|
Advanced Search Options
Case Laws
Showing 21 to 40 of 430091 Records
-
2025 (4) TMI 1622
Penalty levied u/s.270A - Foreign Tax credit denied for non filing Form 67 within the due date of filing of return - HELD THAT:- Cojoint reading of sub-section (2) & (9) of section 270A leads to the inference that if the income is assessed greater than the income reported in the return of income or determined in the return processed u/s 143(1)(a) and the addition in the total income of the assessee is due to the reason of misrepresenting or suppressing of facts, failure to record the investment in the books of account, unsubstantiated claim of expenditure disallowed, recording false entries in the books of account, failure to record any receipt in the books of account having bearing on the total income and failure to report any international transaction or specified domestic transactions.
In the case in hand, though the AO has not enhanced the total income of the assessee while passing the assessment order, but the tax liability of the assessee was increased due to the reason that the claim of credit of foreign tax was denied by the AO due to the reason of delay in filing Form-67. Thus, it is clear from the facts that the case of the assessee does not fall in the category of misreporting of income as envisaged in sub-section (2) and (9) of section 270A - Decided against revenue.
-
2025 (4) TMI 1621
Levying penalty u/s 271(1)(c) - Estimation of income - bogus purchases - As alleged invalid penalty order in which the limb of levy of penalty u/s 271(1)(c) not mentioned - addition made on estimation basis - HELD THAT:- As decided in Subhash Trading Co. [1995 (11) TMI 37 - GUJARAT HIGH COURT] and Whitelene Chemicals [2013 (8) TMI 144 - GUJARAT HIGH COURT] and Krishi Tyre Retreading & Rubber Industries [2014 (2) TMI 21 - RAJASTHAN HIGH COURT] have held that penalty u/s 271(1)(c) of the Act could not be levied where addition was on estimated basis. The Co-ordinate Bench in cases of Yogendra Raj U Sanghvi [2023 (10) TMI 1395 - ITAT SURAT] Deepak Banwarilal Agarwal [2024 (2) TMI 1386 - ITAT SURAT] have also held that no penalty is leviable on estimated addition.
As decided in Mun Gems [2024 (1) TMI 209 - ITAT MUMBAI] where AO treated entire purchase as bogus based on findings of Investigation Wing and levied penalty u/s 271(1)(c), since payment of purchase had been made through account payee cheques and there was corresponding sales, ad hoc GP rate applied on alleged bogus purchases to factor in suppression of alleged gross profit could not be basis of levying penalty for furnishing of inaccurate particulars of income or concealing particulars of income. Since the facts are similar, following the above decisions, the AO is directed to delete the penalty levied u/s 271(1)(c) of the Act. Assessee appeal allowed.
-
2025 (4) TMI 1620
Charging the tax on the trust at the rate ordinarily applicable to total income of association of persons or maximum original rate - Liability to exemption u/s 164 - assessee has submitted there are only three beneficiaries of the said trust created by late Sakuntalla Balvantrai
HELD THAT:- The brief facts of the case are that the assessee trust is a ‘trust at will’, which was created by late Smt. Sakuntalla Balvantrai, for the benefit of her daughter and children of her daughter. The only income of the trust is the interest income which is distributed to the beneficiaries.
AO is directed to charge the tax on the trust at the rate ordinarily applicable to total income of association of persons and not at the maximum original rate. Appeal of the assessee is treated as allowed.
-
2025 (4) TMI 1619
Disallowance of deduction u/s. 80P - disallowance of provision on account of prize money distributed to the members and disallowance of bad debts - CIT(A) in appeal held that the assessee was entitled to deduction u/s. 80P, however, upheld the action of the AO in making disallowance for provision for prize money and bad debts - HELD THAT:- A perusal of the impugned order of the CIT(A) would reveal that the CIT(A) has already decided the issue of deduction u/s. 80P of the Income Tax Act in favour of the assessee. Once the assessee is held to be entitled to deduction u/s. 80P of the Income Tax Act, the income of the assessee will be exempt from taxation @ 100%. Even if, the ld. CIT(A) has upheld the order of the A.O. relating to the disallowance of provision of prize money and bad debts, the result would be that it will increase the income of the assessee, which otherwise, is eligible for deduction u/s. 80P of the Act.
Under the circumstances, the assessee is not left with any grievance/cause of action to file the present appeal. The said appeal is therefore dismissed. However, subject to the observation that any increase in income of assessee on account of aforesaid disallowance will not affect the claim of the assessee to claim deduction u/s. 80P of the Income Tax Act. Appeal of the assessee stands dismissed.
