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Showing 121 to 140 of 1687 Records
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2023 (9) TMI 1568
Seeking grant of bail - offence punishable under Section 439 of the Code of Criminal Procedure, 1973 and Sections 21(c)/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - petitioners submitted that the petitioners have been incarcerated for a period of almost two years and the trial is not likely to be taken up for hearing in the immediate near future - HELD THAT:- Taking into consideration the fact that the petitioners have been incarcerated for a period of almost two years and the trial is not likely to be taken up for hearing in the immediate near future, it is inclined to grant bail to the petitioners.
The petitioners are directed to be released on bail in connection with aforesaid FIR, on such terms and conditions as may be imposed by the Trial Court.
SLP disposed off.
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2023 (9) TMI 1567
Smuggling - carrying 100 bottles of Phensedyl Cough Syrup (100 ml. each), containing Codeine Phosphate - HELD THAT:- Considering the nature of the Contraband involved, it is deemed appropriate to grant bail to the petitioners – Badsha SK and Rafikul Islam @ Kalu, subject to appropriate bail conditions to be imposed by the trial court.
The Special Leave Petitions stand disposed of.
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2023 (9) TMI 1566
Bogus LTCG - Treatment of long-term capital gains as non-genuine - unexplained cash credit u/s 68 - denial of exemption u/s 10(38) - addition based on interim SEBI order - HELD THAT:- The entire basis and premise of the AO to draw his adverse inference on the basis of interim SEBI order has no legs to stand.
One of the major contentions of the AO was that in the case of exit providers, SEBI has given an adverse remark and all the observation on preliminary investigation by SEBI has been referred and relied upon the AO, therefore, the inference drawn by the AO about the purchase of the scrips by these entities from the assessee, which has now been found by SEBI in its final order that there was no such manipulation by the these entities.
In any case, firstly, the said SEBI order has nothing to do with the scrip of M/s. Shreenath Commercial & Finance Ltd. and secondly, the revocation of this order by the SEBI in its final order dated 21/09/2017 itself demolishes the entire foundation of the AO’s inference.
No enquiry either by the SEBI or any Government agencies has been done in the case of M/s. Shreenath Commercial & Finance Ltd. or the broker from whom assessee has purchased online or the assessee or the family member.
In so far as general observation in respect of share brokers on whom survey action was conducted by Directorate of Investigation Wing of Kolkata who had allegedly accepted the role in providing accommodation entry of bogus/ long term capital gain first of all such a reference is wholly out of context because assessee has not dealt with any of these brokers. Two statements of such brokers were also provided to the assessee by the AO but no way they were connected to the assessee nor assessee has dealt with them nor is assessee’s name figuring anywhere.
The assessee had made transaction of purchase and sale of shares through RBK Share Broking Limited against which there is no such enquiry or information that this broking entity was involved in any kind of accommodation entry.
Although these brokers have given the list of various scrips in which they have done the trading in shares for providing accommodation entry and one of the scrip mentioned was M/s. Shreenath Commercial & Finance Ltd. As per the statement of Shri Ritesh Jain, it was also alleged that M/s. Manu Stock Broking is a broking house for some of the exit providers related to sale of shares by Chaturvedi Family, however, in his statement there is no mention about the scrip and M/s. Shreenath Commercial & Finance Ltd.
The only conclusion which has been drawn by the ld. AO that they had offered a very meager income and do not have any substance. However, in none of the replies which AO has noted, that they have stated that they had any transaction with the assessee.
AO has not provided and how these entities were connected with scrip of M/s. Shreenath Commercial & Finance Ltd. and how they were involved in the alleged modus operandi adopted by the accommodation entry provider for bogus capital gain including the assessee, at least there has to be some primafacie or some mention about the assessee or about the scrip from such enquiry so as to draw some kind of adverse inference.
Once on the same set of facts in case of the assessee’s husband Shri Rajendra Chaturvedi and Mrs. Pallavi Pandey [2020 (12) TMI 1276 - ITAT MUMBAI] have deleted the said addition, then in the case of the assessee, no different view can be taken. Respectfully following the same, addition made by the ld. AO is deleted including the addition of alleged commission made u/s. 69C, which is deleted - Decided in favour of assessee.
