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2023 (5) TMI 1420
Rejection of appeal filed by the petitioner challenging the Assessment Order on the main ground that the appeal was filed beyond the condonable period - time limitation - HELD THAT:- The Assessment Order shows that it was passed by the 1st respondent on 30.06.2022. Then a perusal of the copy of the discharge summary issued by M/s Ramesh Cardiac and Multispeciality Hospital, filed along with material papers shows that the petitioner was admitted in the said hospital on 24th August, 2022 and after undergoing coronary artery bypass grafting surgery, he was discharged on 12th September, 2022.
The petitioner would submit that the petitioner received the copy of the Assessment Order on 01.07.2022. Having regard to these facts particularly that the petitioner underwent a major surgery and though he was discharged on 12th September, 2022, it would take considerable period for him to stabilize and pursue the regular business activities, it is noticed that the delay is not wanton but the circumstances beyond the control of the petitioner. Therefore the petitioner shall be given an opportunity to file the appeal and contest the original Assessment Order.
Conclusion - The delay of 60 days in filing the appeal is condoned exercising the plenary powers under Article 226 of the Constitution of India and the matter is remitted back to the 2nd respondent with a direction to register the appeal and after hearing both parties pass appropriate order expeditiously.
Petition allowed by way of remand.
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2023 (5) TMI 1419
Fraudulent and Unfair Trade Practices under SEBI Act -manipulation or structured trade - imposition of penalties for creating misleading appearance of trading through miniscule trades - HELD THAT:- No arguments / submissions was made against the findings given by the AO with regard to the shares being received off- market by noticees no. 1, 2 and 3. No arguments was raised that the receipt of the shares was with consideration or that the finding of the AO that it was received without consideration is incorrect. The violation of spot delivery u/s 2(i) (a) of the SCRA was also not contested. Consequently, the finding of the AO that the shares of the Company Wisec Global Limited were received by noticees no. 1, 2 and 3 without any consideration from a director of the Company Kolluru Surya Prakash Venkata is affirmed. The violation of Section 2(i) read with Regulations 13, 16 and 18 of the SCRA is also affirmed.
The fact that false information was furnished by noticee no. 1, namely, that the off-market transaction was a loan transaction is also affirmed, since this point was not argued before us.
Thus, it is clear that noticees no. 1, 2 and 3 received the shares of the Company Wisec Global Ltd. from its Director Kolluru Surya Prakash Venkata without consideration and with the sole intention of increasing the price of the scrip which was the motive.
We find that these noticees were selling the shares in miniscule quantities creating NHP and by such trades increased the price of scrip which was manipulative and violative of Regulations 3 and 4 of the PFUTP Regulations.
The contention that there was no manipulation or structured trade is patently erroneous in as much as we find that the trading pattern of the buyers and the sellers was that they traded in close proximity of time inter-se between them.
The buy and sell orders were placed within a short time interval varying from 1 minute to 2,3 or 4 minutes.
Such trading pattern as found by the AO cannot occur by accident or by coincidence. The trading pattern leads to an inference that there was a meeting of minds with a pre-determined plan and, therefore, there was a collusion between the parties. Such trades executed, in our opinion, are not genuine and were done with a fraudulent intent to create artificial volume in the scrip.
Consequently, the findings that noticees no. 1, 2 and 3 have manipulated the price of the scrip through small trades does not suffer from any error of law. The trading pattern of noticees no. 1, 2 and 3 with noticees no. 9, 11 and 12, clearly indicates that these structured trades were done with the intent of creating artificial volumes and misleading appearance of trading with the intent of misleading the investors. Such structured trades were violative of Section 12A of the SEBI Act read with Regulations 3 and 4 of the PFUTP Regulations. The decisions cited by the learned counsel for the appellants are not applicable to the facts of the present case.
For the reasons stated aforesaid, we do not find any error in the impugned order. All the appeals fail and are dismissed with no order as to costs. Misc. Application are disposed off accordingly.
