|
Advanced Search Options
Case Laws
Showing 181 to 200 of 1182 Records
-
2025 (2) TMI 1002
Detention of vehicle - whether detention of goods, which were carried in a vehicle under the cover of three invoices, were different from the goods which were actually found in the vehicle during the course of inspection? - whether there was an intent to evade payment of tax? whether the appellant/writ petitioner was guilty of suppression of facts with a view to evade payment of tax? - HELD THAT:- There is no split up details as regards the nature of the goods, which were carried but the broad classification has been mentioned in the invoices. It is not in dispute that the quantity or the weight of the goods, which were carried in the vehicle, has been found to be correct by the department on physical verification and there is no discrepancy. Apart from that gross description of the product as contained in the invoices also does not show any change of product carried in the vehicle. The inspecting authority appears to have made a roving enquiry and went beyond the description of the goods as described in three invoices and has recorded information regarding the size of the pipe, shutter, TMT Bar which detail was not mentioned in the invoices. Therefore, the question of invoking Section 129 of the Act does not arise in the facts and circumstances of the case.
It is not the case where procedures under Section 129 of the Act could have been drawn and the goods could have been detained and penalty could have been imposed. It may be a different matter if during the process of adjudication the authority has taken up the case with regard to classification of the products, which is not the case on facts.
The authorities are directed to release the vehicle along with the goods within four days from the date of receipt of the server copy of this order - Application disposed off.
-
2025 (2) TMI 1001
Condonation of delay of nearly 20 days in filing appeal - Seeking to call for the records - HELD THAT:- The appeal was dismissed since it was filed with the delay. In the present case, the appeal was filed with the delay of nearly 20 days due to the reason that the petitioner was not able to file the appeal through online mode. The reason of the delay in filing appeal appears to be just and reasonable. Therefore, this Court is inclined to condone the delay and set aside the impugned rejection order passed by the Appellate Authority.
The delay is condoned and the rejection order dated 19.11.2024 made by the Appellate Authority is set aside. Accordingly, the matter is remanded back to the Appellate Authority.
Petition allowed by way of remand.
-
2025 (2) TMI 1000
Levy of penalty in the form of late fee Violation of principles of natural justice - no notice was issued before issuing the show cause notice - Seeking to call for the records of the respondent in Form GST DRC-07 - HELD THAT:- In the present case, as per Section 44 of the Act, there was delay in filing the annual return by the petitioner. In the event of delay in filing the annual return, late fee would be levied under Section 47(2) of the Act - A reading of the Section 47(2) of the Act, it is clear that any registered person, who fails to furnish the return required under section 44 by the due date shall be liable to pay a late fee of one hundred rupees for every day during which such failure continues subject to a maximum of an amount calculated at a quarter per cent of his turnover in the State.
In the event of non-filing of the return, the respondent can call upon the petitioner to pay the late fee in terms of Section 47 of the Act, which is independent provision deals with any default or belated filing of return. Therefore, this Court does not find any fault in the show cause notice issued by respondent under Section 47 r/w 73 of the Act. The respondent is entitle to initiate proceedings as per applicable provision for non-filing of return. However, in the present case, the respondent has imposed the late fee under Section 47 of the Act and also penalty under Section 125 of the Act.
In the present case, penalty was imposed in the form of late fee in terms of Section 47 of the Act. Therefore, general penalty of Rs. 50,000/- towards CGST and SGST is not correct and the same is set aside. As far as late fee is concerned, the same is confirmed.
This writ petition is partly allowed.
-
2025 (2) TMI 999
Rejection of application for voluntary cancellation of Goods & Services Tax registration - HELD THAT:- As long as the petitioner was able to satisfy that the supplies were, in fact, obtained from suppliers who were registered at the relevant time and had discharged their corresponding tax liability, the mere fact that the registration of those suppliers came to be cancelled subsequently or with retrospective effect, would not be a reason germane for the purposes of examining the request for voluntary cancellation. This would, of course, be subject to due verification by the respondents.
The writ petitioner is directed to furnish a response in terms indicated above for the consideration of the competent authority of the respondents within a period of three weeks from today. The application seeking voluntary cancellation may be taken up for consideration thereafter.
