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Showing 221 to 240 of 1466 Records
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2024 (6) TMI 1246
Maintainability of petition - Petitioner has challenged the impugned order although the petitioner has an alternate remedy - HELD THAT:- It is noticed that the impugned order is dated 30.04.2024 and the present writ petition has been filed on 07.06.2024 well within the period of limitation prescribed under Section 107 of the TNGST Act, 2017 to file an appeal.
There are no merit in the challenge to the impugned order in this writ petition, as there are no procedural violations that have been pointed out in the impugned order. Therefore, the Writ Petition stands disposed of by directing the petitioner to file statutory appeal within a period of 30 days from the date of receipt of a copy of this order subject to the petitioner compliance with the other requirements of Section 107 of the TNGST Act, 2017.
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2024 (6) TMI 1245
Violation of principles of natural justice - failure to notice that the notices that were issued prior to the impugned order - HELD THAT:- This Court is inclined to dispose of this Writ Petition by setting aside the impugned order dated 22.12.2023 by giving liberty to the petitioner to file a reply to the show cause notice in DRC 01 dated 27.09.2023 that preceded the impugned order dated 22.12.2023 in DRC 07, subject to the petitioner depositing 10% of the disputed tax from the Electronic Cash Register of the petitioner within a period of 30 days from the date of receipt of a copy of this order.
The impugned order, which stands quashed, shall be treated as addendum to the show cause notice in DRC 01 dated 27.09.2023. Subject to such compliance by the petitioner, the respondent is directed to pass fresh orders on merits and in accordance with law as expeditiously as possible preferably within a period of three months thereafter.
Petition disposed off.
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2024 (6) TMI 1244
Refund of input tax credit accumulated - time limitation - zero-rated supplies - Clause(e) of Explanation 2 to section 54 of the Central Goods and Service Tax Act, 2017 - HELD THAT:- The petitioner was eligible for benefit of extended period granted vide Notification No. 13/2022 – Central Tax dated 05.07.2022, whereby relaxation of COVID period from 01.03.2020 to 28.02.2022 was eligible for the period from June-2018 to Jan-2019. However, the notification dated 05.07.2022 was not in existence at the time of issuance of the impugned orders.”
The petition is allowed by directing the respondents to grant the benefit of Notification No. 13/2022-Central Tax dated 05.07.2022 whereby the relaxation of Covid period from 01.03.2020 to 28.02.2022 was eligible for period from April 2018 to January, 2019. It appears that notification dated 05.07.2022 was not available at the relevant time when the impugned orders were passed and therefore, benefits of the same were not given to the petitioner.
Petition allowed.
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2024 (6) TMI 1243
Seeking quashing of impugned order - petitioner neither participated in the show cause proceeding nor filed any statutory appeal in time - HELD THAT:- There is no proper explanation also forthcoming from the petitioner as to why the statutory appeal was not filed in time except stating that the petitioner had handed over the papers to the Sale Tax Practitioner/GST Practitioner to file an appeal, but was not filed.
This Court is inclined to exercise its discretion in favour of the petitioner by quashing the impugned order and by remitting the case back to the respondent to pass a fresh order on merits and in accordance with law subject to the petitioner depositing 10% of the disputed tax within a period of 30 days from the date of receipt of a copy of this order.
Petition allowed by way of remand.
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2024 (6) TMI 1242
Transition of input tax credit lying unutilized in its VAT returns - Section 140 of the respective GST enactments - HELD THAT:- The credit that was availed by the petitioner under the provisions of the TNVAT Act, 2006 was to be allowed subject to the petitioner complying with the requirements of Section 140 of the TNGST Act, 2017 read with Rule 117 of the TNGST Rules, 2017.
The credits that are availed under the provisions of the TNVAT Act, 2006 are indefeasible in nature. In this connection, reliance placed on the decision of the Hon'ble Supreme Court in COLLECTOR OF CENTRAL EXCISE, PUNE VERSUS DAI ICHI KARKARIA LTD. [1999 (8) TMI 920 - SUPREME COURT], wherein, the Hon'ble Supreme Court while dealing with the provisions of the Central Excise Rules, 1944 in the context of CENVAT Credit Rules/MODVAT Credit Rules, held that once the credit is validly availed, it is indefeasible unless provided to lapse under the law and that credits availed under the provisions of the erstwhile Central Excise Act, 1944 and Central Excise Rules, 1944 are indefeasible and are intended to reduce the cascading effect of the tax to benefit the consumers.
