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Showing 161 to 180 of 1183 Records
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2021 (6) TMI 1023
Addition being the expenditure under the head "consumption of stores and space" - Admission of additional evidence - HELD THAT:- We find that in the appeal proceedings before the ITAT, the ITAT had taken note of the evidence filed by the assessee and also that the AO has not verified such evidence. Therefore, ITAT thought it fit and proper to remand the issue to the file of the CIT(A) and directed him to call for a remand report from the AO on the evidence filed by the assessee.
We find that in the remand proceedings before the CIT(A), the assessee had filed an application for admission of additional evidence and also the additional evidence - CIT(A) had called for the comments of the AO only on the petition for admission for additional evidence and did not forward the additional evidence to the AO and therefore AO has submitted his remand report only on the petition for admission of the additional evidence. Thus, it is clear that the additional evidence has not been verified either by the AO or the CIT(A) and hence the directions of the ITAT have not been followed in its letter and spirit - we deem it fit and proper to remand the issue to the file of the Assessing Officer for verification and denovo consideration of the issue in accordance with law. - Revenue's appeal is treated as allowed for statistical purposes.
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2021 (6) TMI 1022
Penalty levied u/s 271B - delayed furnishing of tax audit report u/s 44AB due to delay in getting statutory audit report under the companies act - HELD THAT:- We find that assessee had sought to explain the genuine difficulty it has faced in finalizing the accounts without which the statutory audit under Companies Act and Tax audit under Income Tax Act could not be completed. The levy of penalty contemplated under section 271B of the Act is not automatic and the same shall not be levied if the assessee was able to provide reasonable cause for the delay.
In the instant case, from the above narration of facts, that led to delay in finalization of statutory audit and tax audit as detailed hereinabove, we find that assessee had indeed sufficient and reasonable cause within the meaning of section 273B of the Act and hence, could not be invited with the levy of penalty under section 271B.
Income declared by the assessee in the revised computation of income in the sum has been indeed accepted by the AO in the scrutiny assessment, which proves that all the necessary details were indeed made available by the assessee before the completion of assessment proceedings to the satisfaction of the learned Assessing Officer, together with the tax audit report and its annexures. We find that the Hon’ble Madras High Court in the case of CIT vs A N Arunachalam [1994 (1) TMI 65 - MADRAS HIGH COURT] had held that the tax audit report was ultimately made available to the ld AO before the completion of assessment proceedings and hence no penalty u /s 271B of the Act could be levied on an assessee. - Decided in favour of assessee.
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2021 (6) TMI 1021
Unexplained cash deposit u/s 68 - HELD THAT:- As noticed that during the year under consideration, an information was received from the ADIT (Inv.), Ajmer regarding cash deposits in the bank account of the assessee. AO issued necessary notices to the assessee for explaining the deposits of cash in the bank account and in response thereto, it was submitted by the assessee that the assessee’s account was used by his fast friend Mr. Kana Ram to deposit sale proceeds of his immovable property.
As submitted by the assessee that since Mr. Kana Ram was his fast friend and at the time of sale of his immovable property, the said Kana Ram was not having any bank account in any bank, therefore, he requested the assessee to deposit the said funds in assessee’s account and it was agreed between the assessee and Mr. Kana Ram that Kana Ram would transfer the entire amount to his bank account as and when the same is opened in any bank - as per the assessee, an affidavit was given by said Mr. Kana Ram to the assessee. As further submitted by the AR that the amount deposited by Mr. Kana Ram was withdrawn/paid as per the direction of Mr. Kana Ram and the details of the buyers have already been given by the assessee in his written submissions which of the order of the ld. CIT(A).
We noticed that in order to verify the statement of the assessee, summons was issued to said Mr. Kana Ram by the ADIT (Inv.), Ajmer. However, in response to the said summons, the reply was filed by one Shri Shailendra Singh Rathore, Advocate on behalf of Mr. Kana Ram thereby taking a contrary stand and denied the liability of the said Kana Ram. Even during the course of assessment proceedings, the A.O. had sought information from the bank u/s 133(6) of the Act and also issued summons u/s 131 of the Act to the said Kana Ram.
On one occasion, the said Mr. Kana Ram sought adjournment on the ground that he is ill and therefore, on said request, the matter was adjourned by the A.O. for 10/12/2018. The said Mr. Kana Ram did not appeal. Again, another notice through registered post was sent to Mr. Kana Ram, however, the same was returned back unserved by the postal authority with the remark “recipient is out of Kekri and refused to receive the post by his family members”.
