treated as advance payment to the Central Government. It is much similar to the payments made to account current which is popularly known as PLA. It has been held several times that the amounts lying in PLA are assessee’s property and he can take refund of the same any time he wants and limitation is not applicable to the same. In the similar manner, any amount which is paid as advance under Sub Rule (1A) of Rule 6 of Service Tax Rules, 1994, limitation would not apply. Limitation is to apply only to such quantum of amount which is paid as Service Tax.
The impugned order set aside - the original authority are directed to issue the cheque of refund to the appellant - appeal allowed.
-
2023 (3) TMI 1368 - ALLAHABAD HIGH COURT
Cancellation of GST registration of petitioner - appeal preferred by the petitioner was dismissed as being beyond the prescribed period of limitation - HELD THAT:- Considering the fact that the order impugned cancelling the registration is prima facie without application of mind which is squarely covered by the judgment of this court in the case of M/s Chandra Sain [2022 (9) TMI 1047 - ALLAHABAD HIGH COURT] and the issue of non-fixation of time and date is squarely covered by the judgment rendered in the case of M/s Jaiprakash Thekedar [2023 (1) TMI 237 - ALLAHABAD HIGH COURT], the writ petition deserves to be allowed on both the counts.
The matter is remanded to the adjudicating authority for passing a fresh order, in accordance with law, after giving opportunity of hearing to the petitioner within a period of three months from the date of production of certified copy of this order - Petition allowed by way of remand.
-
2023 (3) TMI 1367 - TELANGANA HIGH COURT
Money Laundering - proceeds of crime - scheduled offences - SCN issued to indicate the source of income out of which the provisionally attached properties were procured - provisional attachement of such properties - provisional attachment challenged on the ground that the same was passed without jurisdiction and in breach of Section 6 of the PMLA - it is contended that order confirming the provisional attachment was passed beyond the prescribed period of 180 days which is in breach of Section 5 of the PMLA.
Whether the scheme under the PMLA permits an Adjudicating Authority consisting of a single member? - HELD THAT:- It is trite law that a provision has to be interpreted in light of the entire scheme of the statute. The Court cannot read a provision in part or in isolation. Where the statute expressly provides jurisdiction to a quasi-judicial body consisting of one member to decide the issue, the Court cannot reach a conclusion or interpretation that such constitution with a single member having the requisite competence/eligibility is bad in law
A full bench of the Apex Court in Newtech Promoters & Developers (P) Ltd. v. State of U.P. [2021 (12) TMI 892 - SUPREME COURT] dealt with a similar issue as to whether the adjudicating authority therein under Section 81 of the Real Estate (Regulation and Development) Act, 2016 could have delegated its powers to a single member of such authority. The Petitioners therein contended that the Real Estate (Regulation and Development) Act, 2016 does not contemplate delegation of powers to hear complaints to a single member which ought to be heard by the authority consisting of two members - Similar to the present case, the Petitioners therein contended that such delegation of power to a single member is illegal and orders passed by such single member are without jurisdiction. The Apex Court negatived the contention of the Petitioners therein and held that where statutory mandate permits delegation of powers by a competent authority to a single member, such single member can exercise such delegated powers.
In the present case, a plain reading of Section 6 of the PMLA negates the contention of the Petitioners that Adjudicating Authority shall consist of a Chairperson and two members. The word ‘shall’ used in Section 6(2) is not mandatory. This Court agrees with the view expressed in the above decisions that constitution of Adjudicating Authority with one member is permissible under PMLA. Therefore, the issue is answered accordingly.
