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Showing 121 to 140 of 1445 Records

• 2024 (3) TMI 1325
  

  Refund of Service Tax paid by the appellant for taxable services used in relation to authorized operations of the SEZ - denial on the ground of limitation - N/N. 09/2009-S.T. dated 03.03.2009 - HELD THAT:- The refund was rejected only on the ground of limitation as prescribed in paragraph 2(f) of Notification No. 09/2009-S.T. It is observed that there is no dispute regarding the payment of Service Tax or utilization of services for authorized operations in the SEZ. The refund has been rejected only on the ground that the claim has not been filed within the time limit prescribed in the notification. Thus, the issue to be decided here is whether the time limit prescribed under the notification is applicable in respect of the refund application filed by a unit located within the SEZ area.

  In the view of Section 26(1) of the SEZ Act read with Rule 31 of the SEZ Rules, it is observed that the conditions of Notification No. 09/2009-S.T. are clearly repugnant and inapplicable. This is because Section 51 of the SEZ Act grants overriding power to the provisions of the SEZ Act.

  The appellant also contended that in terms of Notification No. 09/2009-S.T. exemption is granted by way of refund of Service Tax in situations where services are not wholly consumed in the SEZ. Whereas for the services which are wholly consumed in SEZ, the appellant need not pay service tax at all because the assessee is eligible for outright unconditional exemption for the services wholly consumed in the SEZ. This change was brought about by Notification No. 15/2009-S.T. dated 20.05.2009.

  If Service Tax is paid with respect of services which are wholly consumed within the SEZ, it would be the case of Service Tax wrongly paid, as no service tax is otherwise payable. In that case the refund claim of the assessee would not be covered by Notification No. 09/2009-S.T., but rather it would be covered under Section 83 of the Finance Act read with Section 11B of the Central Excise Act, 1944. In such a case the time period for filing the refund claim is one year and the appellant has filed the refund claim within this period of one year. Accordingly, the refund claim can be considered to be filed within the prescribed time-limit.

  The impugned order rejecting the refund claim on the ground of limitation, is not sustainable - the impugned order set aside - appeal allowed.

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• 2024 (3) TMI 1324
  

  Dishonour of Cheque - power of an Appellate Court to order payment pending an appeal against conviction under Section 138 of the Act - Interpretation of the provisions of Section 148 of the Negotiable Instruments Act, 1881 - HELD THAT:- In Surinder Singh Deswal [2019 (5) TMI 1626 - SUPREME COURT], the Supreme Court had to consider the object and purpose of the amendment in Section 148 of the N.I. Act in the backdrop of the general power available to the Appellate Court under Section 389 of the Cr.P.C. to suspend the sentence imposed by the trial court. Noticing that the provisions of Section 148 of the N.I. Act, as amended, conferred powers on an Appellate Court that was considering an appeal against a conviction and sentence under Section 138 of the N.I. Act, which powers were an exception to the general power available to an Appellate Court under Section 389 of the Cr.P.C. to unconditionally suspend the sentence pending appeals challenging a conviction and sentence, the Supreme Court found that while it was no doubt true that under the amended Section 148 of the N.I. Act, the word used in the context of exercising the discretion is “may”, it is generally to be construed as a “rule” or “shall” and it was only in exceptional cases, for which special reasons had to be assigned, that an Appellate Court could refrain from issuing a direction to deposit the prescribed percentage of the fine or compensation awarded by the trial court.

  The express provisions of Section 148 of the N.I. Act, as amended, and its stated object as discernible from the Statement of Objects and Reasons of the Amendment Act No.20 of 2018.

  Applications disposed off.

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• 2024 (3) TMI 1323
  

  Final Assessment Order u/s 144C(13) passed beyond Limitation Period - Relevant date - Revenue contends that for the purposes of determination of limitation, the relevant date is 02.05.2022 on which the DRP directions were actually received by the jurisdictional AO in its ‘Case History Noting’ to enable it to proceed and continue with the assessment proceedings.

  HELD THAT:- The revenue despite having raised long drawn defense, failed to furnish any material of evidentiary value towards the date on the DRP directions came to the privy of FAO which was in turn uploaded to the case history noting of the pending assessment of JAO on 2nd May 2022. In the absence of any affirmative evidence in this regard, the inference needs to be drawn from the chain of events mentioned in order sheet, systems report and affidavit of the JAO.