All those facts on record goes to show that the assessee has miserably failed to prove the affidavit filed by the said Mr. Kana Ram and even the said Kana Ram did not attend the office of the A.O. in spite of the fact that he was served with the summons U/s 131 of the Act. In this way, the statement made in the said affidavit remained unproved and no other independent evidence has been brought on record by the assessee to substantiate the statement made by the said Mr. Kana Ram in the affidavit.
No evidence has been placed on record in the shape of ITR of the said Mr. Kana Ram for the year under consideration reflecting the source of the funds. Keeping in view the totality of the facts and circumstances, we are of the view that the addition sustained by the ld. CIT(A) do not need any interference. Appeal of the assessee is dismissed.
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2021 (6) TMI 1020
Disallowance of 10% out of total expenses incurred - HELD THAT:- We see no reason to discredit the findings given by the CIT(A) and restore the action of the AO as demanded by Revenue. The reasons given by the CIT(A) are that the expenses incurred are comparable and there is no allegation that expenses are bogus from the AO. Having regard to past history and in the absence of any specific defect, the CIT(A) rightly concluded that the action of the AO is unsustainable on facts. Merely because the expenses incurred appears excessive qua the corresponding business activities, it cannot be a ground for ad hoc disallowance as long as the expenses incurred are commercially expedient. We thus see not merit in the grievance of the Revenue in this regard.
Addition being 10% out of sundry credits - HELD THAT:- CIT(A) found force in the claim of assessee for reversal of additions on the ground that there is no mismatch or non-tallying with figures of sundry creditors. Revenue could not point out any specific defect in the order of the CIT(A) in its rebuttal before us. We totally fail to understand the rationale for disallowance of ad-hoc sum out of existing sundry creditors in this manner. Hence, we decline to interfere.
Estimation of interest income towards notional interest @12% on loans and advances - HELD THAT:- We notice from the order of the CIT(A) that the AO has not found any justification in low income in comparison to corresponding high loans/advances/investment in shares. CIT(A) reversed the action of the AO towards addition of notional interest income on the ground that income arising from advances are duly recorded in the books and the position is to be viewed in the peculiar facts of the case i.e. the cancellation of banking license of the assessee and settlement of the advances is under one time settlement Scheme (OTS) etc. The ad-hoc estimation of income on OTS of doubtful advances, in any case, is against the doctrine of real income and thus cannot be countenanced. We thus see no perceptible reason to dislodge the conclusion drawn by the CIT(A) in favour of the assessee.
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2021 (6) TMI 1019
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - existence of debt and dispute or not - time limitation - HELD THAT:- Notice with respect to the application was issued to the Corporate Debtor vide order dated 23.01.2020 of the Adjudicating Authority. Further, it has been observed that neither a reply to the Demand Notice nor to Section 9 application was filed by the Corporate Debtor - The dates of default which are continuing from 2015 onwards till 2019. Considering the limitation period, the invoices from 2016 to 2019 will be within limitation, the amount of which is more than 1 Lac and the default is continuing. The present application is filed on 19.01.2020. Hence the application is not time barred and filed within the period of limitation.
The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application - Having considered the facts and circumstances and the material available on record, the Application filed by the Operational Creditor is complete in all respect. This authority is satisfied that the Operational Debt which is due to the Applicant has remained unpaid and default has occurred.
The Application is admitted and the commencement of the CIRP is ordered.
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2021 (6) TMI 1018
Liquidation of the Corporate Debtor - Section 33 r.w. Section 34 of the Insolvency & Bankruptcy Code, 2016 - HELD THAT:- An order of liquidation can be passed in the present case as no resolution has been received and COC has also resolved to do so. The COC has passed the resolution to liquidate the corporate debtor in compliance of section 39B & 39C of IBBI (CIRP) Regulations, 2016. The sole member of COC has also resolved to contribute to the costs of liquidation.
The name of the RP has been proposed by the applicant in the present application whose name has already been approved by COC to act as liquidator. Hence the proposed RP/applicant is appointed to act as a liquidator.
Application allowed.