Whether a single member alone who has experience in the field of administration, finance or accountancy and no experience in the field of law can issue a show cause notice under Section 8(1) of the PMLA and pass orders confirming provisional attachment of properties under Section 8(3) of the PMLA? - HELD THAT:- The Apex Court in Shivji Nathubha v. Union of India [1960 (1) TMI 31 - SUPREME COURT] relying on a decision of a Constitution Bench consisting of six judges in Province of Bombay v. Khushaldas S. Advani [1950 (9) TMI 15 - SUPREME COURT] explained the distinction between an administrative act and a quasi-judicial act. The Court therein held that the act will be treated as quasi-judicial act if the body exercising power had legal authority, by exercising such power it should decide a lis between the parties and while exercising such power it should act judicially. The Court relied on Khushaldas S. Advani to hold that unless the statute provides otherwise, a body is under a duty to act judicially.
Further, the Apex Court in Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala [1961 (4) TMI 23 - SUPREME COURT] discussed in detail the question as to what constitutes a quasi-judicial action. The Court therein held that actions of authorities will be treated as judicial functions if such an authority conducts proceedings by hearing parties and passes orders thereon and where a right to appeal is available against such orders. Further, the Court noted that where actions of quasi-judicial authorities have trappings of judicial functions, such actions will be treated as quasi-judicial actions.
Section 8 of the PMLA deals with adjudication by the Adjudicating Authority. Under Section 8 (1) of the PMLA, once a complaint is filed under Section 5(5) of the PMLA detailing the nature of offence and the properties involved, the Adjudicating Authority after satisfying itself that reasons to believe exist that a person has committed the offence of money laundering or he/she is in possession of proceeds of crime has to issue a show-cause notice to such person calling upon him to give details of such properties including sources of income involved in purchasing such properties and to show cause why such attachment of properties should not be confirmed - Section 8(2) of the PMLA provides that the Adjudicating Authority shall consider if any reply to such show cause notice is filed and hear the aggrieved person whose property is sought to be attached. Further, the Adjudicating Authority shall also consider all the relevant material placed on record. Upon such consideration of reply to the show cause notice, hearing the parties and other material placed on record, the Adjudicating Authority in its order shall record a finding whether the properties provisionally attached are involved in money laundering. If the Adjudicating Authority reaches a conclusion that the provisionally attached properties were involved in money laundering, it shall pass an order confirming such provisional attachment under Section 8(3) of the PMLA.
Whether the action of issuing a show cause notice under Section 8(1) of the PMLA by the Adjudicating Authority is quasi-judicial in nature? - HELD THAT:- The action of issuing show cause notice under Section 8(1) of the PMLA is quasi-judicial in nature. The Adjudicating Authority before issuing a show cause has to apply its mind to the material placed before it along with the complaint filed under Section 5(1) of the PMLA. It is only after such application of mind that the Adjudicating Authority can reach a conclusion that ‘reasons to believe’ exist regarding the commission of money laundering. The application of mind here involves a quasi-judicial function as the Adjudicating Authority has to come to conclusion and record its reasons that an offence of money laundering as defined under Section 3 of the PMLA was committed - An authority recording its subjective satisfaction after due application of mind performs a quasi-judicial function. An action involving interpretation of a statute and recording of reasons has trappings of judicial functions. Such actions are quasi-judicial and cannot be termed as administrative, more particularly when the requirement of issuing a show cause notice based on ‘reasons to believe’ was incorporated as a procedural safeguard.
Whether the action of passing an order confirming provisional attachment under Section 8(3) of the PMLA is quasi-judicial in nature? - HELD THAT:- Section 8 of the PMLA is titled ‘Adjudication’ which makes it evident that the actions of Adjudicating Authority under the said provision are adjudicatory in nature and the same are quasi-judicial functions - according to this Court, the action of issuing a show cause notice under Section 8(1) of the PMLA and passing an order confirming provisional attachment under Section 8(3) of the PMLA are quasi-judicial in nature as they have trappings of judicial functions.
Whether quasijudicial functions like issuance of show cause notice under Section 8(1) of the PMLA and passing an order confirming provisional attachment under Section 8(3) of the PMLA can be passed by an Adjudicating Authority consisting of a member having no experience in the field of law? - HELD THAT:- In L. Chandra Kumar [1997 (3) TMI 90 - SUPREME COURT], the Apex Court held that constitution of tribunals with members having no experience in law is permissible provided such members are experts in other fields and are paired with members having experience in law. In other words, tribunals shall comprise of members having technical expertise in the area which is sought to be regulated by law and members having experience in the field of law.
