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Showing 21 to 40 of 1556 Records
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2025 (1) TMI 1537
Relief u/s 89 - compensation on termination of employment - treated as capital receipts/payments to the employees who were affected, depending on the balance service left on their service records - assessee submitted Form 10E before the AO showing the calculation of relief u/s 89 - HELD THAT:- We have perused the order of the Tribunal in the case of Ashok Raghunathrao Kulkarni [2024 (8) TMI 821 - ITAT PUNE] wherein the Tribunal has set aside the order of Ld. CIT(A)/NFAC and directed the AO to delete the impugned addition. Thus, we set aside the order of the CIT(A)/NFAC and direct the Ld. AO to delete the addition. Decided in favour of assessee.
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2025 (1) TMI 1536
Reversal of acquittal of the appellants - conviction u/s 302 read with Section 34 of the IPC - sufficient evidence to establish a common intention among the appellants and accused No.1-Jagdish Singh to commit the crime - HELD THAT:- It is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
In the instant case, the learned trial judge on the basis of ocular testimony of the eyewitnesses has held that the accused No.1-Jagdish Singh is guilty of the offence punishable under Section 302/34 IPC as well as under Section 27(1) of the Arms Act. Since the appeal of the said accused No.1-Jadgish Singh is disposed of as abated, we did not go into the findings against the said accused.
Upon consideration of these factors, the learned trial judge came to a conclusion that even if it was assumed that the remaining three accused had accompanied accused No.1- Jagdish Singh, there was no evidence to come to a conclusion that accused Nos. 2, 3 and 4 (the appellants herein) who were in car with accused No.1-Jagdish Singh had shared a common intention with him to fire upon or to kill the deceased - The learned trial judge, therefore, found that the prosecution had failed to prove the mental involvement of accused Nos. 2, 3 and 4 (the appellants herein) with accused No.1-Jagdish Singh beyond the shadow of reasonable doubt.
Conclusion - In the present case, as observed by the learned trial judge, the prosecution has failed to place on record any evidence to show that the accused Nos. 2, 3 and 4 (the appellants herein) had common intention with accused No.1-Jagdish Singh prior to the accused No.1-Jagdish Singh’s shooting at the deceased resulting in her death.
The judgment and order of the High Court of Uttarakhand at Nainital in Government Appeal No. 100 of 2008 is quashed and aside - appeal allowed.
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2025 (1) TMI 1535
Challenge to conviction and the sentence of death imposed on the Appellant by the Court of Sessions for Greater Bombay - admissibility and reliability of electronic evidence, specifically CCTV footage, without a Section 65-B(4) certificate - circumstantial evidence - failure of prosecution to follow the mandate Under Section 65-B of the Indian Evidence Act, and the failure to produce the Section 65-B(4) certificate - HELD THAT:- In Shafhi Mohammad v. The State of Himachal Pradesh [2018 (1) TMI 1402 - SUPREME COURT], a two Judge Bench of this Court after noticing Anvar P.V. [2014 (9) TMI 1007 - SUPREME COURT] held that a party who is not in possession of device from which the document is produced cannot be required to produce the certificate Under Section 65-B(4) of the Indian Evidence Act. It also held that applicability of requirement of certificate being procedural can be relaxed by the Court wherever interest of justice so justifies.
A court of law in this scenario cannot be technical about the manner of objections that are raised. Even though objection has not been raised specifically when the CCTV footage was exhibited by PW- 1, when PW-38 was in the witness box a specific question was put to him and subsequent to evidence, he deposed that he was aware of the necessity of furnishing 65-B certificate while collecting electronic evidence. On the facts of the present case, we are inclined to treat it as an objection taken at the earliest point in time. Thus, when the prosecution was aware of the need for the 65-B(4) certificate and they themselves collected it for the CDRs there was no reason as to why they did not collect the same for the CCTV footage - no reliance can be placed on the CCTV footage, insofar as an attempt is made by the prosecution to attribute that the Appellant and the deceased EA were last seen together based on the CCTV footage.
