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Showing 121 to 140 of 1640 Records
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2024 (7) TMI 1520
Disallowance u/s. 14A r.w. Rule 8D(2)(ii) & (iii) - Expenditure incurred in relation to income not includible in total income - HELD THAT:- We note from financial statements that the assessee has not received any exempt income during the year and therefore no disallowance could be made.
This view is supported in the case of PCIT v. Delhi International Airport P. Ltd [2021 (5) TMI 1004 - KARNATAKA HIGH COURT] wherein held only expenses proportionate to earning of exempt income could be disallowed u/s 14A and the decision of Maxopp Investment Ltd [2018 (3) TMI 805 - SUPREME COURT] is an authority for the aforesaid proposition that the provision is relatable to earning of actual income. The object of section 14A is to curb the practice to claim deduction of expenses incurred in relation to exempt income against taxable income and at the same time avail of the tax incentive by way of exemption of exempt income without making any apportionment of expenses incurred in relation to exempt income. The High Court of Madras has relied on the decision of the Supreme Court in Walfort Share and Stock [2010 (7) TMI 15 - SUPREME COURT] wherein it has been held that Section 14A is relatable to income of actual income or not notional or anticipated income.
Therefore, the conclusion arrived at by us in Novel Software India (P.) Ltd. [2021 (2) TMI 145 - KARNATAKA HIGH COURT] is affirmed but for different reasons. It is also clarified by us that while recording the conclusion in Kingfisher Finvest Ltd. [2020 (10) TMI 518 - KARNATAKA HIGH COURT] that disallowance under section 14A has to be made even taxpayer has not earned any exempt income, this court has misread the ratio of the decision of the Supreme Court in Maxopp Investment Ltd. supra and therefore, the aforesaid view being contrary to the law laid down by the Supreme Court is not a binding precedent. In view of preceding analysis, the second substantial question of law is also answered against the revenue and in favour of the assessee.
Against the above judgment, the revenue preferred SLP. Since both the parties could not bring the status of the case before the Hon’ble Apex Court, therefore, respectfully following the judgement of the jurisdictional High Court PCIT v. Delhi International Airport P. Ltd. noted supra we allow the appeal of the assessee
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2024 (7) TMI 1519
Maintainability of the appeals instituted by the Department on the ground of low tax effect - HELD THAT:- Since the orders impugned herein presently deals only with the maintainability question, there would be no justification to entertain them at this stage, since all rights of the petitioner would stand reserved to assail any order adverse to them if drawn by the Tribunal including on the ground of maintainability.
While reserving the right of the appellants to assail any final orders that may be passed by the Tribunal, these appeals are disposed off at this stage.
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2024 (7) TMI 1518
Income Tax Department hiring the building on rent/lease for its office premises - right to the Income Tax Department to terminate the lease - Building Hiring Committee which is under the Chairmanship of the Additional Commissioner of Income Tax along with the other members informed the petitioner that he had not been found to be qualified for opening of financial bid - Application praying for setting aside the notice whereby the petitioner was declared not qualified on the evaluation of technical bid submitted by the bidders including the petitioner -
Petitioner is primarily aggrieved by the action of the respondents-Income Tax Department that having taken the premises in question on rent and having run its office for a period of more than 24 years, the respondents chose to vacate the premises of the petitioner without assigning any reasons for not continuing thereof - HELD THAT:- As not in dispute that the last lease agreement entered into between the parties on 1.7.2023, gave right to the Income Tax Department to terminate the lease at any time giving to the lessor three month’s notice in writing of its intention to do so. The said lease agreement also came to an end on 31.3.2024. The petitioner is not alleging violation of any of the terms of the lease.
Further the notice inviting proposals as seen from Annexure P/6 was published on 16.02.2024. The petitioner also had bid under Annexure P/6, but was disqualified. After having thus bid and failed, the petitioner cannot turn around and challenge vacation of his premises.
Thus, it transpires that bids submitted by the bidders including the petitioner was evaluated by the Building Hiring Committee of the Income Tax Department under the Chairmanship of the Additional Commissioner of Income Tax, Range-1, Patna and of which the Income Tax Officer (HQ), Patna, the Income Tax Officer, Ara, Ward 1 (4), Ara and the Income Tax Officer (Technical) I.T. Building, Patna were members.