Petition disposed off.
-
2025 (2) TMI 998
Seeking a direction towards the respondent authorities to release the pending amount in lieu of the reimbursement of GST for the works - HELD THAT:- From perusal of the document Annexure P/10, it appears that the Executive Engineer has already proposed for reimbursement of GST to the petitioner, hence the petitioner is entitled to the same.
The respondent No.2/ Executive Engineer (PWD), Bridge Constitution Division, Bilaspur is directed to reexamine the claim raised by the petitioner and if the petitioner is found to be entitled for the reimbursement of GST, the same shall be disbursed to the petitioner within a period of 8 weeks from the date of receipt of a copy of this order, in accordance with law.
This writ petition is disposed of.
-
2025 (2) TMI 997
Inaction on the part of the respondents in not refunding the amount of GST collected from the petitioner in the course of execution of the contract that was awarded to the petitioner - HELD THAT:- The writ petition as of now stands disposed of directing the respondent Authorities to immediately process the claim of the petitioner so far as the refund of GST is concerned, after the due verification of facts and also the entitlement part of the petitioner is concerned. Let an appropriate decision be taken keeping in view the contention of the petitioner that in many of the similar cases of other departments like PWD, PMGSY, NHAI, RAILWAYS, and CPWD the government itself has refunded the GST.
The present writ petition stands disposed of.
-
2025 (2) TMI 996
Challenge to Appellate Order passed u/s 107 of the 2017 Act - whether the first respondent-Appellate Authority has exercised its discretionary power under sub-Section(4) of Section 107 of 2017 Act judiciously? - HELD THAT:- A perusal of the impugned order reveals that the first respondent-Appellate Authority failed to exercise its discretionary power under sub-Section (4) of Section 107 of 2017 Act judiciously. Learned counsel for the petitioner submitted that the Managing Director of the petitioner was on travel during the said period. Hence, there was delay of 3 days which was within condonable period. The Appellate Authority failed to consider the reason or cause shown for condoning the delay of 3 days. The appellate authority failed to examine as to delay was within condonable period under Section 107(4) of 2017 Act and whether appellant has shown sufficient cause to condone delay of three days.
Thus sufficient cause is shown by the petitioner to condone the delay of 3 days in preferring the appeal which is within condonable period prescribed under sub-Section (4) of Section 107 of 2017 Act.
Conclusion - Delay of 3 days in preferring the appeal before the first respondent/Appellate Authority under Section 107 of 2017 Act is condoned.
Petition allowed.
-
2025 (2) TMI 995
Challenge to garnishee order - restoration of the proceeding based on evidence of tax payment provided in a CBEC challan - HELD THAT:- Impugned order is set aside and quashed. The garnishee order dated 27th September, 2024 at annexure-6 is also set aside. The proceeding is restored. Petitioner will communicate certified copy of this order to opposite party no.1 by 27th January, 2025 and obtain date of hearing. Omission to communicate will automatically restore impugned order.
Petition disposed off.
-
2025 (2) TMI 994
Violation of principles of natural justice - no opportunity of hearing as contemplated by Section 75(4) of the GST Act, 2017 has been granted - HELD THAT:- A perusal of the notices, the screen shot of the portal dated 03.08.2023 as well as the show cause notice all indicate that the matter was never fixed for hearing.
The issue has already been considered by this Court in Kloud Data Labs (P.) Ltd. Vs. Deputy Commissioner of State Tax, [2024 (8) TMI 770 - BOMBAY HIGH COURT], in which it has been held, that even if no reply has been filed, however that does not permit the authorities from doing away with the mandate of Section 75(4) of the GST Act, 2017.
Though the impugned order indicates, that on 02.12.2021 nobody attended, however as indicated above the notices do not indicate fixing of any date or time for the purpose of hearing. In that view of the matter, the order dated 06.04.2022 is quashed and the matter remanded back to the Respondents to grant an opportunity of hearing to the Petitioner as contemplated by Section 75(4) of the GST Act, 2017.
Petition allowed by way of remand.