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2023 (5) TMI 1418
Belated deposit of employees’ contribution towards the EPF and ESI - as submitted a substantial part of the issue in the appeal is covered by the judgment of Supreme Court rendered in Checkmates Services Pvt. Ltd [2022 (10) TMI 617 - SUPREME COURT] - Appellant submitted the due date which arose under the subject statute for deposit of employees‟ contribution towards provident fund, arose on a National Holiday, for instance, 15th August, and the deposit was made on the following day.
This aspect is pending examination by the Court, as cited the order of Pepsico India Holding Pvt. Ltd [2023 (9) TMI 1663 - DELHI HIGH COURT]
Appellant says that he would have to move an application for amendment, so that this aspect of the matter, which otherwise emerges from the record, is embedded in the grounds of appeal.
HELD THAT:- Leave in that behalf is granted.
List the matter on 05.09.2023.
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2023 (5) TMI 1417
Disallowance u/s.14A in book profits u/s.115JB - CIT(A) deleted addition - HELD THAT:- Since ITAT has been consistently deleting the adjustment made to the book profits u/s 115JB of the Act on account of disallowance of expenses as per the provision of section 14A of the Act in the case of the assessee itself right from AY 2009-10 TO 2011-12 and even in Asst.Year 2015-16 considering the decision of Alembic Ltd. [2017 (1) TMI 513 - GUJARAT HIGH COURT] and Vireet Investment P.Ltd. [2017 (6) TMI 1124 - ITAT DELHI] and the fact that the ld.DR being unable to distinguish the decisions cited (supra) to the facts of the present, we see no reason to interfere in the order of the CIT(A) deleting the adjustment made to the book profits of the assessee on account of expenses disallowed u/s 14A following the consistent view taken by the ITAT in this regard in the case of the assessee itself - Decided in favour of assessee.
TP upward adjustment u/s.92CA(3) - corporate guarantee fees - CIT(A) deleted addition - HELD THAT:- This issue was consistently decided in favour of the assessee by the ITAT right from Asst.Year 2008-09 to 2011-12 and even in Asst.Year 2015-16. Copies of all these orders were placed before us. It was also pointed out that the issue was covered by the decision of Micro Ink [2015 (12) TMI 143 - ITAT AHMEDABAD] wherein it was held that the issuance of corporate guarantee did not constitute international transactions and no TP adjustment is liable to made. Thus, no reason to interfere in the order of the CIT(A) deleting upward adjustment.
Disallowing employee's contribution towards PF and ESIC u/s 36(1)(va) r.w.s.2(24)(x) - HELD THAT:- Since the issue stands settled and decided against the assessee in view of the decision in the case of Checkmate Services P.Ltd. [2022 (10) TMI 617 - SUPREME COURT] wherein it has been held that the provision of section 36(1)(va) of the Act warrants addition to the income of the assessee to the extent of amount so delayed to be deposited in the relevant funds. The ground raised by the assessee are accordingly dismissed.
Disallowance of expenditure incurred for the purpose of earning exempt income as per section 14A - Addition restricted by CIT(A) to the extent of exempt income earned by the assessee - HELD THAT:- CIT(A) had restricted the disallowance to extent of exempt income earned by following the decision of Corrtech Energy Ld. [2014 (3) TMI 856 - GUJARAT HIGH COURT]. Since the ld.DR was unable to distinguish the said case before us, nor was he brought to our notice any contrary decisions of Hon’ble jurisdictional High Court or of the Apex Court, we see no reasons to interfere in the order of the ld.CIT(A) restricting the disallowance of expenditure under section 14A of the Act to the extent of exempt income earned by the assessee.
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2023 (5) TMI 1416
Authority of Commissioner of the Jamnagar Municipal Corporation to dismiss the Respondent from service based on the powers conferred by Resolution No. 51 dated 20.11.1998 - HELD THAT:- It is required to be noted that after departmental proceedings and on conclusion of the inquiry, the charges and the misconduct alleged against the Respondent have been proved, which has been even confirmed by the learned Single judge. However, thereafter, solely on the ground that the Commissioner, who passed the order of dismissal had no power/authority to impose the penalty of dismissal on the Respondent, who, at the relevant time, was serving as City Engineer, the learned Single Judge quashed the order of dismissal with all consequential benefits and the same has been confirmed by the Division Bench.
