|
Advanced Search Options
Case Laws
Showing 21 to 40 of 1482 Records
-
2023 (6) TMI 1462
Maintainability of petition - availability of alternative remedy - Challenge to order u/s 73 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The impugned orders passed by respondent No.1 under Section 73 of the Central Goods and Services Tax Act, 2017 in each of the writ petitions set aside and the matters remanded back to the file of respondent No.1 for considering the same afresh and thereafter to pass appropriate orders in accordance with law. Needless to say, respondent No.1 shall provide an adequate opportunity of hearing to the petitioners and thereafter shall pass the necessary orders. Let the fresh orders on remand be passed within a period of six weeks from the date of receipt of a copy of this order.
Petition allowed.
-
2023 (6) TMI 1461
Broken period interest paid on purchase of securities - Whether revenue expenditure since the securities constitute stock-in-trade? - HELD THAT:- As decided in STATE BANK OF HYDERABAD [2023 (1) TMI 1438 - TELANGANA HIGH COURT] 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. Decided in favour of assessee.
-
2023 (6) TMI 1460
Initiating the proceedings u/s 153C beyond period of limitation - HELD THAT:- The first proviso to Section 153C inserted by Finance Act, 2005 with retrospective effect from 01.06.2003 was applicable and a distinction was created in regard to relevant period of assessment and re-assessment in case of search person and the person other than searched.
In regard to later person Section 153A was to be construed as reference to the date of receiving of the books of accounts or documents or assets seized or recognition by the AO having jurisdiction over such other person.
In case the AO happens to be the same officer exercising jurisdiction on both the searched and the person other than searched, then the date of issuing of notice i.e. 18.10.2016 would have been relevant. In the case in hand the satisfaction note for initiating the proceedings u/s 153C by the AO having jurisdiction over the case of “other person” has been recorded on 14.10.2016 and accordingly notice was issued on 18.10.2016. Decided against the Revenue.
-
2023 (6) TMI 1459
Bogus purchase - CIT(A) has restricted the disallowance to 5% of the purchase amount - HELD THAT:- Hon’ble High Court in Mohommad Haji Adam & Co. [2019 (2) TMI 1632 - BOMBAY HIGH COURT ] held it appropriate to make addition for the benefit assessee has obtained by way of making purchases in cash from the market and for which a reasonable amount of addition could have been made.
CIT(A) has made addition on the reasonable estimate basis @ 5 % of bogus purchase, which in our opinion is justified. The ratio in the case of N.K. Proteins Ltd. [2017 (1) TMI 1090 - SC ORDER] is not applicable in the case of the assessee as assessee has produced the stock registers to substantiate that amount of goods corresponding to the bills were duly entered in the stock register and after manufacturing same have been sold. In our opinion, the finding of the CIT(A) on the issue in dispute is justified and we accordingly uphold the same.
Addition of cash commission u/s 40A(3) - payment in cash more than the prescribed limit - HELD THAT:- Under the provisions of section 40A(3) of the Act, disallowance for payment of expenses in cash exceeding prescribed limit can be made, when the expenses are entered into the books of accounts of the assessee. Whereas in the instant case, there is no such entry for claim of the expenses @ 3% for commission in relation to accommodation entries in books of account. In absence of any claim of expenditure under books of accounts, no disallowance u/s 40A(3) is warranted.
When the AO has not treated the expenditure of commission payment for obtaining accommodation entry as unexplained u/s 69C of the Act, the consequent addition u/s 40A(3) of the Act made by the Assessing Officer is also unjustified. We set aside the finding of the Ld. CIT(A) on the issue in dispute and addition made by the Assessing Officer is accordingly deleted.
-
2023 (6) TMI 1458
Violation of FERA initiated against the Petitioners in relation to import of machinery from Germany - whether the impugned notices were issued under the FERA which was repealed under Section 49 of the FEMA? - HELD THAT:- Section 49 of the FEMA clearly states that the FERA is repealed and Section 49(3) provides that no note of any offence can be taken for the violation of the FERA after the expiry of two (2) years from the date of commencement of the FEMA. Further, Section 49(4) provides that all the offences committed under the FERA and which were taken note of within the period prescribed under Section 49(3) shall be governed by the provisions of the FERA.