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2023 (9) TMI 1565
Rectification of mistake - disallowance of statutorily allowable deduction u/s 80IE made by the AO in an intimation passed u/s 143(1) without allowing any opportunity of being heard by the appellant” - apparent mistake in the impugned order of Tribunal [2022 (11) TMI 970 - ITAT GAUHATI] as the Tribunal has not adjudicated Ground No. 3 raised by the assessee, which involved legal and jurisdictional issue.
HELD THAT:- We notice that the assessee has raised Ground No. 3 in the memo of appeal. On going through the impugned order, we find that an apparent mistake has occurred in the impugned order and Ground No. 3 raised by the assessee remained to be adjudicated. We, therefore, recall our order dated 3rd November, 2022 for the limited purpose and adjudicating Ground No. 3 referred herein above. The Registry is directed to fix the appeal in due course, when Guwahati Bench is functioning and inform both the parties of the date of hearing. Miscellaneous Application filed by the assessee is allowed.
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2023 (9) TMI 1564
Dishonour of Cheque - abatement of proceedings under Section 138 of NI Act - whether proceedings under Section 138 of the Act also abate on account of initiation of proceedings, if any, under Section 94 (1) of Insolvency and Bankruptcy Code, or same can proceed simultaneously alongwith afore proceedings initiated under Insolvency and Bankruptcy Code?
HELD THAT:- The question has already been answered by the Hon’ble Apex Court in case titled Ajay Kumar Radheyshyam Goenka Vs. Tourism Finance Corporation of India Ltd. [2023 (3) TMI 686 - SUPREME COURT], wherein Hon’ble Apex Court taking note of its earlier judgment passed in P. Mohanraj & Ors. [2021 (3) TMI 94 - SUPREME COURT] has categorically held that where the proceedings under Section 138 of the Act had already commenced with the Magistrate taking cognizance upon the complaint and during pendency of the company gets dissolved, signatories, directors cannot escape from their penal liability under Section 138 of the Act by citing its resolution. Hon’ble Apex Court further held in the afore judgment that an offence under Section 138 of the Act, which has been committed by the company and is proved that offence has been committed with consent and connivance of, any neglect on the part of any director, manager, secretary or other officers of the company, such director, manager, secretary or other officers shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
It is quite apparent from the aforesaid exposition of law laid down by Hon’ble Apex Court that the signatory/director cannot take benefit of discharge obtained by corporate debtor by operation of law under the IBC, meaning thereby that personal liability of signatory/ director of the company in a cheque dishonour case cannot be absolved because there is pending corporate liability resolution proceedings against the company under the provisions of IBC. Directors/ signatories cannot escape from their penal liability by citing its dissolution, only the accused company is dissolved and director/signatory cannot be permitted to go scot-free after the approval of resolution plan.
Since complainant bank is a secured creditor and loan is strictly secured by way of equitable mortgage of the property in question, coupled with the fact that such property has no other charge of having nature, complainant bank has otherwise paramount charge of the property against the house loan given to the accused and Smt. Shaveta Sharma for Rs. 2,00,00,00/-.
This Court finds no illegality or infirmity in the impugned order, which appears to be based upon proper appreciation of facts and law and as such, same is upheld - Petition dismissed.
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2023 (9) TMI 1563
Classification of service - Construction Of Residential Complex Services or Preferential Location and Development of Complex Services? - collection from client charges under the category of Internal development Charges (IDC), External Development Charges (EDC), Electric Substation Charges (ESSC), Preferential Location Charges (PLC) and Car Parking Space Charges - extended period of limitation - valid issuance of SCN, when entire service tax demand submitted even before the issue of SCN - penalty under section 78 of FA - HELD THAT:- Undisputedly appellants had obtained registration for providing the taxable services as defined under 65 (105) (zzzh) and were paying service tax payable under that category after claiming abatement as provided for. It is also an admitted fact that the these charges were included in gross amount for the computation of the taxable value and for determination of tax payable and tax paid. Appellant had been filing the ST-3 returns with adequate disclosures and nothing was suppressed from department as alleged. As nothing has been suppressed from Department, and the issue is only in respect of interpretation of the provisions as contained in the statue.