  The inference thus needs to be drawn adverse to the revenue for the reason that order sheet provides for transfer of assessment case in April 2022 and the FAO has uploaded the DRP directions in May 2022. In the absence of any material to indicate that the FAO also received the DRP directions in May 2022 for its onward transmission to JAO on 2/05/2022, we are in no position to dislodge the order sheet notings indicating transfer of records in the month of April 2022. The limitation thus stands expired in May 2022 in the present case.

  Claim of the Revenue that assessment unit was served with the DRP order electronically on 02.05.2022 do not resonate with the records available before us. This date only signifies the date of receipt of order by JAO whereas the limitation would be counted from the date on which the DRP directions were received by FAO prior to its onward uploading to JAO in terms of approval u/s 144B(8) of the Act. The combined reading of three documents extracted above as analysed, gives an infallible impression that FAO being designated assessment unit (even if considered distinct from NFAC) was privy to DRP order in April 2022. Therefore, the limitation in extreme case scenario would run from April 2022 and will end on 31st May, 2022. The assessment order however has been passed on 30th June, 2022 and thus is clearly time barred and outside the limitation period assigned under Section 144C(13) of the Act.

  As decided in Fiberhome India P. Ltd [2024 (2) TMI 1382 - DELHI HIGH COURT] that the time lines as provided under section 144C(13) are mandatory in character. The judgment squarely supports the case of the Assessee. Also see Louis Drefus company India Private Limited [2024 (3) TMI 62 - DELHI HIGH COURT] Assessee appeal allowed.

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• 2024 (3) TMI 1322
  

  TDS u/s 194H - non deduction of TDS on transaction between the Appellant and the distributors in respect of sale of the SIM Card/Recharge Voucher - scope of expression ‟acting on behalf of another person” - relationship between the Appellant and distributors is that of principal and agent OR principal and principal - HELD THAT:- As decided in Bharti Cellular Limited [2024 (3) TMI 41 - SUPREME COURT] he term ‟agent” denotes a relationship that is very different from that existing between a master and his servant, or between a principal and principal, or between an employer and his independent contractor. Although servants and independent contractors are parties to relationships in which one person acts for another, and thereby possesses the capacity to involve them in liability, yet the nature of the relationship and the kind of acts in question are sufficiently different to justify the exclusion of servants and independent contractors from the law relating to agency.

  Term ‟agent” should be restricted to one who has the power of affecting the legal position of his principal by the making of contracts, or the disposition of the principal's property; viz. an independent contractor who may, incidentally, also affect the legal position of his principal in other ways.

  We hold that the assessees would not be under a legal obligation to deduct tax at source on the income/profit component in the payments received by the distributors/franchisees from the third parties/customers, or while selling/transferring the pre-paid coupons or starter-kits to the distributors. Section 194-H of the Act is not applicable to the facts and circumstances of this case. Accordingly, the appeals filed by the assessee - cellular mobile service providers, challenging the judgments of the High Courts of Delhi and Calcutta are allowed and these judgments are set aside.

  As a consequence of our finding that the appellant could not have been treated as an assessee in default bearing - Decided in favour of assessee.

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• 2024 (3) TMI 1321
  

  Addition invoking provisions 56(2)(7a) - CIT(A) dismissed assessee appeal - application for admission of additional evidence was also submitted by the assessee - HELD THAT:- In the present case, since the issues raised by the assessee before the CIT(A) have been decided on merits after considering and deliberating upon the facts of the case. On perusal of the order of CIT(A) it is observed that proper working of the addition u/s 56(2)(viia) were drawn and correct figures of the additions were arrived at. Since such calculations have not been dislodged by the assessee before the revenue authorities, we do not find any infirmity in the order of Ld. CIT(A). However, since there were certain additional information submitted by the assessee which could not be submitted before the revenue authorities for the reasons refer to in the application of admission of additional evidence, therefore, in the interest of justice the matter requires to be restored back to the files of Ld. CIT(A) for fresh adjudication.

