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Showing 181 to 200 of 1564 Records
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2024 (8) TMI 1384
Grant of bail - availment of ITC from the suspicious suppliers who have either self mismatch or very high mismatch in its inward supply from GSTR-2A and GSTR-3B to the said firm - HELD THAT:- The attention of the Court is also drawn to a relevant pronouncement made by Hon'ble Apex Court in SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION & ANR. [2022 (8) TMI 152 - SUPREME COURT] wherein dealing specifically with the economic offences, it has been held by the Hon'ble Apex Court that 'The gravity of the offence, the object of the Special Act, and the attending circumstances are a few of the factors to be taken note of, along with the period of sentence. After all, an economic offence cannot be classified as such, as it may involve various activities and may differ from one case to another. Therefore, it is not advisable on the part of the court to categorise all the offences into one group and deny bail on that basis. Suffice it to state that law, as laid down in the following judgments, will govern the field.'
In SANJAY CHANDRA VERSUS CBI [2011 (11) TMI 537 - SUPREME COURT], the Hon'ble Apex Court noticed that it was a case of fraud wherein by cheating and dishonestly inducing delivery of property by using as genuine a forged document was involved but the punishment for the offence was imprisonment for a term which may extend to seven years. The Hon'ble Apex Court held that it is, no doubt, true that the nature of the charge may be relevant but at the same time the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration.
Keeping in view the fact that in the instant matter trial has not started even yet and the complicity of the accused applicant is yet to be determined in trial and everything relevant to the matter is under control of the department itself and there is probably nothing on record to demonstrate that the applicant, if enlarged on bail, would in any way adversely affect the trial; further no final verdict of any Court / Authority for any criminal liability to the credit of the applicant has been brought to the notice of this Court and noticing that the alleged offence is punishable with the maximum period of imprisonment of five years, the applicant is in jail since 1.5.2024, without commenting upon the merits of the case, it is opined that the applicant has made out a case for bail.
Let the applicant be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to fulfilment of conditions imposed - bail application allowed.
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2024 (8) TMI 1383
Release of provisionally attached bank accounts of petitioner - HELD THAT:- The Commissioner passed a speaking order dated 16.04.2024 setting out in detail, its reasons for not acceding to the petitioners’ prayer and justifying the impugned orders for freezing the bank accounts in question - the petitioners does not, at this stage, press any relief regarding the freezing of the bank accounts.
Return of the laptops, CPUs, Mobile Phones and other documents, which were seized during the search and seizure operations - HELD THAT:- In terms of Section 67 (3) of CGST Act, all documents, books, or things seized under Section 67 (2) of CGST Act, are required to be returned to the person from whom the same are seized within the period not exceeding 30 days from the date of issuance of the notice - the Commissioner may retain the documents, records, laptops, CPUs, and Mobile Phones which were seized but only till the time, the same are required and in any event not later than 30 days after issuance of notice, as required under Section 67 (3) of the CGST Act, 2017 - the Commissioner is requested to examine this aspect and ensure that the data recorded on the devices is not withheld from the petitioners.
Whether the petitioners are entitled to the refund of Rs. 22,00,000/- which, the petitioners claim, they were compelled to deposit during the course of the search and seizure raid? - HELD THAT:- It is seen that the counter-affidavit filed by the respondents is not on record. The respondents shall ensure that the same is placed on record before the next date of hearing.
List for hearing on the aforesaid question on 20.08.2024, the date already fixed.
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2024 (8) TMI 1382
Seeking an implementation of the order of the Appellate Authority by releasing the seized material - difference in the quantity mentioned in the delivery challan and in the actual quantity of gold - HELD THAT:- Though the learned Senior Government Pleader would contend that the goods in question in this case (namely the gold ornaments) are liable for confiscation, since it is settled that the goods can be released on the payment of fine in lieu of confiscation and considering the fact that the gold ornaments are stock-in-trade of the petitioner, these writ petitions are disposed off without going into the merits of the contentions raised by either side and directing that the entire quantity of 1647.970 grams of gold which has been seized from the petitioner shall be released on the aforesaid Diljith K K and the aforesaid Mohandas K K executing bonds in the manner and form required by the 2nd respondent. The aforesaid Diljith K K and the aforesaid Mohandas K K will undertake that they will not alienate the property covered by Exts. P9 and P10 documents till the culmination of proceedings. The petitioner as also the State will thereafter be entitled to approach the Appellate Tribunal (yet to be constituted) if they are in any manner aggrieved by the proceedings of the Appellate Authority.