A tribunal or a quasi-judicial body like the Adjudicating Authority under PMLA performs adjudicatory functions. Therefore, such bodies shall be manned by members having necessary experience in the field of law. Such members shall be capable of interpreting law and applying it to various sets of facts that may arise before them. The said view that adjudicatory functions of tribunals can only be performed by members having experience in law is further fortified by the decisions discussed below.
In the present case, as the show cause notices and the orders confirming provisional attachment were passed by a member having no experience in the field of law, such show cause notices and orders are non-est and void in the eyes of law - a member having no experience in the field of law is ineligible to pass judicial orders.
This Court holds that issuance of show cause notice under Section 8(1) of the PMLA and passing an order under Section 8(3) of the PMLA confirming the provisional attachment of properties are quasi-judicial functions. Therefore, an Adjudicating Authority consisting of a single member cannot pass quasi-judicial orders, unless such single member has experience in the field of law. Any quasi-judicial function performed by a single member having experience in the field of finance, accountancy or administration is non-est and would be hit by coram non judice - In the present case, the show cause notice under Section 8(1) of the PMLA were issued and confirmation orders under Section 8(3) of the PMLA were passed by a single member having no experience in law. Therefore, the said show cause notices and confirmation orders are non-est and are liable to be set aside.
Whether the period from 15.03.2020 to 28.02.2022 which was excluded by the Apex Court in computation of limitation vide In re: Limitation [2022 (1) TMI 385 - SC ORDER] is applicable to orders confirming provisional attachment within 180 days? - HELD THAT:- Section 29A of the Arbitration & Conciliation Act, 1996 provides a time limit of 12 months within which an award has to be passed. By virtue of In re: Limitation, 2022 (supra), the period from 15.03.2020 to 28.02.2022 shall be excluded to compute the period of 12 months under Section 29A of the Arbitration & Conciliation Act, 1996. Similarly, Section 12A(3) of the Commercial Courts Act, 2015 provides an outer time period of three months within which pre-institution mediation shall be completed - In re: Limitation, 2022 [2022 (1) TMI 385 - SC ORDER] states that wherever a statute prescribes a maximum period within which proceedings have to be completed, the period from 15.03.2020 to 28.02.2022 shall be excluded to compute such maximum period.
It is true that the period of 180 days within which the provisional attachment order under Section 5(1) of the PMLA has to be confirmed is mandatory. However, in appropriate cases the High Court can exclude certain period while computing the period of 180 days - this Court in Karvy Realty (India) Ltd. v. The Adjudicating Authority [2022 (12) TMI 1198 - TELANGANA HIGH noting that the Petitioner therein did not have sufficient time to effectively reply to the show cause notice under Section 8(1) of the PMLA granted extra time of two months reply to the show cause notice. The Court therein directed that such extra time of two months shall be excluded to compute the period of 180 days.
The Calcutta High Court in Hiren Panchal [2022 (7) TMI 720 - CALCUTTA HIGH COURT] held that vide orders in In re: Limitation [2022 (1) TMI 385 - SC ORDER], the Apex Court extended the period of limitation to safeguard the right of litigants to institute proceedings. The Court held that computation of 180 days to confirm provisional attachment of properties under Section 8(3) of the PMLA cannot be equated to initiation/institution of proceedings. The Court also held that prescription of 180 days is in the form of a protection against deprivation of right to property.
It is true that provisional attachment of property has an effect of potentially depriving a person of his property. However, right to personal liberty and right to property stand on a different footing and cannot be equated. This is evident from the fact that the urgency in concluding proceedings dealing with a person in jail is much higher than a person whose property is provisionally attached. Further, under Section 5(4) of the PMLA, the person whose property is provisionally attached can still enjoy such property till the same is confiscated. Even in cases of confirmation of provisional attachment, a person can still enjoy such property till the same is confiscated.