  CIT(A) has passed an ex-parte order - As reasonable opportunity of being heard against the principle of natural justice since no explanations or evidence that opportunities were not granted to the assessee by Ld. CIT(A) have been brought on record or to our attention by the assessee neither such contentions are emerging from the impugned order of Ld. CIT(A) therefore such contentions raised in ground. No. 1 are unsustainable, thus, are rejected.he assessee by Ld. CIT(A) have been brought on record or to our attention by the assessee neither such contentions are emerging from the impugned order of Ld. CIT(A) therefore such contentions raised in ground. No. 1 are unsustainable, thus, are rejected.

  Thus the present appeal is restored to the file of the CIT(Appeals) with a direction to re- adjudicate the same after taking cognizance of the additional documentary evidence in the course of the proceedings before us. Assessee appeal allowed for statistical purposes.

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• 2024 (3) TMI 1320
  

  Estimation of income - bogus purchases - HELD THAT:- As decided in Mohommad Haji Adam and Company [2019 (2) TMI 1632 - BOMBAY HIGH COURT] direction to restrict the addition as regards the bogus purchases by bringing the gross profit rate on such bogus purchases at the same rate as that of the other genuine purchases.

  Following the decision of the Hon’ble Bombay High Court, we find merit in the submissions of the Ld. AR that the addition should be restricted only to the extent of bringing the gross profit rate on such purchases at the same rate as of other genuine purchases.

  Thus keeping in view the nature of business of the assessee i.e. manufacturing, trading in diamond, the Ld. CIT(A) should have sustained the addition to the extent of difference of gross profit declared in regular trading and non-genuine trading transactions. In this case assessee has declared 7.89% and in non-genuine it was declared at 7.64%. The difference is 0.25%. Accordingly, we direct the Assessing Officer to disallow only 0.25% of the disputed purchases under section 68 of the Act. Appeal filed by the assessee is allowed.

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• 2024 (3) TMI 1319
  

  Final approval u/s 80G(5)(iii) to charitable institution - Time for final registration after grant of provisional registration under Clause (iv) to First Proviso to section 80G(5) - application rejected observing that the time limit prescribed for making an application for final approval u/s 80G was at least six months prior to the expiry of the period of the provisional approval or within six months of the commencement of its activities, whichever is earlier - HELD THAT:- Tribunal in the case of Tomorrow’s Foundation [2024 (3) TMI 941 - ITAT KOLKATA] it is held that after grant of provisional approval, the application cannot be rejected on the ground that the institution had already commenced its activities even prior to grant of provisional registration. Under such circumstances, the date of commencement of activity will be counted when an activity is undertaken after the grant of provisional registration either under Clause (i) or Clause (iv) to First Proviso to section 80G(5) of the Act.

  The appeal of the assessee is allowed accordingly and the CIT(Exemption) is directed to grant provisional approval to the assessee under Clause (iii) to First Proviso to section 80G(5) of the Act, if the assessee is otherwise found eligible. CIT(A) will decide the application for final registration within three months of the receipt of copy of this order. Appeal of the assessee is treated as allowed for statistical purposes.

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• 2024 (3) TMI 1318
  

  Cognizance of an offence punishable under Section 447 of the Companies Act, 2013 on a private complaint by a shareholder or a member of a Company by the Special Court constituted under Section 435 of the Companies Act, 2013 - HELD THAT:- The Division Bench of this Court upon reference by the learned Single Judge and the Division Bench has held that upon reading Section 212(6) along with 439(1), the Special Court constituted under Section 435 of the Act cannot take cognizance of an offence punishable under Section 447 of the Act upon a private complaint by a shareholder or a member of a Company, but can take cognizance only upon complaint by the Special Fraud Investigation Officer in terms of Second Proviso of Section 212(6) of the Act. Therefore, the cognizance taken on a private complaint filed by the shareholder is one without jurisdiction, and the continuation of the proceedings will be an abuse of the process of law.

  The entire proceedings on the file of the Special Court (Economic Offences) at Bengaluru, insofar as it relates to petitioners/accused No.2 and 3, is hereby quashed - Petition is allowed.