Petition disposed off.
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2024 (8) TMI 1381
Seeking declaration that the blocking of ITC in question is bad in law - lack of jurisdiction to pass the order - orders impugned also have been passed without complying the principles of natural justice - HELD THAT:- The orders impugned relates to State GST and the same having been passed by the Deputy Commissioner of the State Taxes, the contention raised that he has no jurisdiction to pass the order, cannot be a justifiable ground in view of Rule 86 A (1) of the OGST Rules, 2017.
It is made clear that the Commissioner or an officer authorized by him in this behalf, not below the rank of an Assistant Commissioner, can pass the order and in the instant case, the impugned orders having been passed by the Deputy Commissioner, who is higher in rank to Assistant Commissioner, it is well within his jurisdiction to pass such orders. So far as the contention raised with regard to the Circular issued by Government of India dated 02.11.2021 under Annexure-2 is concerned, that ipso facto can only applicable to the Central GST and not to the State GST unless the said circular is adopted by the State Government by making a declaration. Nothing has been placed on record to show that the said circular has been adopted by the State Government for State GST.
The claim made by the petitioner that the orders impugned under Annexures-1 and 5 have been passed by an officer having no jurisdiction, cannot be sustained in the eye of law - Petition disposed off.
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2024 (8) TMI 1380
Time limitation - appeal filed beyond time limitation - Cancellation of registration of petitioner - HELD THAT:- The petitioner filed an appeal on 22.12.2023, after expiry of the limitation period - Further, the Government had come out with an Amnesty Scheme by Circular No. 3 of 2023 by which the registered dealers, whose registrations were cancelled, were permitted to restore their registration, on payment of all dues, between 31.03.2023 to 31.08.2023. The petitioner did not avail of such remedy also.
The petitioner being not a registered dealer, there was no monitoring of his activities by the Department in the intervening period. There is no way to ascertain as to whether there was any transaction carried out during the said period. It is also a fact that the petitioner has filed a delayed appeal and also not availed the remedy of Amnesty Scheme which was made applicable. The petitioner also does not in the memorandum of writ petition controvert the allegation in the show cause notice that he failed to furnish returns for a continuous period of six months.
The law favours the diligent and not the indolent. The delay stands against the petitioner.
Petition dismissed.
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2024 (8) TMI 1379
Blocking of Input Tax Credit - Rule 86A of the GST Rules - jurisdictional error with regard to the issuance of the intimation more so when the reasons that weighed with the Department to issue the intimation notice were mentioned in Ext.P6 and P7 show cause notices that were issued shortly thereafter - HELD THAT:- It is found from a perusal of Exts.P6 and P7 notices that were subsequently issued to the appellant that the Department was of the view that input credit was being availed on the basis of bogus invoices and it was this suspicion, based on materials gathered by the Department, that prompted the Department to issue Ext.P2 intimation so as to prevent the irregular availment of input tax credit by the appellant. While the appellant may have had a case to approach the writ court if there was any inordinate delay occasioned by the respondents in issuing the show cause notices, we find that the appellant had chosen not to approach this Court during the period between the receipt of intimation and the receipt of Ext.P6 and P7 show cause notices.
The learned Single Judge was correct in relegating the appellant to his alternate remedy of replying to the show cause notices and getting the matter adjudicated by the adjudicating authority under the statute. As rightly observed by the learned Single Judge, this is not a case that warrants a belated interference with Ext.P2 intimation, by this Court under Article 226 of the Constitution of India.
Appeal dismissed.
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2024 (8) TMI 1378
Violation of principles of natural justice - petitioner did not have a reasonable opportunity to contest the tax demand on merits - wrongful availment of Input Tax Credit (ITC) - HELD THAT:- On examining the impugned order, it appears that the tax proposal was confirmed largely on the ground that there was no proof of actual movement of goods. By taking into account the nature of documents submitted by the petitioner, which include the bank statement showing payments made to the supplier, the GSTR 2A indicating the availability of ITC, it is just and appropriate that the petitioner be provided an opportunity to produce relevant documents to prove actual movement of goods. As a condition for remand, however, it is also necessary to put the petitioner on terms.
