|
Advanced Search Options
Case Laws
Showing 21 to 40 of 1466 Records
-
2023 (1) TMI 1457
Classification of goods - Fire TV sticks - Benefit of Serial No. 20 of Notification No. 57/2017-Customs dated 30.06.2017 - applicability of time limitation - Section 28KA of the Customs Act - HELD THAT:- Section 28KA of the Customs Act was inserted by the Finance Act, 2018, to provide an appeal in respect of any ruling. The Customs Act is a special Act and Chapter-VB of the Customs Act, which contains provisions relating to advance rulings, provides a special scheme for the stated purpose. The time for appealing any order/ruling made by the CAAR was restricted to a period of sixty days from the communication of the ruling or order. However, the court can extend the same by a further period of thirty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the stipulated period of sixty days - The period of limitation, as prescribed under Section 28KA of the Customs Act, is not the period as prescribed under the Limitation Act, 1963. Thus, in terms of Section 29(2) of the Limitation Act, the provisions of Section 4 to 24 of the said Act shall apply only to the extent not expressly excluded by such special law.
The proviso to Section 28KA(1) of the Customs Act empowers the High Court to extend the period for filing an appeal by a further period of thirty days, subject to the condition that the court is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the specified period of sixty days. It is clear from the plain language that the court’s power to extend time is restricted to a period of thirty days. It would have no power to extend the time for filing the appeal beyond the said period even if it is satisfied that the appellant was prevented by sufficient cause from filing the said appeal within the stipulated period - It is also well settled that the right to appeal is not an inherent right but one conferred by a statute. It follows that the statute may restrict or truncate the said right.
In the present case, this appeal was filed on 14.07.2022. The learned counsel appearing for the appellant submits that the impugned ruling was communicated to the concerned appellant on 22.03.2022. He states that although the copy of the ruling was received by the concerned Commissionerate in Mumbai on 09.12.2021, it was received by the Commissionerate in Delhi much later on 22.03.2022. He states that the Commissionerate of Delhi was also a party to the application filed by the respondent; therefore, for the purpose of limitation, the date of receipt of the impugned ruling must be reckoned as 22.03.2022.
Thus, it is apparent that even if the appellant’s contention is accepted that the date of communication of the impugned ruling is 22.03.2022 and not 09.12.2021, the present appeal is beyond the period of ninety days from the said date. It was also feebly suggested by the learned counsel appearing for the appellant that the month of June be excluded from the period of limitation since, the period of thirty days, beyond the stipulated period of sixty days for filing the appeal, expired on 20.06.2022. At the material time, this Court was closed for vacations. The said contention is ex facie erroneous. The period, which can be extended in terms of the proviso to Section 28KA(1) of the Customs Act, cannot exceed thirty days.
The appeal is dismissed as barred by limitation.
-
2023 (1) TMI 1456
Exemption u/s 11 - requirement of filing of audit report and income tax return by the trust or institutions registered u/s 12A - CPC while processing u/s 143(1)(a) denied the said exemption on account of two reasons; firstly the return of income was not filed before due date as prescribed u/s 139(4) of the Act and secondly audit report on Form 10B not uploaded before due date prescribed under the Act - HELD THAT:- As per Circular issued by CBDT on 23.04.2019 giving clarification with regard to time allowed for filing of return of income subsequent to insertion of clause (ba) in sub-section 1 of section 12A CBDT has issued and while dealing with this issue, the returns filed within the time allowed u/s 139 of the Act have been directed to be accepted for the purpose of considering benefit of deduction u/s 11 of the Act. Now, since only section 139 of the Act has been mentioned and does not specify whether it is about u/s 139(1) of the Act or section 139(5) of the Act, the view beneficial to the assessee needs to be accepted and, since section 139(1) and section 139(5) are part of section 139 only and in this section 139 and sub-section (5) provides the mechanism to file a belated return, therefore, for A.Y 2018-19, even if the assessee files the return before the last date of filing of belated return the same should be treated as due compliance to section 12A(1)(ba) of the Act.