In the opinion of this Court, the suitability etc. of the premises of the bidders having been evaluated not only on the basis of technical bid submitted but also by visit of the members of the Building Hiring Committee to the premises in question on 16.4.2024, as is borne out from paragraph no.14 read with Annexure-P/7 of the writ application, the Court finds no merit in the contention raised by the petitioner.
Writ application is dismissed.
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2024 (7) TMI 1517
Grant of bail - admissibility of statements - Evidence against the present applicant - statements of approvers and witnesses should be disregarded at the stage of bail or not - benefit of the proviso to Section 45 of PMLA being a woman.
Material Collected by Central Bureau of Investigation Against the Applicant Ms. K. Kavitha - HELD THAT:- Evidence in the form of chats retrieved from the mobile phone of Sh. Buchi babu have revealed that Ms. K. Kavitha’s partnership in M/s Indo Spirits, through her proxy Sh. Arun R. Pillai, as well as her assistance to Sh. Raghav Magunta, the approver, in obtaining an NOC for his firm i.e. M/s Pixie Enterprises for Airport retail zone. Furthermore, the photographs retrieved from Sh. Manoj Rai’s phone revealed the details of a meeting that had taken place on 20.09.2021, organized by M/s Pernod Ricard India Pvt. Ltd., to appoint M/s Indo Spirits as a wholesaler, in which Sh. Sharath Chandra Reddy of M/s Aurbindo Group, Sh. Buchibabu, Sh. Sameer Mahendru, Sh. Arun R. Pillai, Sh. Abhishek Boinpally, etc. were present.
In view of the material collected by the investigating agency, this Court is of the opinion that Smt. K. Kavitha was prima facie one of the main conspirators in the criminal conspiracy hatched in relation to formulation and implementation of Delhi Excise Policy 2021-22.
Material Collected by Directorate of Enforcement Against the Applicant Smt. K. Kavitha - HELD THAT:- This Court is of the opinion that Smt. K. Kavitha was prima facie involved in payment of kickbacks, establishing M/s Indo Spirit for recoupment of kickbacks, and in various other processes and activities relating to proceeds of crime, and thus, in commission of offence of money laundering as defined under Section 3 of PMLA, for the purpose of appreciating as to whether the twin condition under Section 45 PMLA are met or not and to arrive at a decision as to whether there was material collected by the investigating agencies against the present applicant.
Whether the statements of approvers and witnesses should be disregarded at the stage of bail? - HELD THAT:- Recording of statements of witnesses, complainant, and in many cases an accused turning approver and his statement being recorded by a judicial magistrate, as well as collection of digital or forensic evidence in various forms results in incriminating material being in possession of the investigating agency, which is placed before the Trial Court for the purpose of its satisfaction regarding grant of remand or bail. Similarly, at the stage of grant of bail before a higher Court, it will be the abovesaid initial material which will be placed before it for the purpose of reaching a conclusion regarding grant of bail or not. It is to be noted that at this stage when the chargesheet has not been filed, the conclusion of investigation and the entire material which will be part of a chargesheet will not be before a Court of law - As per the existing law, the Courts have to rely upon the statements of the witnesses etc. as mentioned above for the purpose of making out a prima facie view regarding involvement of an accused and the extent thereof for the purpose of exercising discretion to grant or deny bail.
This Court is of the opinion that the present bail applications have to be decided on the basis of facts and material collected by the investigating agencies and the contentions regarding grant of bail raised by the learned defence counsels in light of the law and the judicial precedents.
Whether the applicant is entitled to grant of bail at this stage? - HELD THAT:- Having gone through the material placed on record by the Directorate of Enforcement, including the statements of witnesses recorded under Section 50 of PMLA, statements of approvers recorded under Section 164 of Cr.P.C., other documentary evidence collected by the investigating agencies including the recovery of chats, etc., which have been discussed in the preceding paragraphs in detail, this Court is of the view that a prima facie case of commission of money laundering under Section 3 of PMLA against the applicant Smt. K. Kavitha is made out for the purpose of deciding his bail application, since it prima facie appears from such material collected by the Directorate of Enforcement that she was involved in various processes and activities relating to proceeds of crime, and this Court, even considering the broad probabilities of the case, cannot reach a conclusion that the applicant is not guilty of the offence of money laundering, at this stage for the purpose of deciding the bail application. To conclude, the twin conditions under Section 45 of PMLA are not fulfilled in the present case, so as to entitle the applicant to grant of bail in case registered by Directorate of Enforcement.
