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Showing 161 to 180 of 1415 Records
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2023 (4) TMI 1256
Maintainability of CIRP application - one time settlement - time limitation - petition has been filed beyond the period of three years from the date of default - date of default can be changed by the Bank or not - Payment of Rs. 2.75 Lakh on 29.03.2017 by the Appellant in their account.
Time limitation - petition has been filed beyond the period of three years from the date of default - HELD THAT:- There is no dispute that the Bank did not mention the date of default in Part IV of Form 1 i.e. the application filed under Section 7 of the Code and disclosed the date of default only in its supplementary affidavit which was filed pursuant to the order passed by the Adjudicating Authority. The Bank has mentioned the date of default as 31.08.2013 in the affidavit. It has also mentioned the date of NPA as 31.03.2014. The Bank has tried to change the date of default as 31.03.2014 which in fact has been mentioned as the date of NPA. The period of limitation, counted from 31.08.2013 i.e. date of default would continue till 31.08.2016 and shall expire w.e.f. 01.09.2016. The Bank failed to produce any evidence of acknowledgement of debt on the part of the Appellant during the period from 31.08.2013 to 31.08.2016.
Whether the date of default can be changed by the Bank? - HELD THAT:- It has been held by the Hon’ble Supreme Court in the case of RAMESH KYMAL VERSUS M/S SIEMENS GAMESA RENEWABLE POWER PVT LTD. [2021 (2) TMI 394 - SUPREME COURT] that the date of default cannot be changed. It has also been held in the case of LAXMI PAT SURANA VERSUS UNION BANK OF INDIA & ANR. [2021 (3) TMI 1179 - SUPREME COURT], BABULAL VARDHARJI GURJAR VERSUS VEER GURJAR ALUMINIUM INDUSTRIES PVT. LTD. & ANR. [2020 (8) TMI 345 - SUPREME COURT], B.K. EDUCATIONAL SERVICES PRIVATE LIMITED VERSUS PARAG GUPTA AND ASSOCIATES [2018 (10) TMI 777 - SUPREME COURT] and B.K. EDUCATIONAL SERVICES PRIVATE LIMITED VERSUS PARAG GUPTA AND ASSOCIATES [2018 (10) TMI 777 - SUPREME COURT] that the period of limitation would be attracted from the date when the default occurs and not from the date of declaration of NPA. Therefore, the date of NPA cannot be taken to be the date of default for the purpose of limitation.
Payment of Rs. 2.75 Lakh on 29.03.2017 by the Appellant in their account - HELD THAT:- It has now been well settled by three judge bench of the Hon’ble Supreme Court, in the case of SHANTI CONDUCTORS (P) LTD. AND ORS. VERSUS ASSAM STATE ELECTRICITY BOARD AND ORS. [2019 (12) TMI 1513 - SUPREME COURT], that Section 19 would come into play if the payment is acknowledged in the handwriting of, or in a writing signed by the person making the payment - thus, no advantage can be given to the Bank of the entry dated 29.03.2017.
One time settlement - HELD THAT:- It has come on record that the OTS has occurred much after the expiry of period of limitation, therefore, it cannot be taken into consideration for the purpose of Section 18 to extend the period of limitation.
The impugned order is patently illegal and the appeal is thus hereby allowed and the impugned order is set aside.
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2023 (4) TMI 1255
Application filed for quashing the F.I.R - accused persons started blackmailing M/S Rawat Associates JV and started asking for money on the pretext of encroachment removal and compensating farmers - HELD THAT:- This Court will exercise the powers under Section 482 for quashing the F.I.R. very rarely if a case is made out for quashing.
No good ground for quashing the F.I.R. is made out, though the learned senior counsel had tried to submit that the prosecution was malicious.
This application is dismissed with liberty to the petitioners to raise all the grounds before the Investigating Officer as earlier directed on 3rd April, 2023 and if, the petitioners are aggrieved by the outcome of the investigation, the petitioners have all the liberty to take steps in law for redressal of his grievances. It is expected that the investigation is concluded expeditiously by the Investigating Agency. This Court is not giving any time frame for concluding the investigation as the matter relates to commercial transactions and it may take some time for investigation.