It is relevant to note that the FEMA came into force on 01.06.2000. By virtue of Section 49(3) of the FEMA, no proceedings under the FERA could have been initiated after two years from 01.06.2000 i.e., from 31.05.2002.
Proceedings for violations the FERA were initiated before 31.05.2002 - The show cause notices for violation of the FERA were first issued on 15.03.2002. The impugned notices were issued in furtherance of the adjudicatory process giving an opportunity of personal hearing to the Petitioners. Therefore, it cannot be said that it was only vide the impugned notices dated 26.07.2004 that violation of the FERA by the Petitioners was taken note of. It was on 15.03.2002 that proceedings for violation of the FERA were initiated and such initiation of proceedings is well within the sunset period of two years as mentioned in Section 49(3) of the FEMA.
Accordingly, this Court holds that the impugned notices are valid and proceedings for violation of the FERA against the Petitioners will be governed by the FERA.
-
2023 (6) TMI 1457
Reopening of assessment u/s 147 - assessee had paid interest on borrowed funds for projects which are project funds and consequently the interest expense ought to have been disallowed and added to the Work in Progress (WIP) of the assessee - HELD THAT:- We find nothing to indicate failure to disclose any material fact. Upon examining the order u/s 143(3) we find that the AO has considered all documents and accepted the Business Loss and allowed Unabsorbed Depreciation to be carried forward to the subsequent years as per the Act. The impugned notice set aside.
-
2023 (6) TMI 1456
Reopening of assessment u/s 147 - notice after a period of four years - change of opinion - HELD THAT:- Where assessment was not sought to be reopened on the ‘reasonable belief’ that income had escaped assessment on account of failure of assessee to disclose truly and fully all material facts that were necessary for computation of income, but was a case wherein assessment was sought to be reopened on account of ‘change of opinion’ of AO the reopening was not justified. It is also held that where primary facts necessary for assessment are fully and truly disclosed the AO is not entitled to reopen the assessment on a change of opinion. It is held that while considering the material on record, one view is conclusively taken by AO, it would not be open for the AO to reopen the assessment based on the very same material and take another view.
In the present case, the Respondent No. 1 has received information from the office of DGIT (Inv.) that Khush Hindustan Ent. Ltd. has issued accommodation entries to the Petitioner for financial year 2008-09. Even though the Petitioner has placed on record the Balance Sheet and pointed out that there is no change in the capital of 60 lakhs and no sum has been received leave alone on account of share premium, the Respondents have sought to take a stand that at this stage they are not required to look into the sufficiency and correctness of the information and can consequently reopen the case. Upon a bare perusal of the Balance sheet it is evinced that there is no transaction which would show a live link or nexus with the alleged transaction viz. receipt on account of share pre-mium as alleged by the Respondent.
Besides the Respondent has failed to aver the particulars of the information available which has led to the belief that income has escaped assessment. There appears no new tangible material available on record to conclude that income had escaped assessment. In our view it is clearly a ‘change of opinion’ - Decided in favour of assessee.
-
2023 (6) TMI 1455
Rejection of books of accounts - estimation of Net profit - AO had estimated business income of the assessee being 20% of the gross receipt - HELD THAT:- As perused the audited accounts i.e profit and loss and balance sheet filed in the paper book which demonstrate that the assessee company was formed in the F.Y. 2009-10 and year under consideration was the second year of operation of the company but the assessee company had incurred recurring losses since its formation.
We find it is unreasonable to estimate the net profit of the assessee company @ 20% of gross receipt however after considering the aforesaid facts of recurring losses incurred by the assessee company we consider that it is reasonable to restrict the net profit @ 6% of the gross receipt for want of verification by the AO since the assessee has failed to furnish all the supporting bills/vouchers during the course of assessment. We direct the assessing officer accordingly. Therefore, the grounds of appeal of the assessee are partly allowed.