For the year under appeal, the belated return could have been filed before 31.03.2019, and since the assessee has filed the return on 15.11.2018, therefore, considering the directions of CBDT Circular dated 23.04.2019, which are binding on the Revenue authorities, we are of the view that the assessee has fulfilled the conditions provided under sub-clause (ba) of section 12A(1) of the Act and has filed the return of income within the time allowed.
Filing the belated audit report on form 10B - As in the given facts and circumstances and respectfully following the judgment of Sarvodaya Charitable Trust [2021 (1) TMI 214 - GUJARAT HIGH COURT] we are of the considered view that since the case of assessee is for A.Y 2018-19 and CBDT came up with a circular dated 23.04.2019 specially for A.Y 2018-19 providing that return of income to be filed within the time allowed u/s 139 of the Act, the assessee has complied with the conditions provided in sub-clause (b) and (ba) to section 12 and there is no dispute at the end of the revenue authorities that the assessee is carrying on charitable activities, for which it has been granted registration u/s 12A of the Act, the benefit of section 11 and 12 should be given to the assessee and deductions claimed by the assessee are, therefore, allowed. Thus, Ground Nos.1 to 4 of the assessee are allowed.
-
2023 (1) TMI 1455
Completion of the assessment in the name of the deceased assessee without bringing on record his legal heirs - HELD THAT:- Scrutiny proceedings in the case of the assessee were initiated vide notice dated 01/08/2012, issued under section 143(2) of the Act. Thereafter, notice under section 142(1) of the Act was issued along with the questionnaire. In response thereto, assessee’s wife vide letter dated 26/06/2013, informed the AO that the assessee expired on 17/04/2013, due to renal failure. Assessee’s wife also expressed her inability to respond to queries and produce the documents as required vide aforesaid notice.
It is evident from the record that thereafter neither the legal heir of the assessee was brought on record nor the AO issued statutory notices on the legal heir seeking any information. The above aspect becomes more evident from the fact that the assessment was concluded ex parte under section 144 of the Act and in column 11 at page 1 of the assessment order ‘no attendance’ is mentioned against the date(s) of hearing.
AO also proceeded to pass the assessment order dated 14/03/2014, under section 144 of the Act in the name of the deceased assessee, despite being informed vide letter dated 26/06/2013, about the fact that the assessee expired on 17/04/2013. Thus, the very fact that the assessment has been concluded in the name of a deceased person renders the assessment order to be null and void - It cannot be disputed that the assessee died before the proceedings for assessment were completed. Therefore, it was incumbent u/s 159(2) of the Act on the AO to bring the legal heir of the deceased assessee on record and proceed further. Since the same was not done by the AO, therefore the assessment order is void ab initio. Accordingly, the assessment order passed in the name of the deceased assessee is set aside.
-
2023 (1) TMI 1454
Validity of order of assessment passed u/s 143(3) r.w.s. 144B - non considering the reply submitted by the petitioner to the show-cause notice - HELD THAT:-We have no reason to disagree with the arguments so advanced, as the reply to the show-cause notice, unless and until, considered in its entirety, would render the opportunity so granted to the petitioner, quite illusory. Principles of natural justice would certainly be said to have been violated, if a proper consideration was not accorded to the documents, and the response in its correct perspective.
It goes without saying that in case, the documents filed by the petitioner were not legible, the petitioner could have been asked to furnish legible copies of the same, instead of rushing through the matter for purposes of passing the order impugned.
AO might be constrained to pass the orders of assessment, keeping in view the period of limitation for passing such orders, yet the same cannot be upheld, in violation of principles of natural justice, writ large on the face of such order of assessment.
We set aside the order impugned and all consequent actions based thereupon. AO will pass fresh orders, after considering the reply and the documents, legible copies whereof would be furnished by the petitioner within one week from today.
-
2023 (1) TMI 1453
Challenge to order/s refusing to stay the proceedings under Section 138 of the Negotiable Instruments Act, 1881 - applicant submitted that in view of the commencement of interim moratorium in terms of Section 96 of IBC, the proceedings under Section 138 of NI Act shall be deemed to have been stayed - HELD THAT:- The contention of learned Advocate for the respondent-NSEL that NSEL is not a party to the proceedings, will be of no consequence. Admittedly, the SBI has filed a petition before National Company Law Board against the applicant herein to initiate Insolvency Resolution Process. It is necessary to have a glance at the relevant provisions of IBC. Chapter III of IBC speaks of Insolvency Resolution Process. Section 94 thereof pertains to the application by debtor to initiate the Insolvency Resolution Process. Under Section 95 of IBC, a creditor may move an application to initiate the Insolvency Resolution Process.