There are gaping holes in the prosecution story leading to the irresistible conclusion that there is something more than what meets the eye in this case. While the old adage, witness may lie but not the circumstances, may be correct, however, the circumstances adduced, as held by this Court, should be fully established. There is a legal distinction between 'may be proved' and 'must be or should be proved' as held by this Court. The circumstances relied upon when stitched together do not lead to the sole hypothesis of the guilt of the Accused and it is not found that the chain is so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the Accused.
On the available evidence, it is opined that it will be extremely unsafe to sustain a conviction against the Appellant. The prosecution has not established its case beyond reasonable doubt. Hence, it is constrained to come to the sole irresistible conclusion that the Appellant is not guilty of the offences for which he has been charged.
Conclusion - The prosecution failed to establish the Appellant's guilt beyond a reasonable doubt, primarily due to the inadequacies in the circumstantial evidence presented. There is a necessity of a Section 65-B(4) certificate for the admissibility of electronic evidence.
The Court acquitted the Appellant, setting aside the High Court's judgment and the death sentence, due to the prosecution's failure to meet the required legal standards - Appeal allowed.
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2025 (1) TMI 1534
Reopening of assessment Beyond period of limitation - HELD THAT:- Admittedly, in the present case, there is no material on record which indicates that satisfaction note, as required under Section 153C of the Act, as in force at the material time, had been prepared by the AO of the searched person and the relevant material belonging to or containing the information pertaining to the petitioner had been handed over by the AO of the searched person to the AO of the assessee.
The date of the issuance of the notice is required to be considered for the purpose of computing the period of limitation as would be applicable to the notice under Section 153C of the Act.
In cases the search is conducted after 31.03.2021, the period of limitation under Section 153C of the Act would have to be construed with reference to the date on which the AO decides to initiate action against a non-searched person.
It is relevant to note that in the present case, the AO exercising jurisdiction in respect of the petitioner had prepared the satisfaction note (in terms of Clause (iv) of Explanation 2 to proviso to Section 148 of the Act). However, that cannot be construed as a satisfaction note by the AO of the searched person. The date of the said satisfaction note cannot be considered as the start point to consider the limitation period under Section 153C of the Act.
It is material to note the satisfaction note dated 28.03.2024 was approved on 29.08.2024 by the Chief Commissioner of Income Tax. Thus, even if the limitation is computed on the basis of the aforesaid approval, the same would be required to be computed from the end of the assessment year relevant to the financial year in which such satisfaction note was prepared.
Thus AY 2015-16 is beyond the period of ten years - Decided in favour of assessee.
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2025 (1) TMI 1533
Adjustment u/s 92CA(3) on account of deduction u/s 80-IA - HELD THAT:- As the Appellant has neither claimed deduction under section 80-IA due to losses or AO made any addition wiping off the losses and assessing the income, addition made on account of transfer pricing adjustment on account of supply of electricity was deleted by the coordinate bench. As there is no order by any higher appellate authority, i.e. the Hon’ble High Court or Supreme Court in favour of the Revenue and also the Revenue is not able to make out the case, distinguishing the earlier ratio laid down by the coordinate bench, we are in agreement with the order of the coordinate bench and respectfully following the same, Ground No. 1 raised by the assessee is allowed.
Adjustment proposed by TPO u/s. 92CA (3) - Determination of price of electricity is a regulated activity and therefore the price at which power is supplied by generation company to transmission or distribution company cannot be said to be under ‘uncontrolled condition’ to be considered for benchmarking purpose - Evaluating this in light of the meaning of arm’s length price i.e. a price which is applied or proposed to be applied in a transaction between persons other than associated enterprises in uncontrolled conditions, it is evident that the transaction of purchase of electricity by State Electricity Boards from independent power producers is a regulated activity, being subject to approval of SERC, and therefore is not a transaction undertaken in uncontrolled conditions. Thus, the transaction between power producers and state electricity board is not fit to be considered comparable to the tested transaction of sale of electricity by eligible unit to non-eligible unit. Thus, the average rate of Rs 4.57 per unit, being the price for transfer of electricity by power producers to third party customers cannot be treated as arm’s length price as it is a price under controlled conditions.