The matter is remanded for reconsideration on condition that the petitioner remits 20% of the disputed tax demand as agreed to within a period of two weeks from the date of receipt of a copy of this order - impugned order is set aside - petition disposed off by way of remand.
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2024 (8) TMI 1377
Additional tax liability for execution of subsisting Government contracts either awarded in the pre-GST regime or in the post GST regime without updating the Schedule of Rates (SOR) incorporating the applicable GST while preparing Bill of Quantities (BOQ) for inviting the bids - HELD THAT:- List this matter for final hearing in the monthly list of July, 2024.
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2024 (8) TMI 1376
Rate of tax - work allotted by Maharashtra Jeevan Pradhikaran (MJP) as a part of Jal Jeevan Mission which is a mission of Government of India allotted, performed & invoiced before 01.01.2022 - work allotted by Maharashtra Jeevan Pradhikaran (MJP) as a part of Jal Jeevan Mission which is a mission of Government of India which is performed & invoiced after 01.01.2022 but which is allotted before 01.01.2022 - work allotted by Maharashtra Jeevan Pradhikaran (MJP) as a part of Jal Jeevan Mission which is a mission of Government of India allotted, performed & invoiced after 01.01.2022 - service receiver within the meaning of Sec. 2 (93) of CGST/MGST Act in respect of amounts received as grants by MJP which are paid to the applicant on services provided before 01.01.2022 - service receiver within the meaning of Sec. 2 (93) of CGST/MGST Act in respect of amounts received as grants by MJP which are paid to the applicant on services provided after 01.01.2022 - appointment of MJP as an agency to implement water supply schemes amounts to delegation of sovereign function enumerated in Sch. XI & XII within the framework of Constitution of India so as to hold that MJP has performed the function entrusted under Article 243G & 243W of the Constitution of India.
What is the rate of tax in respect of work allotted by Maharashtra Jeevan Pradhikaran (‘MJP’) as a part of Jal Jeevan Mission which is a mission of Government of India allotted, performed & invoiced before 01.01.2022? - HELD THAT:- Nil, being exempted under Entry at Sr No. 3 of the Notification No. 12/2017-Central tax (Rate)- dated 28th June 2017.
What is the rate of tax in respect of work allotted by Maharashtra Jeevan Pradhikaran (MJP) as a part of Jal Jeevan Mission which is a mission of Government of India which is performed & invoiced after 01.01.2022 but which is allotted before 01.01.2022? - HELD THAT:- The services supplied by the applicant are in nature of “Technical Consultancy for Project Development and Management support services, and hence classifiable under SAC code-998399- Other professional, technical and business services n.e.c., under the head Business and Production Services covered at Sr No 21 (ii) in the Notification No 11/2017-Central Tax (Rate)-dated 28th June 2017 and are taxable at rate of 18% (9% CGST & SGST each), wherever exemption is not applicable.
Whether Services provided to MJP for the Constitutional function of State & Central Governments, for which these Governments are liable to pay the consideration of contract, and as payment is made through PFMS, supplies are in fact made to the Central & State Government? - HELD THAT:- The argument of the applicant that services provided to MJP for the Constitutional function of State & Central Governments, for which these Governments are liable to pay the consideration of contract, and as payment is made through PFMS, supplies are in fact made to the Central & State Government. Hence, even after deletion of the word “Government Authorities” with effect from 01-01-2022, from the notification entry number 3, the services provided by the applicant shall be eligible for benefit of exemption services provided by it to MJP, is not based on evidence, far-fetched and based on conjectures and surmises and very specious argument and hence rejected.
Whether “the MJP” is “Governmental Authority” as required in entry number 3 & defined in definition 2 (zf) of the exemption notification? - HELD THAT:- Supply of services where Time of supply is on or before 31-12-2021. After Considering all the aforesaid facts, provisions of Law, issues and decision therein, we have no hesitation in holding the “Technical Consultancy for Project Development and Management support services”, provided by the applicant to the MJP for its Water supply schemes where time of supply is on or before 31-122021. are covered by the exemption entry at Sr No. 3 of the exemption notification No 12/2017-Central Tax (Rate), dated 28th June 2017.