-
2025 (4) TMI 1618
Validity of reopening of assessment without serving any notice - HELD THAT:- The Revenue could not prove that there was service of notice u/s 148 of the Act before completion of the reassessment u/s 144 r.w.s. 148 of the Act. As a matter of fact the Assessing Officer in the remand proceedings admitted that notice issued u/s 148/142(1) of the Act had returned by the authorities and therefore it can be safely concluded that there was never been any service of notice to the Assessee. Thus, the reassessment made u/s 144 r.w.s. 148 of the Act is hereby quashed. Decided in favour of assessee.
-
2025 (4) TMI 1617
TDS u/s 194C - Disallowance u/s 40(a)(ia) - non-deduction of TDS on the foods supply bills - HELD THAT:- When the matter carried before DRP, DRP hold that the impugned transaction with the catering service provider was covered u/s 194C of the Act and hence, assessee was liable to deduct the TDS. But at the same time on the alternative plea of the assessee that the other party has paid the tax the assessee should not be treated as an assessee in default and therefore, the matter was set aside to the file of the AO. AO has not discussed that issue and directly taken a view that since the assessee has not recorded purchase and debited the said as expenses and therefore, he ordered for disallowance.
Before us on this issue ld. AR invited our attention to the invoice which are of the nature supply of foods packets and not of the catering service. Had been a case of catering service the provision of section 194C shall apply but in this case this being the case of supply of foods and the same being subjected to GST the same shall not be considered as contract and therefore, the provision of section 194C shall not apply on those transaction entered into by the assessee in the case of M/s. Ganesh Lal Yadav-HUF. Considering that aspect of the matter ground no. 1 raised by the assessee is allowed.
Addition u/s 40(a) (ia) - non-deduction of TDS on business promotion expense to promote business and rewards to employees to achieve work targets - HELD THAT:- Ratnagiri Impex Private Limited [2015 (1) TMI 354 - ITAT BANGALORE] held the facilities/amenities made available by the petitioner No. 1 hotel to its customers do not constitute 'work' within the meaning of section 194C of the Act. Consequently, the Circular No. 681, dated 8-3-1994 to the extent it holds that the services made available by a hotel to its customers are covered u/s 194C of the Act must be held to be bad in law. Thus petition is allowed by quashing the Circular No. 681, dated 8-3-1994 to the extent it holds that section 194C of the Income-tax Act applies to payments by the customers to the petitioner No. 1 hotel for availing the facilities/amenities made available by the petitioners. Decided in favour of assesee.
-
2025 (4) TMI 1616
Nature of receipt - Compensation in lieu of the ‘right to sue’ awarded by way of damage suit by order of the Hon’ble High Court - revenue of capital receipt - HELD THAT:- As relying on Shri Virendra Bhavanji Gala [2023 (9) TMI 746 - ITAT MUMBAI]] and Vijay Flexi Containers [1989 (9) TMI 16 - BOMBAY HIGH COURT] amount of compensation received is capital receipt is upheld and consequently, the grounds raised by the Revenue are dismissed.
-
2025 (4) TMI 1615
Addition u/s 69A - cash receipts as inflated to explain the cash deposits post-demonetization -HELD THAT:- It is not in dispute that the AO has accepted the books of account filed by the assessee. The turnover of the assessee was Rs. 31 crores, and during the demonetization period, cash sales amounting to Rs. 2,53,99,000/- were recorded. AO based on certain calculations, concluded that there was inflation of sales to the extent of Rs. 1.40 crores and proceeded to make an addition on the assumption that cash deposits were made out of demonetized currency.
There is no material on record to show that the sales were inflated or that the deposits were made out of unaccounted cash. It is noted that the assessee’s cash book, stock register, and VAT records were duly produced and verified, and no discrepancies were pointed out therein. It is also noted that the festive season of Diwali, which generates higher sales, coincided with the demonetization period, unlike the preceding year when the timing differed. Therefore, a mere comparison with previous years' figures without considering the seasonal impact is not sufficient to draw an adverse inference.
Further, the cash on hand as per the books prior to the demonetization period was verifiable and matched with the records filed, and no adverse findings have been recorded by the lower authorities on this aspect. In such circumstances, when the turnover, stock records, and cash flow are duly explained and supported by evidence, and no purchaser has been disbelieved, the addition made on mere assumptions and conjectures is not sustainable. Decided in favour of assessee.
-
2025 (4) TMI 1614
Addition u/s 69A - cash found during search operations - search and seizure operation under Section 132 was carried out at the residential premises of the assessee - Disclosures made before the Hon'ble Income Tax Settlement Commission (ITSC) - HELD THAT:- The search operations were conducted simultaneously across group cases, and GTIPL had filed a petition before the Hon’ble Settlement Commission admitting undisclosed income, which allegedly included the cash in question.