In Vijay Madanlal Choudhary [2022 (7) TMI 1316 - SUPREME COURT], the Apex Court held that provisionally attached properties which are confirmed can still be enjoyed by a party till a confiscation order is passed.
In the present case, Section 5(3) of the PMLA states that provisional attachment of properties will cease to have effect after a lapse of 180 days from the date of provisional attachment. That would mean that attachment proceedings shall terminate if the same are not confirmed within a period of 180 days. Therefore, while calculating/computing the 180 day period, the period from15 .03.2022 to 28.02.2022 shall be excluded - this Court holds that the decision in In re: Limitation [2022 (1) TMI 385 - SC ORDER] and subsequent extensions vide In re: Limitation 2022 [2022 (1) TMI 385 - SC ORDER] are applicable to PMLA proceedings to compute the period of 180 days. While computing such period, the period from15.03.2020 to 28.02.2022 shall be excluded.
Whether the Adjudicating Authority becomes functus officio after a lapse of 180 days from the date of passing of the provisional attachment order, if such provisional attachment is not confirmed under Section 8(3) of the PMLA? - HELD THAT:- The Calcutta High Court in Fairdeal Supplies [2021 (4) TMI 1221 - CALCUTTA HIGH COURT] held that Section 8 of the PMLA contemplates two stages. Section 8(2) of the PMLA involves adjudication by the Adjudicating Authority as to the question of whether the provisionally attached properties were involved in money laundering or not. Section 8(3) of the PMLA is a subsequent stage which comes into picture only if the Adjudicating Authority reaches a conclusion under Section 8(2) of the PMLA that the properties were involved in money laundering - The Calcutta High Court held that a conjoint reading of Section 5(3) of the PMLA and Section 8(3) of the PMLA indicates that the time limit of 180 days is only applicable to the stage of Section 8(3) of the PMLA and is not applicable to the stage of 8(2) of the PMLA.
Once the period of 180-day lapses, the provisional attachment of properties ceases to have effect. In such cases, the ED has to re-initiate the process of attachment under Section 5(1) of the PMLA by passing a fresh provisional attachment order by recording their reasons to believe. While issuing the said fresh attachment order, the ED shall again strictly follow the entire procedure as prescribed under Sections 5 & 8 of the PMLA and the relevant Rules thereunder - ED should record the reasons to believe before issuing the fresh provisional attachment order, forward such fresh provisional attachment order to the Adjudicating Authority and the Adjudicating Authority shall again satisfy itself that the properties were involved in money laundering and shall issue a fresh show-cause notice in relation to the fresh provisional attachment order, the parties shall again be given a right of hearing before passing orders under Sections 8(2) and 8(3) of the PMLA. Needless to say that after issuance of the fresh provisional attachment order, the confirmation shall be completed within a period of 180 days - thus, the Adjudicating Authority will become functus officio after a lapse of 180 days, if the provisional attachment of properties is not completed.
Petition allowed.
-
2023 (3) TMI 1366 - ITAT HYDERABAD
Delayed employees’ contribution to PF/ESIC - Disallowance u/s 36(1)(va) in the order passed u/s 143(1) - HELD THAT:- While processing the return of income that was filed u/s 139 or section 142(1) of the Act and computing the total income or loss, the adjustment need not be confined to the disallowance of expenditure or increase in income, indicated in the audit report, but not taken into account in the total income under clause (iv), but law permits such adjustment could also be in respect of an incorrect claim which is apparent from the information in the return under clause (ii).
With the law declared in the case of Checkmate Services Pvt. Ltd. [2022 (10) TMI 617 - SUPREME COURT] any claim for deduction under section 36(1)(va) of the Act wherein the assessee fails to credit the sums received from the employees to which the provisions under section 2(24)(x) of the Act are applicable, preferred by the assessee would be patently an incorrect claim and the adjustment in that respect at the stage of 143(1) of the Act process is perfectly justified.