The Commissioner was authorized to take action against the erring officers with respect to the lapses and carelessness with various works in purchases only. Therefore, both the learned Single Judge as well as the Division bench of the High Court have rightly observed and held that the Resolution No. 51 did not authorize and/or confer any power upon the Commissioner to take action with respect to any other lapses other than the purchases. However, at the same time, it is required to be noted that the decision of the Commissioner was placed before the General Board and the General Board vide its Resolution No. 56 dated 15.12.1998 as amended by subsequent Resolution dated 30.12.1998, ratified the decision of the Commissioner dismissing the Respondent from service.
Applying the law laid down by this Court in the case of Pannalal Choudhury [2015 (7) TMI 1238 - SUPREME COURT] to the facts of the case on hand, any irregularity complained of by the Respondent on the authority exercised by the Commissioner to dismiss him stood ratified by the competent authority (General Board) thereby making an invalid act a lawful one in conformity with the procedure prescribed under the Act and the Rules.
Conclusion - The Commissioner's initial lack of authority was cured by the General Board's ratification, thereby reinstating the dismissal order.
The impugned judgment and order passed by the Division Bench of the High Court as well as the learned Single Judge quashing and setting aside the order of dismissal are unsustainable and deserve to be quashed and set aside and are accordingly quashed and set aside - Petition allowed.
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2023 (5) TMI 1415
Challenge to impugned order of cognizance on the grounds inter alia that the same is not tenable in law particularly with respect to offence punishable under Sections 272 and 273 read with 34 of the I.P.C. - exercise of the Courts’ inherent jurisdiction - seizure of Guthka from the petitioner - prohibited goods or not - HELD THAT:- Since the recovery and seizure is shown against the petitioner with respect to the GHUTKA (Tobacco product) which is one of the items under the schedule to the (COPTA) and it was allegedly being transported for sale, hence, as it is claimed that the provisions of sub-section-2 of Section 20 of the said Act are satisfied. Without expressing anything on the merits of such claim, the Court is of the considered view that whether any such offence has been committed by the petitioner or not is to be examined by the learned Court below during and in course of inquiry and trial, if the petitioner is not discharged. The decision as to whether a case under Section 20(2) of the COPTA is prima facie established is a matter to be thrashed out by referring to the material evidence collected and submitted along with chargesheet.
In Joshy K.V. [2012 (12) TMI 1251 - KERALA HIGH COURT], the challenge was whether, Tobacco by itself with some additives like lime or other flavouring substances can be prevented or seized in view of Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 being a food product. Under the Prevention of Food Adulteration Act, 1954 (PFA Act), Section 2(v) defined food as any article used as food or drink for human consumption and includes articles which ordinarily enter into or used in the composition or preparation of human food, any flavouring matter or condiments and any other article so notified by the Government of India. The definition of food as appearing in Section 2(v) of the PFA Act is quite expansive so as to include any such article used as a food or drink meant for human consumption and it is inclusive in nature.
According to Section 3(1)(j) of the FSS Act, not only food is defined but by virtue of a legal fiction, certain other items, which are not generally treated as a food have been included. In the humble view of the Court, it does not by itself mean that a product not Pramod Kumar Sahu@ Pramod Sahu Vrs. State of Odisha named in the inclusive definition and which is not a food becomes a food product unless it is shown that the same is consumed for taste or nourishment as held in P.K. Tejani [1973 (10) TMI 53 - SUPREME COURT]. Therefore, the Court is in agreement with the judgment rendered in Joshy K.V. which is also to the effect that Tobacco is a product which is to be avoided is clear and conspicuous from Regulation 2.3.4 of the Regulations itself which reinforces the view that it is not to be a food product.
The impugned order of cognizance is hereby quashed - the CRLMC stands allowed in part.