The record shows that the Hon'ble Settlement Commission duly considered the cash flow statement, the balance sheet, and other relevant documents before passing the settlement order. It is evident that the amount was duly accounted for by GTIPL in its financial statements placed before the Settlement Commission, and no objection was raised by the Revenue in this regard.
Once the Revenue has accepted the ownership of the cash in the hands of GTIPL before the Settlement Commission, it is impermissible for the Revenue to take a contradictory stand in the present proceedings and allege that the said cash belonged to the assessee. It is a well-settled principle that the Revenue must maintain consistency in its approach and cannot adopt contradictory stands in different proceedings.
Under the provisions of Section 245D settlement reached before the Hon'ble Settlement Commission is final and binding and cannot be reopened or challenged in any other proceedings. Therefore, once the amount of Rs. 7,00,000/- has been considered as part of the undisclosed income of GTIPL in the settlement proceedings, the same cannot be taxed again in the hands of the assessee.Decided in favour of assessee.
-
2025 (4) TMI 1613
Additional depreciation u/s 32(1)(iia) on computers used for the production of software - assessee explained that it was in the business of development embedded software, which amounts to the production of an article or thing, and that the computers used for software production qualify as plant and machinery, thus making them eligible for additional depreciation - AO held that computer software is not an article or thing - HELD THAT:- We note that issue on hand is covered in favour of the assessee by the order of coordinate bench of this Tribunal in the own case of the assessee for A.Y. 2012-13 [2024 (12) TMI 1561 - ITAT BANGALORE] wherein held that the assessee is engaged in the production of an article or thing (software), the computers used in the production of such software can be treated as plant and machinery under the provisions of Section 32(1)(iia) of the Act. Therefore, the claim for additional depreciation on the computers used in the production of software is in line with the provisions of the Act. Decided in favour of assessee.
Disallowance of the claim of investment allowances u/s 32AC - AO denied claim as being the assessee not engaged in the business of manufacture or production of any article or thing AND being the computer or computer software not included in the definition of “New Assets” as per the provision of section 32AC(4)(iii) of the Act - HELD THAT:- As far as, the view of the revenue authority that the assessee is not engaged in the business of manufacture or production of any article or thing is concerned, we note that issue is settled in favor of the assessee while deciding the dispute regarding the claim of additional depreciation u/s 32(1)(iia) of the Act. The precondition to claim the additional depreciation u/s 32(1)(iia) of the Act and investment allowances u/s 32AC of the Act same i.e. assessee should be engaged in the business of manufacture or production of any article or thing. Hence, following the finding given by us in respect of ground raised in connection to additional deprecation we hold that the assessee is engaged in the business of “manufacture or production of any article or thing”.
Whether computer or computer software not included in the definition of “New Assets” as per the provision of section 32AC(4)(iii)? - What is excluded from the term “new asset” is office appliance which may include computer and computer. In other words, computer or computer software installed as office appliances are excluded and not the computer installed for the purpose of the production of article or things. Hence, the computer installed by the assessee for the purpose of development of software activity which is held by us production of article or things shall be available for investment allowances under the provision of section 32AC of the Act whereas no allowance shall be allowed on the computer installed for administrative purposes.
We find that there was no detail available on record suggesting that how many computers were installed/ used in the activity of development of computer software. Therefore, we find necessary to set aside the issue to the file of the AO to adjudicate the issue afresh in the light of the above stated discussion. The assessee shall provide the detailed of the computers installed in the activity of software development. AO after verification shall allow the claim of the assessee if the new computers were installed for the purpose business of the development and not for the purpose of administration or as office appliance. Hence, the ground of appeal of the assessee is hereby partly allowed for statistical purposes.
Disallowance u/s 14A - assessee earned exempt income and made a suo-moto disallowance of expenses - HELD THAT:- We note that that the issue of disallowance under section 14A of the Act is covered in favour of the assessee by the order of this Tribunal in the own case of the assessee for A.Y. 2010-11 [2022 (2) TMI 1503 - ITAT BANGALORE] as held AO has not expressly mentioned any dissatisfaction in the suomoto disallowance computed by assessee we hold that the disallowance computed by the assessee is appropriate.
Disallowance of claim of deduction of state tax paid in USA - assessee claimed that the impugned tax is prior charges on the income, and the impugned payment was claimed as an expenditure in the return of income - AO disallowed the same by holding the taxes paid in foreign territory can be claimed under section 90/91 of the Act following the procedure and condition provided therein and not as a deduction - HELD THAT:- If the assessee is not eligible for the benefit of the provisions specified under section 90/91 of the Act, then the assessee is eligible for deduction representing the amount of tax paid in the foreign country. Accordingly, respectfully following the order of Bank of India [2021 (3) TMI 343 - ITAT MUMBAI], we set aside the order of the learned CIT-A and direct the AO to delete the addition made by him. Hence, the ground of appeal of the assessee, is hereby allowed.
