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Showing 221 to 240 of 1445 Records
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2024 (3) TMI 1225
Job-worker or manufacturer - Clearance of excisable goods of machine made dipped splints without payment of Central Excise duty and without following the job work procedures - whether the demand, interest and penalties imposed against the appellant is legal and proper? - HELD THAT:- From the facts narrated in the impugned order, it can be seen that the appellant was supplied with raw materials by another manufacturer. The appellant is only engaged in manufacture of machine made dipped matches. They have not manufactured any packing materials. At the time of interference by the department officers at the site of the appellant they have obtained delivery challan which evidences that the goods were being sent to the principal manufacturer. Merely because the procedure adopted for job work as per Notification No.214/86-CE is not followed, the department cannot demand duty from the job worker.
The Tribunal in the case of SREE RAYALASEEMA DUTCH KASSENBOUW LTD. VERSUS CCE., TIRUPATHI [2006 (6) TMI 505 - CESTAT, BANGALORE] has held that unless it is proved that the raw materials were not supplied by the principal manufacturer, the department cannot demand duty from the job worker.
It is also seen that the department had issued preliminary show cause notice to the principal manufacturer viz. M/s.Anja Lucifer Industries. The said party had filed an appeal before the Tribunal. The said party had opted for benefit of the Sabka Vishwas Scheme and had discharged duty as per the scheme. The principal manufacturer was thus issued discharge certificate and the appeal filed before Tribunal was dismissed accordingly. The goods therefore have already suffered duty at the hands of principal manufacturer.
The demand against the present appellant cannot sustain and requires to be set aside - Appeal allowed.
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2024 (3) TMI 1224
CENVAT Credit - input services utilized by them at the port of export like Port Services, CHA Services, CHA Services and Clearing & Forwarding Services - case of Revenue is that under N/N. 17/2009, the Appellant was eligible to get the exemption from payment of Service Tax on such services - HELD THAT:- There is no compulsion on the part of the appellant to avail the exemption as given under Notification No.17/2009.
In the case of M/S. SHYAM METALICS & ENERGY LTD. VERSUS COMMR. OF CGST & CENTRAL EXCISE, BHUBANESWAR COMMISSIONERATE [2023 (2) TMI 1030 - CESTAT KOLKATA], this Bench has relied on the final order in the case of M/S. ELECTROSTEEL CASTING LTD. VERSUS COMMR. OF CENTRAL EXCISE KOLKATA-III [2019 (2) TMI 1023 - CESTAT KOLKATA] and has held that the services rendered was within the definition of Rule 2(l) of Cenvat Credit Rules, 2004.
There are no merit in the Appeal filed by the Revenue - appeal dismissed.
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2024 (3) TMI 1223
Additional interest u/s 244A(1A) not granted - whether the assessee is entitled to additional interest as prescribed under Section 244A(1A) of the Act or not? - HELD THAT:- A bare reading of Section 244A(1A) of the Act would reflect that once the assessee’s right of refund originates as a result of an appeal effect order under Section 250 of the Act, whereby, fresh assessment or reassessment has not been undertaken, then the assessee is entitled to receive an additional interest of three per cent per annum apart from the interest accrued under Section 244A(1) of the Act, for the duration starting from the date following the date of expiry of time as permitted u/s 153(5) of the Act to date on which the refund is granted.
Section 244A(2) of the Act would manifest that the only contingency in which the statutory interest can be denied to the assessee is the circumstances where the delay is attributable to the assessee itself.
The reasons for non-issuance of the refund alongwith additional interest which is statutorily prescribed u/s 244A(1A) of the Act should be weighed on the anvil that those reasons are attributable to the assessee or not.
In the instant case, it is seen that the additional interest of three percent per annum as mandated u/s 244A(1A) of the Act is the statutorily prescribed interest and can only be denied if the statute so permits. It is also evident that the contingency for the denial of additional interest u/s 244A(1A) is envisaged u/s 244A(2) of the Act and only on the ground where the delay is attributable to the assessee. In any case, it is not the case of the Revenue that the COVID-19 pandemic is attributable to the assessee.Revenue may have had some difficulties in dealing with such instances, however, the same would not absolve the Revenue from the rigour of Section 244A(1A) of the Act.
Notably, since the Revenue has already granted the interest under Section 244A(1) of the Act without attributing any reason of delay to the assessee, we do not find any cogent reason for not granting additional interest as mandatorily prescribed under Section 244A(1A) - reasons of delay attributed to the assessee are without any logical explanation and lack merit. Therefore, taking into consideration the abovenoted facts and legal position, we find no reason to sustain the impugned order.
Allow the writ petition and hereby quash and set aside the order dated 18 November 2022. We further direct the Revenue to grant the statutorily prescribed interest as mandated under the Section 244A(1A) of the Act to the assessee, with due expediency.
