Seeking discharge from detention - accused possessed assets disproportionate to his known source of income - failure to consider the written explanation offered - non-application of mind - violation of principles of natural justice - HELD THAT:- It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged.
The power and jurisdiction of Higher Court under Section 397 Cr.P.C. which vests the court with the power to call for and examine records of an inferior court is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings.
The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistency in the statement of witnesses and it is not legally permissible. The High Courts ought to be cognizant of the fact that trial court was dealing with an application for discharge.
The plea or the defence when requiring to be proved during course of trial is itself sufficient for framing the charge. In the instant case, the learned Trial Judge has noticed that explanation provided by the respondent accused pertaining to purchase of shop No.7 of Suman City Complex of plot No.19, Sector-11 from the loan borrowed and paid by the respondent was outside the check period and hence the explanation provided by respondent is a mere eye wash. This is an issue which has to be thrashed out during the course of the trial and at the stage of framing the charge mini trial cannot be held. That apart the explanation offered by the respondent accused with regard to buying of Maruti Wagon-R car, Activa scooter, purchase of house etc., according to the prosecution are all the subject matter of trial or it is in the nature of defence which will have to be evaluated after trial.
The High Court had committed a serious error in interfering with the well-reasoned order passed by the trial court - the impugned judgment dated 11.01.2018 passed in Criminal Revision Application No.387 of 2016 setting aside the trial court order dated 13.04.2016 requires to be set aside - appeal allowed.
Cancellation of GST registration of the petitioner without assigning any reason - violation of principles of natural justice - HELD THAT:- This Court is inclined to allow this petition. While allowing this petition, it is made clear that if the petitioner is liable to pay any tax or penalty, he is required to pay the same in accordance with law.
Approval of Resolution Plan - Seeking out of turn hearing to record the approval of plan - HELD THAT:- Clause 1(f) in Chapter X of the Resolution Plan states that all claims prior to the NCLT approval date of Governmental Authorities in relation to all taxes which the Appellant was liable to pay shall stand extinguished on the approval date. Clause 1(o) declares that any tax, duty and legal liability for the period prior to approval date will be waived and extinguished. That the instant Appeal filed in 2012 is a claim which existed prior to approval date and stands extinguished by virtue of Resolution Plan. The payment schedules described in the Resolution Plan have been completed. The dispute underlying in the above appeal stands settled under Resolution Plan and nothing survives. It was prayed that appeal may be heard out of turn to record the approval of Resolution Plan by NCLT and the appeal may be disposed accordingly.
Taking note of the fact that the NCLT has approved the Resolution Plan in the insolvency proceedings in regard to the company, the Appeal does not survive any more - appeal dismissed.
Levy of penalty - non deposit of TDS on the amount alleged to have been received by the revisionist for construction of Stadium at Narendra Dev University of Agriculture & Technology, Faizabad - HELD THAT:- This Court is of the considered view that the Tribunal has rightly imposed penalty upon the revisionist for not deducting TDS on the amounts which were paid to the U.P. Awas Evam Vikas Ltd. as they were given task of constructing Stadium. The Accountant of the revisionist in his statement before the Tribunal has admitted that payments were infact made directly to the Agency on which TDS was to be deducted and deposited with the State authorities.
Once it is admitted that payment was made by the revisionist directly to U.P. Awas Evam Vikas Nigam Ltd. then they were mandated to deduct the amount of TDS on such payments. Non deduction of TDS would be deemed to be intentional for which the penalty has rightly been imposed.
No interference is required by this Court in the order dated 14.03.2019, passed by the Tribunal - The revisions being devoid of merits are rejected.
Maintainability of second petition - Is a second petition maintainable Under Section 482 Code of Criminal Procedure on grounds that were available for challenge even at the time of filing of the first petition thereunder?