Not granting the credit of MAT as per section 115JAA - HELD THAT:- As we note that the issue of MAT credit was raised first time before us. The lower authorities did not get the opportunity to apply their mind. Therefore, in the interest of justice and fair play, we set aside the issue to the file of the AO. AO is directed to allow MAT credit, if any, as per law. The assessee is directed to furnish the necessary details. Henc the ground of appeal of the assessee is allowed for statistical purposes.
-
2025 (4) TMI 1612
Addition u/s 68 - unexplained cash deposits in his bank account - as alleged the assessee had submitted cash books, which had to be revised and there was a variation in the opening balance declared by the assessee in such cash book, which raised doubt as regards to the genuineness of such cash book, secondly, if the assessee was having substantial cash in hand there was no justification for further/regular cash withdrawals and the burden was on the assessee to substantiate as to why the assessee was regularly withdrawing cash from his bank account when he was having substantial cash in hand and thirdly, the assessee has shown a meagre cash expenditure towards household expenses which further supports that the cash book furnished by the assessee was non-genuine.
HELD THAT:- Despite the above points noted by the Department, it has not been disputed that the assessee had made regular withdrawals from his bank account, which as per the assessee was the source of cash deposits in his bank account.
As regards the contention of the assessing officer that the assessee had shown a meagre household expenses the Financial Year 2015-16 and 2016-17, the counsel for the assessee pointed out that this is factually incorrect and on this issue, the Tax Authorities have failed to critically analyse the cash book submitted by the assessee which has shown a higher amount of cash expenses towards household expenses.
Thirdly, we observe that the Department has not brought anything on record to demonstrate that the cash so withdrawn by the assessee from his bank account, had been utilised by the assessee somewhere else. Unless, the Department gives a specific finding on how the cash withdrawals made by the assessee from his bank account were not available with him for redeposit, then, in our considered view, no addition can be made by the Tax Authorities on the assumption/presumption that the same could have been utilised for household expenditures.
The assessee has been able to explain the source of cash deposits in his bank account and accordingly, the appeal of the assessee is allowed.
-
2025 (4) TMI 1611
Addition u/s 69 - unexplained investments - HELD THAT:- As before us, AR drew our attention to the evidences to the source of payments were raised from assessee’s family members.
Assessee stated the sources for payment of sale consideration. We note that from the said statement, the assessee availed loan from HDFC Bank, own fund out of earnings, LIC policy maturity and family support. There is no dispute with regard to own fund out of earning, housing loan from HDFC and LIC policy maturity.
Funds availed from family members - On perusal Indian Bank statement, on examination of the same, we find that on 17.05.2014 & 27.05.2014, ₹.1 lakh and ₹.4 lakhs were received by the assessee from his brother. Assessee received ₹.2 lakhs from his wife on 12.11.2014. Again on 08.12.2014, he received ₹.1,30,000/- though cheque from Mr. Ramanathan. We find, on verification of the same, that the assessee explained entire sale consideration towards investment in immovable property by availing loan from HDFC, own earnings, LIC policy maturity and funds from his family members. But, however, the AO did not give credit to the same, thereby, in our opinion, the addition is not maintainable. Grounds raised by the assessee are allowed.
-
2025 (4) TMI 1610
Demand u/s 201 & 201(1A) - “assessee in default” for non-deduction of TDS on certain expenses/ - HELD THAT:- We note that the facts remain admitted that no expenditure incurred by the assessee as on 31.03.2015. The provision was made on the basis of estimation relating to supply of services and goods by the vendors. The facts and circumstances of the case clearly show that no invoice is received by the assessee from the vendors and no payment was made to the vendors towards services and supply of goods rendered by the vendors as on 31.03.2015.
The provision was created by the assessee is only an estimation basis taking into account the quantum of services and supply of goods by the vendors. On an examination of the tabular form, which, clearly demonstrate the facts of the case in detail, which is not disputed by the Revenue, therefore, in this regard, we find the facts and circumstances, as referred by the ld. AR, in the case of Biocon Ltd. [2022 (4) TMI 795 - ITAT BANGALORE] are similar and identical.
The assessee received invoices from the vendors to an extent of ₹.24,76,17,968/- only, meaning thereby the provision created was in excess by ₹.3,11,71,303/- [₹.27,87,89,271 – ₹.24,76,17,968/-]. When the payment is made, the provision for expenses account shall be debited with ₹.24,76,17,968/-, which will leave a credit balance of ₹.3,11,71,303/- in the provisions for expenses account. This remaining credit balance is transferred to profit and loss account. Accordingly, the provision for expenses account is shown NIL balance and there is impact on the profit and loss account of the succeeding year by way of income of ₹.3,11,71,303/-.