The adjudicating authority is expected to pass an order either allowing or rejecting the application under Section 94 or under Section 95, as the case may be. If the application is admitted under section 100 of IBC, moratorium shall commence in relation to all the debts and shall cease to have effect at the end of the period of 180 days beginning with the date of admission of the application or on the date, the Adjudication Authority passes an order on the repayment plan under Section 114 of IBC, whichever is earlier.
Section 41 of the Indian Evidence Act speaks of a final judgment, order or decree of a Competent Court, in the exercise of insolvency jurisdiction, operates as a judgment “in rem” - On going through the scheme of Insolvency Resolution Process contained in Chapter III of IBC, the contention of learned Advocate for respondent-NSEL that proceeding under Section 95 of IBC and outcome thereof is a party specific (parties to the said proceeding only), can not be accepted.
Conclusion - i) The interim moratorium under IBC applies broadly to any debt-related legal proceedings, including those under the NI Act, irrespective of whether the creditor is a party to the insolvency proceedings. ii) The proceedings under Section 138 of the NI Act should be stayed during the interim moratorium period as per Section 96 of the IBC, thereby the applications for stay allowed.
Criminal Application are allowed.
-
2023 (1) TMI 1443
Classification of the model Arjun Ultra-1 CE - to be classified under Chapter Sub-heading No. 8429.51.00 of the Schedule to the Central Excise Tariff Act, 1985 as Front End Shovel Loaders or under Chapter 87 as Tractors for the purpose of Central Excise duty - Applicability of exemption N/N. 06/2006-CE dated 16.11.2006.
Classification of the model Arjun Ultra-1 CE - to be classified under Chapter Sub-heading No. 8429.51.00 of the Schedule to the Central Excise Tariff Act, 1985 as Front End Shovel Loaders or under Chapter 87 as Tractors for the purpose of Central Excise duty - HELD THAT:- The classification of the goods is to be done in according to the terms of heading/ sub heading and relevant Section Notes and Chapter Notes. All other tests, such as end use verification, trade understanding of the goods etc., are only aid to understand the nature and character of goods for determining the classification under tariff. It is also settled principle of law that classification and assessment of the goods is to be done at the time of the clearance of the goods and in the form in which they are presented for assessment. The law in this respect has been settled by the Hon’ble Supreme Court long back in case of DUNLOP INDIA LTD. & MADRAS RUBBER FACTORY LTD. VERSUS UNION OF INDIA AND OTHERS [1975 (10) TMI 94 - SUPREME COURT] where Hon’ble Apex Court observed 'From the findings as recorded by the adjudicating authority in order-in-original and the technical opinion given by the IIT Professor, the only conclusion that can be arrived is that the goods in the form and manner in which they are cleared for sale to consumers are nothing but “Solar Power Generating System” or “Solar Photovoltaic Lantern” and the exemption claimed by the appellants in respect of same under Sl. No. 237 of Notification No. 6/2002-C.E. as amended (Sl. No. 18 of List 9) as claimed by them is admissible to the whole package.'
From the plain reading of the heading 8701, it is quite obvious and evident that all sort of tractors other than those classifiable under heading 8709 need to be classified under this heading. However impugned order while determining the classification of tractor, has sought to limit the scope of this heading to agricultural tractors and have sought to classify the tractors fitted with certain attachment after their clearance from the factory at the instance of the customer by the dealers, as machinery under heading no 84295100. In view of what, the approach of the Commissioner in determining the classification of the goods as cleared by the appellant on the basis of the attachments provided by the dealers at the instance of the customer, cannot be agreed.
The impugned goods in the form and manner as cleared are tractors classifiable under heading 8701.
Applicability of exemption N/N. 06/2006-CE dated 16.11.2006 - HELD THAT:- Since the impugned goods are classifiable under heading 8701, the exemption claimed by the appellant under Sl No 40 of the exemption notification no 06/2006-CE will be admissible to them.