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2021 (6) TMI 1017
Dissolution of Corporate Debtor - Section 54 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Having satisfied to the fullest extent that no further assets to be utilized for recovery of dues of the Creditors/Stakeholders, no further proceedings would remain in the Liquidation Process of the Corporate Debtor, the Liquidator has approached this Adjudicating Authority for appropriate directions under Section 54 of the IB Code - this Adjudicating Authority in exercise of the powers conferred under Sub-Section (2) of Section 54 of the Code, hereby, orders the dissolution of the Corporate Debtor viz., M/s. Subhlaxmi Dyeing & Printing Mills Private Limited from the date of this order and the Corporate Debtor stands dissolved.
The Liquidator Mr. Kailash T Shah is discharged from his duties and responsibilities as the Liquidator of the Corporate Debtor - application allowed.
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2021 (6) TMI 1016
Revision u/s 263 by CIT - Whether waiver of loan has been held to be capital receipt and cannot be taxed u/s. 28(iv)? - HELD THAT:- While framing the assessment u/s. 143(3) of the Act, pursuant to the order u/s. 263 of the Act, the Assessing Officer has not made any addition in so far as interest part is concerned and in so far as waiver of principal amount is concerned, the issue is highly debatable, in as much as, there are direct decisions in favour of the assessee and against the revenue.
We are of the considered view that the basis for assuming jurisdiction u/s. 263 of the Act is Note II to Schedule XIIIB of the balance sheet was very much examined by the Assessing Officer while framing assessment order u/s. 143(3) of the Act and, therefore, it cannot be said that there was no application of mind by the Assessing Officer.
AO has taken a plausible view after going through the relevant balance sheet, profit and loss account, audit report and notes thereon. After considering the facts, the Assessing Officer has taken a plausible legal view that waiver of loan by joint promoters by way of corporate guarantee for strengthening net worth was capital receipt.
Waiver of loan has been held to be capital receipt and cannot be taxed u/s. 28(iv) of the Act as mentioned above, This view has been taken by the Hon'ble Bombay High Court in the case of Mahindra and Mahindra [2003 (1) TMI 71 - BOMBAY HIGH COURT]
This shows that the view taken by the Assessing Officer is a plausible view in line with the decision of the Hon'ble High Court and, therefore, by no stretch of imagination, the assessment order dated 22.12.2006 can be said to be erroneous and prejudicial to the interest of the Revenue.
We find that in the case of CIT Vs. Anil Kumar [2010 (2) TMI 75 - DELHI HIGH COURT] has held that where it was discernible from record that the A.O has applied his mind to the issue in question, the ld. CIT cannot invoke section 263 of the Act merely because he has different opinion. Thus we are of the considered opinion that the assessment order framed u/s. 143(3) of the Act is neither erroneous nor prejudicial to the interest of the Revenue. - Decided in favour of assessee.
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2021 (6) TMI 1015
Bogus LTCG - Addition u/s 68 - gain derived from sale of such share was treated as long term capital gain and claimed to be exempt under section 10(38) - genuineness of the capital gain derived from sale of shares of GFL Financials - HELD THAT:- As observed by CIT (A) that even on the date on which the shares were split, i.e. on 09-03-2013, the shares were not credited to the demat account of the assessee. All these facts certainly raise some amount of doubt and suspicion regarding the share transaction - it is trite that doubt and suspicion howsoever strong, cannot take the place of evidence - merely based on doubt and suspicion, no addition can be made - in our considered opinion, the assessee must also come clean on facts and prove the genuineness of the transaction by properly explaining the doubts raised by the departmental authorities with regard to the belated credit of the shares to her demat account and encashment of cheque after more than a year of transaction.
Doubts raised by the departmental authorities in their respective orders, may not have been put forward to the assessee seeking clarification. It is also a fact that enquiry which was required to be done by the departmental authorities to go to the root of the matter and ascertain the genuineness of the shares of GFL Financials, have not been done.
The entire issue relating to the genuineness of share transaction involving the shares of GFL Financials requires fresh consideration at the end of the AO. As regards the decisions relied upon by learned counsels appearing for the parties, though, there cannot be any dispute regarding the principle/ratio laid therein; however, they have to be applied only after full facts are brought on record. Since, in the facts of the present case we are of the view that the facts relating to the disputed issue have not been fully brought on record, we cannot apply the ratio laid down in the decisions relied upon in vacuum.
Accordingly, we deem it appropriate to set aside the impugned order of CIT(Appeals) and restore the issue to the file of the AO for fresh adjudication keeping in view our observations hereinabove. Grounds are allowed for statistical purposes.