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2023 (4) TMI 1254
TP Adjustment - determining the ALP of corporate guarantee commission - whether the corporate bank guarantee given by the assessee on behalf of its AE is an international transaction or not? - HELD THAT:- The issue of whether the corporate bank guarantee given by the assessee on behalf of its AE is an international transaction or not, is no more res integra, as the explanation to section 92B of the Act itself had made it abundantly clear that if the assessee is providing the capital financing, including any type of long term or short term borrowing, lending or “guarantee” , purchase or sale etc., then such transaction shall be considered as international transaction. Undoubtedly, the assessee has given Corporate Guarantee on behalf of its AE, which fact has not been disputed by the assessee either before the TPO or before the DRP and, therefore, we are of the opinion that the corporate guarantee given by the assessee is an international transaction and, therefore, the same has rightly been held so by the lower authorities.
Whether the corporate guarantee estimated by the DRP to the tune of 1% on the amount guaranteed as a corporate guarantee commission as against 0.10% was justified or not? - In our view, no third party would provide similar type of services/corporate guarantee on behalf of its AE and expose itself to the risk of giving the corporate guarantee. Therefore, the charges paid by the assessee to SBI cannot be compared for the purpose of determining the ALP of corporate guarantee commission. The Co-ordinate Bench in the case of Vivimed Labs [2022 (4) TMI 1514 - ITAT HYDERABAD] had adjudicated corporate guarantee commission @ 0.5% qua the extent of the amount of the assessee’s corporate guarantee actually utilised in these four assessment years. Thereafter, similar view had been taken by various Tribunals restricting the addition to 0.5% of the amount guaranteed as corporate guarantee commission. Thus we partly allow the ground of the assessee and restrict the addition to the tune of 0.5% on the amount guaranteed as corporate guarantee commission.
Interest on Receivables - assessee had outstanding receivables during the year, which arise in the usual course of business of the assessee on sale of its products and being trade transactions, the assessee had extended normal credit for payment by trade debtors -directions of DRP to the Assessing Officer to charge of interest on so-called delayed realisations from AE debtors and recompute the TP adjustment - HELD THAT:- As relying on own case [2023 (4) TMI 521 - ITAT HYDERABAD] we direct the Assessing Officer to determine the ALP and compute the same by adding notional interest @ 6% on the receivable beyond a period of 60 days.
Disallowance of weighted deduction claimed u/s 35(2AB) of the IT Act on R&D expenditure - HELD THAT:- Admittedly the tribunal in its earlier order had decided this identical issue in favour of the assessee [2018 (7) TMI 1867 - ITAT HYDERABAD] thus respectfully following case of assessee for the earlier years and more particularly when the approval in Form 3CL had been granted by the DSR (requisite authority) approving the expenditure for clinical trial expenses incurred outside approved R & D facilities, the assessee is entitled to weighted deduction u/s 35(2)(AB) and accordingly, the grounds raised by the assessee are allowed.
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2023 (4) TMI 1253
Penalty u/s 271B - late filing of audit report u/s 44AB - HELD THAT:- Assessee was required to get his accounts audited under section 44AB and filed within the due date. Since the assessee has not filed the tax audit report u/s 44AB of the Act before the due date, the Assessing Officer levied penalty u/s 271B which was confirmed by the ld. CIT(A)(NFAC). Before us, it was submitted that the assessment u/s 143(3) of the Act has been completed on the basis of the audit report and return of income filed by the assessee and prayed for deleting the penalty levied under section 271B of the Act.
Similar issue on an identical fact was subject matter in appeal before this Tribunal in the case of Balaji Logistics [2022 (9) TMI 1432 - ITAT CHENNAI] reasons given by the assessee for not filing tax audit report within due date comes under reasonable cause as provided u/s.271B of the Act, and thus, the AO is erred in levying penalty u/s.271B - Decided in favour of assessee.