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2024 (3) TMI 1222
Addition u/s 14A - Disallowance of expenditure towards earning interest income exempt u/s 10(15) - After referring the tax free funds the assessee submitted that no disallowance u/s 14A should have been made - HELD THAT:- Since it is undisputed fact that during the year under consideration also the available tax free funds were more than the investment made on which exempt income was earned therefore, following the decision of ITAT on the similar fact and identical issue as discussed supra we direct the assessing officer to delete the disallowance made u/s 14A r.w.Rule 8D in the case of the assessee. Accordingly, this ground of appeal of the assessee is allowed.
Expatriate Salary - AO was of the view that the aforesaid expenses had been incurred as overseas salaries of the expatriate was in the nature of head office expenditure, therefore, same was disallowed u/s 44C of the Act - HELD THAT:- We find that the lower authorities has not contrary disproved the material fact that both these employees have continually worked for the Indian branches of the assessee bank and both have offered their global income in India for tax. The assessee has also provided copy of document showing that necessary approval as per Sec. 35B of the Banking Regulation Act, 1949 for appointment of Mr. Danis Vaz as Chief Executive Officer of the India branches was obtained. The assessee has demonstrated from the return of income filed in the case of both these employees that their global income has been offered to tax in India for the assessment year 2005-06 to the amount of Rs.60,43,321/- in respect of Mr. Denis Vaz and amount of Rs.45,65,652/- in the case of Mr. Terry Watkins. The assessee has brought on record the relevant return of income of both the employees showing that global income was offered to tax in India in accordance with provision of Sec. 5 and Sec. 6 of the Income Tax Act for remaining present in India on secondment with Indian Branch of BNS. The revenue has not brought on record any relevant materials to disprove these material facts and evidences - Decided in favour of assessee.
Applicability of Sec. 115A to interest income from Foreign Currency Loan - CIT(A) holding that the interest u/s 115A has to be computed on the gross interest income and not on the net interest income - HELD THAT:- As per decision of ITAT for assessment year 2004-05 [2024 (1) TMI 414 - ITAT MUMBAI] as held the legislature has intended to tax the interest only on gross basis. Further in support of his arguments ld. A.R has also cited Article 10& 11 of DTAA with Canada. Notification No.10503(F No.505/2/87-FTD) - Further it has also been mentioned that section 90(2) of IT Act also provides that the provisions of this Act shall apply to the extent they are more beneficial to that assessee.- Decided in favour of assessee.
Deduction of interest paid by Indian branch to Head Office - Indian branches of the assessee bank has paid interest to the head office/overseas branches - AO had not allowed the deduction in respect of payment of interest to the HO - HELD THAT:- We have gone through the decision of ITAT for A.Y. 2004-05 [2024 (1) TMI 414 - ITAT MUMBAI] Tribunal decided the issue in favour of assessee and dismissed the ground raised in appeal by the Revenue.
Restriction of Claim of bad debts in terms of the proviso to Sec. 36(1)(vii) - HELD THAT:- As per decision of ITAT for assessment year 2004-05 [2024 (1) TMI 414 - ITAT MUMBAI] wherein Tribunal placing reliance on the decision in the case of CIT vs.UTI Bank Ltd [2013 (1) TMI 209 - GUJARAT HIGH COURT] and CBDT Instruction No.17/2008 dated 26/11/2008 dismissed the ground raised in appeal by the Department.
TP adjustment - administrative support services in relation to inter bank indemnities - assessee’s overseas branches have executed interbank indemnities against which assessee has issued guarantees on behalf of the clients of overseas branches and vice versa - MAM selection - TNMM OR CUP - HELD THAT:- Assessee has given the analysis of the aforesaid transactions that Inter-Bank indemnity is a financial arrangement wherein a bank branch will be compensated for any financial liability that it incur on behalf of its co-branch. The issuance of these arrangement is standard practice in international banking service. The assessee explained that by issuing a guarantee on behalf of the clients of BNS overseas branches, the assessee did not fall under any default/credit risk as it is secured by a back to back inter-bank indemnity issued by overseas BNS branches to the assessee. In a reverse scenario where the associated enterprises of the assessee issues guarantees on behalf of the assessee, the remuneration charges by them to the assessee was only the administrative services provided by them and not based on the rates that would have been charged to third parties.
We find in the case of BNS India no public information on third party to third party transaction of similar or identical services was found that reflects the characterstics of the services provided by BNS India. Further as per provision of Rule 10B of the I.T Rules comparables for provision of interbank indemnity services would have to be companies which provide same or similar services as BNS India, and are comparable in terms of function performed, risk assumed and asset utilized. As per the information provided by BNS India it had earned operating margin of 25.41% on operating cost which was higher than the arm’s length margin of 15.28% on operating cost. The lower authority has not brought on record any relevant material to contrary to the material facts as discussed supra in this order.