The extent of agency is limited to carrying out the means or a mode of doing an act & not to decide the very act itself. Actions of MJP in fixing the technical qualifications necessary for being eligible in the tender process, to enter into an agreement with applicant confirming his empanelment & eligibility, to enter into contractual negotiations for fixing consideration are much too broad & decisive to be narrowly circumscribed by the trappings of an agency - It is trite law that the words of a notification have to be strictly construed & any ambiguity has to be construed in favour of the revenue. Since, the words government authority or entity have been removed, tax is undisputedly attracted.
There are no hesitation in holding the “Technical Consultancy for Project Development and Management support services”, provided by the applicant to the MJP for its Water supply schemes where time of supply is on or after 01-01-2022, are not covered by the entry at Sr No. 3 of the Notification No 12/2017-Central Tax (Rate), dated 28th June 2017. As the words “or a Government Authority or a Government Entity”, are omitted from the aforesaid Entry at Sr, No, 3.
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2024 (8) TMI 1375
Whether the services of leasing of an industrial plot of land at Taratala Road for a period of thirty years (30 years) for setting up commercial office complex against upfront lease premium provided by SMPK to the applicant is exempted from payment of tax or not in terms of entry number 41 of Notification No. 12/2017 Central Tax (Rate) dated 28.06.2017? - HELD THAT:- The services provided by SMPK by way of grant of long term lease of land at Taratala Road for a period of thirty years (30 years) for setting up commercial office complex to the applicant, as involved in the instant case, doesn’t satisfy all the conditions specified in entry number 41 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017, as amended.
Services by way of grant of long term lease of land by SMPK to the applicant for the purpose of “setting up commercial office complex’ as involved in the instant case is found not to be covered under entry 41 of Notification No. 12/2017 Central Tax (Rate) dated 28.06.2017 and therefore cannot be treated as an exempt supply.
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2024 (8) TMI 1374
Applicability of Serial No 77 of the N/N. 12/2017 - such members of RWA (unincorporated body) whose share of contribution is less than Rs. 7,500 per month and whereas the monthly maintenance (share of contribution) of other members of the same RWA are more than Rs. 7,500/- - chargeability of GST - HELD THAT:- The benefit of exemption as allowed vide serial no 77 of the N/N. 12/2017 Central Tax (Rate) dated 28.06.2017, as amended, is entirely member specific meaning thereby if a RWA collects up to an amount of Rs. 7500/- per month from a member by way of reimbursement of charges or share of contribution, the RWA shall not be liable to pay tax on such amount irrespective of the fact that there may be other members (even from the same person if he owns another flat in the same housing society or residential complex) in respect of whom such quantum exceeds Rs. 7500/- per month. To illustrate, if a RWA who is registered under the GST Act, collects Rs. 7000/- per month as maintenance charges from one of its member and Rs.9000/- from another member in the same residential complex, the RWA shall not be liable to pay tax on Rs. 7000/-.
The applicant shall not be liable to pay tax on the amount which is collected from its members by way of reimbursement of charges or share of contribution where such amount does not exceed Rs. 7500/- per month per member.
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2024 (8) TMI 1373
Classification of supply - supply of services or not - pure services - applicant provides services to the Central Government, State Government or Union Territory or local authority or a Governmental authority or not - services in relation to any function entrusted to a Panchayat under article 243G or to a municipality under article 243W of the Constitution of India.
Whether such pure services being provided by the applicant satisfies the condition as specified in serial number 3 of the exemption notification supra in respect of the status of the recipient? - HELD THAT:- Atal Mission for Rejuvenation and Urban Transformation (AMRUT) is a development mission launched by Central Government with the focus to establish infrastructure that could ensure adequate robust sewage networks and water supply for urban transformation by implementing urban revival. In the state of West Bengal, activities under AMRUT project are supervised by Department of Urban Development and Municipal Affairs, Government of West Bengal. The applicant’s supply under this project therefore qualifies as a supply to the State Government.
Whether the said services are in relation to any functions entrusted to a Panchayat under article 243G or to a municipality under article 243W of the Constitution of India? - HELD THAT:- The functions entrusted to a Panchayat or to a Municipality as listed in the Eleventh and/or Twelfth Schedule includes the functions like drinking water or water supply for domestic, industrial and commercial purposes.