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2023 (4) TMI 1252
Reopening of assessment after opting the VSV Scheme and finalizing thereof - HELD THAT:- As carefully considered the facts of the matter and the judgment relied upon by the Ld. Counsel in the case of GopalaKrishnan Rajkumar [2022 (5) TMI 1388 - MADRAS HIGH COURT] wherein as pleased to observe opting the VSV Scheme and finalizing thereof is nothing but the closure of disputes in respect of tax arrears which cannot be subsequently reopened by issuing notice u/s 263 of the Act for revising the assessment order. Needless to mention that the view is squarely applicable in favour of the assessee before us.
A bare reading of the above Section, particularly, sub-section (3) of Section 5 clearly rejects restriction in reopening in any other proceeding under the Income Tax Act or under any other law for the time being in force in any matter covered by such order which has been passed under sub-section (1) determining the amount payable under this Act which has been said to be conclusive. In that view of the matter, the impugned order passed by the Ld. PCIT, is according to us, lacks jurisdiction and the same is, therefore, not sustainable in the eye of law. Thus, the impugned order is quashed. Assessee’s appeal is allowed.
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2023 (4) TMI 1251
Gross misconduct - burden to prove - whether the order of penalty of dismissal from service was justified qua the other charges and whether the Division Bench of the High Court was right in setting aside the same? - HELD THAT:- A judicial officer cannot pronounce the concluding portion of his judgment in open court without the entire text of the judgment being prepared/dictated. All that the respondent has done in the departmental enquiry is just to pass on the responsibility to the inefficient and allegedly novice stenographer - It is not known how the findings with regard to such serious charges have been completely white-washed by the High Court in the impugned judgment.
It is true that some of the charges revolve around judicial pronouncements and the judicial decision-making processes and that they cannot per se, without anything more, form the foundation for departmental proceedings. Therefore, we are ignoring those charges. But the charges which revolve around gross negligence and callousness on the part of the respondent in not preparing/dictating judgments, but providing a fait accompli, is completely unacceptable and unbecoming of a judicial officer.
The defence taken by the respondent that the lack of experience and the inefficiency on the part of the stenographer has to be blamed, for the whole text of the judgment not getting ready even after several days of pronouncement of the result in open court, was entirely unacceptable. But unfortunately, the High Court not only accepted this panchatantra story, but also went to the extent of blaming the administration for not examining the stenographer as a witness. Such an approach is wholly unsustainable. If it was the case of the respondent that the entire blame lay upon the stenographer, it was for him to have summoned the stenographer as a witness. The High Court unfortunately reversed the burden of proof.
It is not the case of the respondent that the Full Court of the High Court took a decision to impose the penalty of dismissal from service even before furnishing the copies of the enquiry reports to the respondent. The show cause notices enclosing the enquiry reports, are dated 11.10.2007. The representations made by the respondent are dated 26.10.2007. It is only thereafter that the Administrative Committee No.1 considered the matter on 28.08.2008 and it was placed before the Full Court on 04.10.2008. Therefore, the opinion of the High Court that the second show cause notices were in violation of the principles of natural justice is not factually and legally correct.
The impugned order of the Division Bench of the High Court is set aside. The order of penalty imposed upon the respondent is upheld - Petition dismissed.
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2023 (4) TMI 1250
Valuation - Oil in the Bunker Tanks of the Engine Room/outside the Engine Room of the vessels sent for being broken up, are to be assessed separately or as part of the vessels to be scrapped? - HELD THAT:- In the appeals preferred by the Revenue, which are directed against the orders of the CESTAT in NAVYUG SHIP BREAKING CO., DHAN STEELS PRIVATE LIMITED. AND OTHERS VERSUS C.C., JAMNAGAR (PREV) [2022 (12) TMI 100 - CESTAT AHMEDABAD], the CESTAT ruled that the oil is to be assessed as part of the Ship.
The Revenue’s appeals are, accordingly, dismissed.