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• 2024 (3) TMI 1317
  

  Doctrine of subrogation - Allowing recourse to the Financial Creditors against the Personal Guarantors of Asian Colour Coated Ispat Limited - Resolution Plan approved - whether the Financial Creditor can proceed against the Personal Guarantors in absence of any debt after extinguishment of such debts upon assignment in terms of the RBI Prudential Framework for Resolution of Stressed Assets dated 07.06.2019 and as stipulated in the approved Resolution Plan? - HELD THAT:- As a general rule, the doctrine of subrogation is an absolute right of the guarantor, however, the issue becomes different, if it falls within the domain of the Code in the context of CIRP proceedings. We note that as per notification dated 15.11.2019, the Personal Guarantors became liable under the Code and therefore, the treatment of Personal Guarantors under the Code are to be treated differently vis-à-vis under the contract of guarantees under the Indian Contract Act, 1872.

  The denial of right of subrogation is no more res-judicata and has been decided in catena of the judgments by the Hon’ble Supreme Court of India.

  Hon’ble Supreme Court of India in COMMITTEE OF CREDITORS OF ESSAR STEEL INDIA LIMITED THROUGH AUTHORISED SIGNATORY VERSUS SATISH KUMAR GUPTA & OTHERS [2019 (11) TMI 731 - SUPREME COURT] noted that the Financial Creditors can pursue their claims against the Personal Guarantors to the Corporate Debtor and right of subrogation gets extinguished, although the apex Court decided not to express conclusive opinion which might have affected them pending litigations on account of invocation of such guarantees.

  It is now well settled law, in light of the Essar Case that rights of subrogation that may arise against the Corporate Debtor can be extinguished under the Resolution Plan and therefore the arguments of the Appellant on issue of rights of subrogation’s are not convincing. If the rights of subrogation are allowed to continue against the Corporate Debtor under the management of the new SRA, the same would have the effect of putting the SRA and the Corporate Debtor in the same position as prior to its insolvency resolution. The allegation of the Appellant pertaining to differential treatment due to extinguishing their rights of subrogation under the approved Resolution Plan against the Corporate Debtor is unfounded, which is only to ensure that the SRA takes control of the Corporate Debtor on a clean slate without carrying any previous liability baggage.

  The extinguishment of Personal Guarantors right of subrogation is unavoidable and inaccessible fact in insolvency cases and it requires to be respected by all stakeholders and any departure from such principles will have adverse impact on revival of the Corporate Debtors, interest of the Financial Creditors and overall negative impact on the national economy.

  The financial creditors have reserved the rights to proceed against the personal guarantors like the Appellant herein in terms of the “Excluded Rights” in approved Resolution Plan. There is no question of transfer of a “mere right to sue” and in such circumstances, we feel that it is a structured financial deal in form of Resolution Plan exercised based on the commercial wisdom, with aim of resolution of a corporate debtor, as well as to ensure that financial creditors are able to recover their outstanding debts as guaranteed by the Personal Guarantors, the Appellants herein.

  Alleged non existing of debts in the books of the Financial Creditors and regarding treatment in the books of the financial creditors with respect to such continuing rights of the financial creditors against the personal guarantors of the Corporate Debtor after the approval of the Resolution Plan - HELD THAT:- The treatment in the Books of the Financial Creditors is based on RBI Prudential norms which were issued with several purposes, including and not limited to, discouraging the Financial Creditors to resort to ever greening of loans. We feel that such RBI guidelines do not intent to give undue benefits to the Personal Guarantors of the Corporate Debtors or debar the Financial Creditors in pursuing their legal rights to recover their outstanding debts from the Personal Guarantors to the Corporate Debtor. After all, it cannot be anyone’s case to write off public money by such circuitous route or hypothetical legal assumption.

  The Hon'ble Supreme Court, in SWISS RIBBONS PVT. LTD. AND ANR. VERSUS UNION OF INDIA AND ORS. [2019 (1) TMI 1508 - SUPREME COURT], has categorically recognised the concept of preserving the corporate debtor as a going concern while ensuring maximum recovery for all creditors to be the intent of the Code.

  Thus, commercial wisdom of the CoC has been given supremacy and no grounds exist for the Adjudicating Authority or Appellate Tribunal to interfere.