-
2023 (6) TMI 1454
Reopening of assessment - mandamus directing the conduct of enquiry on the petitioner's representation and dropping all further proceedings as against the petitioner on the basis of the notices issued by the official respondents under the provisions of the Income Tax Act - HELD THAT:- As the petitioner appears to have suffered orders u/s 148A(d) that have attained finality and is also in receipt of notices u/s 148 of the Act, it is for it to cooperate with the proceedings initiated by the Department and take matters to a logical conclusion, in accordance with law.
As submitted notices have been issued continuously and repeatedly to the petitioner but there has been no response from his side. It is incumbent on the part of the petitioner to appear before the Officer and put forth any explanation that he may have in regard to the issues raised by the Department including the transactions as noticed in the preceding paragraphs that have been conducted utilising his pan number.
Mandamus of the nature as sought for cannot be granted in a case such as this which involves appreciation of various disputed facts. It is to be noted that in matters relating to assessment, filing of a representation is of no avail as the petitioner is duty bound to respond to notices, appear before the officer and tender his explanations.
The prayer for mandamus is rejected, and this Writ Petition is dismissed.
-
2023 (6) TMI 1453
Addition u/s 68 - share application/share premium being unexplained - HELD THAT:- We observe from the orders of authorities below that none of the authorities have commented of the evidences filed by the assessee proving the sources of investments with the aid of necessary documents as stated above. The case of the assessee finds support from decision of Orissa Corporation Pvt. Ltd. [1986 (3) TMI 3 - SUPREME COURT] which is on the issue of share premium.
Similar ratio has been laid down in the case of CIT Vs Orchid Industries (P) Ltd [2017 (7) TMI 613 - BOMBAY HIGH COURT] by holding that provisions of section 68 of the Act can not be invoked for the reasons that the person has not appeared before the AO where the assessee had produced on records documents to establish genuineness of the parties such as PAN ,financial and bank statements showing share application money.
The case of the assessee is also squarely covered by the decisions of Crystal Networks Pvt. Ltd [2010 (7) TMI 841 - KOLKATA HIGH COURT] wherein it has held that where all the evidences were filed by the assessee proving the identity and creditworthiness of the loan transactions , the fact that summon issued were returned un-served or no body complied with them is of little significance to prove the genuineness of the transactions and identity and creditworthiness of the creditors.
In the instant case before us also, the assessee has furnished all the evidences proving identity and creditworthiness of the investors and genuineness of the transactions but AO has not commented on these evidences filed by the assessee. We also note that the assessee has received unsecured loans from three parties who were either directors or their relatives qua whom filed necessary evidences as in the case of share capital and share premium.
We are inclined to set aside the order of ld. CIT(A) and direct to delete the addition - Decided in favour of assessee.
-
2023 (6) TMI 1452
Legality of the City Civil Court's order permitting liquidation of fixed deposits to pay statutory dues - breach of the order of NCLT to deposit the amount received towards rent, property taxes, repair cess - whether the City Civil Court correctly exercised the discretion to permit the liquidation of the investment of defendant No.4? - HELD THAT:- Having found that the income of defendant No.4 was not appropriated towards the discharge of statutory dues, in priority, defendant No.4 was directed to open a separate bank account and the total rent/property tax/repair cess/any other amount collected was to be deposited and withdrawal therefrom was also made subject to the permission and satisfaction of NCLT. It was provided in black and white that MCGM shall have first charge over the receipt till the outstanding dues were squared-up - the manner in which the City Civil Court approached the issue deserves consideration. The learned Judge, City Civil Court, records that bills were raised on behalf of defendant No.4 under different heads i.e. property taxes/repair cess/rent. It was the responsibility of defendant No.1 to ensure that the statutory dues were deposited preferentially. The Court further noted that the direction for opening a separate bank account were not complied with by the defendants till 1st February, 2019, as noted in the order of NCLT. It went on to record that defendant No.1 did not faithfully disclose as to whether the directions of the NCLT were complied with.