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2023 (5) TMI 1414
'Commercial Establishments or Complexes' under the Wealth Tax Act, 1957 - As decided by HC [2017 (7) TMI 1474 - DELHI HIGH COURT] ITAT correctly held that the properties of Assessee at Connaught Circus, New Delhi and Sardar Mohan Singh Building, Connaught Lane, New Delhi were 'Commercial Establishments or Complexes' and therefore outside the purview of 'assets' under Section 2 (ea) (i) (5) of the Wealth Tax Act, 1957 (WTA)? -maintainability of appeal on low tax effect -
HELD THAT:- Revenue has stated at the Bar that the tax amount involved in the present Appeal is lower than the monetary limit fixed to prefer an Appeal before this Court. Therefore, he has requested to dispose of the present Appeals on the ground of low tax effect only keeping the question of law open.
In view of the above, both the Appeals stand disposed of on the ground of low tax effect only.
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2023 (5) TMI 1413
Maintainability of rectification application beyond period of limitation - AR submitted that the language of section 254(2) is very clear which provides for filing of M/A within six months from the end of the month in which the order was passed. Since in the present case, the original order disposing of appeal was passed on 31.01.2022, the prescribed limit got expired on 31.07.2022. Hence, the M/A filed by Revenue on 25.08.2022 is barred by limitation - HELD THAT:- Hon’ble Delhi High Court in Pacific Projects Limited [2020 (12) TMI 1085 - DELHI HIGH COURT] has made a detailed analysis of the provision of section 254(2) and categorically held that the time-limit of 6 months would have to be computed with reference to the actual receipt of order by the parties.
We are duty bound to follow the judicial discipline and obey the decision of Pacific Projects Limited (supra) which has clearly held that the time-limit has to be computed with reference to the date of receipt of order. No other decision of any High Court against this proposition held by Hon’ble Delhi High Court has been cited before us. Therefore the Revenue’s M/A filed within 6 months with reference to the date of actual receipt of order by Revenue is valid. Consequently, the objection raised by Ld. DR is rejected.
Reverting back to the merit of application, it is undisputably agreed by both sides that the tax effect was more than Rs. 50 lakhs. Therefore, the original appeal of Revenue was maintainable and could not have been dismissed by ITAT.
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2023 (5) TMI 1412
Addition of excessive share premium u/s 56(2)(viib) - CIT(A) deleted addition holding that the assessee company received the consideration for issue of shares in F.Y. 2010-11 and the shares were allotted in F.Y. 2014-15 and hence the provisions of Section 56(2)(viib) which have come into force from 01.04.2013 cannot be applicable - whether provisions of Section 57(2)(viib) are applicable in the year in which are allotted at a premium and not in the year in which the share application money was received? - HELD THAT:- In the case of the assessee, the share application money was received in A.Y. 2011-12 and allotted in the A.Y. 2015-16. During the intervening period, the assessee had every right to get their monies refunded and opt out of the share allotment process. Hence, it would be only logical when the share allotment has been finalized, the subscriber gets allotted the shares, the provisions of Section 56(2)(viib) needs to be invoked.
A taxing provision cannot be invoked even before the completion of a transaction fully and finally. We are in agreement with the judgment of ITAT in case of [2019 (2) TMI 1470 - ITAT DELHI] had held that share allotment date, not share application, is relevant date to trigger provisions of Section 56(2)(viib).
Whether the AO can change the method of valuation of unquoted shares under Rule 11UA of I.T. Rules 1962? - FMV of the unquoted share be the value as determined by the prescribed method or as substantiated by the assessee whichever is higher. The appellant has chosen to the first option i.e. value as per the prescribed method. The method of determining the FMV is given in Rule 11UA(2) of IT Rules 1962.
Rule 11UA(2) prescribes two methods - Book Value method and DCF method. However, the said rule also provides that the method to be adopted is left to the choice of the assessee. The AO can refuse the method of valuation after proving that the methodology resorted by the assessee is incorrect or not as per the standards laid down. The courts have held this view as is evident from the following observations in M/s Cinestaan Entertainment Pvt. Ltd. [2021 (3) TMI 239 - DELHI HIGH COURT] The option to choose the method to be adopted to determine the FMV of unquoted shares is not with the AO but with the assessee. Decided against revenue.