HELD THAT:- Though it is clear that there can be no blanket Rule that a second petition Under Section 482 Code of Criminal Procedure would not lie in any situation and it would depend upon the facts and circumstances of the individual case, it is not open to a person aggrieved to raise one plea after the other, by invoking the jurisdiction of the High Court Under Section 482 Code of Criminal Procedure, though all such pleas were very much available even at the first instance. Permitting the filing of successive petitions Under Section 482 Code of Criminal Procedure ignoring this principle would enable an ingenious Accused to effectively stall the proceedings against him to suit his own interest and convenience, by filing one petition after another Under Section 482 Code of Criminal Procedure, irrespective of when the cause therefor arose. Such abuse of process cannot be permitted.
In the case on hand, the filing of the charge sheet and the cognizance thereof by the Court concerned were well before the filing of the first petition Under Section 482 Code of Criminal Procedure, wherein challenge was made only to the sanction order. That being so, the Petitioner was not at liberty to again invoke the inherent jurisdiction of the High Court in relation to the charge sheet and the cognizance order at a later point of time.
The impugned order passed by the Allahabad High Court holding to this effect is, therefore, incontrovertible on all counts and does not warrant interference - SLP dismissed.
Non-quoting computer-generated DIN in the body of impugned orders - whether such legal ground raised first time before the Tribunal can be admitted?' more specifically when it was not raised before the first appellate authority but the subject matter of impugned orders assailed against - HELD THAT:- Admittedly no new facts are required to be investigated or verified for this purpose, therefore such being a bald legal ground requiring no examination of facts a fresh, in our considered view deserves admission in the light of ratio laid down in 'CIT vs. National Thermal Power Company Ltd.' [1996 (12) TMI 7 - SUPREME COURT] and 'Gedore Tools Pvt Ltd. vs. CIT' [1999 (2) TMI 55 - DELHI HIGH COURT].
After due consideration of assessee's plea and submission, we are satisfied that, omission to raise legal ground while filing present appeals were neither wilful nor unreasonable, for the reason we deem it fit to admit the same in the light of judicial precedents laid in 'Jaora Sugar Mills Pvt. Ltd v CIT' [1979 (8) TMI 34 - MADHYA PRADESH HIGH COURT], and 'CIT v Western Rolling Mills Pvt. Ltd.' [1984 (9) TMI 19 - BOMBAY HIGH COURT] and 'Jute Corporation of India Ltd. v CIT' [1990 (9) TMI 6 - SUPREME COURT] and 'Ahmedabad Electricity Co. Ltd. v CIT' [1992 (4) TMI 29 - BOMBAY HIGH COURT] ergo same stands admitted.
Validity of orders issued without DIN - We find this issue is no-more res-integra by the ratio in 'Ashok Commercial Enterprises vs. ACIT' [2023 (9) TMI 335 - BOMBAY HIGH COURT] wherein their lordships have categorically held that, the communication of orders without quoting DIN therein are to be treated as invalid and deemed never to have been issued.
intimation of DIN by separate letters communicated within 15 days of issuance of former DIN less communication would be valid only if, former DIN less communication is issued incorporating therein the reason for issue of such DIN less communication in terms of para 3(i) to 3(v) [as applicable] alongwith the Number & date of obtaining written approval of the Chief Commissioner/Director General of Income-Tax in a specified format, and not otherwise. In the present bunch of appeals we note that, the impugned orders were subject matter of DIN compliance; however same are found communicated without mentioning or quoting therein (1) computer-generated DIN and (2) reasons and approval therefor. Thus impugned orders were communicated in violation of Para-2 & Para-3 of CBDT Circular (supra), hence rendered invalid as if it has never been issued, therefore ceases to have any effect in the eyes of law as non-est.
Second bail application for grant of anticipatory bail - illegally earned the money and purchased the property in the name of his wife - HELD THAT:- Issue notice, returnable on 4th December, 2023.
In the meanwhile, the petitioner shall not be arrested in connection with ECIR No.AMZO/18/2020, subject to condition that the petitioner will always cooperate and remain present before the concerned Court on all the dates fixed.
Seizure of silver bars - seized silver was procured using the cash generated from the clandestine removal of the packaging material supplied by the petitioner firm - scope of Section 67 of the CGST Act - Reasons to believe - HELD THAT:- The officer while conducting the search may find various types of moveable assets. However, only those goods can be seized which are liable for confiscation while exercising the powers under Section 67 of the CGST Act - It is significant to note that the exercise of power under Section 67 pre-supposes ‘the reason to believe’ that a taxpayer has suppressed any transaction relating to supply of goods or services.