The provisions of Section 54 of the TNGST Act, 2017 also do not provide for the refund of such unutilized input tax credit that was not transitioned under Section 140 of the TNGST Act, 2017. Be that as it may, the petitioner cannot be made to suffer if the credit was validly availed.
The impugned order can be set aside for verification as to whether the petitioner had validly availed input tax credit under the provisions of the TNVAT Act, 2006 and the credit availed by the petitioner satisfied the requirements of Section 19 of the TNVAT Act, 2006 read with relevant Rules - Petition allowed partly.
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2024 (6) TMI 1241
Cancellation of registration of petitioner - petitioner has not filed the returns for six consecutive months and has not responded to Ext. P2 notice - HELD THAT:- It is trite law that if the show cause notice is vague and where the order of cancellation also does not specify the factors that led to the cancellation of registration, the entire proceedings must be held to be bad in law.
Further, it is a well settled salutory principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. Since the proceedings were initiated by the 1st respondent in Form GST-REG-31 and not in Form GST-REG 17, Ext.P3 order is without jurisdiction. Ext. P3 is accordingly set aside. It is made clear that setting aside Ext. P3 will not have the effect of absolving the petitioner from any fiscal liability.
The writ petition is disposed of.
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2024 (6) TMI 1240
Violation of principles of natural justice - irrelevant notification was applied in respect of sanitary ware - petitioner's request for an adjournment in response to the show cause notice was denied and a wrong notification was applied - HELD THAT:- On perusal of the impugned order, it appears that the respondent applied Notification No.5/2020 dated 16.10.2020. The petitioner has placed on record the said notification. The notification applies to satellite launch services and not to sanitary ware. The petitioner has also placed on record Notification No.6/2018, which reduces the GST rate on sanitary ware to18% from the earlier 28%. By reply dated 19.09.2023 the petitioner requested for an adjournment for reasons stated therein up to 07.10.2023. Such request was denied. As a result, the tax proposal was confirmed without considering the petitioner's response on merits.
The impugned order dated 20.09.2023 is set aside and the matter is remanded for re-consideration. The petitioner is directed to submit a reply to the show cause notice within fifteen days from the date of receipt of the copy of this order - petition disposed off by way of remand.
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2024 (6) TMI 1239
Challenge to search and seizure order - non-compliance with mandatory provision of Section 67 of UPGST Act - reasons to believe - Joint Commissioner, while granting the authorization for search and seizure, never put forth the reasons to believe that the search was necessary - HELD THAT:- The attempt of the State authorities in explaining the issue of two INS-01 forms has resulted in a kerfuffle and nothing more. The confusion is writ large in the counter affidavit and no sensible explanation has been provided to put forward the actual reasons to believe as required under Section 67 of the Act. In the present case, the said procedure had not been followed, and accordingly, the entire authorization is vitiated and liable to be quashed.
The entire proceedings that have originated from the illegal search and seizure carried out under Section 67 of the Act have no foot to stand on, and accordingly, are quashed and set aside. The State authorities are directed to release all the goods and documents that they may have detained or confiscated within a period of three weeks from date - Any amount deposited by the petitioner in lieu of the order passed under Section 74 of the Act should be refunded to the petitioner within a period of eight weeks from date.
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2024 (6) TMI 1238
Challenge to assessment order - notices and orders were only uploaded on the GST portal and not communicated to petitioner - breach of principles of natural justice - HELD THAT:- The documents on record reveal that proceedings were initiated pursuant to a notice in Form ASMT-10 in November 2020. Thereafter, the intimation was issued in May 2023 and the assessment order was issued on 25.07.2023. As a registered person under applicable GST statutes, the explanation of the petitioner that he was unaware of the notices and the assessment order is not entirely convincing. However, it is noticeable that the petitioner was not granted sufficient time for the personal hearing by notices dated 03.07.2023 and 17.07.2023 and, admittedly, the petitioner was not heard.
The impugned orders are quashed and these matters are remanded to the assessing officer for reconsideration. The petitioner is permitted to submit a reply to the show cause notice within a maximum period of 15 days from the date of receipt of a copy of this order along with the remittance of 10% of the disputed tax demand under each assessment order - petition disposed off by way of remand.
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2024 (6) TMI 1237
Recovery of erroneous refund on account of inverted duty structure - SCN does not provide any particulars beyond stating that an excess refund was made to the petitioner on account of inverted duty structure - Violation of principles of natural justice - HELD THAT:- On examining the impugned order, it is noticeable that the only reason specified therein is that the CAG para pointed out that the taxpayer was issued excess refund on account of inverted duty structure and that the excess amount is Rs. 7,51,961/-.