The very raison d’etre of the directions of the NCLT was to ensure that the amount received from the tenants towards rent, charges and cess was primarily appropriated toward the outstanding property dues. NCLT went on to provide that the outstanding property tax dues would constitute a first charge on the said receipts. The situation is accentuated by the fact that the amounts were collected from the tenants under different heads including property taxes and repair cess. If that was the case, the failure to appropriate the said amount which was collected for the specific purposes is clearly inexplicable.
The City Civil Court observed in no uncertain terms that neither the compliance of the order of NCLT was ensured nor the receipts were disclosed. In this view of the matter, the impugned order which does not take into account the prima facie blameworthy conduct of defendant Nos.1 and 2 and non-compliance of the order of NCLT, deserves to be interfered with. The fact that the City Civil Court had directed defendant Nos.1 and 2 to comply with the directions of NCLT, after liquidation of the assets of defendant No.4 and payment of the property taxes, is of no avail in infusing legality and validity into the impugned order.
The impugned order is set aside - appeal allowed.
-
2023 (6) TMI 1451
Direction to consider the preliminary issue raised by the petitioner in Ext.P2 argument note, regarding the sustainability of Ext. P1 summons - HELD THAT:- Taking note of the fact that the petitioner has already raised a preliminary objection by way of Ext. P2, in respect of maintainability of Ext. P1 summons, it is deemed appropriate to dispose of the writ petition directing the first respondent to consider the preliminary issue as to maintainability of Ext. P1 summons, after adverting to Ext. P2 and after affording the petitioner an opportunity of being heard, in accordance with law and as expeditiously as possible, at any rate, within a period of two weeks from the date of receipt of a certified copy of this judgment.
The petition is disposed off.
-
2023 (6) TMI 1450
Addition being delayed deposit of employees contribution to P.F. u/s. 36(1)(va) - assessee contributing/depositing the same before the due date of filing of return of income u/s. 139(1) - HELD THAT:- We note from the facts on record that the disallowance has been made on the basis of Tax Audit Report in Form 3CD dated 28.09.2019 e-filed by the assessee on 01.10.2019 wherein in clause 20(b) of Form 3CD, the details of payment made towards employees’ contribution for PF are reported with due date and the date of actual payment, indicating thereby the delay, if any.
Counsel has claimed that there are mistakes in the reporting of actual payment date by the Tax Auditor and, therefore, needs verification. For this a prayer has been made for remitting the matter back to the file of Ld. AO.
We find it proper to accept the submission and remit the matter back to the file of Ld. AO for verification of actual payment dates with the challans for deposit of the impugned contribution respect of which disallowance has been made. Ld. AO may verify the same and consider the allowance in accordance with the provisions of law as well as taking into consideration the decision of Chekmate Services Pvt. Ltd. [2022 (10) TMI 617 - SUPREME COURT] Accordingly, ground taken by the assessee in this respect is allowed for statistical purposes.
-
2023 (6) TMI 1449
The appeal abates as the appellant, Mr. Stephen Rosario, passed away on 1.8.2021, supported by a Death Certificate dated 11.8.2021. The Revenue's representative raised no objection. The decision was pronounced in Open Court. (Case: Appellate Tribunal CESTAT BANGALORE, Citation: TMI, Members: HON'BLE DR. D.M. MISRA and HON'BLE MRS. R. BHAGYA DEVI)
-
2023 (6) TMI 1448
Addition of specified bank notes deposited during demonetization period being not a legal tender u/s. 69A and taxed u/s.115BBE - HELD THAT:- As noted that admittedly the assessee has deposited specified bank notes of Rs. 16.20 lakhs out of the demonetized cash notes in the denomination of Rs. 1000 & Rs. 500 received by him on account of sale proceeds of wholesale / trading of egg business from 09.11.2016 to 31.12.2016.
Assessee is barred from dealing in trading of any illegal tender and assessee cannot accept the demonetized specified bank notes even during his trading because it is completely barred by Central Government of India declaring that the bank notes of existing series of denomination of Rs. 1000 & Rs. 500 shall ceased to be legal tender on or from 09.11.2016.