The issue with regards to the Constitutional Validity of the provisions was also taken up before various High Courts in the writs filed by various builder associations. In such situation where the issue was under consideration of various courts and tribunal invoking extended period for making this demand as per Section 73 (4) of the Finance Act, 1994 cannot be upheld.
Demand with interest and penalty set aside - there are no merits in the impugned order to the extent it demands service tax classifying the services under the taxable category of 65 (105) (zzzzu) - appeal allowed.
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2023 (9) TMI 1562
Recovery of the amount due from the borrower - Recovery of Debts and Bankruptcy Act, 1993 - HELD THAT:- The respondents' limited contention before this Court was regarding an error committed by the learned DRAT in not noticing that the amount, as directed to be paid, already stood discharged. In this context, this Court had observed that if there was a factual error, the respondents ought to have approached the learned DRAT. The respondents had reserved the right to do so as is apparent from paragraph no.3 & 4 of this Court's order dated 17.09.2020.
In terms of the order dated 04.08.2020, a recovery certificate was issued by the learned DRT, which was sought to be enforced by the recovery officer.
There is some controversy before the recovery officer as to who could represent the TFCI in that case. Apparently, Edelweiss's counsel had sought to represent the TFCI in those proceedings as the recovery certificate was issued in favour of the TFCI. The respondents have sought to raise another controversy in regard to whether the recovery certificate issued in favour of the TFCI could be enforced in favor of Edelweiss.
Although the scope of controversy now before the learned DRAT is limited to the review petition confined to the amount of the recovery certificate. It appears that the respondent has sought to expand the scope of controversy before the learned DRAT and has filed an application under section 340 of the Code of Criminal Procedure, 1973 (hereafter 'CrPC') being Miscellaneous Application No.33/2021. According to the petitioner, the said application is not maintainable as Appeal No. 280/2019 has already been disposed of.
It is not apposite to set aside the proceedings relating to the application filed by the respondents under Section 340 of the Cr.PC as it would be for the learned DRAT to first examine whether it has any jurisdiction to proceed with the said application - the present petition is disposed of with the direction that the learned DRAT will, in the first instance consider the petitioner's challenge to the maintainability of the application (Miscellaneous Application No. 33/2021) as a preliminary question, before proceeding further.
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2023 (9) TMI 1561
Receiving payment on behalf of a person resident outside India - information gathered from the sheets of paper and from the further explanation the directorate located 14 of the recipients and recorded their statements - effect of retracted statement - Appellant for having received payment under instructions of one Mr. Imtiyaz Ahmed of Dubai, resident outside India without any general or special permission of the Reserve Bank of India (RBI) in contravention of section 3(c) of FEMA, 1999 - Validity of search and seizure operation conducted under section 37(3) of FEMA, 1999 ead with section 132 of the Income-tax Act, 1961 at the residence of the appellant wherein certain documents were seized - appellant seeks to refute the contents of the two statements made by him under oath through a simple letter.
HELD THAT:- By virtue of section 37(3) of FEMA, 1999, in the matter of search and seizure, issue of summonses and recording or statements etc., the officers of the Directorate of Enforcement exercise the same powers which are conferred on Income-tax authorities under the Income-tax Act, 1961. The above legal position, in our view, creates a strong presumption in favour of the respondent Directorate's case which is built on the foundation of documents seized during search and seizure operation. The appellant on the other hand, has not placed any material before us to rebut the documentary evidence gathered during the search operation.
It is also extremely significant to note in the instant case that in his subsequent statement recorded 11 days after the original statement, he not only confirmed as true the contents of his earlier statement dated 10/01/2003, but also explained certain other seized documents and explained the modus operandi adopted for receipt of money from abroad and its distribution to the ultimate beneficiaries in India.
In his statement the appellant admitted that he had noted down the details of the beneficiaries on pieces of paper which he had later destroyed. However, some sheets of paper were retained which contained details of amounts, dates, names etc.. The names and telephone numbers of the recipients were noted too. He also provided the names and contact numbers of some of the beneficiaries, including one Mrs. Rukiya Biwi of Udupi to whom an amount of Rs. 2.60 lakh had been paid recently and whose telephone number was 530556, and another Mr. Lobo to whom payment of Rs. 4.5 lakh had been made and whose telephone number was 212318.