We have gone through the decision of ITAT in the case of Australia & New Zealand Banking Group Ltd. Vs. [2022 (4) TMI 1438 - ITAT MUMBAI] wherein it is held that where TPO observed that assessee had earned processing fees for issuing guarantees on behalf of its associated enterprises and rejected TNMM adopted by the assessee and proceeded to benchmark guarantee transaction using external CUP method, since data under CUP method was not available and data margins under TNMM was readily available and held that it would be appropriate to apply TNMM as most appropriate method. In the aforesaid decision it is held that TNMM method would be the most appropriate method in the facts and circumstances of the case and CUP could not be applied because of non-availability of data.
We have also perused the decision of Bank of Tokyo Mitsubishi UFJ Ltd. [2020 (5) TMI 665 - ITAT DELHI] wherein identical issue on similar fact was decided in favour of the assessee.
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2024 (3) TMI 1221
Seeking grant of regular bail u/s 439 of CrPC - Offence punishable u/s 132(1)(i)(i) of GST Act - GST registration was either suspended or cancelled - bogus purchasers - invoice of none existing suppliers - HELD THAT:- The fact that the compliant has been filed and further investigation which was pending in pursuance of the complaint has also been completed and the applicant has no previous criminal antecedents and as the complaint has already been submitted, there is no chances of tampering with the evidences and further that the applicant is in jail since 05.11.2023, I am of the opinion that the applicant is entitled to be released on bail in this case without commenting on the merits of the case.
However, this Court hopes and trusts that the trial Court shall make earnest endeavour to conclude the trial as expeditiously as possible, if there is no legal impediment.
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2024 (3) TMI 1220
Seeking to revoke the cancellation of GST registration - which was accepted by the portal and was also issued a Form DRC-03 under Rule 142(2) and 142(3) of the GST Rules, 2017 but has not issued any DRC-03 - Petitioning university paid the taxes - HELD THAT:- Learned counsel for the petitioner, today, undertakes that the petitioner shall move an application for revocation within a period of two weeks from today. Though, it is beyond the prescribed time limit u/s 30 of the Act, the petitioner is willing to pay whatever late fee/penalty be imposed for the delay in submission of the returns, and the respondents, upon such receipt of application from the petitioner, shall immediately revoke the cancellation of registration.
Given the said factual matrix of the case as also the judicial pronouncements that are referred to in the preceding paragraphs, if the default on the part of the petitioner is only so far as non-furnishing of the returns, we are of the considered opinion that subject to the petitioner making good the default, the said GST registration of the petitioner-university would get restored which would enable the petitioner to process the affiliation proceedings in respect of the various colleges under the petitioner-university, which would also generate GST revenue to the respondent authorities as well.
Thus, this Writ Petition stands allowed.
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2024 (3) TMI 1219
Validity Of Show cause notice - No reasonable opportunity provided - tax demand as a condition for remand - HELD THAT:- On examining the show cause notice and impugned order, it is clear that the entire tax liability is with regard to disparity between the GSTR-3B and GSTR-2B returns. The petitioner has, albeit subsequent to the issuance of such order, explained that ITC was validly availed of by submitting documents in support thereof. Undoubtedly, the petitioner was negligent in not doing so upon receipt of the intimation and show cause notice. Nonetheless, if the explanation of the petitioner is valid, the interest of justice would be prejudiced unless the petitioner is provided an opportunity to explain the alleged disparity.
Thus, albeit by putting the petitioner on terms, the impugned order calls for interference. Therefore, the impugned order is quashed subject to the condition that the petitioner remits 10% of the disputed tax demand as agreed to within a maximum period of two weeks from the date of receipt of a copy of this order.
W.P. is disposed of on the above terms.
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2024 (3) TMI 1218
Validity of Tax demand - Non consideration of reply submitted by the petitioner / assessee - works contractor and registered dealer under applicable GST enactments - Pre-deposit - HELD THAT:- The petitioner's reply has been placed on record. Although such reply is terse, the petitioner requested for two months' time to reply by citing the pending proceedings at the instance of the central GST authorities. The petitioner also pointed out that a deposit of Rs. 1,50,00,000/- was made with regard to three assessment periods. Thus, the petitioner's reply was not taken into account and the petitioner was not provided time as requested in the said reply. In these circumstances, albeit by putting the petitioner on terms, the petitioner should be provided another opportunity.
Therefore, the orders impugned herein are quashed. Since the bank account of the petitioner was attached pursuant to a communication from the respondent to the Bank, the respondent is directed to appropriate 10% of the disputed tax demand in respect of each assessment year from such bank account. The petitioner is permitted to submit a reply to the show cause notice within a period of three weeks from the date of receipt of a copy of this order.
These writ petitions are disposed of on the above terms.