We are of the considered opinion that the transfer price of electricity considered by the Appellant is ALP and therefore the additions proposed by the TPO and further confirmed by the Ld. DRP not sustainable in law. Hence directed to be deleted, in the result Ground No. 2 raised by the assessee is allowed.
Not considering the modified return of income filed u/s 119(2) (b) pursuant to receipt of approval from the assessing officer inspite of its cognizance in the final assessment order and therefore has incorrectly computed the total taxable income, tax liability, MAT credit and carried forward losses - FAO failed to consider the modified ROI and computed the total income as per the original ROI filed on 12 February 2021 considering income under the head PGBP at Rs. 70,41,06,729/- as against Rs. 47,94,60,093/- reported in the modified ROI under the normal provisions of the Act. Similarly, income under section 115JB of the Act was considered at Rs. 109, 85, 36,739/- basis the original ROI dated 12 February 2021 as against Rs. 82, 22, 48,000/- reported in the modified ROI.
It is also placed on record that the appellant has filed a rectification application with the jurisdictional assessing officer (PB 55-56) requesting the jurisdictional assessing officer to rectify the mistake apparent from record. We have taken note of the above activities and submissions of the assessee and found the same to be correct. In the light of above facts and documents placed before us, we direct the JAO to dispose the application of the assessee filed u/s. 154 of the Act as per law considering the facts discussed by this bench. In view of the above, Ground No. 3 raised by the assessee is allowed for statistical purposes.
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2025 (1) TMI 1532
Violation of principles of natural justice - Delay of 11 years in adjudication of show cause notices - disallowance of drawback duty availed - HELD THAT:- This Court in the case of Siddhi Vinayak Syntex Pvt. Ltd. v. Union of India 2017 (3) TMI 1534 - GUJARAT HIGH COURT], held that a matter cannot be revived after 17 years when there is no appropriate reason for the delay and hence, the Show Cause Notice was quashed.
The Hon’ble Bombay High Court, in the case of, [2010 (1) TMI 508 - BOMBAY HIGH COURT], held that in absence for reason of delay in adjudication, the re-opening of the matter after such a lapse cannot be allowed, as it will cause serious detriment and prejudice to the petitioner.
The Hon’ble Orissa High Court, in the case of, M/s. Maxcare Laboratories Ltd. v. Joint Commissioner, CGST, Central Excise, Customs, Bhubaneswar and others [2021 (7) TMI 28 - ORISSA HIGH COURT], held that revival of the proceedings after an inordinate delay is contrary to the concept of speedy disposal of SCN, when proper reason for the delay is not provided.
Conclusion - i) The show cause notices and orders quashed due to unjustified delays in adjudication and revival of proceedings, aligning with the principles established in prior cases. ii) The duty drawback claimed by the petitioners is valid and not in breach of the rules, as the drawback was related only to customs duty.
Petition allowed.
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2025 (1) TMI 1531
Computation of presumptive income u/s 44BB - GST collected by the assessee should not form part of "amount" specified in section 44BB - contention of the Revenue is that the GST should be considered as part of the amount paid or payable and should be included in the total receipts as per section 44B(2) - assessee is contending that GST is a statutory levy and cannot be considered as the income - HELD THAT:- Issues as identical to Orient Overseas Container Line Ltd. [2024 (11) TMI 954 - ITAT MUMBAI] in our considered view the ratio laid down by the Co-ordinate Bench, the above case is applicable in assessee's case in the context of section 44BB of the Act also. Accordingly, we hold that the AO is not correct in treating the GST element which is collected as a separate item in the invoice as a statutory levy which is collected and deposited into the Government A/c, as income for the purpose of section 44BB of the Act. Therefore, the AO is directed to delete the addition made in this regard. The grounds raised by the assessee in this regard are allowed. Appeal of the assessee is allowed.