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2023 (4) TMI 1249
Penalty u/s. 271E - non mandate of provisions of section 269T - HELD THAT:- We are of the considered view that even if the financers on account of the poor track record of the assessee were not ready and willing to receive the monthly installments towards repayment of loans from her through cheques, then she could have safely made the said repayments by way of account payee bank drafts or electronic clearing system through his bank account or any other prescribed electronic mode as provided in Rule 6ABBA of the I.T. Rules, 1962. We are unable to persuade ourselves to subscribe to the explanation of the assessee that as the financers were not ready to receive the repayment of loans from her vide account payee cheques, therefore, for the said reason she was compelled to make the said payments in cash.
Also we do not find any substance in the claim of the assessee that she was unaware of the provisions of section 269T - It is a matter of fact borne from record that the assessee at the relevant point of time was availing the services of a Chartered Accountant and had got her accounts for the year under consideration audited from him.
Considering the aforesaid factual position, and independent of the settled position of law that an assessee cannot be allowed to plead ignorance of law, we are even otherwise of the considered view that there is no substance and merit in the claim of the assessee that she was oblivion of the modes and manner for repayment of loans as prescribed u/s 269T of the Act.
Adverting to the support drawn by the assessee from the fact that a similar penalty that was imposed in the case of her nephew, viz Shri Ajay Gill had been vacated by the CIT(A), NFAC, we are of a strong conviction that as the facts involved in every case stand on their independent footing, therefore, her aforesaid claim would be of no assistance.
As the assessee had not only failed to comply with the provisions of section 269T therein rendering her liable for imposition of penalty u/s. 271E but had also failed to come forth with any reasonable cause which had prevented her to make repayment of the monthly installments of her outstanding loans in a manner other than that prescribed under law, therefore, finding no infirmity in the penalty imposed by the JCIT u/s. 271E of the Act, uphold the same. Appeal filed by the assessee is dismissed.
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2023 (4) TMI 1248
Works contract - neither tripartite agreement nor any prior sale deed nor had the assessee otherwise executed any works contract on behalf of the eventual purchasers with respect to construction raised by the assessee on its own land - addition of 10% in purchase of value of goods for calculating the deemed sale, ignoring the value of goods at the time of incorporation of goods consumed in the construction even though the property in goods passes later on - constructions raised by the assessee were by way of execution of ‘works contract’ - applicability of decisions of the Supreme Court in the case of K. Raheja [2005 (5) TMI 7 - SUPREME COURT] and Larsen & Toubro [2013 (9) TMI 853 - SUPREME COURT].
Whether the linkage between such 'agreement' and the construction raised by the assessee exists as may further qualify the 'agreement' to be a 'works contract', within the meaning of that term of Section 2(au) of the Act? - HELD THAT:- The assessee was raising the constructions of residential accommodation. Though it may have started that construction activity on its own account, at the same time, it invited offers from the public at large and accepted such offers from particular individuals, against conditions agreed in writing - on a mutual set of promises extended by the allottees and the assessee, the terms of the Allotment Letter and the ‘agreement’ giving rise to a ‘works contract’ arose. Thus, amongst others, it included a payment plan, adherence to which a sine qua non to the continued allotment in favour of that individual allottee. The fact that the assessee had a right to cancel the allotment and the further fact that the title in the constructions being raised and the interest in land would be transferred on a future date (upon execution of proper lease deed and sale deed), would not deflect the existence of ‘works contract’ that had arisen, as a direct consequence of the Allotment Letter.
In L&T case [2013 (9) TMI 853 - SUPREME COURT], the matter came to be referred to the three judge bench of the Supreme Court. Again, in that case, the L&T was a developer seeking to raise constructions described as development over the land owned by an individual. There was an arrangement between the L&T and the owner of the land that after the development, 25% of the total space would belong to the owner whereas 75% would belong to the L&T yet, applications were invited from public for allotment of the proposed constructions. Upon Allotment Letters issued and also under an agreement to sell executed with intended purchasers, the constructed apartments were to be handed over to the individual purchasers with undivided interest in the land also. Sale deeds were thus executed in favour of the allottees by the L&T and the owner of the land. It is in such circumstance and that L&T was subjected to ‘works contract’ tax.