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2021 (6) TMI 1014
Approval of scheme of Arrangement - seeking orders and directions with regard to dispensation of various meetings - Section 230-232 of Companies Act - HELD THAT:- Various directions regarding convening and holding of various meetings issued - various directions regarding issuance of various notices issued - the scheme is approved - application allowed.
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2021 (6) TMI 1013
Addition u/s 68 - unexplained share Capital and Share Premium - need for share - applicants to appear before the Id AO when they filed confirmations, bank accounts, statements, ITRs and also complied with statutory notices u/s 133 (6) - HELD THAT:- Most of the share - applicants were also simultaneously subjected to scrutiny assessment u/s 143(3) wherein the matter of investment in shares of appellant - company and the sources of same were being examined by the AOs. AO could have informed the concerned AO to make any verification he wanted to.
As argued that the Id AO is duty bound to inform concerned AO of share - applicant and not to do direct inquiry with them, as held in the decision RANCHHOD JIVABHAI NAKHAVA [2012 (5) TMI 186 - GUJARAT HIGH COURT] by the jurisdictional High Court. That the share applicants did not turn up before the Id AO, cannot a reason for addition, when all confirmatory documentary evidences are furnished. Considering these above facts and circumstances, we are of the view that assessee has satisfied three ingredients of the Section 68 , viz: (i) identity, (ii) creditworthiness and (iii) genuineness of the transactions.That being so, we decline to interfere with the order of Id. CIT(A) in deleting the aforesaid additions. His order on this addition is, therefore, upheld and the grounds of appeal of the Revenue are dismissed.
Estimation of Gross Profit (GP) - No reason of downfall of GP with supporting evidences by assessee - CIT-A deleted the addition - HELD THAT:- We note that while deleting the addition on account of estimation of Gross Profit, the CIT(A) held that books of accounts can be rejected only on cogent finding of defects in the books of accounts, when the AO has not examined the books of accounts, there is no question of rejection of the same.We note that there is no infirmity in the conclusion reached by the ld CIT(A).
The conclusions arrived at by the ld CIT(A) are, therefore, correct and admit no interference by us. We, approve and confirm the order of the CIT(A). - Decided against revenue.
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2021 (6) TMI 1012
Legality of approved Resolution Plan - NCDs fixed deposits etc. - claims of more than 70,000 Fixed Deposit Holders (including individuals), Lakhs of Employees of Uttar Pradesh State Power Sector Employees Trust, Board of Trustees of Uttar Pradesh Power Corporation Contributory Provident Fund Trust, investment by Capgemini Business Services India Ltd., Employees Provident Fund Trust - distribution to public depositors, Fixed Deposit holders, subscribers to NCDs - HELD THAT:- The details of claim of all the Applicants in the form of NCDs fixed deposits etc., claims admitted, amount payable were discussed in detail in the Resolution Plan approved - With regard to the claims of more than 70,000 Fixed Deposit Holders (including individuals), Lakhs of Employees of Uttar Pradesh State Power Sector Employees Trust, Board of Trustees of Uttar Pradesh Power Corporation Contributory Provident Fund Trust, investment by Capgemini Business Services India Ltd., Employees Provident Fund Trust, other claimants falling in the similar category, and we are of the considered view that considering the number of small investors running into lakhs, senior citizens, who had deposited their hard earned savings, have to meet various expenses especially in this Covid-19 Pandemic situation, loss of jobs to number of depositors, to meet marriage, education expenses, other essential needs the employees of the PF Trust which is the money they would get at the time of/after superannuation.
Since FSP is a different nature of company than a normal Corporate Debtor, where in thousands, Lakhs of Small Investors invest their funds for a reasonable interest income to take care of their future needs - It is generally considered that investment in Fixed Deposit, NCDs are low risk investment than investing in Equity Shares therefore these small investors should not be put to more risk, take more hair cut than the stronger Financial Institutions viz Banks, Financial Institutions and accordingly for this limited purpose we request, suggest the CoC to reconsider their distribution method, distribution amongst various members of CoC within two weeks from today and report the same to this Adjudicating Authority.