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2025 (1) TMI 1530
TDS u/s 195 - payments made in the nature of royalty under Article 13(3) of the India-UK Double Taxation Avoidance Agreement (DTAA) - payments made towards Global brand, Global Communications and Global technology/Knowledge Management - HELD THAT:- As relying on Deloitte Touche Tohmatsu India LLP and Deloitte Haskins & Sells LLP [2022 (7) TMI 1586 - ITAT MUMBAI] assessee are not liable to deduct tax source on payments made to Deloitte Global Holdings Ltd. as the impugned payments do not fall within the scope and definition of Royalty under Article 13(3) of India UK DTAA. Decided against revenue.
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2025 (1) TMI 1529
Validity of Reopening of assessment u/s 147 - notice issued beyond the period of limitation - HELD THAT:- The said notice has not been generated as per the prescribed procedure on the income tax portal rather, the same has been created manually in violation of the provisions of the Income Tax Act and procedure prescribed thereto. Even the said notice is in the name of the same another assessee and not in the name of the assessee hence, the same can not be treated as valid notice. Even the said notice is time barred by limitation.
The last date to issue the notice u/s 148 in this case was 31.03.2022, whereas, the notices u/s 148A(b) was issued on 29.05.2022 and notice u/s 148 was issued on 28.07.2022. As observed even the said notice dated 28.07.2022 has not been issued to the assessee but in the name of other person. Therefore, the reopening of the assessment is bad in law on both counts.
The notice u/s 148 of the Act in this case is bad in law and therefore, the consequential assessment framed u/s 147 of the Act is bad in law and the same is hereby quashed the appeal of the assessee stands allowed.
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2025 (1) TMI 1528
Reopening of assessment u/s 147 beyond period of limitation -Argument is that for assessment year 2015-16 the limitation expired on 31.03.2022 whereas the notice under Section 148 of the Act was issued on 28.07.2022 - HELD THAT:- The notice for the assessment year 2015-16 was time-barred as the limitation expired on 31.03.2022, yet the notice was issued on 28.07.2022. This argument was supported by the Supreme Court's decision in Rajeev Bansal [2024 (10) TMI 264 - SUPREME COURT (LB)] which acknowledged the expiration of the limitation period for the relevant assessment year. Writ petition is allowed.
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2025 (1) TMI 1527
Addition u/s 68 in respect of bogus purchases - assessee failed to prove the creditworthiness and genuineness of the transactions / purchases as assessee has not produced E-way bills, copies of invoices, stock register proofs of payment etc - CIT(A) deleted addition - HELD THAT:- CIT(A) recorded a clear cut finding of the fact that the assessee has produced before the AO all the evidences and records to prove the identity and creditworthiness of the suppliers and genuineness of the transactions and therefore, discharged its onus cast upon it by the Act and AO has failed to carry out any meaningful enquiry into the evidences filed by the assessee.
AR during the course of hearing submitted before us in respect of first supplier the assessee has furnished all evidences along with confirmation of accounts from the supplier thereby furnishing the payment details, evidence of purchases such as purchase bills along with transport details, weighing slips, E-way bills, etc., Adhar of the supplier, extra of B2B entries in GSTR-2A of the assessee reflecting the transactions with the said supplier. We note that said supplier even responded to the notice issued u/s 133(6) of the Act and trhus furnished all the evidences.
Similarly, in the case of other supplier all the evidences were filed before the AO. Thus, it is evident from the above that AO instead of carrying out any meaningful enquiry into these transactions has merely concluded that the assessee has not filed any evidences before the ld. AO whereas as a matter of fact all materials/evidences were available before the ld.AO - Decided in favour of assessee.