While dealing with the doubt expressed as to the correctness of the K. Raheja case [2005 (5) TMI 7 - SUPREME COURT], the larger bench of the Supreme Court clearly opined that the fact that the transfer of the flat and conveyance of land would arise on a future date, upon all installments being paid and that agreement between the developer and flat purchaser was one for sale of flats, had no merit. The reason to reject the challenge was given by the Supreme Court by observing that the doubt thus expressed clearly overlooked the typical nature of developer agreement. The developer does so for monetary consideration. The liability of payment was also found not decisive, though the factum of payment was found to be so.
Here, as well, it is an undeniable truth in the facts found by the Tribunal that the constructions were made by the assessee, though on its own land against Allotment Letter issued to and payments made by 403 allottees. It would be appropriate to note here itself that the revenue authorities have taxed the assessee only to the extent of payments were received by it against 403 flats. Only with respect to those allotments/payments received, ‘works contract’ was found existing and only with respect to those flats, transfer of property involved in the execution of ‘works contract’ has been assessed. That has been quantified at 59% of the total flats.
Addition of profit to the book value of the goods involved in the execution of the ‘works contract’ - HELD THAT:- Though the books of accounts of the assessee have not been rejected, in absence of proof of facts requiring applicability of Rule 9, estimation of deemed profit became necessary to be made - to determine the turnover of ‘works contract’. In that, the Tribunal cannot be faulted for applying the 10% rule as a rough and ready method to estimate, considering compoundable cases, the turnover (to be subjected to tax). Insofar as the Tribunal seems to have applied the time tested measure to make estimate, there are no good ground to offer any interference with the finding of the Tribunal, in exercise of revision jurisdiction of the Court.
Rule 9 enables the assessee to seek all appropriate allowable deductions. Thus, on this issue as well, the matter does not call for any interference.
The questions are answered in favour of revenue and against the assessee - revision dismissed.
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2023 (4) TMI 1247
Admission of additional ground before CIT(A) - powers of the appellate authorities including the Appellate Assistant Commissioner on entertaining an additional ground raise by assessee - additional ground of appeal on the new issue is not emanating from the assessment order and, therefore, it is dismissed by CIT(A) - HELD THAT:- The above understanding of the Ld.CIT(Appeals) is not correct. Any fresh claim by way of additional ground can be made by the assessee before the appellate authorities including the CIT(Appeals) and it is not only before the ITAT.
We observed that the CIT(Appeals) misunderstood the decision of CIT vs. Jai Parabolic Springs Ltd. [2008 (4) TMI 3 - DELHI HIGH COURT] as in this case the assessee had raised an additional ground before the Tribunal even though there was no claim made in the return of income. The Tribunal considering the decision of the Supreme Court in the case of Goetze (India) Ltd. [2006 (3) TMI 75 - SUPREME COURT] admitted the additional grounds of appeal raised by the assessee.
CIT(Appeals) over looked the decision of Jute Corporation of India Ltd. [1990 (9) TMI 6 - SUPREME COURT] which was referred to by the Hon’ble Delhi High Court in the very same judgment on the powers of the appellate authorities including the Appellate Assistant Commissioner on entertaining an additional ground raised by the assessee, wherein it has been held that the Appellate Assistant Commissioner should exercise his discretion in permitting or not permitting the assessee to raise an additional ground in accordance with law and reason. Therefore, we hold that the CIT(A) has all the powers to entertain the additional ground raised before him.
Observation of the Ld.CIT(A) that the powers to entertain additional claim not made in the return of income is discretion of ITAT and not CIT(Appeals) is misplaced. In the additional ground Assessee contended by the assessee that it is entitled for deduction of Rs.105.94 crores out of its business income on account of excess interest credited in the books of account and offered for tax is no now irrecoverable.