Whether the Applicant Fulfils the Triple Test for Grant of Bail? - HELD THAT:- As far as triple test for grant of bail is concerned, this Court notes that during the course of investigation, the applicant had presented nine mobile phones for examination on 21.03.2023 before the Directorate of Enforcement, which were found to be formatted with no data. She had denied formatting the devices and had informed the investigating agency that the said phones belonging to her were given by her to her household staff and other staff and that she had got them back for the purpose of handing over to the investigating agency - this Court is also of the opinion that many of the crucial witnesses in this case are either close associates or employees of the present applicant, and since it is the case of applicant herself that she is a well-accomplished woman and holds position of eminence in the field of politics, the possibility of influencing witnesses cannot also be ruled out at this stage. Thus, this Court is of the opinion that the applicant herein does not fulfill the triple test for grant of bail.
Whether the applicant is entitled to the benefit of the proviso to Section 45 of PMLA being a woman? - HELD THAT:- The Hon’ble Supreme Court in the case of Saumya Chaurasia v. Directorate of Enforcement [2023 (12) TMI 685 - SUPREME COURT] has observed that though the Courts should be sensitive and sympathetic to the vulnerable groups such as women, it must also recognize that educated and well-placed women may engage themselves in illegal activities. Therefore, courts are required to exercise their discretion judiciously, considering factors such as the extent of involvement and evidence against the accused when applying this proviso.
Smt. K. Kavitha cannot be equated to a vulnerable woman who may have been misused to commit an offence, which is the class of women for whom the proviso to Section 45 of PMLA has been incorporated, as held by the Hon’ble Apex Court in case of Saumya Chaurasia. Accordingly, this Court is of the considered opinion that Smt. K. Kavitha is not entitled to the benefit of proviso to Section 45 of PMLA.
Tthis Court is of the view that no case for grant of regular bail is made out at this stage - the present bail applications are dismissed.
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2024 (7) TMI 1516
Rejection of the application made by firm and its partners in Form-1 under Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 (SVLDR Scheme) for settlement of dispute arising under indirect tax - seeking waiver of penalty and redemption fine under SVLDR Scheme since the basic duty was already covered and benefit availed under the SVLDR Scheme - HELD THAT:- Section 125 (1) of SVLDR Scheme provides that all persons shall be eligible to make a declaration under the Scheme except the persons who are mentioned in clauses (a) to (f). Clause (e) disqualifies person who have been subjected to an enquiry or investigation or audit and the amount of duty involved in the said enquiry or investigation or audit has not been quantified on or before 30th June 2019. Section 121 (m) of SVLDR Scheme defines “enquiry or investigation” to include the actions specified therein and sub-clause (iv) refers to ‘recording of statement’. In the instant case, as noted above the statement of the representative of Petitioner No.1-Firm was recorded on 6th July 2007 and, therefore, same would fall within the phrase “enquiry or investigation” as defined in Section 121 of the SVLDR Scheme - the disqulaification specified in Section 125 (1) (e) of SVLDR Scheme is not applicable to the facts of the Petitioner’s case inasmuch as, the twin conditions, viz., subjected to an enquiry or investigation and non-quantification of duty before 30th June 2019 is not satisfied since the formula for quantification was prescribed in the High Court order. Therefore, the basis of rejection by Respondents of the aforesaid 14 SVLDR Scheme application is not justified and same is quashed and set aside.
The rejection by Respondents of the applications made by firm was not justified. Since basis of rejection of the applications made by the firm has been quashed and set aside, the consequential benefit would flow to the 8 partners who have made 16 applications.
The rejections by Respondents of 16 applications made by partners is quashed and set aside - petition allowed.
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2024 (7) TMI 1515
Validity of notice issued u/s 73 of the U.P. Goods and Services Tax Act, 2017 - non-consideration of petitioner's reply - violation of principles of natural justice - HELD THAT:- The petitioner's grievance is with regard to non consideration of its earlier reply where it had pointed out that the notice was issued giving facts and figures relating to M/s Paridhee Creation with which the petitioner has no relation at all.
The interest of justice would be served if the respondent considers the reply of the petitioner given earlier with regard to its own company and mismatch/deficiencies, if any found in its reasons - petitioner is directed to submit a detailed reply to notice under Section 73 within a week from today. It shall refer only to its own returns and not to the case of M/s Paridhee Creation. It is open to the petitioner to deny its liability so far as notice under Section 73 addressed to M/s Paridhee Creation is concerned.
The writ petition is disposed off.