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2025 (1) TMI 1526
Condonation of delay of 166 days in filing before the Income Tax Appellate Tribunal - Tribunal declined to condone the delay[2024 (2) TMI 1374 - ITAT RAIPUR]. An appeal was preferred against the said order by the appellant before the High Court [2024 (4) TMI 986 - CHHATTISGARH HIGH COURT]. Even the appeal has been dismissed.
HELD THAT:- In our view, both the Tribunal and the High Court ought to have adopted justice oriented and liberal approach by condoning the delay of 166 days.
Therefore, we set aside both the impugned orders by condoning the delay in preferring the appeal. We direct that the Director of the Tribunal to decide the appeal in accordance with law.
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2025 (1) TMI 1525
Seeking review of an order - HELD THAT:- What is recorded in the order dated 26th April, 2024 is the oral consent of the learned counsel appearing for the respondents herein. All the Constitutional Courts in our country accept the oral statements made on behalf of the parties by their respective learned counsel. The order impugned proceeds on a footing that there is no consent given in writing. As the oral consent of the learned counsel appearing for the respondents has been expressly recorded, the order dated 26th April, 2024 could not have been reviewed on the ground that there was no written consent.
The impugned order is hereby set aside and the order dated 26th April, 2024 is hereby restored - Appeal allowed.
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2025 (1) TMI 1524
Condonation of delay of approximately 2200 days in filing an application for recall - Order 43 Rule 1(d) of the Code of Civil Procedure, 1908 - HELD THAT:- The length of the delay is definitely a relevant matter which the court must take into consideration while considering whether the delay should be condoned or not. From the tenor of the approach of the Respondents herein, it appears that they want to fix their own period of limitation for the purpose of instituting the proceedings for which law has prescribed a period of limitation. Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long, it cannot be presumed to be non-deliberate delay and in such circumstances of the case, he cannot be heard to plead that the substantial justice deserves to be preferred as against the technical considerations. While considering the plea for condonation of delay, the court must not start with the merits of the main matter. The court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and the opposition of the other side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning the delay.
Conclusion - The question of limitation is not merely a technical consideration. The Rules of limitation are based on the principles of sound public policy and principles of equity. No court should keep the 'Sword of Damocles' hanging over the head of a litigant for an indefinite period of time.
Appeal allowed.
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2025 (1) TMI 1523
Rates quoted in the contract, deemed inclusive of taxes, preclude reimbursement of taxes such as GST or not - existence of an arbitration clause in the contract necessitates relegating the dispute to arbitration rather than adjudicating it through a writ petition - HELD THAT:- The Gujarat High Court judgment in M/S BIPSON SURGICAL (INDIA) PVT. LTD. VERSUS STATE OF GUJARAT [2018 (12) TMI 69 - GUJARAT HIGH COURT] does not much come to the aid of appellant inasmuch as in the contract document involved in that case had clause (13)(b) were differently worded qua clause 39.1 of the contract document herein. That apart, when the higher up itself has agreed to give the benefit by virtue of Clarification Circular dated 03.01.2020, which is in response to appellant’s query raised in its letter dated 06.12.2019, it is un-understandable as to how a contra stand can be taken up by the entity which is in appeal.
Existence of arbitration clause is one thing and existence of dispute is another. Both need to concur to non-suit the writ petitioner so that he can invoke arbitration clause. In the absence of a dispute in view of Clarificatory Circular, the question of relegating the respondent contractor to arbitration even remotely would not arise.
Conclusion - i) The clarification issued by KUIDFC regarding tax adjustments post-GST implementation was binding on the appellant, necessitating compliance. ii) The presence of an arbitration clause does not automatically preclude judicial intervention, especially in the absence of a genuine dispute.
Appeal dismissed.