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2023 (5) TMI 1411
Deduction u/s 80IC - HELD THAT:- As could be seen from the above computation of total income, the deduction u/s 80IC is nil. Therefore, the issue is purely academic and, accordingly, the substantial questions of law (a) to (e) are left open as it does not arise for consideration in the case on hand.
Additional depreciation, it is not in dispute that the said issues squarely covered by the decision of Ramkrishna Forging Ltd. [2022 (7) TMI 1312 - CALCUTTA HIGH COURT] wherein the Court took into consideration the decision of Brakes India Ltd. [2012 (3) TMI 31 - ITAT, CHENNAI] which was followed in the case of Aztec Auto (P) Ltd. [2020 (9) TMI 541 - MADRAS HIGH COURT] Questions of law (f) and (g) are answered against the revenue.
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2023 (5) TMI 1410
Validity of assessment order passed beyond period of limitation - period of limitation for making the order u/s. 92CA(3) - HELD THAT:- The period of limitation for passing the assessment order in the instant case expires on 31/03/2014. The time limit for passing the order u/s. 92CA(3A) is sixty days prior to the date on which the limitation referred to in section 153B of the Act expires. Thus, the limitation in the present case for passing the TP order u/s. 92CA(3) of the Act expires on 29/01/2014. And since the TPO has passed the order u/s. 92CA(3) of the Act on 30/01/2014, consequently, the order passed by T.P.O. u/s. 92CA(3) of the Act is time barred by one day and we hold it to be bad in law and so is non- est in eyes of law.
Assessment order (final) framed by AO on 27.05.2014 as barred by limitation - The expression two months used in clause 43(2) in the aforesaid circular to specify the period of limitation may not necessarily be equal to sixty days as specified in the Act. It is trite that the words/expressions used in Statute cannot be substituted in Explanatory notes or Board Circulars. If the limitation period is mentioned in days in the Act, the same expression has to be necessarily used in Circulars. Since delegated power of Board, cannot over-ride the Act passed by the Parliament/Legislature. Therefore, “Two months” as mentioned in Circular can be more or even less than sixty days. Therefore, expression stipulated in Act to calculate limitation period has to be scrupulously adhered to.
Assailing the action of AO in this case to frame draft assessment order, when the TPO order was bad in law, the Ld. AR pointed out that assessee is not qualifying as eligible assessee as per the definition given in sub-section (15) to section 144C of the Act.
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2023 (5) TMI 1409
Validity of assessment order passed u/s 147 r.w.s. 144 - assessee did not submit any relevant verifiable sources for the investment made towards the acquisition of property - Assessee filed objections before the learned DRP and submitted certain documents before the learned DRP - DRP sustained the addition holding that there was no evidence to establish the date on which the loan amount was credited or the date of payment to the Lodha Group with reference to the bank statement.
HELD THAT:- Though the DR opposed the prayer of the assessee, there is no material to contradict the fact that there were insolvency proceedings against DHFL and ultimately PHFL took over the DHFL company and also that Bank of Baroda entered the shoes of DHFL in respect of this particular loan. Assessee procured the documents from PHFL and Bank of Baroda and submitted now in the shape of additional evidence. The case of the assessee is that if these documents are considered in the light of the contentions raised by the assessee, assessee has got a fair chance of winning the matter. In such situation, we are of the considered opinion that a meritorious case cannot be thrown out at the threshold, without giving an opportunity to the assessee that too when the assessee produced the documents from proper custody.
We find it just and proper to receive the additional evidence and to direct the learned Assessing Officer to verify and to take a plausible view - Appeal of assessee allowed for statistical purposes.
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2023 (5) TMI 1408
Belated payment of PF/ESIC u/s 36(1)(va) - provident contribution fund are payable to central government within 15 days of the close of every month - HELD THAT:- As relying on the case of Madras Radiators & Pressing Ltd. [2002 (12) TMI 36 - MADRAS HIGH COURT] has held that the term “every month” in clause 58 of the Provident Fund Scheme should be read as month in which the wages were actually earned i.e. salary payable. Decided against assessee.