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2024 (3) TMI 1217
Assailing the order-in-original passed by the Commissioner - Violation of Principles of natural justice - HELD THAT:- We are of the clear opinion that the respondent before passing the impugned order, ought to have adopted the procedure not only to serve the show cause notice in the manner known to law, but also grant a fair and sufficient opportunity to the petitioner by issuing appropriate notices and only after granting an opportunity of a hearing and placing of all materials on record, an endeavour should have been made to pass appropriate orders. The principles of law in this regard are well settled. Thus, as the impugned order is passed in breach of the principles of natural justice, the same cannot be sustained.
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2024 (3) TMI 1216
Proper officer - Jurisdiction of Initiate investigation proceedings by the Central GST and State GST authorities simultaneously - Absence of a proper Notification u/s 6 of the respective GST Enactments for cross-empowerment - Challenged the Jurisdiction of Central Authorities - Whether the petitioners who are assigned to either the Central Tax Authorities or the State Tax Authorities under respective Central Goods and Services Tax Act, 2017 (CGST Act, 2017) and/or Tamil Nadu Goods and Services Tax Act, 2017 (TNGST Act, 2017) can be subjected to investigation and further proceeding by the counterparts under the respective GST Enactments - Validity of notices issued under Sections 62 & 67 of the TNGST Act, 2017 and orders passed u/s 73 and 74 of the TNGST Act, 2017 -
HELD THAT:- The returns to be filed by the Assessee's under the respective GST Enactments are same. They capture all the details under the respective GST Enactments applicable to an assessee. The returns are to be filed in the common portal as defined in Section 2(26) of the respective GST Enactments. As per Section 2(26) of the respective GST Enactments “Common portal” means the common goods and services tax electronic portal referred to in Section 146.
That apart, the payment of tax whether under the CGST Act, 2017 or under TNGST Act, 2017 are at the same rate. The only difference that may arise at the time of payment of tax due to utilization of the Input Tax Credit (ITC) availed on the inward supplies and their cross utilization for discharging the tax liability in terms of Chapter-X of the respective GST Enactments r/w Chapter-IX of the respective GST Rules, 2017.
As per Section 49A of the CGST Act, 2017, Input Tax Credit availed on account of Central Tax, State Tax or Union Territory Tax can be utilized towards payment of Integrated Tax, Central Tax, State Tax or the Union Territory Tax as the case may be, only after the Input Tax Credit available on account of Integrated Tax Credit has been first available on such cases. Section 49A of the CGST Act, which was inserted with effect from 01.02.2019 and notified vide Notification No.2/2019-CT 29/1-2019 as amended by GST (Amendment) Act 2018 (31 of 2018) has to be read in conjunction with Rules 88 A of the CGST Rules, 2017 as inserted by Notification No.16/2019-CT.
A similar provision is absent under the TNGST Act, 2017 and TNGST Rules 2017.
As per Section 88A of the TNGST Rules, 2017, Input tax credit on account of integrated tax shall first be utilised towards payment of integrated tax, and the amount remaining, if any, may be utilised towards the payment of central tax and State tax or Union territory tax, as the case may be, in any order. Provided that the input tax credit on account of central tax, State tax or Union territory tax shall be utilised towards payment of integrated tax, central tax, State tax or Union territory tax, as the case may be, only after the input tax credit available on account of integrated tax has first been utilised fully.
Under Section 3 of the respective Central and State GST Enactments of 2017, both the Central Government and the State Government have appointed a “class of officers” for the purpose of enforcement of the respective GST Enactments of 2017. Apart from the officers mentioned u/s 4(1) of the respective Central GST Act, 2017 and TNGST Act, 2017, the Board (the Central Board of Indirect Taxes and Customs [CBIC]) as defined in Section 2(16) of the CGST Act, 2017 and the Government as defined in Section 2(53) of TNGST Act, 2017, can appoint such officers as they may deem fit to be the officers under these GST Enactments.
Thus, the Board can authorize any officer referred to in clauses (a) to (h) of Section 3 of CGST Act, 2017 to appoint any officers of the Central Tax below the rank of Assistant Commissioner of Central Tax to be the Central Tax Officer for the administration of the CGST Act, 2017 alone. Thus, u/s 4(2) of the CGST Act, 2017, these can be only a linear delegation.
Under Section 4(2) of the TNGST Act, 2017, all other officers shall have jurisdiction over the whole of the State or over such local areas as the Commissioner may, by an order, specify, in respect of all or any of the functions assigned to them, subject to such conditions as may be specified. Thus, the Commissioner has power to delegate powers under the Act to other Officer specified in Sub-clause (c) to (f) to Section 3 of the TNGST Act, 2017. There is no cross-empowerment u/s 4(2) of the TNGST Act, 2017.
Thus, neither the Board u/s 4(1) and (2) of CGST Act, 2017 nor the Government and/or the Commissioner u/s 4(1) and (2) of SGST Act, 2017 can appoint such officers in addition to the officer notified under Section 3 of the respective Act. Thus, the Board can appoint and delegate only to Central Tax Officers appointed under the CGST Act, 2017 for CGST Act, 2017 and the Government and/or the Commissioner can appoint and delegate only to State Tax Officers appointed under the TNGST Act, 2017 for TNGST Act, 2017.