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2024 (7) TMI 1514
Challenge to order whereby demand in excess has been raised - petitioner was completely denied opportunity of oral hearing before the Assessing Authority - violation of principles of natural justice - HELD THAT:- The view taken by the coordinate bench in BHARAT MINT AND ALLIED CHEMICALS VERSUS COMMISSIONER COMMERCIAL TAX AND 2 OTHERS [2022 (3) TMI 492 - ALLAHABAD HIGH COURT] is completely agreed upon - It has been laid down by way of a principle of law that a person/assessee is not required to request for "opportunity of personal hearing" and it remained mandatory upon the Assessing Authority to afford such opportunity before passing an adverse order.
Even otherwise in the context of an assessment order creating heavy civil liability, observing such minimal opportunity of hearing is a must. Principle of natural justice would commend to this Court to bind the authorities to always ensure to provide such opportunity of hearing. It has to be ensured that such opportunity is granted in real terms - the impugned order itself has been passed on 19.04.2024, while reply to the show-cause-notice had been entertained on 19.01.2024. The stand of the assessee may remain unclear unless minimal opportunity of hearing is first granted. Only thereafter, the explanation furnished may be rejected and demand created.
Not only such opportunity would ensure observance of rules of natural of justice but it would also allow the authority to pass appropriate and reasoned order as may serve the interest of justice and allow a better appreciation to arise at the next/appeal stage, if required.
The matter is remitted to the respondent no.2/ Assistant Commissioner, State Tax, Sector - 1, Prayagraj to issue a fresh notice to the petitioner within a period of two weeks from today - petition disposed off by way of remand.
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2024 (7) TMI 1513
Challenge to tax demand in order in original - petitioner did not have a reasonable opportunity to contest the tax demand on merits - violation of principles of natural justice - HELD THAT:- On examining the petitioner's reply, it is clear that the petitioner merely attached the GSTR 3B returns and stated that all taxes were paid. The petitioner was under an obligation to submit all relevant documents such as tax invoices, documents to establish movement of goods, bank statements with regard to payments made by the petitioner and proof, if any, of payment of taxes by the supplier. It is also, however, noticeable that only the summary of the order has been uploaded and such order indicates that the tax proposal was confirmed because no reply was filed. In these circumstance, reconsideration is necessary after putting the petitioner on terms.
The impugned order dated 30.12.2023 is set aside and the matter is remanded for reconsideration on condition that the petitioner remits an additional 5% of the disputed tax demand within 15 days from the date of receipt of a copy of this order - petition disposed off by way of remand.
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2024 (7) TMI 1512
Interplay between Section 129 and 130 of the CGST Act - Taking action under Section 130 of the CGST Act only on initiation of action under Section 129 of the CGST Act - action taken under Section 130 of the CGST Act, without a prior invocation of Section 129 of the Act would render the proceedings under Section 130 of the CGST Act invalid or not - non affixture of DIN Number on the order of confiscation - invalid order or not - violation of principles of natural justice.
HELD THAT:- The question of the interplay between Section 129 and 130 of the CGST Act was considered, by a Division Bench of the High Court of Gujarat and Ahmadabad, in a case of Synergy Fertichem Pvt. Ltd Vs. State of Gujarat [2019 (12) TMI 1213 - GUJARAT HIGH COURT]. This judgment was followed by the High Court of Gujarat in the case of Siddhbali Stone Gallery Vs. State of Gujarat [2020 (3) TMI 697 - GUJARAT HIGH COURT] - In Synergy Fertichem Pvt. Ltd Vs. State of Gujarat, the Division Bench of the Hon’ble High Court of Gujarat was considering a similar question of whether proceedings under Section 130 of the CGST Act can be initiated without any prior proceedings under Section 129 of the CGST Act.
Section 129 applies only when goods are being transported. The provisions of Section 129 would not apply in relation to a situation where the goods are not in transit. The language of Section 129(1) specifically states that detention or seizure of goods can be carried out while the goods are in transit, in contravention of the Provisions of the Act or the Rules made there under. In the case of Section 130 confiscation of goods or conveyances and levy of penalty can be done subject to any of the five conditions enumerated in Section 130 (1) being available.
In the present case, the conveyances and goods were stopped and detained on 27.04.2024. Thereafter, a statement was taken from the driver of the conveyances, in FORM GST MOV-01 on 27.04.2024. After recording the statement, the 2nd respondent issued FORM GST MOV-10 dated 01.05.2024, invoking the provisions of Section 130 of the CGST Act. In this notice, the discrepancies which were noticed by the 2nd respondent, were set out, and it was stated that these discrepancies lead to a prima facie conclusion that the transport of goods was done with an intention to evade tax.