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2023 (5) TMI 1407
Reopening of assessment u/s 147 - allegation against the petitioner is that the petitioner has not disclosed the value of the property - HELD THAT:- As per Section 144B(1) of the Income Tax Act, the petitioner has every right for personal hearing by clicking the link. Petitioner has not availed the said opportunity. In the written submission, the petitioner has not sought for any personal hearing. But the fact remains that the respondents have taken a wrong valuation for the property.
In the assessment order there is no discussion of the two guideline values (one for Canal Street and another for Gandhi Nagar), but the assessment has taken only the guideline value of the Gandhi Nagar alone. This Court is of the considered opinion that the petitioner should be granted one more opportunity.
Accordingly, this Writ Petition is allowed. Impugned AO is hereby quashed. The respondents are directed to grant personal hearing, by providing link to the petitioner and fixing the date and time. The petitioner is at liberty to produce records, especially, the guideline value provided by the concerned authorities.
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2023 (5) TMI 1406
Assessment order against legal heir - Writ Petition filed by the legal heirs of the original assessee, challenging the order passed u/s 143(3) - Department pointed out that after the death of the original assessee, separate notice has been issued to the legal heirs of the original assessee. Since they have not responded, the impugned order came to be passed
HELD THAT:- Considering the fact that the original assessee has passed away on 14.02.2023 and notice of hearing was fixed on 28.03.2023, no ample opportunity was given to the legal heirs of the deceased assessee. Therefore, this Court is of the view that the order impugned in the writ petition is liable to be set aside and the matter should be remitted back to the original authority for affording due opportunity to the legal heirs of the original assessee to put forth their case.
The original authority is directed to dispose of the matter after giving due opportunity to both the parties within a period of 90 days from the date of receipt of a copy of this order. Accordingly, this Writ Petition stands allowed.
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2023 (5) TMI 1405
Assessment Order as barred by limitation u/s 144C(13) - HELD THAT:- The undisputed facts are that the DRP had passed order on 31.012.2021. The copy of the DRP’s directions was received by the AO on 10.01.2022. Therefore, the time barring date for passing the Final Assessment Order was admittedly on 28.02.2022 (this fact is also admitted by the AO). However, the digital signature in the Final Assessment Order has been affixed only on 01.03.2022, which is beyond the limitation date.
As in the case of Pfizer Healthcare India Pvt. Ltd [2021 (2) TMI 1152 - MADRAS HIGH COURT] while deciding the issue of validity and issue of limitation of TPO’s order has held coming to the question of how 60 day period is to be computed, the critical question would be whether the period of 60 days would be computed including the 31" December or excluding it. Section 153 states that no order of assessment shall be made at any time after the expiry of 21 months from the end of assessment year in which the income was first assessable.
Applying the above judgment to the facts of the instant case, the impugned order had got barred by limitation by 11.59.59 on 28.02.2022. The AO has digitally passed the impugned order on 1.03.2022 at 2.00 am, which is beyond the limitation time and hence the impugned order is bad in law and is liable to be quashed.
Whether curable defect u/s 292BB? - An order passed contrary to the provisions of Section 144C of the Act and failure to follow the binding procedure would render the order without jurisdiction and void-ab-initio. Passing of the order beyond the limitation date is a fundamental error and is not a curable defect under Section 292B of the Act.
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2023 (5) TMI 1404
Disallowance u/s.80IB(10) - assessee had failed to file his return of income within the stipulated time under Section-139(1) and the project namely was not completed within the period of 05 years from the end of the year in which the approval was granted by the local authority u/s 80IB(10)
As decided by HC [2022 (4) TMI 745 - GUJARAT HIGH COURT] where the assessee completes the construction of its entire housing project and thereafter applied for the BU Permission within the prescribed time-limit, then irrespective of the fact whether such BU permission has been granted or not before the prescribed date, the assessee would be entitled to deduct under Section-80IB(10) anf for delay in filing the returns u/s 139 in view of the provisions of Section-92E, the assessee was required to get the transfer pricing report in the Form 3CEB. In such circumstances, the assessee had the benefit of the extended period of the due date for filing of the return.
HELD THAT:- The special leave petition is dismissed on the ground of delay.
All pending applications are disposed of.