This has been notified by Central Government in the Gazette Notification of Ministry of Finance vide No.2652 dated 08.11.2016. Once the Central Government has notified that the denomination of Rs. 1000 & Rs. 500 notes is not legal tender w.e.f. 09.11.2016, nobody can engage in trading through this currency, hence, AO has rightly added the same u/s. 69A and CIT(A) has rightly confirmed the same. We uphold the orders of the lower authorities and dismiss this appeal of assessee.
-
2023 (6) TMI 1447
Seeking appointment of a sole Arbitrator on the basis of a Letter of Invocation dated 8.4.2023 - respondent failed to reply to the said letter - objection taken on behalf of the respondent is primarily on the ground that the respondent is an MSME or rather an entity defined under section 2 of the Micro, Small and Medium Enterprises Development (MSMED) Act, 2006 and that the respondent should accordingly get the protection of the 2006 Act - HELD THAT:- Resisting the application under section 11 on the ground that the petitioner/buyer should have approached the Facilitation Council under section 18(1) of the MSMED Act is misconceived and contrary to the purport of section 18(1) read with section 17 of the MSMED Act - Section 24 of the Act which provides for sections 15-23 to have overriding effect will only apply where a reference has been made to the Council under section 18(1) of the Act. Section 24 does not contemplate automatic application of the provisions of sections 15-23, including section 18 - where the jurisdiction of the Council has not been invoked by a party who seeks recovery of an amount due under section 17 of the Act.
In NATIONAL PROJECTS CONSTRUCTION CORPORATION LIMITED & ANR. VERSUS WEST BENGAL STATE MICRO SMALL ENTERPRISES FACILITATION COUNCIL & ORS. [2017 (2) TMI 1557 - CALCUTTA HIGH COURT], a Co-ordinate Bench of this Court was of the view that where one of the parties to an arbitration agreement is an entity within the meaning of the MSME Act, the Council under the said Act would have jurisdiction to arbitrate on the dispute between the parties. The facts in that case were hence substantially different as the parties had already made a reference to the Facilitation Council and the stage had already progressed through conciliation to arbitration under section 18(3) of the MSME Act.
Absence of an arbitration agreement as contemplated by section 7(2) of the 1996 Act - HELD THAT:- This objection is belied from the material on record. The Service Order dated 9.12.2021 contains the arbitration clause that refers to a S.O No. C321364073. The S.O number finds specific mention/reference in the notice issued by the petitioner to the respondent on 8.4.2023 under section 21 of the 1996 Act. The Invocation Letter also sets out the arbitration clause in the Service Order.
Section 7(4) of the 1996 Act provides that an arbitration agreement is in writing if it is contained in an exchange of letters, telex, telegrams or other means of telecommunications including through electronic means providing for a record of the agreement (7(4)(b)). Further, the mails exchanged between the parties in July, 2022 shows that petitioner referred to the contract bearing the Service Order number and date and the respondent replied to the mail without denying the existence of the arbitration agreement. The respondent did not deny or dispute the existence of the arbitration agreement as reiterated by the petitioner in its section 21 notice of 8.4.2023. The existence of the arbitration agreement between the parties in writing as contained in the Service Order is hence established from the exchange of electronic communications between the parties under section 7(4)(b) of the Act of 1996.
Application is accordingly allowed and disposed of by appointing Mr. Jayanta Biswas, former Judge of this Court, to act as the Sole Arbitrator for resolving the disputes and differences between the parties subject to the Arbitrator communicating his consent to the Registrar, Original Side of this Court in the required format under the provisions of the 1996 Act within 3 weeks from date.
-
2023 (6) TMI 1446
TDS u/s 195 - Disallowance u/s. 40(a)(i) in respect of re-insurance premium ceded to non-resident reinsurer - HELD THAT:- We find that an identical issue has been considered by the Tribunal in the assessee’s own case [2022 (8) TMI 1549 - ITAT CHENNAI] and after considering relevant facts held that reinsurance premium ceded to NRRs, is not taxable in India under the Income Tax Act, 1961 or under DTAA between India and respective countries, where the NRRs are tax residents, and thus, reinsurance premium cannot be disallowed u/s. 40(a)(i) of the Act, for non-deduction of TDS u/s. 195.