It is a settled principle of law that a show cause notice would have to set out the entire case against the noticee and noticee should be given an opportunity to rebut the same. In that process, the noticee can always ask for the material on the basis of which the show cause notice has been issued - In the present case, the order of confiscation contains various details which were not placed before the petitioners in the show cause notices of 01.05.2024. The 2nd respondent did not choose to respond to the request of the petitioners for supply of the material on the basis of which the show cause notice has been issued would also amount further violation of the principles of natural justice.
The confiscation orders are set aside and the matters are remanded back to the 2nd respondent for proper adjudication following principles of natural justice - petition allowed by way of remand.
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2024 (7) TMI 1511
Jurisdiction exceeded in demanding the tax amount along with interest and penalty - demand made without even considering the documents submitted in a proper perspective and without affording even a personal hearing - violation of principles of natural justice - HELD THAT:- It is well laid down principle of law that when the revenue issues a show cause notice, opportunity has to be given to the taxpayer to submit reply and thereafter an opportunity of hearing is also contemplated under the Act, 2017.
In the present case on hand, it is the case of petitioner’s that after issuance of show cause notice, he has filed the reply and after the audit report, he has filed the objections and an explanation. However, the same was not taken into account and despite making a request for personal hearing, the same was not granted and hastily respondent No. 3 has proceeded to pass the impugned order by imposing tax, interest and penalty.
In the present case on hand, it is the case of respondents that despite providing suitable opportunity, the petitioner/taxpayer has not filed reply in Part-B and he has not filed objections with explanation instead the taxpayer has submitted several documents. He has not filed the reply on time despite granting sufficient opportunity and reminders requesting and insisting the petitioner/taxpayer to file his reply on or before the relevant date stipulated therein and subsequently adhering to the request, provided an opportunity of personal hearing on 22.01.2024 and thereafter again a further reminder to file the reply for DRC-01 and to make use of the opportunity of personal hearing which was scheduled on 27.02.2024.
Apparently, it is seen from the impugned order that the response to the show cause notice has not been adverted to and the personal hearing which was sought for by the letter dated 12.03.2024 was also not provided to the petitioner and an impugned order came to be passed on 30.03.2024 under Section 73 (9) and (10) of the KGST Act, 2017. In this background, it is to be seen whether the opportunity of filing reply and the opportunity of personal hearing is mandatory in nature as canvassed by the learned counsel for the petitioner. This Court has already dealt with the provisions of Section 73 (9) and (10) and Section 75 (4) of the Act, 2017 which is unambiguous with regard to a mandatory requirement as the word being used is ‘shall’.
Reliance placed upon the Judgment of a coordinate Bench of this Court in the case of Breakbounce India (P.) Ltd., vs. Commissioner of Commercial Taxes, [2024 (6) TMI 888 - KARNATAKA HIGH COURT], wherein it is held 'It is noticed that the order passed is an ex-parte order without the say of the petitioner. Though the electronic mode of service may be sufficient, however, in the peculiar facts of this case, taking note of the substantive rights involved, it would serve the interest of justice by remanding the matter and granting another opportunity to the petitioner to participate and make out his reply to the show cause notice dated 27.09.2023.'
The petitioner ought to have availed this remedy to challenge the order passed by the respondents/authorities. But, in the present case on hand, the petitioner has filed the reply and the same having not been considered, while passing the impugned order and an opportunity of personal hearing having not been provided, in my humble opinion would be a breach of the fundamental rights of the petitioner and also it would fall within the category of violation of principles of natural justice.
Petition allowed.
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2024 (7) TMI 1510
Time barred writ petition - petitioner has not filed statutory appeal in time - HELD THAT:- This Court is of (GST) (Appeals)(State Tax), Madurai and Tirunelveli, is not a party in this proceedings, the Deputy Commissioner (GST) (Appeals)(State Tax), Madurai and Tirunelveli is suo motu impleaded as second the view that the issue regarding merits cannot be decided under Article 226 of the Constitution of India. At best, the petitioner can be given a liberty to file statutory appeal before the Deputy Commissioner (GST) (Appeals)(State Tax), Madurai and Tirunelveli, although the limitation is expired as on date.