  There are no error in the Impugned Order - appeal dismissed.

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• 2024 (3) TMI 1316
  

  Liability of Collect Tax at Source (TCS) - Exempt supplies - Section 52 of the Central Goods and Services Tax Act, 2017 (CGST Act) - It is contended that payment for the contract can either be settled through the Petitioner’s platform, or it can be settled directly between the buyer and seller. The Petitioner does not guarantee settlement of transactions by way of delivery of goods or payment. The Petitioner merely charges transaction fees for providing the platform to its members for the purpose of e-auction.

  HELD THAT:- In the peculiar facts and circumstance of the case, when the Petitioner has raised an issue of the maintainability of the alleged demand on the ground that Section 52 of the CGST Act is not applicable, and more particularly considering the nature of the business and transaction involved, it would be appropriate that the adjudicating officer considers the same as preliminary issues and decide the same first in accordance with law.

  This Petition is disposed off by permitting the Petitioner to raise such preliminary issues before the adjudicating officer and the same shall be taken into consideration and decided by him in accordance with law.

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• 2024 (3) TMI 1315
  

  Seeking grant of regular bail - irregular availment of Input Tax Credit - violation of provisions of Section 132(1) (b) and 132(1)(c) of the CGST Act - HELD THAT:- On perusal of the record, this Court has arrived at the conclusion that the petitioner deserves to be released on bail in the present case. No doubt, the respondents have levelled specific allegations against the present petitioner, yet, the criminal liability of the petitioner is yet to be decided by the trial Court during the course of trial. Still further, the petitioner was arrested in the present case on 19.04.2023 and the maximum sentence provided under the statute is five years. Still further, the case of the prosecution is based on the testimonies of official witnesses and the petitioner may not be in a position to influence the witnesses, who are to be produced by the prosecution before the trial Court. Even otherwise, the petitioner cannot be confined in jail as an under-trial for an indefinite period.

  Thus, without commenting any further on the merits, the present petition is allowed and the petitioner is ordered to be released on bail on his furnishing bail bonds/surety bonds to the satisfaction of the learned trial Court/Duty Magistrate/CJM concerned subject to the conditions imposed - petition allowed.

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• 2024 (3) TMI 1314
  

  Levy of GST - activity of holding equity capital by the parent Company in the Petitioner - ultravires Section 5 of the IGST Act, 2017 read with Section 7 of the CGST Act, 2017 or not - HELD THAT:- In the instant case, the parent company is M/s. Metro Cash and Carry International GmbH of which the petitioner herein i.e., M/s. Metro Cash and Carry Pvt. Ltd., is a subsidiary and merely because the parent company – M/s. Metro Cash and Carry International GmbH holds shares in its subsidiary i.e., the petitioner herein, the said circumstance cannot be classified, treated or construed as ‘supply of service’ for the purpose of GST.

  Since the issue in controversy involved in the present petition is directly and squarely covered by the judgment of this Court in M/S. YONEX INDIA PRIVATE LIMITED VERSUS UNION OF INDIA, STATE OF KARNATAKA, COMMISSIONER OF COMMERCIAL TAXES BANGALORE, ASSISTANT COMMISSIONER OF COMMERCIAL TAXES (AUDIT 2. 8) BANGALORE [2024 (2) TMI 59 - KARNATAKA HIGH COURT], the impugned Show Cause Notices issued are without jurisdiction or authority of law and the same deserves to be quashed.

  Petition allowed.

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• 2024 (3) TMI 1313
  

  Cancellation of GST registration of petitioner - non-service of notice to the Petitioner on his address or email and was only uploaded on the common portal - violation of principles of natural justice - HELD THAT:- The petitioner was unable to access the Show Cause Notices or reply to the said Show Cause Notices.

  The impugned orders dated 04.12.2023 which have been passed solely because petitioner had not file a reply cannot be sustained. The matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned orders dated 04.12.2023 are set aside. The matter is remitted to the Proper Officer for re-adjudication.

  Petition disposed off.