The search in the present case was carried out after recording the reasons to believe that the petitioner is engaged in clandestine manufacturing and supply of their product, that is, various types of laminations. Therefore, silver, though being a movable asset, is not “goods” liable for confiscation while exercising the power under Section 67 of the CGST Act in relation to the products being traded by the petitioner.
The argument that the petitioner has not been able to produce lawful evidence of purchase of silver is of no consequence insofar as the action under Section 67(2) of the CGST Act, as initiated in the present case, is concerned.
As far as the argument that in the subsequent investigation the petitioner is found to be trading in silver is concerned, it is clarified that the respondents are not precluded from proceeding further with the investigation and taking appropriate action under the Act. There is no dispute that in case the respondents have reason to believe that the petitioner has suppressed any transaction, in relation to the supply of goods and services, that may involve silver, in contravention of any provisions of the CGST Act or the rules made thereunder, an appropriate action under Section 67 of the Act can be initiated - the respondents are directed to forthwith release the silver bars and coins seized from the petitioner during the search conducted on 07.02.2023.
Let a fresh copy of the affidavit filed on behalf of the petitioner be supplied to Mr. Tripathi - List on 30.11.2023.
Denial of grant of bail - refund obtained without any actual movement of goods during the course of interstate sale - use of forged and false documents of sale - HELD THAT:- The allegations against the petitioner are subject to trial. The trial’s progress has been slow, and it is anticipated to take a considerable amount of time. Bail serves the purpose of allowing an accused to remain free until their guilt or innocence is determined. In contrast, the petitioner has been in detention since May 29, 2023, for more than 04 months.
The petitioner’s continued preventive custody is based on an unsubstantiated suspicion that he might tamper with evidence or influence witnesses. There is no probability of tampering with evidence as it has already been seized by the investigating agency - The petitioner is stated to be a 67-year-old senior citizen having family to look after. Being a family man and having a family to look after, a fixed abode, it is unlikely that he poses any flight risk and/or will flee from trial proceedings.
Thus, no useful purpose would be served by keeping the petitioner in further preventive custody - the petitioner is ordered to be released on bail upon furnishing bail bonds and surety bonds to the satisfaction of the learned trial Court, where his case is being tried, and in case he/she is not available, before the learned Duty Judge, as the case may be - bail application allowed.
Jurisdiction - Power of assessing order to review its own order - stand of the petitioner in the rectification application is that the petitioner mistakenly claimed excess input tax credit for SGST and same amount for CGST and this excess claim was rectified in the month of April, 2018 which is reflected in GSTR 3B - HELD THAT:- The assessing authority, however, by the impugned order has been of the view that the assessment order was finalised and it was passed as per the records made available. The assessing authority could not be justified by the subsequent event to review the assessment order. The view taken by the assessing authority in Exhibit P-5 does not appear to be incorrect. There is difference between rectification and an order on review. There is no power on the assessing authority to review its assessment order.
This writ petition has no merit and the same is hereby dismissed - However, it is open to the petitioner to file an appeal in accordance with the law before the appellate authority challenging Exhibit P-1 and Exhibit P-5 orders in accordance with the law. If the petitioner files the appeal, the same shall be considered expeditiously in accordance with law.
Cancellation of GST registration of petitioner - impugned order indicates no reasons but merely mentions that the same was with regards to the impugned SCN - Violation of principles of natural justice - HELD THAT:- Neither the impugned SCN nor the impugned order can be sustained. The impugned SCN does not refer to any reason for proposing to cancel the petitioner’s GST registration and was incapable of eliciting any meaningful response. The impugned order is also not informed by any reason and has been passed in violation of principles of natural justice.
The impugned SCN as well as the impugned order cancelling the petitioner’s GST registration are set aside. The petitioner’s GST registration is directed to be restored forthwith - Petition allowed.