Unless the show cause notice sets out sufficient particulars to enable the assessee to understand the nature of claim being made against such assessee, it is not possible for such assessee to respond in a meaningful way to the show cause notice. In this case, both the SCN and the impugned order are bereft of particulars. Therefore, the order calls for interference.
The impugned order is quashed and the matter is remanded for re-consideration. The respondents are directed to issue a fresh show cause notice to the petitioner setting out all relevant particulars so as to enable the petitioner to respond thereto - Petition disposed off by way of remand.
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2024 (6) TMI 1236
Levy of GST - royalty to be paid by the petitioners, on extraction of sand, for which an agreement has been entered into by the petitioners and the State through the Mining Department - HELD THAT:- When royalty has been declared to be a tax by a Seven-Judge Bench, as of now the same cannot be deemed to be a consideration for service of grant of licence. In any event, it is seen that the impugned orders are based on an advance ruling under the Bihar Goods and Services Tax Act, 2017 which is also said to be challenged in CWJC No. 3531 of 2022.
Post on 30.01.2024 along with CWJC No. 3531 of 2022.
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2024 (6) TMI 1235
Reopening of assessment u/s 148A - difference between the allotment price of Rs. 13/- and the market price of Rs. 659/-, necessitating re-assessment of the returns filed for that year - HELD THAT:- In the matter in hand, it being clear that no sale of such shares had been effected in the Financial Year 2015-16, there is no question of incidence of income on account of any sale of KFCL shares, justifying a view that income in that year had escaped assessment.
Besides, there is no other ground in the notice for proposing reassessment. Consequently, the very basis on which the Impugned Order passed u/s 148A (d) of the Act, stands undermined. Since the very basis of proposing re-assessment does not exist, as a matter of fact, nothing survives in the proposal to conduct reassessment.
Writ Petition deserves to be allowed. There has been no application of mind to the facts of the case and the explicit and specific reply of the Petitioner and the documentary record that showed that no sale had been effected in that year, leading to no income that could have arisen in that year.
There is no merit in the request of the Revenue to remand the matter for a fresh consideration of the facts (instead of simply quashing the Impugned Order).
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2024 (6) TMI 1234
Rejection of application u/s 119(2)(b) - delay filing Form-10DA, which is necessary for availing deduction u/s 80JJAA - assessee submits that medical grounds and the continuation of the COVID 19 pandemic were cited as reasons for delay in filing the said form - HELD THAT:- The petitioner has placed on record Form-10DA. On perusal, it is clear that the Chartered Accountant signed the document on 30.06.2022, which is within the time limit of 30.09.2022. The petitioner has also placed on record the ITR acknowledgment for assessment year 2022-23 and the intimation u/s 143(1) accepting the deduction.
In the application for condonation of delay, the petitioner has set out multiple reasons including the continuation of the COVID 19 pandemic, medical grounds of family member and has stated that the delay was neither willful nor wanton. As contended by learned counsel for the petitioner, the power u/s 119(2)(b) is required to be exercised whenever the refusal to condone delay would result in genuine hardship to the assessee.
Application was rejected by recording that this power is to be exercised only in extraordinary circumstances. There is nothing in Section 119(2)(b) which indicates that the power should only be exercised in extraordinary circumstances. By taking into account the fact that Form-10DA was signed on 30.06.2022 and filed on the extended date for filing the return of income, in my considered view, it is an appropriate case for condoning the delay. Undoubtedly, genuine hardship would be caused to the petitioner unless the delay is condoned.
WP allowed. The impugned order is set aside. As a consequence, the respondents are directed to receive Form-10DA and process the petitioner's return of income on such basis.
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2024 (6) TMI 1233
Addition u/s 68 - Tribunal affirming the order passed by CIT(A) by which the addition made by the assessing officer stood deleted - HELD THAT:- Tribunal as noted that pursuant to the notice issued under Section 133(6) of the Act by the assessing officer, the share applicants have furnished the evidence called for by the assessing officer and established their identity, creditworthiness and the genuineness of the transaction.
Tribunal noted that summons issued to the director by the assessing officer was complied with and he has given statement on oath by appearing in person before the assessing officer.
If we turn back to the findings recorded by the CIT(A), we find that the matter was taken up by the PCIT under Section 263 of the Act and an order was passed holding that the reassessment order was erroneous and prejudicial to the interest of the revenue for not making profit and sufficient enquiries into the share capital raised by the assessee during the relevant year. In the said order dated 10th March, 2014 the CIT(A) had set aside the assessment order and issued three specific directions.