These provisions are pari materia with Section 4 of the Customs Act, 1962 and Section 12(E) of the Central Excise Act, 1944.
Section 6(1) of the respective GST Enactments empowers Government to issue notification on the recommendation of GST Council for cross-empowerment. However, no notification has been issued except u/s 6(1) of the respective GST Enactments for the purpose of refund although officers from the Central GST and State GST are proper officers under the respective GST Enactments.
Since, no notifications have been issued for cross-empowerment with advise of GST Council, except for the purpose of refund of tax under Chapter-XI of the respective GST Enactments r/w Chapter X of the respective GST Rules, impugned proceedings are to be held without jurisdiction. Consequently, the impugned proceedings are liable to be interfered in these writ petitions.
Thus, if an assessee has been assigned administratively with the Central Authorities, pursuant to the decision taken by the GST Council as notified by Circular No.01/2017 bearing Reference F.No.166/Cross Empowerment/GSTC/2017, the State Authorities have no jurisdiction to interfere with the assessment proceedings in absence of a corresponding Notification u/s 6 of the respective GST Enactments.
Similarly, if an assessee has been assigned to the State Authorities, pursuant to the decision taken by the GST Council as notified by Circular No.01/2017 bearing Reference F.No.166/Cross Empowerment/GSTC/2017, the officers of the Central GST cannot interfere although they may have such intelligence regarding the alleged violation of the Acts and Rules by an assessee.
The manner in which the provisions have been designed are to ensure that there is no cross interference by the counterparts. Only exception provided is u/s 6 of the respective GST enactement. Therefore, in absence of a notification for cross-empowerment, the action taken by the respondents are without jurisdiction. Officers under the State or Central Tax Administration as the case may be cannot usurp the power of investigation or adjudication of an assesse who is not assigned to them.
Therefore, the proceedings initiated by the respondents so far against the respective petitioners by the Authorities other than the Authority to whom they have been assigned to are to be held as without jurisdiction. Therefore, the impugned proceedings warrants interference.
At the same time, it is noticed that there is possibly case made out against each of the petitioners and since same power ought to have been exercised by the respective counterparts of the respondents, namely the Central Authority/State Authority as the case may be, to whom the respective petitioners have been assigned, proceedings should be initiated against each of the petitioners by the Authority to whom they have been assigned for the purported loss of Revenue under the respective GST Enactments.
Therefore, while quashing the impugned proceedings, there shall be a direction to the Central Authority/State Authority as the case may be to whom the respective petitioners have been assigned for administrative purpose to initiate appropriate proceedings afresh against them strictly in accordance with the provisions of the respective GST Enactments and GST Enactments Rules and Circular issued thereunder. The time between the initiation of the proceedings impugned in these writ petitions and time during the pendency of the present writ petitions till the date of receipt of this order shall stand excluded for the purpose of computation of limitation.
These writ petitions are disposed with the above observations.
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2024 (3) TMI 1215
Seeking refund of amount deposited - department coerced to deposit the tax amounts - whether it is genuinely a coercion or it was a voluntary deposit - HELD THAT:- At the outset, it needs to be noted that the petitioner is a legal person, it is described to be a company registered under the Companies Act, 1956. As a legal person, the petitioner certainly cannot be physically coerced. The question is which of the representatives of the petitioner or its officers who were incharge of the day to day affairs of the petitioner, whether were coerced into such act. This is certainly a question of fact.
It appears that not only the petitioner decided to voluntarily deposit an amount of Rs. 2,50,00,000/-, but also, agreed that the “balance tax payment scheduled” would be made within 10 days. It also appears that the search and seizure operations revealed that an amount of more than Rs. 5 crores was due and payable towards the outstanding tax which was very well realized by the petitioner. Thus, the case of the petitioner in the present facts, in regard to any coercion or allegation of any criminal act against the respondent cannot be accepted, not only on account of the petitioner’s letter dated 13 October 2022, addressed by the petitioner to respondent No. 1, but also on the petitioner’s own conduct which does not inspire any confidence for the writ Court to accept such contention.
In our opinion, in reality or genuinely if the petitioner was to be coerced, as a prudent legal person would resort, the petitioner could have made complaints and/or representation on such actions of the officers, which in law can certainly be regarded as highhanded and illegal. However, the petitioner did not even whisper anything of such kind, in the several letters addressed to the authorities including in answering the summons, to say that such amount was recovered by the department under coercion, much less to raise the same before the appropriate police authorities. Hence, a case of such nature being directly made out in the writ petition de hors any material to that effect would not give any impetus to the petitioner’s case of any coercion by the department. In this view of the matter, such factual dispute as to whether any coercive methods were adopted by the respondents and that such amounts were deposited under duress and coercion certainly cannot be conclusively ascertained and/or gone into in the proceedings of a writ petition under Article 226 of the Constitution.