Based on the information gathered from the sheets of paper and from the further explanation the directorate located 14 of the recipients and recorded their statements. They too confirmed receipt of amounts on instructions from abroad.
It is also very significant to note that the appellant admitted that entries in the sheets of paper were in the handwriting of his wife, a fact which has not been denied by either the appellant or his wife.
The so-called retraction, if at all it can be seen as one, was clearly an afterthought and of little evidentiary value. As regards the respondent directorate's failure to independently verify the identity and whereabouts of Imtiyaz, it is noteworthy that though the appellant has questioned the respondent directorate's failure to do so neither in the pleadings, nor during verbal arguments has the appellant or his learned counsel categorically denied that he had a brother-in-law by the name Imtiyaz or even that the said Imtiyaz lived in Dubai at the relevant time.
Thus, no reason to interfere with the impugned order of the Ld. Special Director. Accordingly, the appeal is dismissed being devoid of any merit. All pending miscellaneous applications are also hereby disposed of.
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2023 (9) TMI 1560
Disallowance of Foreign Tax Credit (FTC) - requisite Form No.67 was not filed within the prescribed time - HELD THAT:- As decided in VIKASH DAGA VERSUS ACIT CIRCLE-3 (1) GURGAON [2023 (6) TMI 1387 - ITAT DELHI] form 67 is a procedural / directory requirement and is not a mandatory requirement. Therefore, violation of procedural norms does not extinguish the substantive right of claiming the credit of FTC.
We accordingly direct the AO to allow the credit of FTC and hold that rule 128(9) of the Rules does not provide for disallowance FTC in case of delay filing of form 67 is not mandatory but a directory requirement and DTAA overrides the provisions of the Act and the Rules cannot be contrary to the Act.
Thus, AO ought to have granted foreign tax credit. Therefore, set aside the impugned order and restore the matter to the file of the assessing authority with a direction to verify the correctness of the claim of the assessee and, after verification, the assessee may be granted foreign tax credit - Appeal of the assessee is allowed for statistical purposes only.
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2023 (9) TMI 1559
Penalty imposed for contravention under FEMA - appellant was a citizen of the Islamic Republic of Pakistan and purchased two immovable properties in India [Dehradun] w/o taking any permission from the Reserve Bank of India or any other government body as required u/Regulation 7 of the Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations, 2000 - appellant submits that the appellant and his family, being Pakistani nationals, took refuge in India in 1992 as they were being persecuted and tortured in Pakistan for being Hindus. The appellant came with his family 26 years ago to settle permanently on political asylum.
HELD THAT:- As per background in which the appellant arrived in India with his family, grant of long-term visa to him by the Government of India followed eventually by grant of full citizenship as a naturalized citizen. The fact that there was no absolute bar on a Pakistani citizen acquiring property in India and the only requirement was to obtain permission. The fact that the amount of original penalty of Rs. 3,00,000/- imposed upon him and his son was duly paid, and the intended purpose of the legislation in question (FEMA, 1999) which was to consolidate and amended the law relating to foreign exchange with the objective of facilitating external trade and payments and for promoting the orderly development and maintenance of foreign exchange market in India, we are of the view that the appellant has made out a case for grant of relief.
No doubt ignorance of the law is not a defence and every person is presumed to know the law to which he or she is subject. Nevertheless, in view of the facts mentioned above which are not in dispute, we are of the view that the ends of justice have been met with the penalty of Rs. 3,00,000/- imposed upon the appellant and his son in the first instance which was duly paid, and levy of further penalty of Rs. 50,000/- was not justified in his case. Accordingly, the same is hereby set aside.
The instant appeal stands allowed and the further penalty of Rs. 50,000/- imposed by the adjudicating authority, and upheld by the Learned Special Director of Enforcement (Appeals) through the impugned order, are set aside.
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2023 (9) TMI 1558
Penalty imposed for contravention under FEMA - appellant was a citizen of the Islamic Republic of Pakistan and purchased two immovable properties in India [Dehradun] w/o taking any permission from the Reserve Bank of India or any other government body as required u/Regulation 7 of the Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations, 2000.