-
2025 (2) TMI 993
Violation of principles of natural justice - Cancellation of GST registration of the Petitioner as being non-speaking and bad in law - HELD THAT:- A perusal of the impugned SCN at Annexure - P dated 17.01.2023 and the impugned order at Annexure - R dated 31.03.2023 will indicate that the sole ground on which the GST registration of the petitioner has been cancelled by the respondent No.3 is by coming to the conclusion that the petitioner/tax payer was not functioning and existing at the principal place of business. However, the cumulative effect of the various documents produced by the petitioner in the present petition is sufficient to come to the conclusion that the petitioner/tax payer is actually functioning and existing at the principal place of business at Bengaluru and consequently, the sole reason assigned by the respondent No.3 in canceling the GST registration is contrary to the material on record warranting interference by this Court in the present petition.
The impugned order is quashed - petition allowed.
-
2025 (2) TMI 992
Prosecution Proceedings initiated u/s 276C - Bogus LTCG - guilty mind i.e., mens rea - willful evasion of tax on claims made under the head LTCG/Short Term Capital Loss - allegation of crime invoking Section 200 of the CrPC for offence punishable under Section 276C - HC held [2024 (1) TMI 1007 - KARNATAKA HIGH COURT] stocks vary from JMD Telefilm Industries, Splash Media, Essar India and Alpha. Trading is both by the individuals and by the companies. But, the moment it is brought to the notice of all these petitioners, retracing of steps immediately happen by filing of revised returns. Therefore, it is not a case where ipso facto evasion of tax can be laid against these petitioners - mens rea is an element that is to be present in a proceeding u/s 271 of the Act. The mere fact of not accurate tax, not exact tax or erroneous tax would not lead to the proceedings u/s 276
An offence is made out so as to take Cognisance more so on account of the fact that it is on taking Cognisance that the criminal law is set in motion insofar as accused is concerned and there may be several cases and instances where if the Court taking Cognisance were to apply its mind, the Complaint may not even be considered by the said Court taking Cognisance let alone taking Cognisance and issuance of Summons. Thus the order taking Cognisance is not in compliance with applicable law and therefore is set aside.
HELD THAT:- The delay of 271 days in filing the present petition(s) is adequately explained and is condoned. Accordingly, I.A. is allowed.
Heard learned counsel for the petitioner.
Since the similar special leave petitions have already been dismissed by this Court, we dismiss the present petition(s) as well leaving the question of law open to be decided in some other appropriate case.
-
2025 (2) TMI 991
Revision u/s 263 - bogus LTCG - Validity of reopening of assessment u/s 147 - PCIT, Sambalpur exercised the suo motu revisional power u/s 263(1) and an order was passed directing the AO to add an entire amount u/s 68 r.w.s. 115BBE.
HC held [2023 (3) TMI 268 - ORISSA HIGH COURT] if the original re-assessment order itself was not validly passed, the subsequent revisional order by the PCIT was required to be held invalid.
No substantial question of law arises from the impugned order of the ITAT. Court is therefore not inclined to frame the questions of law as urged by the Revenue in the present appeals.
HELD THAT:- After having heard learned counsel appearing for petitioner and after perusing the finding of facts recorded by the Tribunal in paragraph 14 and 15 of its judgment which has been confirmed by the High Court, we find no case for interference is made out in exercise of our jurisdiction under Article 136 of the Constitution of India. The Special Leave Petitions are, accordingly, dismissed.
-
2025 (2) TMI 990
Fixed Place Permanent Establishment (PE) in India - taxability, the existence of a PE and attribution of income - whether NIPL would constitute a PE of Nokia OY? - whether the Liaison Office could be treated as a PE? - HELD THAT:- In Progress Rail [2024 (5) TMI 1417 - DELHI HIGH COURT] on occasion to examine what would constitute ‘preparatory’ and ‘auxiliary’ activities, expressions found in Para 4 (f) of Article 5, and which stipulates that as long as the activities undertaken could be said to be preparatory or auxiliary, the establishment would not be liable to be construed as constituting a PE. Clause (f) of Para 4 thus provides that a maintenance of a fixed place of business, even if it be for the undertaking of any of the activities stipulated in the preceding clauses, would still not qualify as a PE if the overall character of such activities were found to be of a preparatory or auxiliary character.