Conclusion - i) The impugned goods in the form and manner as cleared are tractors classifiable under heading 8701. ii) Since the impugned goods are classifiable under heading 8701, the exemption claimed by the appellant under Sl No 40 of the exemption N/N. 06/2006-CE will be admissible to them.
Appeal allowed.
-
2023 (1) TMI 1442
Challenge to SCN on the ground of lack of jurisdiction of the taxation authority - transactions in question were 'High Sea Sales' and thus subject to the Integrated Goods and Services Tax Act, 2017 or not - input tax credit - HELD THAT:- The scope of interference in the writ jurisdiction under Article 226 of the Constitution of India, against show cause notices, is limited. Though there is no bar as such for entertaining the writ petition at the stage of show cause notice, but it has been settled in catena of decisions by the Hon’ble Supreme Court as also this Court as to when writ petition can be entertained at stage of issuance of the show cause notice.
In the case of Union of India and Others Vs. Coastal Container Transporters Association and Others, [2019 (2) TMI 1497 - SUPREME COURT], while dealing with an issue with regard to dispute regarding classification of taxable services, their Lordships in the Hon’ble Supreme Court cautioned against exercise of writ jurisdiction holding 'When there is a serious dispute with regard to classification of service, the respondents ought to have responded to the show-cause notices by placing material in support of their stand but at the same time, there is no reason to approach the High Court questioning the very show-cause notices. Further, as held by the High Court, it cannot be said that even from the contents of show-cause notices there are no factual disputes.'
Conclusion - It is not required to entertain this writ petition at the stage of issuance of show cause notices but leave the petitioner to work out its remedy. It is made clear that all the issues raised by the petitioner are left open to be decided by the respondents after receipt of reply/detailed reply to show cause notices impugned in this writ petition pertaining to financial years 2019-20, 2020-21 and 2021-22.
Petition dismissed.
-
2023 (1) TMI 1441
Reopening of assessment u/s 147 - improper service of notice - process of service of notice by affixture - HELD THAT:- In the case on hand there is no any evidence of any independent person having been associated with identification of place of the assessee, local person of area where the place of the assessee to be served is suggested are to be associated to identify the place of the assessee and such report may not be prepared by the process server and other persons sat in their office without involving local person of area. For obvious reasons it is very much necessary that local persons of the area are to be associated in the process of service of notice by affixture.
The Hon’ble Punjab & Haryana High Court in the case of CIT Vs. Kishan Chand [2009 (11) TMI 535 - PUNJAB AND HARYANA HIGH COURT] affirmed the decision of the Tribunal in holding that resort to affixture could not be straight away taken without taking other modes of service.
In the case on hand also the AO except sending the notice through Speed Post in the month of March, 2018 no efforts have been made to serve notice u/s 148 of the Act on the assessee through other modes. Since the notice returned un-served the AO could have sent notice through notice server for service of notice on the assessee which process was not followed and at the fag end of the due date for completion of assessment i.e. in December, 2018 the AO chose to serve the notice by way of affixture on 4.12.2018 and complete the assessment immediately on 06th December, 2018 not even giving time for the assessee to file return of income in response to the said notice even though the said notice specifies filing of return within 30 days of time from the date of service of notice. Decided in favour of assessee.
-
2023 (1) TMI 1440
Contempt for willful breach of the undertakings - Suit for possession - abuse of the legal process to obstruct the execution of a judgment and decree - HELD THAT:- This Court is aware that the power to punish for contempt must be exercised with utmost caution. In so far as the order on sentence is concerned, as Respondent no.1 contemnor has already been held guilty for contempt and considering his conduct, as aforesaid, this Court sentences Respondent no.1 contemnor, Mr. Ankur Jain to undergo three (3) months simple imprisonment along with a fine of Rs. 2,000/- and in default of payment of fine, he shall further undergo 15 days simple imprisonment.
The Registrar General of this court is directed to take necessary steps to have the convicted contemnor taken into custody and cause him to be sent to Central Jail, Tihar under appropriate warrant of commitment for undergoing the sentence awarded as above.
Conclusion - Judicial orders must be obeyed and that abuse of the legal process will not be tolerated.
The present contempt petition and all the pending applications, if any, are disposed of.