HELD THAT:- Considering the background in which the appellant and his family arrived in India, grant of long-term visa to them by the Government of India followed eventually by grant of full citizenship as a naturalized citizen. The fact that there was no absolute bar on a Pakistani citizen acquiring property in India and the only requirement was to obtain permission.
The fact that the amount of original penalty imposed upon him and his father was duly paid by the appellant, and the intended purpose of the legislation in question (FEMA, 1999) which was to consolidate and amended the law relating to foreign exchange with the objective of facilitating external trade and payments and for promoting the orderly development and maintenance of foreign exchange market in India, we are of the view that the appellant has made out a case for grant of relief.
No doubt ignorance of the law is not a defence and every person is presumed to know the law to which he or she is subject. Nevertheless, we are of the view that the ends of justice have been met with the penalty of Rs. 3,00,000/- imposed upon the appellant and his father in the first instance which was duly paid, and levy of further penalty of Rs. 4,50,000/- was not justified in his case. Accordingly, the same is hereby set aside.
The instant appeal stands allowed and the further penalty of Rs. 4,50,000/- imposed by the adjudicating authority, and upheld by the Learned Special Director of Enforcement (Appeals) through the impugned order, are set aside.
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2023 (9) TMI 1557
Seeking interim release of cash seized by the Circle Inspector of Police, Mananthavady, in the course of routine patrol duty - who is entitled to interim custody of the cash that has been seized by the Excise Preventive Officer during a routine check inside a bus? - Excise Department has closed the proceedings as they could not detect any wrongdoing on the part of the person from whom the cash was seized.
1st petitioner is an assessee under the Income Tax Act. A sum of Rs. 40 Lakhs was seized from the possession of the 3rd petitioner, who is stated to be an employee of the 1st petitioner - HELD THAT:- With respect to assessment proceedings pursuant to a return filed, the Department has time of to complete the assessment within nine months from the end of the assessment year. Therefore, for income earned during the previous year 2022-23 corresponding to the assessment year 2023-24, the Department has time till 31.12.2024 to complete the assessment. The Department can assess escaped income u/s 147/148 before the expiry of three years from the end of the relevant assessment year if the escaped income is less than Rs. 50 Lakhs and ten years from the end of the relevant assessment year if the escaped income is more than Rs. 50 Lakhs subject to the conditions mentioned in Section 147/148.
Whether Section 153A of the IT Act, relied on by the learned Magistrate, would have any application in the instant case ? - Under Section 153A, in the case of a person, where a search is initiated under Section 132, or books of account, documents, or asset is requisitioned under Section 132, notwithstanding the other provisions of the Act, the Department can complete an assessment of income for six assessment years immediately preceding the assessment year in which search is conducted, or requisition is made. Jurisdiction to make an assessment under Section 153A will arise only when the person has been searched under Section 132 or documents or assets are requisitioned under Section 132A. In all other cases, the assessment has to be completed under Section 143.
Under Section 132, the Income Tax Department has the power to search any person or place when they have reasons to believe, inter alia, that any person has in his possession money or other valuable article or thing which represents income and which has not been disclosed and seize any such money or valuable thing found during such search. This is not relevant in these cases as the money was not found during the search by the Department.
Under Section 132-A, if the Department has reason to believe, inter alia, that any asset which represents income and which has not been disclosed under the Act by any person has been taken into custody by any “officer or authority” under any other law for the time being in force, then the Department can requisition such officer or authority to deliver such asset to the Department and such officer or authority is obliged to deliver the same.
Under Section 226(4), the Department can apply to the Court in whose custody there is money belonging to the assessee to meet the tax due by that assessee. This power can, however, be exercised only when the tax has been determined to be due by an assessment completed under the Act.
In the case on hand, the seizure was effected on 8.10.2022. The income earned by a person during the financial year 1st April 2022 to 31st March 2023 is to be assessed in the year 2023-24. The 1st petitioner, being an assessee is bound to file a return of income not before 31st July, 2023. If the 1st petitioner does not disclose the income that has been detected, the Department would have time to complete the assessment till 31.12.2024. The Department would have the power to assess escaped income under Section 147/148 before the expiry of three years from the end of the relevant assessment year. The jurisdiction to make an assessment under Section 153A will arise only when the person has been searched under Section 132 or documents or assets are requisitioned under Section 132A. In all other cases, the assessment has to be completed under Section 143.