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• 2024 (3) TMI 1312
  

  Demand of GST - Validity of the order in FORM GST DRC-07 - Violation of natural justice - impugned order was passed before the period of 15 days could expire and the petitioner-Firm has therefore not been given a fair opportunity to put forth its defence to SCN - Appealable order or not - HELD THAT:- In the first place, a challenge to the show-cause notice, charge memo or charge-sheet is generally not entertained in a proceeding under Article 226 of the Constitution of India. There is a sound policy in law behind this rule of non-interference that the aggrieved person should first avail of the remedy provided under the statutory regime. The impugned order dated 28th December 2023 passed by the State of Tax Officer, Special Circle, Ranchi is appealable under section 107 of the GST Act and under section 107 of the JGST Act.

  The summary of show-cause notice is dated 13th December 2023. Through this notice, the petitioner-Firm was intimated that within 15 days if it deposits the assessed amount or provides satisfactory reply the notice shall be withdrawn. Now the stand of the petitioner-Firm is that it submitted a detailed show-cause reply dated 29th December 2023 but before that the impugned order dated 28th December 2023 has been passed - The notice is dated 13th December 2023 and the petitioner-Firm itself affirms that the said notice was mailed on 16th December 2023 in FORM DRC-1.

  The petitioner-Firm is required to approach the appellate authority who shall have the benefit of the records and would be in a better position to adjudicate the disputes on facts - this Court is not inclined to entertain the present writ petition which is dismissed only on the ground that no case is made out for entertaining this petition notwithstanding the statutory regime under the JGST Act.

  Petition dismissed.

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• 2024 (3) TMI 1311
  

  Taxability of Personal Guarantee and Corporate Guarantee in GST - Seeking a declaration that the activity of the holding company providing a Corporate Guarantee to a subsidiary is not in the nature of supply of services taxable under Section 9 of the Central Goods & Service Tax Act, 2017 - HELD THAT:- Issue notice.

  List on 08.07.2024.

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• 2024 (3) TMI 1310
  

  Maintainability of petition - appealable order or not - non-constitution of the Appellate Tribunal - petitioner is deprived of its statutory remedy of Appeal and the corresponding benefit of sub-sections-8 & 9 of section 112 of the CGST/OGST - HELD THAT:- The petitioner is desirous of availing the statutory remedy of Appeal under the said provisions. Apparently, acknowledging the absence of constitution of Appellate Tribunal, in exercise of the power conferred under section 172 of the CGST Act, 2017, the Government of India based on the recommendation made by the G.S.T. Council, has issued Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 on 03.12.2019.

  In tune with the said Removal of Difficulties Order dated 03.12.2019, the Central Board of Indirect Taxes and Customs, GST Policy Wing vide Circular No. 132/2/2020-GST Dated 18th March, 2020 has come out with the clarification in respect of appeal having regard to non-constitution of the Appellate Tribunal - Taking into account the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 dated 03.12.2019 issued by the Government of India and subsequent clarification issued by the Central Board of Indirect Taxes and Customs (GST Policy Wing) vide Circular No. 132/2/2020 dated 18th March, 2020, it is deemed proper in the interest of justice to dispose of this writ petition, subject to conditions imposed.

  The writ petition stands disposed of.

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• 2024 (3) TMI 1309
  

  Additional tax liability for execution of subsisting Government contracts either awarded in the pre-GST regime or in the post-GST regime without updating the Schedule of Rates (SOR) - HELD THAT:- This writ petition is disposed of by giving liberty to the petitioner to file appropriate representation in the aforesaid regard as referred in preceding paragraph of this order, before the Additional Chief Secretary, Finance Department, Government of West Bengal within four weeks from date. On receipt of such representation the Additional Chief Secretary, Finance Department shall take a final decision within four months from the date of receipt of such representation after consulting with all other relevant departments concerned.

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• 2024 (3) TMI 1308
  

  Reopening of assessment without releasing seized documents by Crime branch - as argued Crime branch has seized certain documents, computers, hard disks, etc. from the petitioner and until all this is released, the petitioner would not be in a position to effectively respond to the notices of reassessment - HELD THAT:- There is a vague and omnibus statement in the petition that the petitioner pursued the matter with the second respondent for release in terms of the JMFC's order, however, this vague and omnibus statement is not backed by any material, documents, etc.