These contentions of the assessee have to be examined by the Assessing Officer as the said claim was not made before the AO nor considered by the CIT(Appeals) which was raised before him as on additional ground of appeal - Decided in favour of assessee for statistical purpose.
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2023 (4) TMI 1246
Primary Teachers’ Recruitment Scam - whether a person can laugh while his testicles are squeezed is required to be known from medical experts which CBI should do? - HELD THAT:- This court wanted to know from Mr. Billwadal Bhattacharya, learned advocate representing CBI and Mr. Samrat Goswami, learned advocate representing ED, whether the investigating officers in respect of the other scams in this State are also facing same situation, i.e., complaint to the police by some persons against the officers and the police is investigating those complaints and interrogating the officers. Mr. Bhattacharya gave me three names referring to the Coal scam and the names are: Mr. Kapil Raj, Joint Director of ED; Mr. Umesh Kumar, SP of CBI and in respect of the custodial death of one Lalan Sheikh in Bogtui case, one officer not at all even remotely connected with the investigation namely Mr. Sushanta Bhattacharya of CBI.
Therefore, it has become a sinister design of some persons to make allegations against the investigating officers of different scams to terrorize them by using the police force which have now come to light in the State and I see this letter of Kuntal Ghosh is also an attempt to terrorize the officers of ED and CBI and to throttle the investigation process and I term it as – very smart action; which cannot be allowed for a fair investigation and for the ends of justice.
From today no police station shall lodge any FIR against any complaint made to it in respect of any officer of CBI and ED who are investigating the Educational Recruitment Scam both of West Bengal Central School Service Commission and the West Bengal Board of Primary Education, without the leave of this court.
List this matter on 20.04.2023 and will be heard at 12.00 noon.
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2023 (4) TMI 1245
Maintainability of appeal - appeal dismissed on the ground of delay - HELD THAT:- The appeal was from Annexure-1 order of assessment passed on 12.03.2022. The appellate order specifically noticed Section 107 of the Bihar Goods and Services Tax Act, 2017 which permits an appeal to be filed within three months and also apply for delay condonation with satisfactory reasons within a further period of one month.
The Appellate Authority also took into account the saving of limitation granted by the Hon’ble Supreme Court in IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (11) TMI 387 - SC ORDER]. Therein, due to the pandemic situation limitation was saved between 15.03.2020 till 28.02.2022. It was also directed that an appeal could be filed within ninety days from 01.03.2022. Hence, an appeal could have been filed on or before 29.05.2022, which provision was not availed by the petitioner herein. The appeal is said to have been filed only on 08.08.2022, with a delay of two months nineteen days from the date on which even the limitation period as stipulated by the Hon’ble Supreme Court, expired.
There are no reason to invoke the extraordinary jurisdiction under Article 226, especially since it is not a measure to be employed where there are alternate remedies available and the assessee has not been diligent in availing such alternate remedies within the stipulated time - petition dismissed.
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2023 (4) TMI 1244
Penalty u/s 271B - default u/s 44AB - assessee has failed to get its accounts audited within the specified due date - what's reasonable cause of delay in terms of Section 273B? - HELD THAT:- As the statutory auditor has provided the audit certificate and audit report only on 22.08.2015 and thereafter the tax audit was conducted, completed and submitted. This being so, we are of the view that the assessee has sufficient and reasonable cause for delay in submitting the audit report. Since the auditor was appointed by the Registrar of Cooperative Societies, therefore, there is no delay on the part of the assessee.
Accordingly, we are of the considered opinion that the penalty levied by the AO u/s.271B of the Act and confirmed by the ld. CIT(A) deserves to be deleted and we do so. Appeal of the assessee is allowed.
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2023 (4) TMI 1243
Geo Chem Laboratory is an accredited Laboratory or not - validity of report issued by such laboratory - option of provisional release - HELD THAT:- Without going into the question of competence of Laboratory considering the importance of the issue raised and the fact that what is involved is genetically modified substance having larger implications, the suggestions of learned ASG accepted, as it would be a further precaution in this regard.