These directions were scrupulously taken into consideration and we find from the order passed by the CIT(A), the entire factual aspect has been discussed which have been noted by the assessing officer while completing the assessment. Thus, we find that the matter to be entirely factual and no substantial questions of law arise for consideration. Revenue appeal dismissed.
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2024 (6) TMI 1232
Eligibility of exemption from realisation of process fee, development charges in view of the Niyamavali, 2014 - said relief has also been pressed on the ground that the Society has already got benefits under Section 12A and 80G - petitioner, which is a charitable society, applied for sanction of map for construction of temple and cremation site, which was so accorded by the SDA - refusal to grant exemption to the petitioner Society on the ground that from time to time notices were sent to the petitioner and at the time of sanction of map, the petitioner Society was not accorded exemption under Section 12A and 80G
HELD THAT:- It is not in dispute that at the time of sanction of map, the applications of the petitioner Society for registration under Section 12-A and 80-G of the Act, 1961 were pending for approval and the same was approved by the SDA on 17.11.2014. Thereafter, CIT (Exemption), Lucknow had accorded exemption to the petitioner Society under Sections 12-A and 80G of the Act, 1961 on 29.03.2016 with effect from 01.04.2014. The Government order dated 19.10.2002 provides that the religious institutions, which work for public and charitable purpose without earning any profit or loss and do not indulge in any business activity, are exempted from development charge etc. The subsequent Government order dated 19.10.2002 had amended the previous Government order dated dated 21.05.1998. In view of the Niyamavali, 2014 and the successive Government orders, the petitioner Society is entitled for concession for payment of process fee, development fee etc. as provided under Section 53 of the Act, 1973 in the light of the exemptions so accorded by the Income Tax Department on 29.03.2016 w.e.f. 01.04.2014.
Thus, the impugned orders cannot sustain and the same are accordingly set aside.
Writ petition is allowed and the matter is relegated to the Vice Chairman, SDA to take a fresh decision within a period of six weeks from the date of production of certified copy of this order but certainly considering the Niyamavali, 2014 and the exemption under Section 12A and 80G.
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2024 (6) TMI 1231
Delay in filing the return u/s Section 119 (2) (b) - delay of 15 days was sought to be condoned - HELD THAT:- This Court finds that the respondents have ample powers to condone the delay of the assessee, if sufficient reasons are found.
The petitioner is a widow and is running a very small business of herbs and was at a loss in the year when she was running this business as a proprietor of the firm. As the delay in filing the return has been adequately explained by stating the complete factual matrix, this Court is inclined to allow the writ petition.
Accordingly, writ petition is allowed while quashing the impugned order with respondents as directed to treat the return filed by the petitioner for the assessment year 2021-2022 within time.
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2024 (6) TMI 1230
Leave Encashment - Exemption u/s 10AA - Review of income limit for taxing purposes on earned leave salary u/s 10AA (ii) with retrospective effect by retired employees - HELD THAT:- Petitioners all stood retired before the latest notification, which has been issued fixing the upper limit as Rs. 25 lakhs for exemption from payment of earned leave income. The employer has also deducted the admissible tax above Rs. 3 lakhs from the petitioners. At this distant point of time, this Court, considering the limitation on the power of the Court as well as the doctrine of separation of powers, cannot issue a mandamus to the respondent Authorities to revise the upper limit of the encashment of earned leave for granting exemption from payment of the income tax with retrospective effect. Issuance of notification, as provided in the provision, is in the realm of the powers of the Executive.
The Court, though, has sympathy with the petitioners, but considering the limitation on powers of the Court, this Court is unable to issue a writ of mandamus commanding the respondents to revise the upper limit in respect of the employees who retired before 01.04.2023. This is in the realm of policy decision, which is to be taken by the Executive.
Thus, these writ petitions are disposed of with liberty to the petitioners to approach the Government for the reliefs sought for in these writ petitions, and the Government may take a decision on their representations.
Pending interlocutory application, if any, in these present writ petitions stands dismissed.
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2024 (6) TMI 1229
Rectification of mistake u/s 154 for denial of exemption u/s 11 - rectification application as filed beyond the time limit - AO found that the income was wrongly shown under "business income" instead of "income from other sources " thus denying exemption - prima facie mistake committed by the assessee society wherein incorrect input were given in the return filed and it is for this reason that the CPC while processing the return did not give the deduction claimed u/s 11 of the I.T Act - revised return of income has been submitted rectifying the mistake initially committed while disclosing the income whereby the income has now been disclosed under the head “income from other sources”.