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2023 (5) TMI 1403
Rejection of Criminal Petition - dispute is of a civil nature or involves criminal elements - legitimacy of the FIR and allegations under the SC/ST Act and IPC - applicability of Section 482 of the Code of Criminal Procedure for quashing the FIR - HELD THAT:- In UMA SHANKAR GOPALIKA VERSUS STATE OF BIHAR AND ORS. [2004 (3) TMI 807 - SUPREME COURT], it was held that when the complaint fails to disclose any criminal offence, the proceeding is liable to be quashed under Section 482 of the Code.
What is evincible from the extant case-law is that this Court has been consistent in interfering in such matters where purely civil disputes, more often than not, relating to land and/or money are given the colour of criminality, only for the purposes of exerting extra-judicial pressure on the party concerned, which, we reiterate, is nothing but abuse of the process of the court. In the present case, there is a huge, and quite frankly, unexplained delay of over 60 years in initiating dispute with regard to the ownership of the land in question, and the criminal case has been lodged only after failure to obtain relief in the civil suits, coupled with denial of relief in the interim therein to the respondent no.2/her family members. It is evident that resort was now being had to criminal proceedings which, in the considered opinion of this Court, is with ulterior motives, for oblique reasons and is a clear case of vengeance.
This Court would indicate that the officers, who institute an FIR, based on any complaint, are duty- bound to be vigilant before invoking any provision of a very stringent statute, like the SC/ST Act, which imposes serious penal consequences on the concerned accused. The officer has to be satisfied that the provisions he seeks to invoke prima facie apply to the case at hand. It is clarified that remarks, in no manner, are to dilute the applicability of special/stringent statutes, but only to remind the police not to mechanically apply the law, dehors reference to the factual position.
The Court finds that the High Court fell in error in not invoking its wholesome power under Section 482 of the Code to quash the FIR. Accordingly, the Impugned Judgment, being untenable in law, is set aside - Appeal allowed.
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2023 (5) TMI 1402
Validity of assessment order as barred by limitation - petitioner before us is the "other person" in terms of Section 153C - Appellant submission that the date when the satisfaction note was generated by AO of the petitioner i.e., the other person, which was on 24.12.2021, would be the date of the search, in terms of the first proviso to Section 153C - the period which could be assessed under Section 153C of the Act, which was six (6) AYs, prior to the amendment carried out on 01.04.2017, expired on 31.03.2017 and the larger period i.e., ten (10) years, which is provided in Explanation 1 appended to Section 153A of the Act, would not go, at least, beyond AY 2013-14.
HELD THAT:- These very issues are being considered by this Court in several other matters including [2024 (4) TMI 268 - DELHI HIGH COURT], titled Alankit Finsec Limited.
Accordingly, issue notice. Respondent accepts notice on behalf of the respondent/revenue.
Counter-affidavit will be filed within six weeks. Rejoinder thereto, if any, will be filed, at least five days before the next date of hearing.
List the matter on 17.10.2023. In the meanwhile, no precipitate action will be taken against the petitioner till the next date of hearing.
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2023 (5) TMI 1401
CENVAT Credit - input services - transport by Air Service - renting of immovable property service - cricket match ticket - hotel membership fee - services related to property in Goa - advertisement - car repair - courier services.
Transport by Air Service - HELD THAT:- The submissions indicate that the Chairman of the Company used the said services for co-ordinating various aspects of manufacture and marketing of the goods and therefore, the contention that the transport by Air Service was used in relation to manufacture of final product is accepted.
Renting of immovable property service - HELD THAT:- Electricity admittedly is used in manufacture of final products. Therefore, rent paid for the premises used for captive power plant is relevant to decide admissibility of Service Tax paid on such rent the Service Tax paid on rent of the premises used for captive power generation for availment of CENVAT Credit is allowed.
Courier service - advertisement service - car repair - HELD THAT:- The credit on the services allowed.
Cricket match ticket - hotel membership - service for property in Goa - HELD THAT:- There are no nexus of services such as cricket match ticket, hotel membership and service for property in Goa with manufacturing activity and therefore, the same are not admissible for availment of CENVAT Credit.
Appeal allowed in part.
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9911796707