Decision on distribution to this public depositors, Fixed Deposit holders, subscribers to NCDs - HELD THAT:- There is no additional monetary obligation for the Successful Resolution Applicant to pay anything more than what it has committed in the Resolution Plan i.e an amount of ₹ 37,250 Crores. It is only an inter se distribution of resolution money amongst various creditors. Therefore, with regard to the manner of distribution, the method of distribution amongst various creditors viz Public Depositors, Fixed Deposit Holders, NCD Holders, Small Investors, Employees Provident Fund Trust etc, the CoC is suggested to reconsider the same so that lakhs of small investors would be benefited - Further while directing and observing so, we find support from the decision of NCLT Ahmedabad Bench in the matter of Standard Chartered Bank and State Bank of India V/s Essar Steel Limited [2019 (3) TMI 1706 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD] which has been confirmed by the Hon'ble Supreme Court of India wherein the Adjudicating Authority has directed to the CoC to consider the distribution mechanism for giving more apportionment Amount to the Operational Creditors and unsecured Financial creditors.
The CoC is requested to reconsider their distribution method, distribution amongst various Members of CoC within two weeks and report the same to this Adjudicating Authority - application disposed off.
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2021 (6) TMI 1011
Levy of GST / IGST - training to students at behest of Directorate of Welfare of Scheduled Caste and Backward Classes Department, Haryana by applicant under a training programme for which total expenditure is borne by state Govt. of Haryana - Entry No. 72 of the Haryana Govt. Excise & Taxation Department Notification No. 47/ST-2 Dated 30.06.2017 - requirement of registration under the State of Haryana under HGST/CGST.
HELD THAT:- The applicant is providing training for JEE (Non Med.) and NEET (Med.) to the selected candidates at the behest of Directorate of Welfare of Schedule Caste and Backward Class, Department of Haryana, Chandigarh, Class 12 ff Non-Medical and Medical aspirants. The applicant has placed reliance on the entry No. 72 of the notification No. 47 dated 30-06-2017 - This authority also agrees with the operative part of the above stated letter issued to the Director, Welfare of Schedule Caste and Backward Classes Department, Haryana. Therefore, the training imparted by M/S Sachdeva Colleges Ltd. to the students selected through Directorate of Haryana for JEE (Non-Med.) and NEE T (Medical) are exempt under entry 72 of Notification No. 47 of the HGST Act subject to that the whole expenditure is borne by the Center/State Government.
Requirement of registration - HELD THAT:- Section 23 of the Act provides that any person engaged exclusively in the business of supplying goods and services or both that are not liable to tax or fully exempt from tax under this Act or under the Integrated Goods and Service Tax Act. So the applicant is not liable for registration till he supplies goods and services or both that are not liable to tax or fully exempt from lax under the GST Acts.
Application disposed off.
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2021 (6) TMI 1010
Disallowance of deduction u/s 10B - AO disallowed the claim of the assessee for deduction under section 10B for want of rectification accorded by the Board of Approval appointed for this purpose by the Government of India - assessee has presented before the AO that if at all the claim under section 10B is not allowed, the same may be considered under section 10A - HELD THAT:- The issue involved in the present appeals is covered by the decision of M/S MPHASIS LTD. (FORMERLY KNOWN AS MPHASIS BFL LTD.) [2019 (11) TMI 1383 - SUPREME COURT] AND Mphasis Ltd.[2014 (8) TMI 690 - KARNATAKA HIGH COURT] wherein held that if the export turnover in the numerator is to be arrived at after excluding certain expenses, the same should also be excluded in computing the export turnover as a component of total turnover in the denominator. The reason being the total turnover includes export turnover. The components of the export turnover in the numerator and the denominator cannot be different. Therefore, though there is no definition of the term 'total turnover' in Section 10-A, there is nothing in the said Section to mandate that, what is excluded from the numerator that is export turnover would nevertheless form part of the denominator. Though when a particular word is not defined by the legislature and an ordinary meaning is to be attributed to the same, the said ordinary meaning to be attributed to such word is to be in conformity with the context in which it is used. - Also see M/S. ZYLOG SYSTEMS LIMITED [2020 (3) TMI 181 - MADRAS HIGH COURT] - Decided in favour of assessee.