In the present case, it appears that several summonses were issued to the petitioner and that the investigation is in progress, it therefore, appears that the show cause notice, is yet not issued. It is in these circumstances, the petitioner by approaching this Court, for the first time, has made a grievance of a coercive recovery, which in our opinion, cannot be accepted.
We may also observe that when an assessee comes before the Court invoking jurisdiction under Article 226 of the Constitution and that too making a serious grievance that the department had coerced the assessee to deposit the tax amounts, certainly as to whether it is genuinely a coercion or whether it was a voluntary deposit, as seen in the present case, is purely a disputed question of fact. Such question cannot be gone into and appreciated in the proceedings under Article 226 of the Constitution.
As a result of the discussion, in our opinion, the petition is thoroughly misconceived. It is accordingly, rejected.
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2024 (3) TMI 1214
Seeks to refund the GST - deposited against the non-migrated GST - HELD THAT:- Learned counsel appearing for the respondent submits that there is no provision available in the GST portal for transfer of the credit from one GST number to another. He however concedes that the petitioner did not opt for the migration of the service tax registration and the system automatically created a GST number (i.e. the non-migrated GST number).
We direct that the amount standing to the credit of the non-migrated GST number be transferred to the migrated GST number of the petitioner. The petition is disposed of in the above terms.
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2024 (3) TMI 1213
Availment of wrongful credit - bonafide mistake - appellants entered the amount in a wrong table due to technical misunderstanding, as a result of which, the credit of Rs. 46,91,982/- was credited to the CGST account - consistent case of the appellants is that they would fall under Entry 7B and inadvertently the TRAN-1 was filed under Entry 7A and the appellants explained that since they are not registered under the Central Excise Act, they are required to file TRAN-1 under Entry 7B - HELD THAT:- The question would be as to whether on account of such a technical error which undoubtedly is an inadvertent error can the appellants be denied the transitional credit. This issue is no longer res integra and has been considered by several courts as well as this court in a batch of cases in MAT 552 of 2020. More or less an identical issue arose for consideration and the court considered the various orders passed by the other High Courts and disposed of the appeals by permitting the writ petitioners therein to file individual tax credit in GSTR-3B Forms for the relevant months and the assessing officer was at liberty to verify the genuineness of the claim. We are informed that the judgment [2021 (12) TMI 835 - CALCUTTA HIGH COURT]. batch has been given effect to. More recently in the case of S.V. Halavagali and Sons v. Superintendent of Central Excise [2023 (11) TMI 1013 - KARNATAKA HIGH COURT] an identical issue arose for consideration before the court.
In the said case also there was an inadvertent error and the credit was filed under wrong head i.e. 7(d) instead of 7(b). The court after taking into consideration the various orders passed by the other High Courts directed the authorities to consider the claim of the petitioners therein under Column 7(b) of the CGST Rules, 2017 and if there are supporting documents to make the claim and the claim is established, then consequential relief should be allowed.
Earlier similar issue was considered in the case of M/S. G&C INFRA INNOVATIONS VERSUS UNION OF INDIA THE COMMISSIONER, STATE GOODS AND SERVICES TAX DEPARTMENT, KERALA, THE GST COUNCIL, THE PRINCIPAL COMMISSIONER, CENTRAL TAX AND CENTRAL EXCISE, KOCHI GOODS & SERVICES TAX NETWORK, THE NODAL OFFICER, AND OTHERS [2022 (5) TMI 694 - KERALA HIGH COURT] wherein the court took note of the fact that after the GST regime came into force the period between 2017 and 2020 ought to be regarded as the nascent period of legislation and admittedly several glitches occurred even from the part of the department. Further, it was pointed out that the courts have repeatedly held that the said period as a trial and error phase as far as implementation of the statute was concerned and the taxpayers were also in a state of confusion, during the relevant period.
Thus, taking note of the law and the subject as well as the facts of the case, it is a fit case where directions should be issued to the authorities to enable the appellants to rectify the mistake and submit GST TRAN-1 under heading 7B of Table 7(a) of Form GST TRAN-1 and the appellants are directed to comply with the same within three weeks from the date of receipt of the server copy of this order after which the adjudicating authority is directed to verify the same and if admissible, extend the transitional credit to the appellants.
The Nodal Officer of IT Grievance Redressal Mechanism, Kolkata CGST & CX Zone is directed to take note of the direction issued in this judgment and order and facilitate the filing of the TRAN-1 and TRAN-2 by the appellants by rectifying the mistake - In the event such rectification is not possible electronically, the appellants shall be given an option to do so manually.
Appeal disposed off.