Hearing of this petition is deferred to 7 June 2023. To be listed under the caption “For Directions”.
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2023 (4) TMI 1242
Requirement to join Ministry of Environment, Forest and Climate Change and the Genetic Engineering Appraisal Committee as party - HELD THAT:- It is directed that affidavit be filed by the Genetic Engineering Appraisal Committee specifically regarding the commodities at hand and their role in regulating import. Though the Petitioner has shown urgency in the matter and we understand the anxiety, considering the importance of the issue, we are not inclined to proceed without a specific stand of the Committee, which ought to have been placed on record.
Registry is directed to forthwith send a copy of this order to the Secretary of the Ministry of Environment, Forest and Climate Change and to the Incharge of Genetic Engineering Appraisal Committee to draw their attention to this state of affairs regarding the filing of this affidavit without instructions and the appearance.
Stand over to 26 April 2023 at 2.30 p.m.
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2023 (4) TMI 1241
Levy of municipal taxes in relation to only one area of the PMC namely the "Kharghar Node" - challenge to property tax bills, issued by the PMC to the co-operative societies who are stated to be the members of petitioner No. 1.
Seeking for issuance of a writ of mandamus to cancel the bills and demand notices issued for levying retrospective tax since October, 2016 to 2021-2022 to individual members and societies of petitioner No. 1.
HELD THAT:- About 59 years back, a three Judge Bench of the Supreme Court in the case of Shivram Poddar Vs. Income Tax Officer, Central Circle II, Calcutta and Anr. [1963 (12) TMI 6 - SUPREME COURT] has held that resort to the High Court in exercise of its extraordinary jurisdiction conferred and recognized by the Constitution in matters relating to assessment, levy and collection of tax (in such case, income-tax) may be permitted only when questions of infringement of fundamental rights arise, and where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess. In attempting to bypass the provisions of the statute by inviting the High Court to decide the questions which are primarily within the jurisdiction of the Revenue Authorities, the party approaching the Court has often to ask the Court to make assumptions of facts which remain to be investigated by the Revenue Authorities.
In another decision of a three Judge Bench of the Supreme Court in Income-Tax Officer, Lucknow Vs. M/s. S.B. Singar Singh & Sons & Anr. [1976 (8) TMI 5 - SUPREME COURT], it was held that the High Court was not justified in deciding the matter primarily within the jurisdiction of the revenue authorities by entertaining a writ petition.
The relevant provisions of MMC Act read with the Rules, creates a robust statutory mechanism not only in respect of everything leading to the levy and collection of taxes but also providing for a specific statutory remedy of an appeal under Section 406 of the MMC Act of an appeal being provided, if a person is aggrieved by the fixation of a rateable value or capital value or 'tax fixed' or 'charged' under MMC Act, to be assailed in such appeal, which is to be filed before the Judge as defined under Section 2(29) of the MMC Act - as per provisions of sub-section (2A) of Section 406 of MMC Act, when such appeal is not filed in accordance with the provisions of clause (e) of sub-section (2), it shall be liable to be dismissed. It appears that for such reasons, it is not convenient for the member societies of petitioner no. 1 to take recourse to alternate statutory remedy as provided under Section 406 of the MMC Act to assail the bills in question.
A bare reading of Section 150A shows that it is a widely worded provision. It has an overriding effect over the other provisions of the Act and the Rules. It would not be a wrong reading of the said provision, if it is observed that such provision, would take within its ambit such situations whereby the municipal corporation could not levy taxes for a retrospective period. This would certainly include the situation as in the present case, namely, the difficulties such as in the present case, when municipal taxes are being imposed after some years of the formation of the municipal corporation as for finalizing the levy of taxes in relation to all the properties within the municipal corporation, is a long drawn process which cannot be overnight. Thus, in view of the clear provisions of Section 150A, the contention of the petitioners that there was no authority with the municipal corporation to levy taxes for the past period in respect of which the bills have been issues, is totally untenable.
The petition is neither maintainable as framed, nor the same can be entertained under Article 226 of the Constitution of India. It is accordingly dismissed.