Tribunal has committed no error in answering the questions posited in favour of Nokia OY. Undisputedly, the issue of the Liaison Office constituting a PE had come to be settled in the first round of the litigation which ensued before the Tribunal and came to be ultimately affirmed by the 2012 judgment of this Court. The broad questions on which this Court remanded the matter to the Tribunal stood confined to NIPL and its interrelationship with Nokia OY.
Whether NIPL constituted a PE appears to have been principally answered in light of it being the wholly owned subsidiary of Nokia OY? - Article 5(8) bids us to bear in mind that the mere control of an entity by a parent or a holding company would not be determinative of whether a PE exists. A subsidiary or an entity which is substantially controlled by another would still have to meet the test prescribed by Paras (1), (2), (3), (5) and (6) of Article 5 before it can be said to constitute a PE.
We are also of the firm opinion that the question of PE is not liable to be answered on the basis of a “perception” of virtual projection. The DTAA does not leave this seminal issue to be decided on the basis of individual estimations or impressions. It lays in place certain empirical standards which must be borne in mind when answering the question whether a PE exists. Issues of “virtual projection” and “functional integration” are liable to be answered on an appreciation of facts as may be found to exist. It is here that the precepts propounded by learned scholars such as the use and maintenance of a place of business, the place being at the disposal of an enterprise or being liable to be viewed as an operating asset of the enterprise itself assume significance. What, however, needs to be emphasized is that these are aspects which cannot possibly be left to depend upon the tenuous thread of fluctuating perceptions, impressions and mutable beliefs. Article 5 thus bids us to answer the question of PE based on measurable evidence and the objective benchmarks incorporated therein. The exercise to ascertain whether a PE exists is thus founded on evidence-based standards rather than a theory or mere surmise. We consequently find ourselves unable to countenance the perception test which was propounded by the Tribunal in the earlier round of litigation.
When tested on the standards consistently recognized by courts, it becomes apparent that the appellants had woefully failed to establish that NIPL or its premises could be recognised to be a PE when tested on the mandated criterion of either a Fixed Place or a Dependent Agent PE. Having gone through the copious material which was examined and evaluated by the Tribunal, we have no hesitation in affirming its view insofar as Fixed Place PE is concerned.
We also find ourselves unconvinced of the arguments advanced by the appellants before us in their attempt to question the correctness of its conclusions insofar as DAPE is concerned. The reasons underlying our conclusion are set out hereinafter.
Examining the minority opinion - It becomes pertinent to note that the learned Member has, in our opinion, correctly noted that there is no general presumption in law that a subsidiary can never be acknowledged to be a PE. This since Article 5(8) itself merely states that the said factor alone shall not be determinative of the PE question. The covenant thus clearly obliges us to evaluate the facts based on the other provisions comprised in Article 5 of the DTAA.
We also concur with the minority opinion when it held that the appellants had failed to establish the existence of a DAPE. It has, however, in this respect observed that while the view expressed in the previous round, stricto sensu, may not have been wholly accurate or tenable, the question of PE would still be liable to be answered basis the essence of the arrangement between Nokia OY and NIPL as was discerned by the AO and the CIT(A).
The second aspect which appears to have weighed upon the minority was the commitment towards technical support as held out by Nokia OY as well as its assurance against dilution of its interest in NIPL. All this, according to the minority, amounted to a virtual performance guarantee and ultimately concerned with “furtherance of the business interests of the assessee company in India, as much, if not more, for its own economic and business interests.” It is this underlying theme and line of reasoning which then breathes through the entire opinion.
The minority then proceeds to notice and apply the principle of alter ego companies as being pertinent to the issue of PE. However, the alter ego test was subjected to the caveat of it being found that the resident company had no significant independent activity of its own. The minority then also culled out a distinction between an associated PE (and which it chose to describe as a direct PE) and an unassociated PE (“indirect PE” as per the minority).
In our opinion, the reasoning so adopted clearly seeks to blur the distinction which the law seeks to draw between associated enterprises and which may legitimately enter into transactions inter se and which would satisfy the arm’s length test.