-
2023 (1) TMI 1439
Classification of goods - whether Tax Board was justified in holding that “Potato Chips” are classified as “processed vegetable” under entry 107 of Schedule IV and liable to tax @ 4% instead of 12.5% in residual entry, as mentioned in Schedule V of Rajasthan VAT Act, 2003? - HELD THAT:- Coordinate Bench of this Court in STR No. 199/2009 decided on 31.03.2017 [2017 (3) TMI 1695 - RAJASTHAN HIGH COURT], has decided in favour of the assessee and against the Revenue and it was held 'Potato Chips would fall in the category of entry 107 to be charged with tax @ 4%, and once rate of 4% has been held to be well reasoned and justified, which was claimed by the petitioner, then question of levy of interest does not arise, so also once the claim of the assessee is well reasoned and justified, question of imposition of penalty under Section 61 automatically goes. Even otherwise, it is a case of classification of entries and no case can be made out of evasion of tax.'
All revision petitions are dismissed.
-
2023 (1) TMI 1438
Broken period interest paid on purchase of securities - entitlement to claim deduction of interest paid on purchase of securities constituting stock for the broken period till the date of acquisition in terms of Section 37 - whether interest paid by the assessee on purchase of securities constituting stock-in-trade but paid for the broken period is allowable as a deduction? - HELD THAT:- Revenue has accepted the fact that respondent had been holding the securities as stock-in-trade. Circular No. 665 dated 05.10.1993 of the CBDT has clarified the decision of the Supreme Court in Vijaya Bank Ltd.[1990 (9) TMI 5 - SUPREME COURT] CBDT has clarified that where the banks are holding securities as stock-in-trade and not as investments, principles of law enunciated in Vijaya Bank Ltd. would not be applicable.
Therefore, CBDT has clarified that assessing officer should determine on the facts and circumstances of each case as to whether any particular security constitute stock-in-trade or investment taking into account the guidelines issued by Reserve Bank of India from time to time.
It is in the above back drop that Tribunal has held that the respondent had purchased securities to hold them as stock-in-trade. Therefore, interest paid on such securities would be an allowable deduction.
We are in agreement with the finding returned by the Tribunal. That apart, this is a finding of fact rendered by the Tribunal and in an appeal under Section 260A of the Act, we are not inclined to disturb such a finding of fact, that too, when the legal position is very clear. Decided in favour of assessee.
-
2023 (1) TMI 1437
Validity of reopening of assessment - As alleged approval for reopening the assessment was granted in a mechanical manner - HELD THAT:- On perusal of the order of the Tribunal in assessee’s own case for the assessment year 2010-11 [2022 (10) TMI 1154 - ITAT DELHI] Tribunal after considering various judgements held that there is non-application of mind by the AO while filling up the proforma for obtaining the approval from Commissioner u/s 151 of the Act and the ld. CIT also has granted approval in a mechanical manner.
Tribunal observed that in the Form for recording the reasons for initiating proceedings u/s 148 for obtaining approval of the Pr. CIT, column 7 i.e. the provisions under which the re-opening was sought for are applicable has been mentioned as section 147(b) and the provisions of section 147(b) are non-existent in the statute book for the assessment year 2010-11. Therefore, the co-ordinate bench of the Tribunal came to the conclusion that there is complete non-application of mind by in obtaining the approval from Pr. CIT and in similar manner the approval was granted by Pr. CIT.
The decision taken in Shyam Products Private Limited [supra] applies mutatis mutandis of the appeal of the assessee. Thus, the re-assessment order u/s 143(3) r/w/section 147 is quashed and Ground of appeal of the assessee is allowed.
-
2023 (1) TMI 1436
Dishonour of Cheque - Declination of request of the petitioner to amend complaint bearing No.1 dated 02.01.2013 - permissibility of amendment of the complaint filed under Section 138 of NI Act - HELD THAT:- A Constitution bench of the Supreme Court in UNION OF INDIA AND ANOTHER VERSUS TULSIRAM PATEL AND OTHERS [1985 (7) TMI 371 - SUPREME COURT] while dealing with omission to mention the relevant clause of the second proviso or the relevant service rules in the impugned order has held that order cannot be invalidated if power exists and wrong provision is invoked. Hon’ble Court has held 'The omission to mention in the impugned orders the relevant clause of the second proviso or the relevant service rule will not, therefore, have the effect of invalidating the orders and the orders must be read as having been made under the applicable clause of the second proviso to Article 311(2) read with the relevant service rule. It may be mentioned that in none of the matters before us has it been contended that the disciplinary authority which passed the impugned order was not competent to do so.'