Short deduction of TDS on the excess provision - We find force in the arguments of the ld. AR that no interest could be imposed on excess provision, which remained unpaid. Further, we note that the said excess provision was transferred to profit and loss account and admittedly, there is an impact on the P & L account in the succeeding year. Therefore, we find when the said excess provision is not paid to any vendor and there is no recipient to the said amount, when there is impact on P & L account by way of income, in our view, the Assessing Officer, holding short deduction and levying interest on such short deduction is not justified. Therefore, we hold that there is no short deduction under section 201 of the Act and the interest under section 201(1A) calculated at 1% per month on such short deduction of TDS for a period of 85 days on the amounts which remained unpaid is not justified and it is deleted. Thus, the grounds concerning the issue under section 201/201(1A) of the Act is allowed.
Interest u/s 201(1A) imposed on the situation i.e., the actual payment made in the succeeding year is less than the provision amount - We note that admittedly, actual payment was made less than the amount of provision made. There is no doubt the TDS was deducted by the assessee at the time of credit or at the time of making actual payment to the vendors of the assessee. We find, since the yearend provision was made as on 31.03.2015, the date on which TDS was deductible shall be on 31.03.2015. Thus, the assessee is liable to pay interest from that date to the date of actual deduction/payment as per the provisions of section 201(1A) of the Act on the amount of actual payment made.
In the present case, as already discussed above, the provision of ₹.27,87,89,271/- was made as on 31.03.2015 and actual payment was made to an extent of ₹.24,76,17,968/-. Therefore, the liability to deduct TDS shall be on the amount of actual payment only. In this scenario, following the order of Biocon Ltd. [2022 (4) TMI 795 - ITAT BANGALORE] we hold the tax liability upon the recipient will be on the amount to extent of ₹.24,76,17,968/- and accordingly, the TDS liability also on the said amount actually paid and interest under section 201(1A) of the Act is liable to be paid on ₹.24,76,17,968/-.
-
2025 (4) TMI 1609
Maintainability of appeal as per section 249(4) - assessee had not paid the tax on returned income and the particulars of payment was also not mentioned in column 8 of Form 35 - HELD THAT:- It is pertinent to note that the provisions of section 249(4)(b) of the Act is clear that appeal before the ld. CIT(A) should be admitted only when the assessee has paid an amount equal to the amount of advance tax, which was payable by him. Where the return of income has not been filed the proviso to said section also describe that the assessee will get exemption from this clause, if an application is made before the ld. CIT(A) for not paying an amount equal to the amount of advance tax for any good and sufficient reason to be recorded in writing.
In the instant case, as observed by the AO that the assessee had stated that they have exempted income for the financial year 2016-17 and therefore, not filed the income tax return for the said period.
Before us also, assessee submitted that the assessee’s income are exempted and therefore, the question of paying advance tax does not arise in the case of the assessee as no amount is payable by the assessee. Being so, we are of the opinion that dismissing the appeal on the grounds that the same is not maintainable as per section 249(4) of the Act is not sustainable as the income of the assessee are exempt from income tax. The assessee is not liable to pay any advance tax even though they have not filed the return of income. Therefore, this ground of the assessee is allowed.
Unexplained cash credit u/s 69A and denial of exemption u/s 80P - In the present case assessee had submitted the reply along with the cash book and income and expenditure account during the course of assessment proceedings. We are of the considered opinion that since the ld. CIT(A)/NFAC has not considered the grounds of appeal raised by the assessee on merits and therefore in the interest of justice and equity, we are remitting the entire issue in dispute to the file of ld. CIT(A)/NFAC for fresh consideration.
Appeal filed by the assessee is partly allowed for statistical purposes.
-
2025 (4) TMI 1608
Interest payable on CVD levied under Section 3 of the CT Act or on SAD levied under Section 3A of the CT Act - Constitutional validity of the Notification No. 18/2015-Cus dated 01.04.2015 - HELD THAT:- It is not inclined to interfere with the impugned judgment; hence, the present special leave petition is dismissed.