The agency PE which is contemplated in Article 5 (5) is concerned with a person who acts on behalf of an enterprise and undertakes activities specified in clauses (a), (b) and (c) thereof. Such an agent must and in light of the textual construct of Article 5 (5) be one who acts “on behalf of”, “in the name of” and “for the enterprise itself”. The minority thus in its attempt to conflate a Fixed Place PE with DAPE has merely confounded two distinct issues. It has thus chosen to ignore the primordial conditions of “virtual projection” and premises at the disposal of an enterprise being found to exist so as to constitute a PE.
We may only observe that a parent or a holding company would invariably be expected to have an interest and concern in the working of an overseas subsidiary. This essentially represents its right of oversight, supervision and protection of shareholder interest. However, the exercise of those powers does not denude the subsidiary of its independent economic existence.
Ultimately, it would have been imperative for the appellants to have established that NIPL was an enterprise through which Nokia OY was operating and carrying on its own business and that the former was no more than an adjunct of Nokia OY itself. The mere fact that Nokia OY held out an assurance in respect of a fledgling venture in its formative years fails to convince us to hold that the former constituted its PE. The assurances were clearly not liable to be viewed as being evidence of Nokia OY using NIPL as a vehicle for its own enterprise.
Insofar as the issue of software is concerned, it was fairly conceded that the same would be liable to be answered against the appellants in light of the judgment of the Supreme Court in Engineering Analysis Centre of Intelligence Private Limited [2021 (3) TMI 138 - SUPREME COURT]
Answer the questions as posited in the negative and against the appellants.
-
2025 (2) TMI 989
Income Tax Department to conduct an inquiry and investigate the alleged illegal cash transactions - HELD THAT:- Petitioner is unable to indicate as to what fundamental or statutory rights of the petitioner have been infracted or violated. From the submissions as also after perusing the pleadings of the petitioner, it appears that the present petition is predicated upon a matrimonial feud between the petitioner and respondent no. 3.
That apart, record also reveals that the disputes are hotly contested and involve highly complex and disputed questions of facts which will not be within the purview of the Income Tax department to adjudicate. Similarly, such disputed questions of facts also cannot be adjudicated under Article 226 of the Constitution of India.
As also been unable to indicate the provision under which such a complaint has been submitted to the Income Tax department. Clearly, the complaint was not under a statutory scheme or a regulatory mechanism available under the Income Tax Act, 1961, thus the question of non-response to such complaint constituting violation of fundamental right or even a civil or statutory right of the petitioner, is non-existent. The said submission is unmerited.
-
2025 (2) TMI 988
Attachment of bank account - disposal of the appeal filed under Section 251 - HELD THAT:- According to the petitioner, since the aforesaid assessment is a high pitched assessment, the petitioner had prayed for stay of the entire demand raised by the respondent authorities u/s 156. Record would reveal that not only the Deputy Commissioner of Income Tax but the PCIT had in the year 2019 itself rejected the petitioner’s application for staying the entirety of the demand and the petitioner was called on to make immediate payment of 20% of the demand already raised.
It is true that in case where a high pitched assessment is made ordinarily when an appeal is preferred within the stipulated period of limitation, the demand may not to be enforced till disposal of the appeal. The Hon'ble Division Bench of this Court in the case of Jankalyan Vinimay [2023 (8) TMI 723 - CALCUTTA HIGH COURT] has taken the above view.
In the present case, however, taking note of the fact that there is no explanation for the delay, for the petitioner approaching this Court after four and half years from the date of rejection his application for stay of the entirety of the demand and the order attaching his bank account, petitioner is not entitled to the stay of the order of attachment at this stage.
Appellate authority should expeditiously hear out and dispose of the appeal not later than six weeks from the date of communication of this order upon giving reasonable opportunity of hearing to the petitioner. It is made clear that in the interregnum, if any amount is credited to the petitioner’s bank account which is the subject matter of attachment, the same shall be retained with the bank to the credit of the appeal.
-
2025 (2) TMI 987
Benefit u/s 10 (26) - direction to the NF Railway to pay the tax which was deducted at source to the decree holder/Respondent No.1 herein on the ground that in terms with Section 10 (26) there is an exemption of Income Tax on Scheduled Tribes - whether the said decree holder is a recognized Scheduled Tribe within the State of Assam? - HELD THAT:- As in the instant case, the consignment was booked from Jharkhand to North Lakhimpur. The entitlement of the interest on the compensation has to be taken as an income accrued at North Lakhimpur. The said area i.e. North Lakhimpur do not fall within the ambit of the Sixth Schedule insofar as the State of Assam is concerned.