Case in hand relates to proceedings under Section 138 of NI Act, 1881. The proceedings under Section 138 of NI Act are quasi criminal in nature and intent is to recover cheque amount by way of summary proceedings. Hon’ble Supreme Court in many cases has adverted with nature of proceedings under Section 138 of NI Act.
A two judge bench of Hon’ble Supreme Court in LAFARGE AGGREGATES & CONCRETE INDIA P. LTD. VERSUS SUKARSH AZAD & ANR. [2013 (9) TMI 1188 - SUPREME COURT], dealt with an order where High Court had ex-parte set aside complaint filed under Section 138 of NI Act on the ground that accused offered to pay cheque amount, however, complaint refused to accept and insisted for pursuing the trial.
In the case in hand, there is no dispute with respect to running number mentioned on the cheque in question, date in terms of day and month as well amount mentioned therein. As per petitioner, year 2010 instead of 2012 has been mentioned in all the documents i.e. notice, complaint, notice of requisition etc. The petitioner wants to substitute year 2010 mentioned in different documents by 2012 mentioned on the cheque in question. The respondent is opposing correction/amendment of year on the ground that amendment at this belated stage of trial is not permissible, it would amount to filling up of lacuna and mistake could have be in one document whereas petitioner in all the documents has mentioned year 2010.
If amendment of complaint is not permitted, it may prove fatal to the case of the complainant. On account of clerical mistake which was neither noticed by petitioner nor his counsel, the substantial claim of the drawer may be defeated. An accused cannot be let free just because there is some mistake on the part of complainant. If charge may be amended at any time prior to pronouncement of judgment and parties may be permitted to lead additional evidence even at appellate stage, it seems to be harsh and there would be travesty of justice if a mistake which is unintentional, is not permitted to be corrected. The mistake in question cannot be called as incurable mistake - respondent cannot claim that he was pursuing a case with respect to a different cheque and cross examination took place with respect to different cheque. The application was filed prior to completion of prosecution evidence and defence still has to lead evidence, thus, respondent cannot claim loss of opportunity or actual prejudice except bald averment. The respondent is attempting to claim benefit of mistake of the petitioner.
Conclusion - The amendment of the complaint was permissible and necessary to correct an unintentional clerical error.
The present petition deserves to be allowed and accordingly allowed.
-
2023 (1) TMI 1435
Addition u/s 68 - share capital/ share premium treated as unexplained cash credits - CIT(A) deleted addition - HELD THAT:- CIT(A) did not quantify the cash amount deposited in the Lenders bank accounts before giving loan to the assessee company. The said source of cash deposit is from assessee company or from Lenders, has not been explained by CIT(A) in his order. Just to say that 2 or 3 credits followed by equivalent debit, is not sufficient.
CIT(A) has to examine that such cash deposit is from genuine sources and it is not the cash of the assessee-company. Therefore, we note that source has not been explained properly.
CIT(A) has given combined findings in respect of share capital/share premium and unsecured loans. Therefore, we are of the view that this issue should also be remitted back to the file of the assessing officer to examine the source of cash deposit in respect of unsecured loan.
The scope of Section 68 is not confined to the issue of deposits or loan credit but encompasses of all such credits whose nature remains unexplained.
Therefore, we deem it fit and proper to set aside the order of the CIT(A) and remit the matter back to the file of the assessing officer to adjudicate the issue afresh on merits and the assessee is also directed to furnish relevant documents and evidences to prove the source of cash deposit. For statistical purposes, ground no.2 raised by the Revenue is treated as allowed.