The services provided by the applicant for survey, design, drawing, estimate and preparation of comprehensive plan related to water supply schemes application is found to be a matter as listed in the Eleventh and/or Twelfth Schedule in relation to functions entrusted to a Panchayat under article 243G and/or to a municipality under article 243W of the Constitution of India.
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2024 (8) TMI 1372
Maintainability of appeal in HC - Unexplained cash credits u/s 68 - unexplained unsecured loans - Onus to prove - substantial question of law OR fact - addition made as assessee has failed to establish identity, creditworthiness of the lender companies as well as genuineness of the transactions - ITAT setting aside the order of the ld.CIT(A) which upheld the addition - HELD THAT:- As in the instant case no substantial question of law arises from the order of the Tribunal as the appellant has raised all the questions of facts and have disputed the fact findings of the ITAT in the garb of substantial questions of law which is not permitted by the statute itself. This Court refrains from entertaining this appeal as there is no perversity in the order passed by the ITAT since the ITAT has dealt with all the grounds raised by the appellant in the order impugned and has passed a well reasoned and speaking order taking into consideration all the material available on record.
Tribunal being a final fact finding authority, in the absence of demonstrated perversity in its finding, interference with the concurrent findings of the CIT (A) as well as the ITAT therewith by this Court is not warranted.
We have no hesitation in holding that no question of law, much less any substantial question of law arises from the order of the Tribunal requiring consideration of this court. Appeal dismissed.
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2024 (8) TMI 1371
Disallowance u/s14A - liable to be restricted to the extent of exempt income earned during the year or not? - ITAT held that disallowance u/s 14A would be liable to be restricted to the extent of exempt income earned during the year - HELD THAT:- As would be evident from the aforesaid conclusions rendered in Maxopp [2011 (11) TMI 267 - DELHI HIGH COURT] it was found that Section 14A is clearly concerned with an identification and attribution of expenditure with reference to exempt income which otherwise would not form part of total income. It was thus explained that where the income of an assesse has both taxable and non-taxable elements, it would be the principle of apportionment of expenditure relating to non-taxable income which would have to be identified. The view expressed by this High Court was ultimately affirmed.
Fundamental principle being of ensuring that expenditure incurred in the course of earning exempt income is not set off against income which is otherwise taxable. It is this basic tenet which constrains one to bifurcate and apportion the expenditure which may be claimed by an assessee. Right from Walfort, all judgments rendered in the context of Section 14A and noticed hereinabove, have consistently spoken of apportionment of expenditure and the imperatives of an enquiry to identify whether the expenditure which is claimed is not in relation to exempt income. The expenditure which can be legitimately claimed by an assessee as deductible can only be that which has been expended to earn taxable income. The assessee is not permitted to avail of a dual benefit of firstly claiming the income as being exempt and thereafter seeking to set off the expenditure incurred in connection therewith against income which is taxable. This if countenanced would clearly lead to the taxable income and which is exigible to the levy of tax under the Act being further reduced.
As we read Section 14A, it becomes apparent expenditure is liable to be excluded from consideration only if the assessee is found to have earned exempt income and the expenditure pertains to that income. Absent any income which is exempt or claimed as such in the relevant year, the statutory exclusion would not apply. The existence of exempt income is thus a sin qua non for the invocation of Section 14A. It is pertinent to note that the Act is not concerned with notional or illusory income. Thus, unless there be non-taxable income which arises or accrues, the expenditure would not suffer disqualification under Section 14A.
We are conscious of the Explanation which has come to be inserted in Section 14A and which now seeks to assert that the provision would apply irrespective of whether exempt income had arisen, accrued or had been received in the previous year. However, the extent to which the said statutory amendment would apply to the assessment years in questions is an issue which we propose to dwell upon in the subsequent parts of this decision.
Our view on the imperatives of apportionment and the identification of expenditure with reference to exempt income is further fortified not only from a plain reading of Section 14A (2) which alludes to income which does not form part of total income, but also Rule 8D and which is the machinery provision for determination of the amount of expenditure incurred in relation to exempt income.
Expenditure is indelibly linked to income which does not form part of total income and the expenditure being directly relatable to such income.