-
2025 (4) TMI 1607
Personal liability of petitioner for non-fulfilment of export obligations by the Company - Petitioner was appointed as an independent non-executive director of the Company in the year 1985 and was neither a promoter nor was involved in the day-to-day affairs of the Company - time barred SCN - HELD THAT:- This Court has in Pankaj Mehra case while relying on the judgments passed in Krishan Kumar Bangur case [2006 (4) TMI 256 - HIGH COURT OF DELHI] and Ved Kapoor case [2013 (9) TMI 706 - DELHI HIGH COURT], and on the judgment of the Supreme Court in the Santanu Ray vs. Union of India [1988 (8) TMI 106 - DELHI HIGH COURT], has held that unless specific allegations have been made which discuss the role of a director in the export performance, there is no question of finding the director personally liable for the same. The order impugned or even the Four O-I-O's have failed to fulfil this or show any adjudication on this aspect. In the absence thereof, the Respondent cannot now by, taking additional grounds and pleas, attempt to go beyond the Impugned Order or the Four O-I-O's.
There is another aspect which has to be taken into consideration. The export licences were issued during the time period of 1989-1991. Between 27.06.2002 and 11.09.2008, the Respondent issued multiple notices, summons, and orders concerning various Advance Licenses held by the Company. The Four O-I-O's were then passed on 08.09.2009 and 17.09.2009. No explanation has been provided by the Respondent in these Four O-I-O's for the delay in taking steps against the Petitioner or the Company. No reason has been urged before this Court either.
In any event, the Petitioner has stated that he was appointed as an independent non-executive director and that he had no role to play in the company's day to day affairs or export obligation or licences - The Respondent has also not disputed the fact either in the Impugned Order or in the Four O-I-O's that the Company went into liquidation in 1998, and that all documents and records were taken over by the Official liquidator. Thus, once a company goes into liquidation, all proceedings to be initiated against such company for the failure to submit documents in compliance with export obligations could only be initiated as is mandated in law. There is no evidence of this being done by Respondent either.
This Court therefore finds no merit in the contentions of the Respondent - Petition disposed off.
-
2025 (4) TMI 1606
Seeking grant of anticipatory bail - smuggling foreign origin gold and cash - applicability and scope of Section 135 of the Customs Act, 1962 - HELD THAT:- Relevant aspects have been dealt with in detail by Co-ordinate Bench of this Court in Ram Krishna Jaldhar Parai versus Union of India and others [2024 (10) TMI 847 - ALLAHABAD HIGH COURT] and has recorded a prima facie satisfaction with regard to Sections 135 of the Customs Act to the effect that a person can be punished for the limited offence if ingredients of the said sections are made out which prescribe a maximum sentence of upto 7 years. The order also indicates the fact that the recovery seems to be of the firm Messrs Ram Laxman and Company which is a proprietorship and duly registered with GST & NSMP. The order also adverts the income tax and GST return of the firm. Prima facie satisfaction also has been recorded that quantum of business generated by the firm can gave rise to the turn over as suggested and the said owners of the firm may have sources to justify availability of quantity of gold and jewellery recovered.
Considering aforesaid aspects as well as the fact that there is no recovery made from the applicant and the complaint having already been filed against the applicants, and considering judgment rendered by Hon'ble Supreme Court in the case of Sanjay Chandra v. Central Bureau of Investigation, [2011 (11) TMI 537 - SUPREME COURT], this court finds that the applicant is entitled to grant of anticipatory bail.
It is provided that in the event of arrest, the applicant- Avijit Manna shall be released on anticipatory bail in the aforesaid Case Crime number on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the arresting officer/investigating officer/S.H.O. concerned with the conditions imposed.
Conclusion - The charge under section 135 of the Customs Act is yet to be established in trial and since the maximum punishment which can be made applicable is upto 7 years, the applicant is entitled to grant of anticipatory bail.
The bail application allowed.
-
2025 (4) TMI 1605
Levy of penalty under Section 117 of the Customs Act, 1962 on the Customs House Agent (CHA) and Rajiv Sahni, who was working merely as Business Development Associate of M/s. Essar Oil Limited - alleged violations related to clearance of goods under a Project Authority Certificate (PAC) - no direct contravention by the CHA is established.
Penalty on Customs broker - HELD THAT:- After going through the provision of Section 46 of the Customs Act, it is clear that under Section 46 of the Customs Act, duty has been imposed upon the importer of the goods and not upon the Custom Broker or Customs House Agent, therefore, no penalty can be imposed upon the appellant Mahendra N. Thacker who worked as Custom Broker for the violation of Section 46 by the importer.
From the perusal of the provision of Section 117, it is clear that where there is no express penalty elsewhere in the Act then penalty may be imposed under Section 117 for contravention of any provisions of this Act. In the impugned order, the Adjudicating Authority has not made it clear that the appellant Mahendra N. Thacker violated which provisions of Customs Act which he was duty bound to follow. Therefore, penalty cannot be imposed upon the appellant arbitrarily without clearly defining the violation of any specific provision of the Customs Act.