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2024 (3) TMI 1212
Petition for the relief - additional tax liability for execution of subsisting Government contracts either awarded in the pre-GST regime or in the post-GST regime - without updating the Schedule of Rates (SOR) incorporating the applicable GST while preparing Bill of Quantities (BOQ) for inviting the bids - HELD THAT:- Petitioner has also prayed for relief of issuance of direction upon the respondents authority concerned to neutralize the impact of unforeseen additional tax burden on Government contracts since the introduction of GST w.e.f. 1st July, 2017 for ongoing contract awarded before the said date and to update the State SOR incorporating applicable GST in lieu of inapplicable West Bengal VAT henceforth.
Considering the submissions of the parties this writ petition is disposed of by giving liberty to the petitioner to file appropriate representation in the aforesaid regard as referred in preceding of this order, before the Additional Chief Secretary, Finance Department, Government of West Bengal within four weeks from date.
It is also recorded that the Additional Chief Secretary, while taking decision on the representation to be filed by the petitioner shall act in accordance with law and pass a reasoned and speaking order on merit and after considering all the judgments of different High Courts upon which petitioners intend to rely. With this observation and direction this writ petition being WPA is disposed of.
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2024 (3) TMI 1211
Charge memo issued to CIT(A) - disciplinary actions on allegations of mala fide against an officer exercising quasi-judicial powers - delay in issue charge memo - appeals decided in exercise of quasi-judicial powers while he was serving as Commissioner of Income Tax (Appeals) at Raipur, between 13.05.2003 and June 2007, had been were wrongly decided by ignoring material facts - Quasi-judicial powers of CIT(Appeals) -Tribunal has quashed the charge memo issued to the CIT(A)/respondent - as argued Tribunal was justified in quashing the charge memo which besides having been issued belatedly, was only a counterblast to the respondent’s challenge to the earlier charge memo wherein the petitioners had leveled similar allegations qua cases decided by him while he was posted as Joint Commissioner of Income Tax during the period between 1996 to 1998
HELD THAT:- We are of the view that even if we were to accept the petitioners’ plea that the decision in S. Rajguru [2014 (8) TMI 1243 - DELHI HIGH COURT] was not applicable to the facts of the present case, or that the said decision as urged by the petitioners was liable to be ignored, the fact remains that the petitioners have not been able to explain the inordinate delay of over ten years in issuing the charge memo.
The appeals which the CIT(A)/respondent is purported to have wrongly decided pertained to the period between 13.05.2003 to June 2007, when he was functioning as the Commissioner, Income Tax (Appeals) at Raipur and therefore, there is undoubtedly a delay of over ten years if computed from 13.05.2003. A CIT(Appeals) decides appeals on a regular basis in his quasi-judicial capacity and cannot be expected to have access to records of all decided cases after so many years. It is, therefore, evident that on account of this inordinate delay in issuance of the charge sheet, grave prejudice was likely to be caused to the respondent.
Even before us, petitioners except for baldly stating that the delay was occasioned due to the long drawn procedure required to be followed before issuing the charge memo to a Group ‘A’ officer like the respondent, has not been able to furnish any reason much less to say any justifiable reason for this inordinate delay. WP dismissed.
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2024 (3) TMI 1210
Rejection of request for exemption from pre-deposit - basis of imposing the liability of the petitioner - HELD THAT:- Taking into consideration the notification, Instruction No.1914 issued u/s 220 of the Income Tax Act as read with OM [F. No.404/72/93-ITCC], we deem it appropriate to direct the first Appellate Authority CIT (appeals) to decide the appeal within a period of three months, without insisting on the recovery of the demand. Till the pendency of the appeal, the demand shall be deemed to be stayed without depositing the pre-deposits 20%.
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2024 (3) TMI 1209
Validity of reopening of assessment - clandestine and unaccounted sales - Reason to believe - absence of power to review - report of the Directorate General of Goods and Service Tax Intelligence relied upon to conclude that there was a large-scale suppression of sale by the petitioner and therefore assessee had not offered sales to tax in its return of income, thus addition of gross profit at the rate of 1% to the income of the business and profession of the assessee - HELD THAT:- Notice giving the reasons for reopening the assessment in the case of the petitioner does not indicate, that any new material has been found, but relies upon the same material and same set of facts as were prevailing, when the earlier order of assessment dated 28.12.2018 was made.
The entire assessment order was based upon the report of the Directorate General of Goods and Services Tax Intelligence, based upon which respondent no. 2, had assessed the income of the petitioner as indicated above. The same report has been considered as a reason for re-opening the assessment in the impugned order, which clearly would indicate that it was not a case of mistake, but was a change of opinion, as the same material, which cannot be sustainable in law.
Though reliance is also placed on the amended section 147 of the Income Tax Act, it does not assist her case for two reasons, (i) the amendment having been brought into effect from 1.4.2021, cannot be applied to the case of the petitioner and (ii) even otherwise, though the expression “reason to believe has been deleted therefrom, what has been held in Kelvinator of India [2010 (1) TMI 11 - SUPREME COURT] regarding the concept of “change of opinion” being treated as an in-built test to check abuse of power by the Assessment Officer, in absence of power to review, would continue to hold the field. Reopening notice set aside - Decided in favour of assessee.