However, in view of the law laid down in Abdul Khader [1998 (11) TMI 76 - KERALA HIGH COURT] Section 132A would not empower the Department to requisition the learned Magistrate. Section 132B would also have no application in view of the above. As held by the Apex Court in Choyi [1979 (7) TMI 1 - SUPREME COURT] the revenue can only apply to the Court in whose custody there is money belonging to the assessee to meet the tax due by that assessee, and such power can be exercised only when the tax has been determined to be due by an assessment completed under the Act. As the assessment has not been completed, such a course cannot now be adopted. The advantage gained by the revenue owing to the detection of cash from the possession of the 3rd respondent is that the 1st petitioner has come forward claiming the amount. While making an assessment, the revenue would be in a position to insist that the amounts seized also be included in the returns to be submitted by the 1st petitioner before the due date.
In the case on hand, the 1st petitioner is yet to file his assessment. He would have to disclose the sum of Rs. 40 Lakhs, which was seized from his employee. The Revenue can thereafter complete the assessment in accordance with the provisions of the Act. As there is no valid order of assessment and no culminated demand for Income Tax, the revenue cannot aspire to keep the money on the premise that there will be demand later in point of time. At present, there is no authority of law under which the money can be demanded and be kept by the revenue.
We find that there is considerable force in the submission made by the learned counsel. As per the provisions of the Act, the assessee has been granted a time frame to file his return with respect to income of the previous year, and further time has been granted to the Revenue to make an assessment. The revenue can only act in terms of the provisions of the Act. The learned Magistrate, while exercising powers under Section 451 of the Code, cannot issue directions to the revenue to conclude the assessment proceedings within a time frame bypassing the provisions. The order passed by the learned Magistrate is clearly illegal on that count as well.
The order passed by the learned Magistrate ordering the handing over of the amounts to the revenue cannot be sustained. Union of India v. State of Kerala [2022 (1) TMI 657 - KERALA HIGH COURT] was rendered in the facts of the said case without noting the principles of the law laid down in J.R. Malhotra [1975 (12) TMI 170 - SUPREME COURT]
ORDER:
The common order passed by the learned Magistrate will stand quashed.The Assistant Director, with whom the amounts were entrusted, is ordered to return the amounts released to the learned Magistrate. The learned Magistrate shall release the amount to the 1st petitioner on furnishing a bond for a sum of Rs. 40 lakhs (Rupees Forty Lakhs only) with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate.
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2023 (9) TMI 1556
Validity of assessment order passed in the name of the predecessor-in-interest - effect of merger between companies - non compliance with directions issued by the Dispute Resolution Panel (DRP) - Adherence to the provisions of Section 144C(13) of the Income Tax Act.
HELD THAT:- DRP has passed the order in the name of John Wiley & Sons Inc. (successor of Wiley Subscription Services Inc which merged into John Wiley & Sons Inc.).
As right in drawing our attention to DRP’s order wherein the objection raised against the draft assessment order, concerning the same issue was dismissed by the DRP, with a direction to the AO to pass the assessment order as per the name given in the DRP’s order.
Having regard to this direction,Respondent says that the AO could not have veered away from the mandate given to him by the DRP. In support of this plea Mr Kalra relies upon Section 144C(13).
There is, however, one aspect which Respondent needs to return with instructions on, which is as to the date when the amalgamation scheme was sanctioned.
will also indicate the date from which the amalgamation scheme came into effect. This is relevant as Mr Sanjay Kumar, learned senior standing counsel, who appears on behalf of the appellant/revenue, has advanced an argument that the return of income was filed on 28.11.2019 in the name of predecessor-in-interest i.e., Wiley Subscription Services Inc.
Whether anything will turn on this aspect or not will be examined on the next date of hearing.
List the matter on 27.09.2023.
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2023 (9) TMI 1555
Validity of order passed u/s 148A(d) - challenge to jurisdiction of the authority to pass the order challenged and in violation of the principles of natural justice inasmuch as the appellant was not granted opportunity of personal hearing - HELD THAT:- Since the jurisdictional error goes to the root of the matter, it is but appropriate that such an issue is decided by the Court. For such purpose, an affidavit would be required to be filed by the department as the matter cannot be disposed of based on oral submissions. Therefore, we are of the view that the respondents/department should file their affidavit setting out all contentions, which are available to them under law as well as on facts, after which the Court will consider as to the contentions raised by the appellant in this appeal along with the grounds, which were canvassed in the writ petition.