This Court is, therefore, inclined to exercise its discretion in favour of the petitioner, considering the fact that the petitioner is facing severe financial constraints and is being proceeded with under the provisions of SARFAESI Act, 2002 and its account had become a non-performing asset - Since the Deputy Commissioner respondent.
Petition disposed off.
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2024 (7) TMI 1509
Challenge to assessment order - violation of principles of natural justice - the impugned order was issued about nine months after the show cause notice without providing any further opportunity to the petitioner - HELD THAT:- A reply dated 04.02.2023 is on record. Such reply does not address the issue raised in the show cause notice. Since the tax proposal was confirmed without the petitioner being heard, the interest of justice warrants that an opportunity be provided to the petitioner to contest the tax demand on merits after putting the petitioner on terms. On instructions, learned counsel for the petitioner submits that the petitioner agrees to remit 10% of the disputed tax demand as a condition for remand.
The impugned order dated 06.10.2023 is set aside and the matter is remanded for reconsideration on condition that the petitioner remits 10% of the disputed tax demand as agreed to within a period of two weeks from the date of receipt of a copy of this order. Within the aforesaid period, the petitioner is permitted to submit a reply to the show cause notice - Petition disposed off.
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2024 (7) TMI 1508
Violation of priniciples of natural justice - Petitioner had filed a detailed reply however, the impugned order does not take into consideration the reply submitted by the Petitioner and is a cryptic order - excess claim Input Tax Credit (ITC) - under declaration of ineligible ITC - ITC claimed from cancelled dealers - return defaulters and tax nonpayers - HELD THAT:- The observation in the impugned order dated 28.12.2023 is not sustainable for the reasons that the reply dated 23.10.2023 filed by the Petitioner is a detailed reply. Proper Officer had to at least consider the reply on merits and then form an opinion. He merely held that the reply is not satisfactory nor any substantial documents were submitted by the taxpayer which ex-facie shows that Proper Officer has not applied his mind to the reply submitted by the Petitioner.
Further, if the Proper Officer was of the view that any further details were required, the same could have been specifically sought from the Petitioner. However, the record does not reflect that any such opportunity was given to the Petitioner to clarify its reply or furnish further documents/details.
The order cannot be sustained, and the matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, the impugned order dated 28.12.2023 is set aside. The matter is remitted to the Proper Officer for re-adjudication - Petition disposed off by way of remand.
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2024 (7) TMI 1507
Cancellation of GST registration of petitioner - petitioner was unaware of SCN - petitioner agrees to remit 10% of the disputed tax demand as a condition for remand - HELD THAT:- Since the GST registration of the petitioner appears to have been cancelled, it stands to reason that the petitioner would not monitor the portal on an on going basis. By reply dated 21.12.2023, the petitioner requested for two weeks' time to respond to the notice. The show cause notice was issued on 30.09.2023 and it is likely that the limitation period was expiring in December 2023. In these circumstances, while the petitioner deserves an opportunity to contest the tax demand, it is also necessary to put the petitioner on terms.
The impugned order dated 22.12.2023 is quashed subject to the condition that the petitioner remits 10% of the disputed tax demand within three weeks from the date of receipt of a copy of this order. The petitioner is also permitted to submit a reply to the show cause notice within the aforesaid period - Petition disposed off.
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2024 (7) TMI 1506
Seeking grant of regular bail - petitioner contends that the petitioner was not named in the FIR nor any incriminating evidence was collected against him during the course of investigation - admissible evidence or not - HELD THAT:- In the present case, the petitioner was arrested on 21.01.2021 and is in custody since then. The offences are triable by the Court of Magistrate and the final report under Section 173 Cr.P.C. has already been presented before the competent Court. Thus, no purpose would be served by keeping the petitioner behind bars, in the present case. Moreover, the pendency of the other criminal cases is no ground to reject the bail application of the petitioner as he has been able to make out a case for grant of bail in the peculiar facts and circumstances of the present case.
The Hon'ble Supreme Court in the matter of Prabhakar Tewari Vs. State of U.P., and another [2020 (1) TMI 1528 - SUPREME COURT] has held that the pendency of several criminal cases against the accused cannot be the basis to refuse the prayer of bail. Similar observations have been made by the Hon'ble Supreme Court in the matter of Maulana Mohd. Amir Rashadi Vs. State of U.P., and another [2012 (1) TMI 407 - SUPREME COURT].