  There is no averment in the petition about furnish of any indemnity bond. Orally it was attempted to submit that the indemnity bond must have been given at some time after the JMFC made her order dated 06.02.2018. Thus, it is apparent to us that the petitioner, even after securing the order dated has not pursued the matter for the last about six years with the necessary seriousness and just because the tax authorities are proceeding with the reassessment proceedings, this petition has been instituted. This petition is nothing but an attempt to stall the reassessment proceedings without any justifiable cause.

  On the ground that the seized documents have not been released the petitioner succeeded in securing a remand from the lTAT. This is evident from the order dated 30.08.2022 made by the ITAT.

  ITAT, after granting an opportunity to the petitioner remanded the reassessment proceedings or the block assessment proceedings to the ITO for de novo assessment. The petitioner was also directed to comply with the notices in respect of the assessment proceeding and be diligent by avoiding to take any adjournments. This order was made on 30.08.2022.

  Despite the order of there is nothing on record to indicate that the petitioner took any serious steps for obtaining the documents/material/hard disks from the second respondent. The only letter produced on record is dated when, in fact, even the IT notice was issued on 25.01.2024. Thus, it is very apparent that the petitioner simply wants to stall the reassessment proceedings or the de novo proceedings at any cost. The writ Court cannot assist the petitioner in such endeavours.

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• 2024 (3) TMI 1307
  

  Seeking directions to remove the order of attachment over the property of the borrower, which according to the petitioner, is mortgaged and is a secured asset - petitioner is a creditor of respondents 2 and 3 and account of the borrowers was declared as a non-performing asset and notice u/s 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 was issued

  HELD THAT:- It is not a matter of debate that the petitioner being a secured creditor and the security being registered with CERSAI would have a priority charge u/s 26E of the Act of 2002.

  A Full Bench of this court in the case of Assistant Commissioner (CT) Anna Salai-III Assessment Circle vs Indian Overseas Bank and Another 2016 (12) TMI 373 - MADRAS HIGH COURT] answered the reference and held that the rights of the secured creditors to realise secured debts due and payable to them by sale of assets over which security interest is created, shall have priority and shall be paid in priority over all other debts and Government dues including revenues, taxes, cesses and rates due to the Central Government, State Government or Local Authority.

  The Full Bench of the Bombay High Court in the case of Jalgaon Janta Sahakari Bank Ltd. and another vs Joint Commissioner of Sales Tax and another [2022 (9) TMI 163 - BOMBAY HIGH COURT] held that the secured creditor would have the priority charge, as contemplated under Section 26E of the SARFAESI Act, 2002, in case the same is registered under Section 26B of the SARFAESI Act, 2002. The secured creditor in this petition claims that its security is registered under Section 26B of the SARFAESI Act, 2002.

  In view of the Full Bench judgments, as referred to above, it is held that the secured creditor has priority charge over the claims of the Sales Tax, Commercial Tax and Income Tax. In case auction is held by the secured creditor and the sale certificate is not registered, then the Registering Authority may register the same, notwithstanding the attachment of Sales Tax, Income Tax or Commercial Tax Departments.

  In case the auction sale is conducted by the secured creditor and it has received excess amount than its dues, then it is liable to remit the excess amount to the Departments. However, if it has not received the amount in excess of the amount due and payable to it, then it is not required to remit any amount to the Departments and the Departments cannot sustain prosecution against the Authorised Officer or the Officer of the secured creditor for not remitting the amount.

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• 2024 (3) TMI 1306
  

  Rectification u/s 154 - Exemption u/s 11(2) - Accumulation of income - difference in figures in computation of income in return of income and in Form 10 in respect of total amount of accumulated funds under section 11(2) - as argued that the Ld. CIT(A) did not ask for clarification from the assessee for alleged discrepancy found by him while matching the details of investment with evidence furnished, thus this is in violation of the principles of natural justice - HELD THAT:- In our view, the claim of the assessee needs verification. We, therefore, consider it judicially expedient to restore the matter back to the file of the Ld. AO to carry out necessary verification of the assessee’s claim and if on verification, the claim of the assessee is found to be correct and in accordance with law, modify the assessment. Appeal of the assessee is treated as allowed for statistical purposes.

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