Scope of Explanation appended to Section 14A - High Court in Era Infrastructure [2022 (7) TMI 1093 - DELHI HIGH COURT] had clearly held that the mere usage of the expressions “for the removal of doubts”, “clarified” or titling a provision as an explanation would not be determinative of whether it is to apply retrospectively. It was thus held that where it be found that the amendment fundamentally alters the statutory position which prevailed, it clearly ceases to be explanatory or one which is aimed at removing an ambiguity. However, any debate that could have possibly ensued in the aforesaid context stands laid to rest by virtue of the Memorandum explaining the provisions of the Finance Bill, 2022 and which unequivocally declares that “This amendment will take effect from 1st April, 2022 and will accordingly apply in relation to the assessment year 2022-23 and subsequent assessment years”. We thus find ourselves unable to discern any justifiable reason to take a view contrary to what was expressed in Era Infrastructure.
Accordingly, and for all the aforesaid reasons, we uphold the view taken by the Tribunal and dismiss the instant appeals.
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2024 (8) TMI 1370
Reassessment proceedings against dead person - HELD THAT:- We note the pertinent observations in the case of Savita Kapila [2020 (7) TMI 441 - DELHI HIGH COURT] wherein, while dealing with the identical question, it has been held that the pre-requisite of issuing a notice in the name of the correct person and not in the name of a dead person is sine qua non for acquiring the jurisdiction and initiating the action u/s 148 of the Act.
Thus, the action u/s 148 cannot be initiated on the factum as the impugned notices were issued to a dead person. Furthermore, present is a case where the petitioner had already intimated the Revenue about the death of the assessee and yet it proceeded to reopen the assessment under Section 148 of the Act. The course as adopted is clearly reflective of complete non-application of mind. Assessee appeal allowed.
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2024 (8) TMI 1369
Validity of reopening of assessment - Reason to believe - no Capital Gains was offered for assessment on sale of land - whether the impugned notice and proceedings consequent thereto are liable to be interfered with? - HELD THAT:- In effect, both in Jet Airways [2010 (4) TMI 431 - BOMBAY HIGH COURT] and TAFE [2018 (12) TMI 1217 - MADRAS HIGH COURT], the Court held that Section 147 enables the assessing officer to travel beyond the reasons for initiating reassessment proceedings provided such reassessment is also carried out on the grounds or reasons on which reassessment was initiated. On the other hand, if the ground on which reassessment was initiated was no longer available to the assessing officer, the Court held that reassessment cannot be continued on the basis of the original notice under Section 148, and that a fresh notice is necessary.
Counsel as submitted that the interpretation placed on Section 147 in Maninder Singh Kang [2012 (6) TMI 616 - PUNJAB AND HARYANA HIGH COURT] and Govindaraju [2015 (8) TMI 271 - KARNATAKA HIGH COURT] should be adopted. In view of the binding decision of the Division Bench of this Court in TAFE, the course of action canvassed by learned senior standing counsel is not open and his contention cannot be countenanced.
Keeping the above legal position in mind, it becomes necessary to examine the assessment order to determine the basis of such order. In paragraph 15 of the assessment order, the assessing officer recorded findings with regard to the transaction that triggered reassessment proceedings.
The reason cited for reopening the assessment for assessment year 2013- 14 was the deletion under the head 'land' without offering capital gains for assessment. As discussed earlier, the assessment order clearly discloses that no additions were being made on this account since there was no capital gain.
The conclusion that follows from the above discussion is that no additions were made in the assessment order as regards the deletion of the relevant immovable asset although the said transaction formed the basis for reopening assessment - the notice u/s 148 and, therefore, the assessment order issued cannot be sustained. Since reassessment cannot be sustained on this ground, the other contentions regarding the invalidity of the notice under Section 148 are not being examined. Decided in favour of assessee.
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2024 (8) TMI 1368
Validity of assessment order without considering objections raised - HELD THAT:- The objections filed in Form 35A before the DRP are on record. The date stamp of the DRP on the cover letter evidences receipt of the objections on 27.10.2023. Therefore, the DRP undoubtedly received the objections before the expiry of the time limit for filing objections. As regards the obligation to submit a copy of such objections to the AO, an e-mail of 30.10.2023 is on record. In the said e-mail, the petitioner asserts that objections were filed before the DRP and that a copy of such objections could not be placed before the AO through the e-filing facility because such facility was not available. The objections were also attached to the e-mail.