-
2023 (1) TMI 1434
Disallowance u/s 14A r.w.r. 8D - Mandation to record satisfaction for invoking Rule 8D - HELD THAT:- We had an occasion to consider an identical issue in Keshoram Industries Ltd.[2022 (1) TMI 995 - CALCUTTA HIGH COURT]wherein it was pointed out as to how the power u/s 14A[2] read with Rule 8D could be invoked and it was held that the assessing officer needs to record satisfaction that having regard to the kind of the assessee suo moto disallowance u/s 14A was not correct and it will be in those cases where the assessee in his return has himself apportioned but the assessing officer did not accept the apportionment. In any event, the assessing officer will have to record its satisfaction to the said effect.
On perusal of the assessment order passed u/s 143[3] of the Act we find that the assessing officer was not recorded any satisfaction for invoking Rule 8D of the Rules. Decided in favour of assessee.
-
2023 (1) TMI 1433
Imposition of ADD - grievance raised by appellant is that despite a recommendation having being made by the designated authority in the final findings notified on 16.02.2022 for imposition of anti-dumping duty under section 9A of the Customs Tariff Act 1975, the Central Government did not issue the notification for imposition of anti-dumping duty - violation of principles of natural justice - HELD THAT:- The maintainability of the appeal under section 9C of the Tariff Act was examined at length by this very Bench in M/s. Apcotex Industries Limited vs. Union of India [2022 (11) TMI 1096 - CESTAT NEW DELHI] and it was held that the appeal would be maintainable against the decision of the Central Government contained in the office memorandum not to impose anti-dumping duty.
The inevitable conclusion is that the decision taken by the Central Government not to impose anti-dumping duty despite a recommendation having been made by the designated authority for imposition of anti-dumping duty, cannot be sustained as it does not contain reasons nor the principles of natural justice have been compiled with and the matter would have to be remitted to the Central Government for taking a fresh decision on the recommendation made by the designated authority.
Though the present appeal is being disposed of but a decision has yet to be taken by the Central Government in the light of the observations made in the order. It is, therefore, considered appropriate to pass a similar order, as was passed by the High Court, which will remain operative till a decision is taken by the Central Government on the recommendation made by the designated authority for imposition of anti-dumping duty - The provisional assessment of imports concerning the subject goods from the subject country will be made for the time being.
The office memorandum dated 26.05.2022 is set aside and the matter is remitted to the Central Government to reconsider the recommendation made by the designated authority in the final findings - Appeal allowed by way of remand.
-
2023 (1) TMI 1432
Unexplained money u/s. 69A - cash deposits during demonetization period - taxation u/s. 115BBE - HELD THAT:- As there is no blanket prohibition on receiving demonetized currency notes up to 31.12.2016, we are of the considered view that, when the assessee has explained reasons for accepting specified bank notes even after 08.11.2016, AO ought to have accepted the explanation furnished by the assessee when he is not disputing the nature of business and source for cash deposits. In our considered view, what is relevant to decide the issue is, whether the assessee is able to explain source for cash deposits or not. In case, the assessee explains the source for cash deposits, even though there is certain violation of any other Acts or Rules, the AO cannot make addition towards cash deposits.
We further noted that a similar issue has been considered in the case of ITO vs Sri Tatiparti Satyanarayana [2022 (3) TMI 896 - ITAT VISAKHAPATNAM] where the Tribunal after considering cash deposits out of specified bank notes after 08.11.2016 and also by considering Specified Bank Notes (Cessation of Liability) bill, 2017 held that the AO is incorrect in treating receipt of specified bank notes from cash sales as illegal and thereby, by invoking provisions of section 69 of the Act.
AO as well as the CIT(A) has erred in sustaining addition towards cash deposits to bank account u/s. 69 of the Act and also levied tax u/s. 115BBE of the Act. Hence, we direct the AO to delete addition made towards cash deposits u/s. 69 of the Act. Appeal filed by the assessee is allowed.
-
2023 (1) TMI 1431
Validity of the Transfer Pricing Order passed in the name of a non-existent entity/entity has been merged - HELD THAT:- As relying on Fedex Express Transportation and Supply Chain Services (India) Private Limited [2019 (7) TMI 1554 - ITAT MUMBAI] and Boeing India Private Limited [2020 (8) TMI 410 - ITAT DELHI] Transfer Pricing Order and the Draft Assessment Order have been passed in the name of non-existent entity. Therefore, respectfully following the above decisions of the Tribunal, we hold that the Draft Assessment Order framed u/s 144C(1) of the Act in the name of non-existent entity is void-ab-initio, making all subsequent proceedings nonest in the eyes of law. Accordingly, the Final Assessment Order is set aside. Assessee appeal allowed.