The petitioner is ordered to be released on bail subject to his furnishing bail bonds/surety bonds to the satisfaction of the trial Court/Duty Magistrate/Chief Judicial Magistrate, concerned - Petition allowed.
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2024 (7) TMI 1505
Scope of an e-commerce operator - nature of supply as conceptualized in Section 9 (5) of CGST Act, 2017 r/w notification No 17/2017 dated 28.06.2017 - supply by the independent four-wheeler cab service provider (person who has subscribed to Rapido’ app) to his passengers (who do not pay any subscription feel on the app platform amounts to supply by the Applicant - liability to pay GST on the supply of services provided by the independent four-wheeler cab service provider (person who has subscribed to applicant’s ‘Rapido’ app) to his passengers on the Applicant’s app platform - rate at which GST shall be collected on the ride monitoring fee and the SAC code that shall be applicable - liability to pay GST on the supply of services provided by the independent three/two-wheeler cab service provider (person who has subscribed to applicant’s ‘Rapido* app) to his passengers on the Applicant’s app platform.
Whether the applicant qualifies to be an e commerce operator or not and whether they are liable to discharge tax liability in terms of Section 9 (5) of the CGST Act 2017? - HELD THAT:- Electronic Commerce Operator (ECO) means any person who owns, operates or manages digital or electronic facility or platform for electronic commerce i.e. for the supply of goods or services or both, including digital products over digital or electronic network. In the instant case the applicant owns digital platform (‘Rapido’ APP). for the supply of services. Thus the applicant squarely fits into the definition and qualifies to be an Electronic Commerce Operator.
Charging section i.e. Section 9 (5) of the CGST Act 2017 - HELD THAT:- In the instant case the services of transportation of passengers are provided by a four-wheel car. which is a motor vehicle adapted to carry maximum four passengers excluding driver and thereby it can carry not more than six passengers excluding the driver and hence qualifies to be a “motorcab”. Titus the first two conditions viz., (a) and (b) are satisfied in the instant case, in as much as the category of services of Intra-state supplies are notified by the Government covering services by way of transportation of passengers by motor cab.
It is apparent that App not only generates leads about customers to the drivers, but also provides a platform for fare negotiation between the customer and driver. Once ride fare is finalized, the location of customer & pick up point is shared by the App: start of ride, route taken for ride, end of ride are captured and notified to customer by the App. Thus effectively the services of transportation of passenger by the driver is supplied through the Applicant’s App/portal from beginning to end and during the entire period of the ride. Thus the condition that the services are supplied through electronic commerce operator is also satisfied.
The applicant contends that they are not involved in collection of the consideration pertaining to the ride, on behalf of the driver. The passenger pays the consideration to the driver directly. It is pertinent to mention here that neither the definitions of electronic commerce under Section 2 (44) or electronic commerce operator under Section 2 (45) nor the charging Section 9 (5) of the CGST Act 2017 stipulates that the e-commerce operator has to collect the consideration - Here the supply of such service refers to the supply of services by way of transportation of passengers by a radio-taxi, motorcab, maxicab and motor cycle; as notified vide Notification 17/2017-Central Tax (Rate) dated 28.06.2017 issued under Section 9 (5) of CGST Act, 2017, and supplied through the electronic commerce operator.
The applicant is squarely covered in the definition of electronic commerce operator and the supply of services by way of transportation of passengers by a radio-taxi, motorcab, maxicab and motor cycle is supplied through them. Further, by virtue of Section 9 (5) the applicant is liable to pay tax on the supply of the services of transportation of passengers by a radio-taxi, motorcab, maxicab and motor cycle.
Thus, three wheeler is covered under Motorcab, i.e, any motor vehicle adapted to carry not more than 6 passengers: and two wheeler is covered under ‘Motor Cycle’ definition. In view of the discussion in para 20 & 21, the applicant is liable to pay GST on the services supplied through them.
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2024 (7) TMI 1504
Exemption as per S.N.66 clause (b) (ii) of notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 - circular No. 149/05/2021-GST dated: 17.06.2021 and Entry 66 clause (b) (n) of notification No. 12/2017-Central tax (Rate) dated 28.06.2017 - services provided to an educational institution by way of catering, including any mid-day meals scheme sponsored by the Central Government, State Government or Union Territory - applicability of the entry to pre-school and schools’ - Product Pushti supplied by the applicant not considered as pre-packaged and labeled” product and not taxed as per Notification No.07/2022 Central Tax (Rate) dated: 13th July 2022 read with entry No. 78 of Notification No. 02/2027 Central Tax (Rates) dated 28th June 2017.