Direct the AO to delete the disallowance of reinsurance premium paid to NRRs u/s. 40(a)(i) for failure to deduct TDS u/s. 195 - Revenue appeal dismissed.
-
2023 (6) TMI 1445
Disallowance of credit of foreign tax withholding made by the Japanese clients of the assessee - assessee firm has provided legal services to certain clients based in Japan for which the clients paid legal fees after withholding tax @ 10% under Article 12 of the India Japan Double Taxation Avoidance Agreement (DTAA) - HELD THAT:- Article 12 of the DTAA provides that income from professional services or other activities of independent character would be taxable in the resident country i.e India. However, clause 4 of Article 12 provides that such payments would not be constitute as fees for technical services only if such payment is made to an individual for carrying out independent personal services referred to in Article 14. Since, assessee is a partnership firm and exception for payment referred in Article 14 would be applicable only for individual, therefore, the fees received by the assessee would not be covered under the such exception and accordingly would be subject to withholding tax in Japan.
As perused the decision of coordinate bench of ITAT in the case of the assessee for AY. 2014-15 [2020 (12) TMI 776 - ITAT MUMBAI] conclusions arrived at by the Japanese tax authorities, directing tax withholdings from the payments made to the assessee by its Japanese clients, cannot be said to unreasonable or incorrect. In the light of these discussions, as also bearing in mind entirety of the case, we hold that the assessee was wrongly declined tax credit. Thus direct the Assessing Officer to grant the said tax credit to the assessee.
Following the decision supra we direct the Assessing Officer to allow the claim of foreign tax credit. Assessee appeal allowed.
-
2023 (6) TMI 1444
Maintainability of the second bail application - financial fraud - Parity in granting bail to co-accused - HELD THAT:- Undoubtedly, the allegations qua the present applicant are grave in nature, for which he claims to have a defence, as noted in the preceding paragraphs. The veracity of the case of the prosecution as well as the defence will be determined during the course of the trial.
The gravity of an offence would be a factor at the time of consideration for grant of bail, but, at the same time, it cannot be the only criteria for denying bail either. The object of bail is neither punitive or preventative and the same is to secure the presence of the accused at the trial. The underlying principle in the aforesaid judicial pronouncements is that a person, who otherwise has roots in the society and is satisfying the other general conditions for grant of bail should, after completion of investigation, should not be kept in continued judicial incarceration as a matter of punishment, even before the conclusion of trial.
In the present case, this Court is of the opinion that no possible prejudice can be caused to the case of the prosecution before the learned Trial Court if the applicant is released on bail with necessary considerations, safeguarding the interests of the prosecution, especially when other co-accused persons have also been granted bail.
Admittedly, the investigation in the present case in complete and the main chargesheet, as well as the supplementary chargesheets stand filed before the learned Trial Court. It is also an admitted case that the evidence in the present case, primarily, is documentary in nature; all material documents have been recovered and are in the custody of the prosecution. It is also pertinent to note that no material has been placed on record to demonstrate that while the applicant was on interim bail, he tried to influence the witnesses, tamper with evidence or misuse his liberty in any manner. In view of the law laid down in the judicial precedents cited hereinabove and in view of the facts and circumstances of the present case, the present application is allowed.
The applicant is directed to be released on bail upon his furnishing a personal bond in the sum of Rs. 10,00,000/- alongwith two sureties of like amount to the satisfaction of the learned Trial Court/Link Court, further subject to the fulfillment of conditions imposed - bail application allowed.
-
2023 (6) TMI 1443
Challenge to assessment order - respondent has passed the Assessment Orders by total non application of mind - violation of principles of natural justice - HELD THAT:- The court extended the benefit of interim protection granted in a previous order to the present matters. The court listed the case for the next hearing and instructed the respondent to file counters by the specified date.
List on 20.06.2023 as an item successive to W.P.No.5248 of 2023.
........
|
9911796707