-
2023 (1) TMI 1430
Non-Imposition of anti-dumping duty u/s 9A of the Customs Tariff Act 1975 - Central Government did not issue the Notification for imposition of anti-dumping duty within three months from the date the final findings were notified by the designated authority - HELD THAT:- Decision taken by the Central Government not to impose anti-dumping duty despite a recommendation having been made by the designated authority for imposition of anti-dumping duty, cannot be sustained as it does not contain reasons nor the principles of natural justice have been compiled with and the matter would have to be remitted to the Central Government for taking a fresh decision on the recommendation made by the designated authority.
Though the present appeal is being disposed of but a decision has yet to be taken by the Central Government in the light of the observations made in the order. It is, therefore, considered appropriate to pass a similar order, as was passed by the High Court, which will remain operative till a decision is taken by the Central Government on the recommendation made by the designated authority for imposition of anti-dumping duty. The directions are as follows:
(i) The provisional assessment of imports concerning the subject goods from the subject countries will be made for the time being;
(ii) It is, however, made clear that the aforesaid direction will not create any equities in favour of the domestic industry; and
(iii) This direction will not have any impact on the decision to be taken by the Central Government pursuant to the directions issued for reconsideration of the recommendation made by the designated authority.
Thus, the office memorandum dated 03.03.2022 is set aside and the matter is remitted to the Central Government to reconsider the recommendation made by the designated authority in the final findings.
-
2023 (1) TMI 1429
Validity of an assessment order passed u/s. 143(3) by an AO having no jurisdiction - assessee contended that the notice issued by ITO, Ward-1(3), Raipur, was invalid as the jurisdiction at the time was vested with ITO, Ward-2(3), Raipur
HELD THAT:- AR had on the basis of supporting documentary evidences apparently substantiated his claim that the territorial jurisdiction over the case of the assessee at the relevant point of time was vested with the ITO, Ward-2(3), Raipur, therefore, there is substance in his claim that in the absence of any notice u/s. 143(2) having been issued by the said A.O within the stipulated time period i.e. latest by 30.09.2013, the assessment order thereafter passed by the ITO, Ward-3(1), Raipur u/s. 143(3) of the Act, dated 30.03.2015 cannot be sustained and is liable to be vacated on the said count itself.
As the assessee in order to drive home his aforesaid claim had placed on record certain fresh documents, viz. municipal receipts, copy of sale deed and affidavit of the partner of the assessee firm, neither of which were there before the lower authorities, therefore, considering the fact that contradictory claims as regard vesting of jurisdiction over the assessee’s case at the relevant point of time i.e. on 19.08.2013, have been raised before me both by the assessee and the revenue, which would require a foolproof verification in the backdrop of the aforesaid documents, thus, the matter in all fairness requires to be revisited by the A.O.
Thus, in terms of our aforesaid observations for the aforesaid limited aspect i.e. for verifying as to whether or not the territorial jurisdiction over the case of the assessee firm as on 19.08.2013 was vested with the ITO, Ward-1(3), Raipur i.e. the A.O who had issued notice u/s. 143(2) of the Act dated 19.08.2013, thus, restore the matter to the file of the A.O. In case it is found that the territorial jurisdiction over the case of the assessee on the date of issuance of notice u/s. 143(2) on 19.08.2013 was not vested with the ITO, Ward-1(3), Raipur, then the assessment so framed u/s.143(3) of the Act dated 30.03.2015 would stand vacated.
As observe, that the A.O in the course of the set-aside proceedings shall before arriving at a final conclusion as regards the territorial jurisdiction over the case of the assessee at the relevant point of time i.e. on the date of issuance of notice u/s. 143(2) dated 19.08.2013, keep in view the observations recorded by me hereinabove. Accordingly, the matter is restored to the file of the A.O for the aforesaid limited purpose. Thus, the additional ground of appeal raised by the assessee is allowed for statistical purposes.
........
|
9911796707