Considering the above, as the benefit u/s 10 (26) of the Act of 1961 can only be permissible to a Schedule Tribe when the income had to accrue in the areas as specified in Section 10 (26), this Court is of the opinion that the learned Railway Tribunal erred in law and committed an error in exercising its jurisdiction while passing the orders dated 06.01.2017 as well as 09.06.2017 which have been impugned in the instant proceedings only on the ground that the claimant was a tribal of Arunachal Pradesh. The said being an error in exercise of jurisdiction, this Court interferes with the said orders dated 06.01.2017 as well as 09.06.2017.
-
2025 (2) TMI 986
Revision u/s 263 - provision for bad debts was made in the profit and loss account, the same is not seen obliterated - HELD THAT:- AO did not show any application of mind and mechanically accepted the statement of the assessee. When the assessee is found to have claimed deduction towards the “provision for doubtful assets” for the purpose of computation of book profit under Section 115-JB, AO did not state any reason as to why he decided, if at all, to accept the explanation of the assessee despite the fact that the said amount was not debited for the provision for doubtful account and consequently, the provision of doubtful debts account has not been obliterated. Thus, it is only for disclosure purposes that the amount was shown as a reduction from the trade receivables in the balance sheet. The assessee has not included the said amount as written off debts, but was hopeful of getting it back at some point of time.
Viewed in the above perspective, we cannot find fault with the Principal Commissioner of Income Tax for having exercised his jurisdiction under Section 263 of the Income Tax Act, 1961. Consequently, the order passed by him after hearing the appellant and directing the assessing officer to re-examine the said issue is perfectly justifiable and legal.
Tribunal, on the other hand, had analysed the position of law as stated by us above and concluded rightly that the order passed by the Commissioner of Income Tax did not suffer from any illegality or perversity. Therefore, we are of the considered view that the order impugned in the appeal does not suffer from any jurisdictional infirmity. Decided against the assessee.
-
2025 (2) TMI 985
Validity of reassessment proceedings beyond period of limitation - HELD THAT:- In the present case, the period of six years for the relevant AY 2016-17, thus, expired on 31.03.2022. The impugned notice has been issued thereafter, and the same is, thus, barred by limitation.
-
2025 (2) TMI 984
Assessment u/s 153A when no incriminating material was found during the search - AO has only made the addition by invoking the provisions of Section 68 on account of unexplained cash credits, receipts from the sale of house u/s 57 and trading addition on additional sales - HELD THAT:- Revenue is unable to controvert the argument of the assessee that there is no incriminating document referred to in the assessment order by the AO nor any such document was produced either before the ld. CIT(A) or before the Tribunal.
Therefore, by respectfully following the judgement of Abhisar Buildwell [2023 (4) TMI 1056 - SUPREME COURT] we are of the opinion that no addition could be made in the hands of the assessee in the order passed u/s 153A in absence of any incriminating material. Accordingly, we direct to delete the additions made without referring to any incriminating material.
Liberty is granted to the AO to initiate reassessment proceedings u/s.147/148 of the Act as per law in case of completed/unabated assessment, if no incriminating material found during the course of search. Accordingly, the ground of appeal no. 1 of the assessee is allowed.
-
2025 (2) TMI 983
Correct head of income - characterization of income - gain on sale of part of property/shops - ‘Capital Gains’ or ‘Profits from business and Profession’ - HELD THAT:- Assessee has pointed that the assessee had sold some shops during the period relevant to AY 2017-18 and had offered gain on sale of said shops as Long Term Capital Gain in the return of income.
AO while making assessment u/s. 143(3) examined the issue in detail and accepted the gain on sale of shops as Long Term Capital Gain. Once, the Revenue has accepted the property as investment and sale of part of such property as Long Term Capital Gain the principle of consistency demands that when there is no change in the nature of holding of the property in impugned assessment year, the gain on sale of part of such property cannot be re-characterized as ‘Business Income’. Decided against revenue.
............
|
9911796707