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2024 (3) TMI 1208
Revision u/s 263 - case of the assessee was selected for scrutiny and the AO was passed u/s 143(3) by accepting the returned income - As per CIT internal Audit Party observed that during the assessment proceedings, no proper verification of the purchase of the new assets and depreciation claimed on the assets has been made by the AO - Tribunal held that the AO framed the assessment on limited scrutiny and not the complete scrutiny. However, on perusal of the certified copy of the Assessment Order, it appears that the case of the assessee was selected for complete scrutiny - HELD THAT:- On perusal of the finding of facts arrived at by the Tribunal it is clear that the Tribunal after considering the issue of claiming the depreciation by the respondent-assessee as per the Act has come to the conclusion that the Assessment Order is neither erroneous nor prejudicial to the interest of Revenue.
Tribunal has also observed that the CBDT Instruction No. 9 of 2007 dated 11.09.2007 relied upon by the PCIT would also not be applicable in the facts of the case as the same pertains to the issue of allowability of depreciation and brought forward losses/unabsorbed losses. However, in the case of the respondent-assessee there was no issue pertaining to the brought forward losses or unabsorbed depreciation. No substantial question of law.
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2024 (3) TMI 1207
Penalty u/s. 271(1)(c) - addition on account of disallowance of claim of deduction u/s. 36(i)(viii) - ITAT deleted addition holding that the variation in the deduction u/s. 36(1)(viii) was due to the change in the business profit and it cannot be said that assessee has furnished inaccurate particulars of income - It is department’s case that only because assessee has offered income and not claimed deductions in the return of income would not absolve assessee from the liability of Section 271(1)(c)
HELD THAT:- TAT, in our view, correctly held that provisions of Section 271(1)(c) of the Act are not attracted. The ITAT was of the view and rightly so that assessee had made a bona fide claim under Section 36(1)(viii) as such deductions claimed is linked to the business profit. Only because there was variance in the deductions allowable due to change in determination of business profit, it cannot be said that assessee has furnished inaccurate particulars of income or concealed inaccurate particulars of income.
As held by the Apex Court in Commissioner of Income Tax Vs. Reliance Petro Products Pvt Ltd. [2010 (3) TMI 80 - SUPREME COURT] if we accept the contention of revenue, then in case of every return where the claim sum is not accepted by the AO for any reason, assessee will invite penalty u/s 271(1)(c). A mere making of the claim which is not sustainable in law by itself, will not amount to furnishing inaccurate particulars regarding the income of assessee, such claim made in the return cannot amount to be inaccurate particulars. Decided in favour of assessee.
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2024 (3) TMI 1206
Rectification of mistake u/s 154 - limited scrutiny of “Agricultural Income” - respondent seeks to alter the Assessment Order made u/s 143(3) by including those issues which were not expressly dealt earlier namely (i) Interest on Borrowing, (ii) Goods in Transit & (iii) Interest on account of Excess Refund of amounts. These items were not included in the Assessment Order
HELD THAT:- Under Sub-Section(3) to Section 154 of the Income Tax Act, 1961, an amendment, shall not be made unless the authority concerned has given notice to the assessee or the deductor etc a reasonable opportunity of being heard where such amendment has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee [or the deductor], Thus, it cannot be said that the impugned notice issued to the petitioner was without jurisdiction as the assessing officer is empowered to rectify a mistake which is apparent from the record.”
The power of the officers mentioned in Section 154 is to correct “any mistake apparent from the record” is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an “error apparent on the face of the record”.
Court spelt out the distinction between the expressions “error apparent on the face of the record” and “mistake apparent from the record” and held suffice it to say that the Income Tax Officer was wholly wrong in holding that there was a mistake apparent from the record of the assessments of the first respondent.
The meaning of the expression, “error apparent on the face of record” is wider than the expression “mistake apparent from the record”. An Assessing Officer is not incompetent to invoke the jurisdiction under section 154 of the Income tax Act, 1961 if such officer had committed a glaring mistake of fact or law while passing the assessment order as held by the Hon’ble Supreme Court in Commissioner of Income Tax vs. Hero Cycles (P) Ltd [1997 (8) TMI 6 - SUPREME COURT]
If an Assessing Officer had also failed to do what was required under the law at the time of passing Assessment Order and has passed an Assessment Order with such defects, such assessment orders can be rectified by the officer by exercising power under section 154 of the Income tax Act, 1961. In this case, this is the effort of the Assessing Officer while exercising the power under section 154 of the Income tax Act, 1961.
No merits in the submission that the impugned notice is liable to be interfered and quashed. Writ petition dismissed.
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