Exemption u/s 11 - registration u/s.12AB denied - CIT(E) held that he is unable to arrive at the satisfaction of the genuineness of the activities of the assessee Trust - HELD THAT:- It is seen from the second show cause notice by the Ld. CIT(E), there is no specific requirement about the deficit of documents or records filed by the assessee trust. In absence of the same, the Ld. CIT(E) could not have rejected the application on the ground that 30% of the total donation to be received by the assessee Trust will be transferred to the State/Union Territory Branch and National Headquarters of Red Cross Society is nothing but contractual or compulsive transfer of donation fund does not fall within the ambit of voluntary donation and cannot be treated as application of the fund towards the object of the assessee Trust. Consequently denying the registration u/s. 12AB - CIT(E) has not indicated exact deficiency in the documents submitted by the assessee and exact nature of clarification, explanation required from the assessee, but rejected the registration application without confronting the issue and affording proper opportunity of hearing to the assessee Trust.
Therefore in order to prevent miscarriage of justice, we find it fit and proper to provide one more opportunity of being heard to the assessee in support of its case for registration of the trust u/s. 12AB - Therefore we dispose of this appeal by restoring this issue to the file of the Ld. CIT(E) with a direction upon him to provide further opportunity of being heard to the assessee and consider the documents, evidences which the assessee would file as per the notice issued by the Ld. CIT(E). Appeal filed by the Assessee is hereby allowed for statistical purposes.
The High Court of Jammu and Kashmir and Ladakh allowed the petitioner to withdraw the writ petition to seek remedy under law. The prayer was allowed, and the petition was dismissed as withdrawn with liberty as prayed for. (Citation: 2023 (10) TMI 1334 - JAMMU AND KASHMIR AND LADAKH HIGH COURT)
Commanding the respondents to remit tax GST at the rate of 12% /18% on the work executed by the petitioner, in pursuance to the tender awarded by the 1st respondent - whether the respondents are duty bound to remit the tax of GST to the petitioner, depends on the interpretation of the terms of the contract / agreement between the petitioner and the respondent? - HELD THAT:- This court is not exercising the jurisdiction of civil court in respect of the mutual rights / obligations of the petitioner and the respondents under the contract. This court will not determine the scope of the terms of contract entered between the petitioner and the respondents. In effect, in the present writ petition, the prayer is akin to claim for a decree in a money suit. This court does not exercise the jurisdiction to decide the disputed question of fact. If the petitioner is aggrieved for non payment of money by the respondents under the contract, the remedy lies somewhere else and not before this court.
There are no substances and accordingly this writ petition is dismissed.
Petition to be entertained for the purposes of condoning the delay in filing the appeal or not - Excess Input Tax Credit claimed - order passed without opportunity of being heard - violation of principles of natural justice - HELD THAT:- It will be open for the petitioner to file an appeal with an application for condonation of delay in filing such appeal explaining the circumstances which are available to suggest to the appellate authority that the petitioner was prevented by way of a sufficient cause in filing such an appeal. This is observed in light of the recommendations of the 52nd GST council which so as to facilitate measures of trade has opined that the time period for filing appeals under Section 107 will be allowed in case such appeals are filed against orders which have been passed on or before 31.03.2023 up to 31.01.2024.
As far as the counsel’s submissions that the appellate authority will not be in a position to undertake exercise of remedy in light of sub-section 11 of section 107 of the Act, while filing an application for condonation of delay, the applicant – petitioner can suggest in what manner there has been a violation of principles of natural justice in light of the fact that while issuing notice on 03.12.2021, the assessment order indicates a discrepancy in figures inasmuch as the show-cause notice initially under DRC-01 indicated a figure of Rs. 46,85,584/- whereas the assessment order indicates discrepancy of Rs. 35,02,643/- whereas in the final order again a figure of Rs. 46,91,684/- is indicated. All these circumstances shall be taken into consideration by the appellate authority in the application for condonation of delay which otherwise can be decided in accordance with law.