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2023 (4) TMI 1240
Validity of order passed by the TPO u/s 92CA(3) - Period of limitation - HELD THAT:- After taking into consideration the material placed on record it is undisputed fact that transfer pricing officer has passed order u/s 92CA(3) on 30.01.2013 whereas the limitation for passing the said order u/s 92CA(3) expires on 29.01.2013. Therefore, taking into consideration the provision of the Act and decision of PFIZER HEALTHCARE INDIA (P.) LTD [2021 (2) TMI 1152 - MADRAS HIGH COURT] in the cases referred supra the order u/s 92CA(3) of the Act is time barred by 1 day.
The order of the TPO and draft assessment order are barred by limitation, therefore, resulting in assessee not being a eligible assessee u/s 144C(15)(b)(i) of the Act. Consequently, the final assessment was also bad in law - Decided in favour of assessee.
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2023 (4) TMI 1239
Penalty levied u/s 271B - assessee society had got its account audited u/s 44AB on 10.12.2014, i.e. after the due date laid down in the Act i.e. 30.09.2013 - As argued by assessee statutory auditor was not appointed timely by the Register of Cooperative Society which was not in the hands of the Appellant only after completion of Statutory Audit, Tax audit was done - HELD THAT:- Before us, Asessee has filed paper book containing the documents relating to the letter of Jila Sahakari Kendriya Bank Maryadit, Raipur dated 17.10.2014 appointing the Tax Auditor, audited accounts, tax audit report dated 14.02.2015 and copy of computation & acknowledgement.
It was also submitted explanation of the assessee has not been considered in the proceeding before the CIT(A). It is fairly admitted that the statutory auditor is appointed by the Registrar of Co-operative Societies and not by the assessee. This being so, we are of the view that the assessee has sufficient and reasonable cause for delay in obtaining the audit report.
Since the auditor was appointed by the Registrar of Cooperative Societies on 17.10.2014, therefore, there is no delay on the part of the assessee. Accordingly, we are of the considered opinion that the penalty levied by the AO u/s.271B of the Act and confirmed by the ld. CIT(A) deserves to be deleted and we do so. Thus, appeal of the assessee is allowed.
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2023 (4) TMI 1238
Continuation of proceedings u/s 138 of the NI Act, once moratorium declared - thrust of the arguments of the learned counsel rest on the contention that the scope of the protection accorded to individuals/firms under Section 96 of the IBC (interim moratorium) is wider than that of Section 14 of the IBC.
HELD THAT:- As per the settled law, even in the wake of legal impediment under Section 14 of the IBC, natural persons mentioned in Section 141 of the NI Act, e.g. the petitioners in the instant case, would continue to be statutorily liable under Section 138 of the NI Act.
It is abundantly clear that when the provisions of Section 14 and 96 of the IBC are viewed in context of Corporate Debtors vis-a-vis individuals, as is the case in hand, the scope of Section 14 of the IBC comes across as being much wider than that of Section 96 of the IBC.
Adverting to the submissions made by learned counsel qua the petitioners not being vicariously liable in view of their status being that of ‘suspended Directors’, it would be pertinent to notice that the cheques in question had been issued on 15.09.2019 i.e. prior to the order dated 10.10.2019 passed by the NCLT, Chandigarh Branch, appointing Amit Gupta as IRP. Therefore, there can be no manner of doubt that on the date of issuance of the cheque in question, the petitioners were still in-charge of the management of the affairs of the Corporate Debtor as it was a matter of record that they were its Managing Directors.
This Court does not find any merit in the instant petitions and they stand dismissed.
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2023 (4) TMI 1237
Permission to operate the overdraft account - Respondents states that the Petitioner did not attend the hearing and therefore, this request could not be considered - HELD THAT:- Before proceeding to examine the larger challenge, hearing of this Petition is deferred to 21 April 2023, to be listed under the caption “For Directions” so that the Petitioner can attend the office of the concerned Commissioner as regards permission to operate the overdraft account.
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