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2025 (1) TMI 1522
Challnege to order passed u/s 73 of the Goods and Services Tax Act, 2017 - present proceedings were initiated after the expiry of the period of limitation prescribed - entitlement to benefit of doubt - HELD THAT:- In the case of Ola Fleet Technologies Pvt. Ltd. [2024 (7) TMI 1543 - ALLAHABAD HIGH COURT] a coordinate Bench of this Court inter alia observed and held that 'At present, it does appear that the petitioner is entitled to a benefit of doubt. No material exist to reject the contention being advanced that the impugned order was not reflecting under the tab "view notices and orders". On merits, as noted in the earlier orders an other dispute exists whether all replies and annexures to the replies as filed by the assessee were displayed to the assessing officer and whether those have been considered. We find, no useful purpose may be served for keeping this petition pending or calling for a counter affidavit or even relegating the petitioner to the available statutory remedy.'
The writ petition filed by the petitioner is allowed. The order impugned dated 22.11.2023 passed by the Deputy Commissioner, Commercial Tax, Sector-02, Chandauli (Annexure-1 to the writ petition) is quashed and set aside.
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2025 (1) TMI 1521
Unexplained cash credits - Addition u/s 68 - unexplained nature and source of credit entries in respect of share capital/premium/unsecured loans and other credits in bank - CIT(A) deleted addition - HELD THAT:- As could be seen from the observations of the CIT(A), since, the real beneficiaries, who have availed the accommodation entries were identified, the substantive additions have been made at their hands. That being the case, protective additions made at the hands of the assessee cannot survive.
While considering identical issue on similar facts, the companies, allegedly managed and controlled by Jain Brothers in the cases of M/s. Shivji Garments Pvt. Ltd.[2024 (2) TMI 454 - ITAT DELHI] and ACIT Vs. M/s. Zed Enterprises (P) Ltd [2024 (1) TMI 1442 - ITAT DELHI] has upheld the decision of the Ld. CIT (A) in deleting the addition.
In the present cases, the facts are being identical, we do not find any infirmity in the decision of Ld. CIT(A), in deleting the additions. Accordingly, revenue grounds are dismissed.
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2025 (1) TMI 1520
Denial of claim of the assessee to be taxed at the lower rate u/s 115BAA - Form 10IC, which was required to be also filed to opt for simplified tax regime which was not submitted by the assessee - HELD THAT:- Admittedly, the assessee intended to opt for beneficial regime u/s 115BAA as it clear from the return as well as the tax audit report. The only omission was not filing the requisite Form 10IC by due date. In this regard, genuine hardship was experienced by numerous assessees due to the fact that section 115BAA had come into effect from 01.04.20220 during the period of Covid Pandemic when it had become difficult to make statutory compliances for the assessees in general. In view of representation received in this regard, the CBDT belatedly issued a circular on 23.10.2023 condoning the delay in filing of Form 10IC on or before 31.01.2024 subject to few conditions.
Since the circular was issued on 23.10.2023 and at the time of filing of return for AY 2022-23 in 2022, there was no such provision for filing belated Form-10IC for AY 2021-22, the assessee thought it prudent to file the requisite form for AY 2022-23 on 22.09.2022. Subsequently, in view of the circular, the assessee attempted to file Form 10IC for AY 2021-22 as well, but the system did not accept it for the reason that one Form 10IC had already been uploaded for AY 2022-23.
We are of the considered view that the assessee deserves to get the benefit of lower tax rate prescribed by section 115BAA for AY 2021-22 as well, considering that the CBDT itself had relaxed the condition regarding filing of Form 10IC and provided a window for late submission of the same. The assessee having filed Form 10IC for AY 2022-23 on 22.09.2022 i.e. much before the issue of CBDT circular dated 23.10.2023, was not able to file another Form 10IC on the system. Simply because of the technical glitch in the system, the assessee cannot be denied the benefit of the circular when all other conditions are satisfied. Appeal of the assessee is allowed.
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2025 (1) TMI 1519
Refund of Input Tax Credit (ITC) accrued to the petitioner under the Value Added Tax (VAT) regime - Transition to GST regime - petitioner’s contention based on Section 143(8)(b) is that when an assessment is carried out and a refund is ordered then necessarily, the same shall be refunded to the assesee as per clause (8)(b) of Section 142 - it was held by High Court that 'There are no reason to interfere with the order rejecting the claim for refund, which refund in any event is not applicable, and the petitioner can only claim ITC as set-off against the output tax.'