It appears that the AO has proceeded to issue the assessment order on account of being unaware that objections were submitted before the DRP. Consequently, the petitioner's total income has been determined in a sum of Rs. 97,50,98,539/- against the income of Rs. 54,36,39,810/- as per the petitioner's return. The conclusion that follows is that the petitioner is put to considerable prejudice without its objections being considered by the DRP. On this limited ground, the impugned assessment order dated 24.11.2023 is quashed.
AO is directed to await the decision of the dispute resolution panel before issuing a fresh assessment order.
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2024 (8) TMI 1367
Validity of final assessment order passed u/s 144 r.w.s. 144C(3)/144B along with the notice of demand issued u/s 156 and notice of penalty u/s 274 r.w.s. 270A - as argued petitioner had filed detailed objections before DRP’ and since the matter is sub-judice before the DRP, National e-Assessment Assessment Centre/AO had no jurisdiction to pass the impugned final assessment order without waiting for the directions from the DRP.
HELD THAT:- Recently, this Court has decided a similar controversy in Pepsico India Holdings Private Limited [2023 (12) TMI 226 - DELHI HIGH COURT] once the objections have been filed by the assessee against a draft assessment order within the time limit prescribed u/s 144C(2)(b), the rest of the procedure should be followed as prescribed and the final assessment order ought to be passed by the AO in accordance with the directions issued by the DRP.
This Court is further of the view that no prejudice will be caused to the Respondent-Department if the present petition is allowed and the impugned assessment order is set aside as Respondent-Department would be well within its rights to pass a fresh assessment order post the receipt of direction from the Respondent No. 3-DRP
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2024 (8) TMI 1366
Illegal exercise of jurisdiction u/s 147 instead of Section 153C - as submitted that due to non-obstante clause in Section 153A coupled that the principle of abatement the mechanism contained in the provisions of search assessments, the assessment can be concluded in case of incriminating material relied u/s 153C only - HELD THAT:- Judgment which the DR has relied has been considered in the case of Nishit Gupta son of Shri Ramesh Gupta Vs. ACIT [2024 (4) TMI 196 - RAJASTHAN HIGH COURT] Hon’ble Rajasthan High Court has considered the issue involved in the bunch of writ petitions about the applicability of Section 153C and Section 148 of the Act in the case of seizure of material in search or requisition of books/documents relating to Assessee other than on whom the search was conducted or requisition made and after taking into consideration the history of special provisions in search cases and various judicial pronouncements including Judgment of Abhisar Buildwell P. Ltd. [2023 (4) TMI 1056 - SUPREME COURT] as held the argument that Section 153C can be invoked in case there is incriminating material for all the relevant preceding years and otherwise Section 148 is to be resorted to, is misplaced. On satisfaction of the twin condition for proceedings under Section 153C, the AO has to proceed in accordance with Section 153A. Notice is to be issued for filing of the returns for relevant preceding years and thereupon proceed to assessee or re-assessee the 'total income'. It is not obligatory on the AO to make assessment for all the years, the earlier orders passed may be accepted. But once there is incriminating material seized or requisitioned belonging or relatable to the person other than on whom search was conducted, Section 153C is to be resorted to.
The findings of this Bench in the case of M/s Mah Impex Pvt. Ltd [2024 (1) TMI 411 - ITAT DELHI] which also involved the case of search conducted in Surendra Kumar Jain Group squarely applies to the case of the assessee before us. Assessee appeal allowed.
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2024 (8) TMI 1365
Nature of expenses - Disallowance of Product Development expenses written off - due to technological obsolescence, the said project is not likely to result in any economic benefits to the assessee and the capital work-in-progress of this project was written off and ultimately the project was abandoned - HELD THAT:- AO presumed that the Software Development Project was completed, whereas the software project “ProHR” was not completed and not even put for initial trial with any customers then only the product can be sellable in the open market.
Since the software project “Pro HR” was abandoned, there was no enduring benefit to the assessee, as there is no existence of a new software. Therefore the expenses are to be allowed as Revenue in nature and the addition made by the lower authorities are liable to be deleted. Appeal filed by the Assessee is allowed.
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9911796707