There is nothing illegality or irregularity in making the disallowance u/s 36(1)(va) in the order passed under section 143(1) and, therefore, CIT(A) rightly upheld the same. Decided against assessee.
-
2023 (3) TMI 1365 - CESTAT CHENNAI
CENVAT Credit - duty paid on the inputs namely craft paper and paper boards purchased from the principal manufacturers - allegation of the department is that the principal manufacturers / suppliers ought to have availed full exemption as per Exemption Notification No.4/2006-CE and should not have cleared the goods under Sl.No.91 paying concessional duty @ 4% - HELD THAT:- The very same issue was decided by the Tribunal in the case of M/S. AKSHERA PAPERS VERSUS THE COMMISSIONER OF CENTRAL EXCISE, SALEM (VICE-VERSA) [2018 (9) TMI 1652 - CESTAT CHENNAI] wherein the Tribunal observed that The issue decided in the case of M/S. SRIPATHI PAPER & BOARDS VERSUS CCE & ST, TIRUNELVELI [2018 (9) TMI 891 - CESTAT CHENNAI], where it was held that the assesse has to necessarily pay an amount equivalent to the credit availed on inputs, inputs in the process of manufacture and inputs in the final products lying in stock either by deducting the amount from the balance available in their books of accounts and, if there is no sufficient balance, then, by way of cash payment. With regard to the balance credit available in the appellant’s books after such reversing as on 31.03.2010, if any, is lapsed.
In the case of M/S. KOVAI MARUTHI PAPER AND BOARDS, M/S. SARASWATHI UDYOG INDIA LTD, SHRI RAM CARTONS, M/S. SRIVARI PACKAGING INDUSTRIES VERSUS CCE, SALEM AND CCE, SALEM VERSUS M/S. SARASWATHI UDYOG INDIA LTD., M/S. KOVAI MARUTHI PAPER AND BOARDS [2018 (5) TMI 474 - CESTAT CHENNAI], the Tribunal had examined whether the principal manufacturers should compulsorily avail exemption at Sl.No.90 which specifies ‘Nil’ rate of duty. The Tribunal followed the decision in the case of Balakrishna Paper Mills and Others – 2015-TIOL-1100 and held that it is not mandatory to avail Sl.No.90 which extends ‘Nil’ rate of duty and that the assessee has the option to pay duty at concessional rate of 4%.
The the demand cannot sustain - appeal allowed.
-
2023 (3) TMI 1364 - ITAT DELHI
Penalty u/s 271B - owing to the cash deposits in the bank account and the sales turnover in the ITR the revenue levied penalty considering the deposits as turnover of the assessee - assessee is a commission agent of Gujarat Milk Cooperative Federation having milk booth at Darya Ganj, Delhi and earning a commission margin @ 0.55% to 12.16% per unit on butter milk to paneer
HELD THAT:- Since, the assessee only a commission agent and earns margin as prescribed in Gujarat Milk Cooperative Federation rules as reflected in column 5 above , we hold that the penalty levied u/s 271B obliterated.
Appeal of the assessee is allowed.
-
2023 (3) TMI 1363 - BOMBAY HIGH COURT
Seeking procurement of investigation papers and documents from the Investigating Agencies at South Africa with respect to the seizures made in India - HELD THAT:- It is trite position of law that, the accused has no right to have any say as regards the manner and method of investigation. That the accused has no participation as a matter of right during the course of investigation of a case instituted on a police report till the investigation culminates. Accused cannot choose Investigating Agency. That, accused persons do not have a say in the matter of appointment of an Investigating Agency. The accused persons cannot choose as to which Investigating Agency must investigate the alleged offence committed by them. Accused has no right with reference to the manner of investigation or mode of prosecution.