HELD THAT:- There are no good reason to interfere with the impugned order passed by the High Court.
SLP dismissed.
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2025 (1) TMI 1518
Applicability of penalties under Section 74 of the CGST Act, 2017 - petitioner's failure to pay GST and file returns within the stipulated time - suppression of facts or not - contravention of the provisions of Section 37 of the CGST Act - HELD THAT:- Non-payment of tax, would attract penalties, under Section 74 (1), in three circumstances. The first two circumstances are fraud and wilful mis-statement. Both these require an intention to evade tax by unfair or illegal means. The third circumstance is suppression of fact, which is also defined, in Explanation-2, as non-declaration of relevant information. In view of the collocation of the terms, before this term, and in view of the requirement, under the two earlier terms of mens rea, the term “suppression of facts” would have to be read as wilful or deliberate suppression of fact, for evading tax. The term “evade” puts this issue beyond controversy, as this term means that the suppression must be for the purpose of evasion, which clearly requires intention and mens rea.
There can be no quarrel with this view relating to Section 74 (1) of CGST Act. Every non-payment of tax cannot be treated as evasion of tax by way of fraud, wilful misstatement or suppression of facts. Every case needs to be looked into for ascertaining whether necessary evidence of fraud, wilful misstatement or suppression of fact, for the purpose of evading tax, is available in the record and whether such material has been demonstrated before the authority.
The scheme, under section 74, appears to be in the nature of a permanent amnesty/settlement/compunding scheme, where the tax payer, liable to pay penalty under Section 74, is given an opportunity to voluntarily accept wrong doing and reduce the penalty that would be payable - While the petitioner had paid the tax prior to the issuance of notice under Section 74 (1) of the CGST Act, the interest payable under section 50, was paid after the notice had been issued. Further penalty of 15% was not paid - The contention of the learned Senior Counsel that a notice under Section 74 could not have been issued as the tax had been paid prior to the issuance of the notice would have to be rejected.
Non-filing of tax returns and non-payment of tax - petitioner had time, up to 07.02.2020, to file the annual returns under Section 44 - HELD THAT:- In the present case, there has been a failure, on the part of the petitioner, in filing the monthly returns and making payment of tax under the said monthly returns. This may not amount to fraud or misstatement. Explanation-2 to Section 74 states that suppression, for the purpose of the Act, would mean non-declaration of facts or information which is required to be declared in the returns, statement or report or any other document which needs to be furnished under the Act. To that extent, non-filing of the monthly return would amount to suppression of fact. However, the requirement under Section 74 is not fulfilled on mere suppression of fact. The said suppression of fact would have to be wilful suppression of facts.
The petitioner herein has neither filed the monthly returns nor made the necessary payments of tax. The defense of the petitioner is that his sole client, viz., M/s. Vijay Nirman Company had not paid its dues, due to which the petitioner could not remit the necessary taxes along with returns. The appellate authority held that the petitioner had been paid certain amounts by his main client M/s. Vijay Nirman Company and as such, there was no impediment for the petitioner to remit the necessary taxes - the appellate authority held that there was wilful suppression and upheld the penalty. In such a situation it is difficult to accept the contention, of the petitioner, that there was no wilful intention to suppress facts or the turnover of the petitioner and the requirement to pay tax. The other penalties levied against the petitioner are natural corollaries of the above finding and do not require any further consideration.
Conclusion - i) Section 74 can be invoked for non-payment of tax if there is evidence of fraud, wilful misstatement, or suppression of facts. ii) Non-filing of monthly returns and non-payment of GST can constitute suppression of facts if it is wilful and intended to evade tax. iii) The statutory requirement to file monthly returns and pay GST is independent of the annual return deadline, and non-compliance can attract penalties.
Petition dismissed.
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9911796707