As far as the violation of Customs House Agents Licensing Regulations, 2004 is concerned, no penalty can be imposed upon the Customs Broker or CHA and only his licence may be suspended or may be cancelled under Regulation 20 - the learned Adjudicating Authority has imposed penalty upon the appellant M/s. Mahendra N Thacker arbitrarily without proper justification and the order imposing penalty upon the appellant Mahendra N Thacker is liable to be set aside.
Penalty on Shri Rajiv Sahni - HELD THAT:- There is sufficient evidence on the record which prove beyond doubt that Shri Rajiv Sahni, Business Development Associate (BDA) was on the lookout for potential bulk buyers of the HSD imported by M/s. Essar Oil Limited. He was well aware that projects funded by World Bank are eligible to obtain Customs Duty free HSD for use in the project. Contractors doing the project work aided by the World Bank approached him for help and procurement of duty free HSD as they were in possession of Project Authority Certificate. Shri Rajiv Sahni helped them to register themselves with M/s. Essar Oil Limited to procure imported Customs Duty free HSD and to complete all the necessary formalities - from the material available on the record, it is clear that Shri Rajiv Sahni played a key role in the diversion of the imported HSD cleared under PAC in collusion with the importer and the PAC holder M/s. Agrawal (J.V.) and thus aided and abetted in the diversion for 460 KL HSD valued at Rs. 89,13,340/- and having a duty liability of Rs. 23,08,357/-. Therefore, the order of the Principal Commissioner imposing penalty of Rs. 2,00,000/- on Shri Rajiv Sahni Business Development Associate of M/s. Essar Oil Limited is sustainable and is liable to be confirmed.
Conclusion - i) Under Section 46 of the Customs Act, duty has been imposed upon the importer of the goods and not upon the Custom Broker or Customs House Agent, therefore, no penalty can be imposed upon the appellant Mahendra N. Thacker who worked as Custom Broker for the violation of Section 46 by the importer. ii) Shri Rajiv Sahni played a key role in the diversion of imported HSD cleared under PAC in collusion with the importer and the PAC holder M/s. Agrawal (J.V.) and thus aided and abetted the diversion for 460 KL HSD valued at Rs. 89,13,340/- and having a duty liability of Rs. 23,08,357/-.
Appeal dismissed.
-
2025 (4) TMI 1604
Revocation of customs broker licence - forfeiture of entire amount of security deposit - levy of penalty - misuse of the export promotion schemes and other fraudulent activities - HELD THAT:- Regulation 10(n) does not place an obligation on the Customs Broker to oversee and ensure the correctness of the actions by Government officers. Therefore, the verification of documents part of the obligation under Regulation 10(n) on the Customs Broker is fully satisfied as long as the Customs Broker satisfies itself that the IEC and the GSTIN were, indeed issued by the concerned officers. This can be done through online verification, comparing with the original documents, etc. and does not require an investigation into the documents by the Customs Broker. Therefore, the appellant was correct in verifying the GSTIN issued by the department on the GST portal. The presumption is that a certificate or registration issued by an officer or purported to be issued by an officer is correctly issued. Section 79 of the Evidence Act, 1872 requires even Courts to presume that every certificate which is purported to be issued by the Government officer to be genuine.
The onus on the Customs Broker cannot, therefore, extend to verifying that the officers had correctly issued the certificate or registration. Of course, if the Customs Broker comes to know that its client has obtained these certificates through fraud or misrepresentation, nothing prevents it from bringing such details to the notice of Customs officers for their consideration and action as they deem fit. However, the Customs Broker cannot sit in judgment over the certificate or registration issued by a Government officer so long as it is valid. In this case, there is no doubt or evidence that the IEC, the GSTIN and other documents were issued by the officers. So, there is no violation as far as the documents are concerned.
The Regulation, in fact, gives to the Customs Broker the option of verifying using documents, data or information. If there are authentic, independent and reliable documents or data or information to show that the client is functioning at the declared address, this part of the obligation of the Customs Broker is fulfilled - the GSTIN issued by the officers of CBIC itself shows the address of the client and the authenticity of the GSTIN is not in doubt. In fact, the entire verification report is based on the GSTIN. Further, IEC issued by the DGFT also shows the address. There is nothing on record to show that either of these documents were fake or forged. Therefore, they are authentic and reliable and we have no reason to believe that the officers who issued them were not independent and neither has the Customs Broker any reason to believe that they were not independent.
The responsibility of the Customs Broker under Regulation 10(n) does not include keeping a continuous surveillance on the client to ensure that he continues to operate from that address and has not changed his operations. Therefore, once verification of the address is complete, if the client moves to a new premises and does not inform the authorities or does not get his documents amended, such act or omission of the client cannot be held against the Customs Broker.