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2021 (6) TMI 1009
Grant of regular bail - Smuggling - Phensedyl - recovered bottles were found containing Codeine Phosphate which is a manufactured drug - recovery of commercial quantity of Codeine or not - whether the rigour of Section 37 of the NDPS Act which regulates the grant of bail for offence involving commercial quantity of drugs is attracted or not? - HELD THAT:- Matter is referred to Larger Bench to decide following issues:-
a) whether in cases specifically related to manufactured drug with a miniscule percentage of a narcotic substance, the weight of the neutral substance ought to be ignored while determining the nature of the quantity seized i.e. small, commercial or in between?
b) whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001 published in the Gazette of India, Extra., Pt.II, Sec3 (ii) dated 19th October 2001, as amended on 18.11.2009, should be held inapplicable to manufactured drug which contain a miniscule percentage of a narcotic drug?
c) whether Note 4 of the S.O. 1055 (E) dated 19th October, 2001 published in the Gazette of India, Extra., Pt.II, Sec3 (ii) dated 19th October 2001, as amended on 18.11.2009, should be made applicable to cough syrups containing miniscule percentage of Codeine since it has medicinal value and is also easily available?
Since the question is referred to a larger Bench, this Court is inclined to grant the petitioner interim bail for 90 days on the petitioner furnishing a personal bond in the sum of ₹ 35,000/- with surety in the like amount to the satisfaction of the Trial Court subject to the conditions imposed - application allowed.
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2021 (6) TMI 1008
Direct Tax Vivad Se Vishwas Act, 2020 - whether Petitioner is an eligible appellant under the provisions of the DTVSV Act? - Whether if the appeal before the appellate forum, CIT(A) in this case, is pending before the specified date i.e. 31st January 2020, then the applicant would be an eligible appellant? - HELD THAT:- The undisputed facts that emerge are that Assessment Order being passed on 26th December 2019, the demand was raised before the specified date i.e., 31st January 2020. Petitioner had filed appeal before Commissioner of Income Tax (A) on 6th February 2020 and the condonation of delay application was filed on 20th February 2020. The condonation delay as per the affidavit of the department came on 25th December 2020.
In view of the department’s own stand that the delay in filing the appeal before the CIT(A) has been condoned, there is nothing left for us to say further. It is a matter of first principles that the order of condonation of delay relates to the appeal and once delay has been condoned in the filing of appeal that means in this particular case appeal has been filed in time i.e. before the specified date i.e. 31st January 2020 as required under the DTVSV Act thereby making Petitioner an eligible appellant to avail the benefit of the DTVSV Scheme. Moreover, the department has in its affidavit in reply clearly stated that the Petitioner is an eligible appellant under the DTVSV Act and that Petitioner also does not fall within the disqualification in Section 9 of the DTVSV Act. Petition allowed.
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2021 (6) TMI 1007
Amendment of shipping bills - amendment sought on the ground of erroneous assumption that the shipping bills contain an inadvertant error that disentitled it from claiming benefit under the Merchandise Exports from India Scheme (MEIS Scheme) - HELD THAT:- Reliance on Section 149 of the Customs Act, 1962 (in short 'Act') dealing with 'Amendment of documents' is unnecessary in this case, since the shipping bills require no amendment and clearly reflect the intention of the petitioner to claim the benefit. In the petitioner's representation dated 04.10.2019 too, the petitioner reiterates its intention to claim reward under the MEIS Scheme, but goes on thereafter to refer to provisions of Section 149 of the Act - In view of the fact that the petitioner's intention to claim MEIS benefit is clear from the shipping bills and the mistake has only happened while uploading the bills in the EDI, the error is hyper-technical, inadvertent and a human error and should not stand in the way of the petitioner being granted the substantial benefit which it has opted for, from inception.
It appears that the petitioner has been inspired by an order passed by this Court in a Writ Petition granting benefit in similar situations. It would be too harsh to state in such circumstances, specifically in the light of the facts as noticed by me above in paragraph Nos.2 to 5 that the petitioner should be denied the benefit merely on the ground of delay. This argument is rejected - The petitioner is entitled to the benefit under the MEIS Scheme and the respondents are directed to grant consequential benefits to the petitioner within a period of eight (8) weeks from today.
The petitioner is entitled to the benefit under the MEIS Scheme and the respondents are directed to grant consequential benefits to the petitioner within a period of eight (8) weeks from today - Petition allowed.
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2021 (6) TMI 1006
Seeking 'G' Card Licence to the petitioner under Regulation 17(3) of Customs Brokers Licensing Regulations, 2013 - upgradation of license from “H” to “G” - HELD THAT:- It is clear that the respondent authorities have conducted the examination not with a view to upgrade the licence holder, but with a view to reject the upgradation from “H” to “G”. The object of any examination is to ensure that the qualified candidate is promoted to the next post. If an examination is conducted with the object to reject candidates, then the examination itself has to be struck down. In this case, the respondent had no right to conduct any oral examination. It is not provided in the Rules. The Rules stipulate that written examination alone must be conducted. Other State authorities have conducted only written examination and they have not called upon the qualified candidates to again appear for an oral examination. The reasons are obvious.