The impugned proceedings initiated by the assessing officer shall remain stayed including the latest notice issued dated 18th September, 2023 fixing the date of personal hearing on 25th September, 2023 (today) at 3.00 pm. till disposal of the appeal.
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2023 (9) TMI 1554
Demand of differential Central Excise duty with interest and penalties - intermixing of SKO with MS/HSD during movement of these petroleum products though pipeline - quantification of duty of intermixed part of SKO and MS/HSD - demand solely based on CBEC Circular No. 636/27/2002-CX dated 22.04.2002 - it was held by CESTAT that 'The differential duty demand raised on interface quantity of SKO is clearly not sustainable' - HELD THAT:- There are no reason to interfere with these appeals - The appeals are accordingly dismissed.
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2023 (9) TMI 1553
Interest on the delayed payment of CVD, SAD - order of confiscation of the goods - redemption fine imposed in lieu of confiscation - penalties - Classification and valuation of imported laptops - Department was of the view that as the appellants have undertaken the activity of loading of software on the laptops which amounts to ‘manufacture’ they are liable to discharge duty on the goods on transaction value and not on RSP basis.
HELD THAT:- Sub-section (8) of Section 3 does not speak that the provisions of Customs Act, 1962 relating to interest on belated payment of duty as applicable to the CVD and SAD levied under the Customs Tariff Act. Section 28AA deals with payment of interest on Basic Customs duty i.e, the duty levied under Customs Act, 1962. Unless there is substantive provision to levy interest, the same cannot be collected.
The Hon’ble High Court of Bombay in the case of Mahindra & Mahindra Ltd. [2022 (10) TMI 212 - BOMBAY HIGH COURT] analysed the very same issue as to the demand of interest and penalty in relation to amounts payable as duty other than Basic Customs Duty. The Hon’ble High Court held 'Respondent No. 2 certainly cannot pass an order beyond the provisions of the Customs Act, 1962. The provisions relating to interest contained in Section 28AB of the Customs Act, 1962 are not borrowed in the legislation imposing levy of surcharge or CVD or SAD. Respondent No. 2 cannot include interest in the settlement arrived at by it on the ground that petitioner has derived financial benefits by not paying the correct rate of duty when it was due. Deriving financial benefits itself cannot be a ground to order payment of interest in the absence of any statutory provisions for payment of interest.'
The above judgment of the Hon’ble High Court was affirmed by the Hon’ble Apex Court in UNION OF INDIA & ORS. VERSUS MAHINDRA AND MAHINDRA LTD. [2023 (8) TMI 135 - SC ORDER]. Applying the ratio laid in the above judgment, we are of the considered view that the demand of interest (on the total differential duty of Rs. 4,81,74,877/-) cannot sustain and requires to be set aside. For the same reason, the confiscation of the goods and the imposition of redemption fine are set aside.
Penalty u/s 114A of the Customs Act, 1962 - HELD THAT:- The penalty u/s 114A is levied in cases of short levy or non-levy. Subsection (8) of Section 3 of CTA, 1975 has borrowed the provisions with regard to collection of duty (CVD & SAD). However, there is no express mention of borrowing the provisions for imposing penalty in regard to these duties. Be that as it may, though the SCN is issued alleging willful suppression of facts with intent to evade payment of duty, it has to be noted that the appellant would be eligible to avail credit of the duties paid. The entire situation is revenue-neutral. The Larger Bench in the case of Jay Yushin Ltd. CCE, New Delhi [2000 (7) TMI 105 - CEGAT, COURT NO. I, NEW DELHI-LB] held that the demand cannot be sustained on account of revenue neutrality - the penalty imposed requires to be set aside.
The impugned order is modified to the extent of setting aside, the demand of interest, the order of confiscation of goods, the imposition of Redemption fine, penalties imposed and the appropriation of interest paid by the appellant without disturbing the confirmation of duty.
Appeal allowed in part.