Conclusion - The appellant Customs Broker did not fail in discharging its responsibilities under Regulation 10(n) of CBLR 2018. The impugned order is not correct in concluding that the Customs Broker has violated Regulation 10(n) of CBLR 2018 because the exporter was found to not exist during subsequent verification by the officers.
The impugned order dated 05.04.2021 cannot be sustained and, therefore, is set aside - Appeal allowed.
-
2025 (4) TMI 1603
Hawala transaction - note book was recovered during the course of search containing the details of the business of hawala on day-to-day basis - scope of retracted statement - HELD THAT:- A note book was recovered during the course of search. It was containing the details of the business of hawala on day-to-day basis. It was then explained for the short figure mentioned therein. That was not the loose sheet but note book which otherwise said to be containing business account of the appellant, therefore the respondent rightly relied on the note-book containing the details of the accounts showing hawala transaction. The details mentioned therein was not pertaining to Automobile business otherwise showcased by the appellant. Apart from the aforesaid, in the statement of Shri Mahendra Jain, he referred to the business of Shri Ramesh B. Doshi which was not only of automobile but even of hawala transactions.
The said statement was not retracted, thus, even if the appellant retracted from his statement and sent a telegram, as reproduced above, does not show complete retraction but acceptance of certain material by the appellant. The note-book said to be containing the accounts of the appellant, as stated by the Counsel for the appellant and otherwise the statement of Shri Mahendra Jain has corroborated the note-book recovered from the appellant, Shri Ramesh B. Doshi. Thus, it is not that there was no material other than the retracted statement to find the case of contravention under section 3(a), (b) and (c) of the Act of 1999.
Appellant has referred several judgments where it has been held that retracted statement may not be relied and we agree with the proposition therefor. It is not required to refer or cite those judgments but would be referring the judgment in the case of Vinod Solanki [2008 (12) TMI 31 - SUPREME COURT] where it was held that retracted statement can also be relied, if it is supported or corroborated by other evidence.
No illegality or error in the impugned order passed by the Special Director to rely on the material to draw his conclusion.
Reliance on the loose sheets - In the instant case we have recorded finding that apart from loose-sheets, note-book was recovered said to be an account book of the appellant containing the business transaction but the figures mentioned therein and explained by the appellant was showing hawala transactions and accordingly ignoring the loose-sheet even the note-book was corroborating the evidence to indicate that appellant Shri Ramesh B. Doshi was involved in hawala transactions.
We are accordingly not required to cite other judgments in reference to loose-sheets and as to whether reliance on it can be placed because we have not placed reliance on the loose-sheets but on the note-book which is admitted by the appellant though showing it to be accounts book. Therefore, we are not citing the judgments for that reason.
Denial of cross-examination - Cross-examination is permitted when the statement of witness arerecorded before the Court or the Authority. It may be in the shape of affidavit but not recorded during the course of the inquiry or investigation. This is as per the provisions of the Evidence Act and in the instant case, no statement was recorded before the Adjudicating Authority so as to permit cross-examination. It is apart from the fact that in the quasi-judicial proceedings, the cross-examination cannot be claimed as a course. It may further be added that in our order, we have not relied on the statement of Shri Abhilash Vasa and Shri AftabAlam, though, if the reliance is placed in reference to their version, a case is further made out against the appellant. Thus, denial of cross-examination in the facts of this case cannot be held to be illegal and accordingly we do not find any error in the impugned order to hold contravention of Section 3(a), (b) and (c) of the Act of 1999.
Penalty imposed - appellant Shri Ramesh B. Doshi was getting commission to facilitate transaction and it was not that his own business other than to receive the commission and appellant was receiving commission of 10 to 15 paise per dollar - HELD THAT:- We are of the opinion that the total penalty imposed upon the appellant, Sh. Ramesh B. Doshi needs to be reduced and accordingly we cause interference in the penalty amount which is substituted by the penalty of Rs.40,00,000/- for contravention of section 3(c) and for Section (a) it is imposed for Rs.60,00,000/- and for section 3(b) it is made to Rs.40,00,000/- on the appellant- Shri Ramesh B. Doshi.
For Shri Mahendra Jain is concerned, he was the employee of Shri Ramesh B. Doshi and was getting salary of Rs.15000/-. The respondent has not placed on record any document to show it to be his business and directly involved in hawala transactions but was working as an employee of Shri Ramesh B. Doshi and thereby their remain no justification to impose heavy penalty on him and accordingly it is substituted it to Rs. 90,000/- for Section 3(c); Rs.1,00,000/- for Section 3(a); and Rs. 90,000/- for Section 3(b) of the Act of 1999.
........
|
9911796707