Whether the product Pushti can be considered as “pre-packaged and labeled” product and taxed as per entry No. 59 of Notification No. 01/2017 Central Tax (Rate) dated:28.06.2017 further amended aide Notification 06/2022-Central Tax (Rate) dated: 13.07. 2022? - HELD THAT:- Entry No. 59 of Notification No. 01/2017 Central Tax (Rate) dated:28.06.2017 further amended aide Notification 06/2022-Central Tax (Rate) dated: 13.07. 2022 mentions ‘Meal and powder of the dried leguminous vegetables’ but, the Applicant’s product ‘pushti’ is a powdered mixture of cereals, pulses and sugar. Hence the same is not covered under the above-mentioned entry.
Whether product Pushti is not considered as pre-packaged and labeled” and not taxed as per entry No. 78 of Notification No. 02/2027 Central Tax (Rates) dated:28.06.2017 further amended vide Notification No. 07/2022 Central Tax (Rate) dated: 13.07.2022? - HELD THAT:- Entry No. 78 of Notification No. 02/2027 Central Tax (Rates) dated:28.06.2017 mentions ‘Flour, of the dried leguminous vegetables’ but, the Applicant’s product ‘pushti’ is a powdered mixture of cereals, pulses and sugar. Hence the same is not covered under the above-mentioned entry.
Whether exemption is available to them as per S.N.66 clause (b) (ii) of Notification No. 12/2017-Central Tax (Rate) dated:28.06.2017 and as per circular No. 149/05/2021-GST dated 17.06.2021 and as per clarification No. KSA/GST.CR-05/2019-20 Dated:23.06.2021? - HELD THAT:- The applicant states that that they are supplying the goods mentioned in para 9 supra to the CDPO and CDPO in turn supplies the same to Anganwadis. As explained, the applicant is purchasing and supplying only goods and not into supply of any service. Since Notification No. 12/2017-Central Tax (Rate), dated: 28.06.2017 deals with supply of services which are exempted, the same cannot be applied to supply of goods as in the case of the applicant - Since the Notification No. 12/2017-Central Tax (Rate), dated 28.06.2017 is not applicable to the applicant’s case, Circular No. 149/05/2021-GST, dated: 17.06.2021 also is not applicable to the applicant’s case. Clarification No. KSA/GST.CR-05/2019-20 Dated:23.06.2021 is same as Circular No. 149/05/2021-GST, dated: 17.06.2021 but issued by the State of Karnataka and hence the same is not applicable to the applicant’s case.
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2024 (7) TMI 1503
Review petition - inordinate delay of 1067 days in filing each of the review petitions - Addition u/s 37 and 40A - distribution of profit in the guise of excessive price paid to the members against purchase of sugarcane - excessive and unreasonable cane purchase price paid to the members of the sugarcane Co-operative Society - HELD THAT:- As no satisfactory explanation has been given. Thus, the review petitions are liable to be dismissed on the ground of delay having not been explained satisfactorily.
We have considered the review petitions on merits as well. We have perused the Judgment and Order [2019 (3) TMI 321 - SUPREME COURT] which has been sought to be reviewed.
There is no error apparent on the record. Even otherwise, there is no ground for review.
Review Petitions are dismissed on the ground of delay having not been explained satisfactorily as also on merits.
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2024 (7) TMI 1502
Maintainability of SLP on low tax effect - Reopening of assessment - addition u/s 68 - as decided by HC [2018 (3) TMI 2043 - GUJARAT HIGH COURT] reasons recorded by the AO and found discrepancies in linking the unsecured loans to subsequent share capital conversion. The lack of a clear connection between the transactions led to the setting aside of the notice.
HELD THAT:- The submission of learned senior counsel for the petitioner is placed on record.
In the circumstances, the Special Leave Petition is dismissed owing to low tax effect vide Notification dated 08.08.2019.
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2024 (7) TMI 1501
Reopening of assessment u/s 147 - reasons to believe - tangible material with the AO justifying reopening of the assessment - As decided by HC [2023 (3) TMI 418 - BOMBAY HIGH COURT] once the facts and claims were enquired into during the original assessment, a notice on the same would be construed as a change of opinion, for the purposes of reopening of the assessment - HELD THAT:- Delay condoned.
Application for exemption from filing certified copy of the impugned judgment is allowed. Leave granted.
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