Condonation of delay of 59 days in filing appeal - HELD THAT:- The impugned order dated 12th December, 2022 passed by Respondent No. 3 is certainly bereft of any reasons. Respondent No. 3 has not considered the written submissions filed by the Petitioner dated 14th November, 2022 and 24th November, 2022 and the form in which the Appeal is filed, wherein it was specifically pleaded that the limitation would start from 28th August, 2022, that is the date of the petitioner receiving knowledge of the passing of O-I-O. In our view, Respondent No. 3 Appellate Authority ought to have considered the submissions of the Petitioner on this issue and ought to have given his reasons in the impugned order while deciding the limitation issue. There is no consideration of these submissions by Respondent No. 3 in the impugned order.
The impugned order suffers from infirmity and therefore, requires to be quashed and set aside - Petition disposed off.
Seeking grant of Regular Bail - obtaining illegal Input Tax Credit by entering into large scale financial transactions and thereby cheating the State exchequer - HELD THAT:- In the facts and circumstances of the case and considering the nature of allegations, this Court is of the opinion that, discretion is required to be exercised to enlarge the applicant on regular bail.
This Court, prima facie, is of the opinion that, this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, present application is allowed and the applicant is ordered to be released on regular bail in connection with the FIR being C.R. No. 11210015220162 of 2022 registered with DCB Police Station, Dist. Surat on executing personal bond of Rs. 10,000/- (Rupees Ten thousand only) with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions imposed - application allowed.
Violation of principles of natural justice - opportunity of hearing granted to the petitioner could not be availed by petitioner - HELD THAT:- The petitioner could not also avail the virtual hearing, since he was not having such facilities. The petitioner has not preferred any statutory appeal within time. Therefore, this Court is of the considered opinion that the petitioner ought to be granted an opportunity and hence it would be deem fit to direct the petitioner to file statutory appeal before the appellate authority. Therefore, the petitioner is directed to file an appeal within a period of four (4) weeks from the date of receipt of a copy of this order, by paying 7.5% of the assessed amount. The appellate authority shall consider the appeal without insisting on limitation.
Denial of opportunity of hearing - notice in the proceedings issued to the petitioner on 12.07.2021 seeking his reply within 30 days - HELD THAT:- There is complete agreement with the view taken by the coordinate bench in Bharat Mint & Allied Chemicals [2022 (3) TMI 492 - ALLAHABAD HIGH COURT]. Once it has been laid down by way of a principle of law that a person/assessee is not required to request for "opportunity of personal hearing" and it remained mandatory upon the Assessing Authority to afford such opportunity before passing an adverse order, the fact that the petitioner may have signified 'No' in the column meant to mark the assessee's choice to avail personal hearing, would bear no legal consequence.
The impugned order itself has been passed on 14.09.2021. The stand of the assessee may remain unclear unless minimal opportunity of hearing is first granted. Only thereafter, the explanation furnished may be rejected and demand created - Not only such opportunity would ensure observance of rules of natural of justice but it would allow the authority to pass appropriate and reasoned order as may serve the interest of justice and allow a better appreciation to arise at the next/appeal stage, if required.
The matter is remitted to the respondent no.3/Assistant Commissioner, State Tax, Sector-6, Varansi to issue a fresh notice to the petitioner within a period of two weeks from today - Petition allowed by way of remand.
Condonation of delay in filing appeal - validity of assessment order - failure to respond to SCN and appear for personal hearing - HELD THAT:- The petitioner should have filed an appeal against the impugned Assessment order dated 08.08.2022 before the Appellate Commissioner under Section 107 of the GST Act, 2017 on or before 08.11.2022 or by 08.12.2022 with an application to condone the delay of 30 days. The learned counsel for the petitioner has attempted to make out a case on merits. The fact remains that the present writ petition has been filed only on 03.08.2023 long after the impugned order came to be passed on 08.08.2022 followed by issuance of a summary in GST DRC-07 dated 10.08.2022.
As per the decision of the Hon'ble Supreme Court in the case of Assistant Commissioner (CT) LTU, Kakinada and others Vs. Glaxo Smith Kline Consumer Health Care Limited [2020 (5) TMI 149 - SUPREME COURT], this Court cannot entertain the writ petition under Article 226 of the Constitution of India after limitation for filing an appeal has expired. Therefore, this writ petition is liable to be dismissed.
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