In the present case, for the written examination, the maximum mark was 100 and the qualifying mark was 50 and separately, for oral examination 100 marks were allotted as a maximum and the qualifying mark was given as 50. It is not known what is the nature of oral examination, which was conducted and how the candidates were assessed. Those details are absent in the counter affidavit.
A direction is issued to the respondent to consider the petitioner's representation, dated 02.07.2020, seeking 'G' Card Licence to the petitioner, under Regulation 17(3) of Customs Brokers Licensing Regulations, 2013 and to pass necessary orders, within a period of eight weeks from the date of receipt of a copy of this order - Petition disposed off.
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2021 (6) TMI 1005
Violation of principles of natural justice - Revision of assessment - opportunity as contemplated under the provisions of the Act is not provided before passing the final orders of revision of assessment - HELD THAT:- Petitioner's request to grant two months time to file certificate of payment in letter dated 17.09.2013 was not disposed of. In other words, no order of rejection or acceptance was passed. Thus, the petitioner was deprived of his opportunity to file the documents.
This Court is of the considered opinion that the assessees may work out their remedy in a calculated manner, some times to prolong and protract the issues. However, the authorities competent are expected to be cautious in the matter of following of the procedures contemplated. Evasion of Tax is a common phenomenon in our nation. Thus, the competent authorities while dealing with any issues are bound to be careful, more specifically in the matter of following the procedures as contemplated in the statute and the rules - The officials competent are expected to follow the procedures contemplated under the statute and rules scrupulously. The procedural violations, if any, committed would cause unnecessary delay and further, provide cause for further disputes on such technical grounds.
In the present case, undoubtedly, the assessees are adopting the delay tactics. Unfortunately, the system also supports such litigants in disposal of the matters as such matters are kept pending for years together. Ultimately, such delay causes injury to the revenue for the State and sufferers would be the public at large in the society. Thus, the authorities are bound to be careful while dealing with such matters. The respondent is also expected to pursue the matters before the Courts vigilantly so as to get disposal as early as possible in such matters where fresh considerations are required on account of certain technical and procedural irregularities.
In view of the fact that the respondent has not disposed of the request made by the petitioner to grant two months time to file certificate of payment, the matter is to be remanded back for fresh adjudication by following the procedures - petition allowed by way of remand.
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2021 (6) TMI 1004
Release of seized goods - Black Pepper - freely importable goods or not - value declared is more than ₹ 500/- - prohibition as per the amended DGFT notification No. 21/2015-2020, dated 25.07.2018 - HELD THAT:- There is no necessity for this Court to go into the aspect with regard to the investigation, which is being carried on by DRI, Tuticorin, because the issue involved in the writ petition is whether the goods imported by the appellant can be released by the Customs Authority, either by way of a release in total or by way of a provisional release. Since the DRI has taken up the matter for investigation, the appellant seeks for provisional release of the cargo, which has been imported by them, seized by the DRI and presently lying in the Tuticorin Port. If such is the prayer sought for by the appellant, then reasonable time should be granted to the Competent Authority to take a decision on such an application or representation being filed for provisional release of the cargo.
There is no formal request made to the Competent Authority, who is stated to be the Commissioner of Customs, Tuticorin, praying for provisional release of the cargo. Therefore, in our considered view, the prayer as couched in the writ petition is premature and no Writ of Mandamus could have been issued at the present stage, more particularly, when the Authority is yet to take a decision on the matter and more importantly, when there is no specific request made by the appellant for grant of provisional release before the Commissioner of Customs, Tuticorin.
The prayer sought for in the writ petition is not maintainable or rather has to be taken to be premature, considering the facts of the case, since the Revenue states that the import of black pepper into India, which is valued below ₹ 500/- is prohibited taking into consideration the welfare of the agriculturists and it is alleged by the DRI that the imports had been effected by the appellant by inflating the invoice value.
The writ petition stands disposed of by directing the appellant to file a proper application for grant of provisional release of the cargo along with their submissions as well as the documents which they propose to rely upon and the Commissioner of Customs, Tuticorin, shall fix the date for personal hearing, preferably, through video conferencing.
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9911796707