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2023 (9) TMI 1552
Dismissal of appeal for non-payment of pre-deposit - HELD THAT:- Though at the time of passing the said order by the Commissioner (Appeals) the amended provision of Section 35 F was not in force. However, in the matters coming before the Tribunal related to pre-deposit after the amendment of Section 35 F, this Tribunal taking a lenient view allowing the admission of the appeal on pre-deposit of 10% as prescribed under amended Section 35 F. Therefore, since the appellant have already deposited 10% of the duty amount, the same is sufficient to hear the appeal on merit.
The impugned order is set aside. Appeal is allowed by way of remand to the Commissioner (Appeals) for passing a fresh order on merit.
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2023 (9) TMI 1551
Disallowance u/s 14A - assessee has not earned any exempt income during the year - HELD THAT:- We observe that in the case of PCIT vs. Era Infrastructure (India) Ltd.[2022 (7) TMI 1093 - DELHI HIGH COURT] has held that no disallowance u/s 14A of the Act can be made if the assessee had not earned any exempt income during the year under consideration.
Thus, respectfully following the same, we find that there is no exempt income earned by the assessee during the year and therefore, disallowance u/s 14A of the Act is uncalled for and accordingly, we set aside the finding of CIT(A) and deleted the addition u/s 14A - Ground no. 1 raised by the assessee is allowed.
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2023 (9) TMI 1550
Setting aside the impugned order whereby application filed by the petitioner was erroneously and mechanically dismissed - permission to travel to London for a period of 4 weeks in order to receive medical treatment for his rare medical condition affecting the vision of his eyes - Setting aside/suspension of the Look Out Circular - HELD THAT:- The facts indicate that there are serious allegations against the petitioner. The ground on which the petitioner is seeking permission to travel abroad is allegedly to undergo ,“Prophylactic Laser Retinopexy”. It is a matter of the record that this treatment is widely available in India. It is also a matter of record that the Medanta Hospital as well as Dr. Rajendra Prasad, Centre for Ophthalmic Sciences, AIIMS have opined that the treatment of “Prophylactic Laser Retinopexy” is widely available in many hospitals in India including Medanata Hospital as well as Dr. Rajendra Prasad, Centre for Ophthalmic Sciences, AIIMS.
E.D. has contended that treatment of “Prophylactic Laser Retinopexy” is available in India and permission should not be granted to the petitioner to travel abroad. The contention of the petitioner that the passports of her daughter or father may be detained, cannot be accepted as admittedly they are also British nationals.
Taking into account that the facts are serious in nature and the medical treatment is available in India, the order of the learned Trial Court is well reasoned, there is no ground to consider the prayer for travela broad of the petitioner. It is also a settled proposition that the power under Section 482 Cr. PC is to be exercised wherein such power can only be used to prevent the miscarriage of justice or abuse of the process of law.
It is not considered that this is the case where the order of the learned Trial Court can be interfered while exercising the powers of Section 482 Cr. PC. The learned Trial Court has dealt with the matter in accordance with the law. Hence, there is no ground for the same, petition dismissed.
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2023 (9) TMI 1549
Baggage rules - Challenge to Seizure-proceedings - permission to reexport his seized personal gold jewellery - return of Seized personal gold jewellery of the petitioner - HELD THAT:- Undisputedly, and since the petitioner held a foreign passport, it would be the Proviso to Rule 3 alone which would apply. In terms of the said Proviso, a tourist of foreign origin is permitted clearance of duty free articles in his bona fide baggage, and the articles and the limits/restrictions of those articles which are not allowed duty free are mentioned in Annexure-I. As we read Entry 5 in Annexure-I, it speaks of gold or silver in any form other than ornaments. The chain and the kada which were found on the person of the petitioner would undoubtedly fall in the category of jewellery and ornaments. Clause 5 of Annexure-I would therefore not sustain the seizure of the articles in question.
Rule 5 of the Baggage Rules, pertains to a passenger who is returning to India after having resided abroad for more than one year. That would clearly not apply to the petitioner here who is undisputedly a foreign national. Rule 5 in any case appears to be relating to an “eligible passenger” and which pertain to an Indian national upon his return to the country after having lived abroad for the period prescribed.
The seizure proceedings as emanating from the notice dated 08 December 2022 is quashed - petition allowed.
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