The Hon’ble Supreme Court in the case of Romila Thapar Vs. Union of India & Ors., reported in [2018 (9) TMI 1881 - SUPREME COURT], has held that, neither the accused, complainant nor the informant are entitled to choose their own Investigating Agency, to investigate the crime, in which they are interested. That the accused cannot ask for changing the Investigating Agency or do the investigation in a particular manner, including Court monitored investigation. In the said decision, the Hon’ble Supreme Court has relied on the decisions in the cases of Divine Retreat Centre Vs. State of Kerala [2008 (3) TMI 734 - SUPREME COURT] and Narmadabai Vs. State of Gujrat [2011 (4) TMI 1477 - SUPREME COURT].
Mr. Khan, learned counsel for the Petitioner submitted that, the Petitioner though being an accused is only requesting this Court to direct the investigating agency to procure necessary documents from their counter part in South Africa - It clearly appears to us that, such request is made only to built up the defence of Petitioner at the inception of investigation by invoking jurisdiction of this Court under Article 226 of the Constitution of India. It is needles to mention that, the investigating agency during the course of investigation will collect all the necessary and relevant evidence including the documents thereof. For collecting evidence during the course of investigation the direction by this Court at the behest/request of an accused is not at all necessary.
Petition dismissed.
-
2023 (3) TMI 1362 - DELHI HIGH COURT
Refund of the Special Additional Duties of Customs (SAD) - rejection on the sole ground that the same were barred by the limitation - no SCN issued before rejection of appeals - principles of natural justice (audi alterem partem) - HELD THAT:- The issue decided in the case of M/S. S.K. ENTERPRISES VERSUS ASSISTANT COMMISSIONER OF CUSTOMS (REFUND) ICD, TUGHLAKABAD, NEW DELHI. [2023 (2) TMI 1138 - DELHI HIGH COURT] where on similar issue matter was remanded as no SCN was issued before rejection of appeals, and thus no reasonable opportunity to meet the objections regarding any alleged discrepancies in the refund claims was provided.
The order impugned in the present appeal is set aside and the matter is remanded to the Tribunal to dispose of the same - Appeal disposed off by way of remand.
-
2023 (3) TMI 1361 - GUJARAT HIGH COURT
Reopening of assessment u/s 147 - HELD THAT:- As in light of the Assessment Order passed under Section 147 read with section 144B of the Income Tax Act, 1961, the present petition has become infructuous, in which the assessment is nil.
In that view, the present petition would not survive and accordingly, this petition is disposed of as infructuous as per the statement made by the learned advocate for the petitioner. Notice is discharged. Interim relief granted stands vacated.
-
2023 (3) TMI 1360 - ALLAHABAD HIGH COURT
Condonation of delay in filing petition - present petition under Article 226 of the Constitution of India has been filed after a delay of more than 2 years - detention of goods alongwith vehicle - vehicle number not mentioned on E-way bill - HELD THAT:- The appellate authority after considering the order passed by the adjudicating authority had noted that the appellant did not file any document/evidence to show that on e-bill vehicle number was mentioned. Once the papers were not in accordance with the provisions of Act, 2017 and rules made thereunder, the adjudicating authority has proceeded to assess the tax and imposed penalty. The appellate authority did not find any error on law or facts.
Sri H.N. Tiwari, learned counsel appearing for the petitioner submits that because of spread of COVID-19 the petitioner did not appear before the appellate authority. However, there is no explanation coming in the present petition regarding delay of more than two years. The only ground, which has been taken in the present petition, regarding delay and laches is the petitioner did not get copy of the impugned order - However, this ground falls on the ground by perusing the impugned order. After the impugned order was passed, a copy of order was sent to the Additional Commissioner- Grade 1, Assistant Commissioner and the petitioner. Moreover, it was the duty of the petitioner to find out what happened in the appeal which had been instituted by him.
This petition is liable to the dismissed on the ground of delay itself - Petition dismissed.
............
|