HELD THAT:- The fact of the matter is that it was not a rectification application simpliciter u/s 154 but actually a return of income revising the head of income disclosing the income under the correct head of income in the hands of the assessee society and rest all particulars remaining the same. The said return of income was in substance a return filed under section 139(5) though wrongly mentioned as filed u/s 139(4) for the simple reason that in the present case, the assessee has already filed the original return of income and question of filing the belated return of income u/s 139(4) doesn’t arise. The said revised return of income has been filed within the stipulated time frame as so prescribed u/s 139(5) of the Act and given that no intimation u/s 143(1) has been issued by the CPC Bangalore within stipulated period of one year from end of the financial year in which return was so filed, it shall be deemed that such return of income has been accepted by the Revenue and no adjustment is warranted. Thus, both the lower authorities have failed to take into consideration revised return of income so filed and were swayed by the fact that it was a rectification application u/s 154 of the Act.
Even for the sake of argument, it is considered as a rectification application, the fact of the matter is that a mistake has occurred while filing the original return of income and within 15 days of receiving the intimation u/s 143(1), the assessee has moved the rectification application u/s 154(2) and in terms of section 154(8), it was incumbent on part of the CPC to pass an order within six months of receipt of the rectification application and given that the same has not been passed, it will be taken as deemed acceptance on part of the CPC Bangalore that they have accepted the rectification application so filed.
As far as the second rectification application is concerned, we are unable to appreciate the reasoning adopted by the AO while rejecting the application. The AO has stated that the CPC has rightly processed the return of income failing to appreciate that the assessee has filed a revised return of income which has not been processed by the CPC and secondly, what details have not been given by the assessee has not been specified by the AO while rejecting the application.
Thus all necessary particulars have been disclosed in the revised return of income in terms of receipts and utilization, and there is no justification in denying the claim of exemption u/s 11 to the assessee society and the same is hereby directed to be given as so claimed in the return of income. Appeal of the assessee is allowed.
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2024 (6) TMI 1228
Addition of LTCG - differential amount between reported by tax auditor as LTCG and declared by the assessee in its return of income as LTCG - HELD THAT:- In nutshell both the parties are at consensus/ad-idem that an income by way of LTCG to the tune of Rs. 9172/- could be added.
Addl./JCIT(A) erred in making addition of Rs. 2,62,383/- towards long term capital gain as reported in clause16(d) of the tax audit report , while the fact of the matter is that the assessee has duly declared long term capital gain of Rs. 2,53,211/- in the return of income filed by the assessee with department and paid due taxes on the same, and at the best only differential amount of Rs. 9,172/- could have been sustained by ld Addl/JCIT(A) .
Both the parties are at consensus/ad-idem that the amount of Rs. 9,172/- can be added and brought to tax, otherwise the same amount of income by way of LTCG to the tune of Rs. 2,53,211/- would be doubly taxed which is not permissible. Thus, we sustain the addition under the head LTCG to the tune of Rs. 9172/- and grant relief to the assessee by deleting the additions under the head LTCG as sustained by ld. CIT(A), as the LTCG to the tune of Rs. 2,53,211/- is reported by the assessee in the ROI filed with the department. Thus, the appeal of the assessee is partly allowed
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2024 (6) TMI 1227
Validity of order passed by CIT(A) (NFAC) dismissing the appeal of the appellant - Difference of Points for determination considered by CIT(A) from the points for determination and the grounds of appeal taken up by the assessee.
HELD THAT:- It is seen from the order that the appeal decided by the Ld. CIT(A) does not pertain to the case of the assessee. It is clear from the facts mentioned in the appellate order that the appeal decided by the Ld. CIT(A) pertains to the assessment order of ITO, Ward-2, Vapi for AY.2016-17; however, the impugned assessment order was passed u/s 143(3) r.w.s. 147 of the Act by the ITO, Ward-1(3)(1), Surat for AY.2014-15. CIT(A) has decided the appeal against a partnership firm who had filed return of income for the AY.2016-17 on 23.07.2016, declaring total income of Rs. 4,57,260/-. However, in case of the appellant, the original return for AY.2014-15 was filed on 30.07.2014, declaring total income of Rs. 8,61,350/-.
We also found that the grounds of appeal raised by the assessee as evident from Form 35 is totally different from the grounds of appeal adjudicated by the Ld. CIT(A) which is mentioned at para 3 of the appellate order. Hence, the Ld. CIT(A) has dismissed the appeal of the appellant on the facts and grounds of appeal of some other case and not on the facts and grounds of appellant’s case. Therefore, the order of Ld. CIT(A) is liable to be set aside at the threshold because it has not been passed as per the mandate of section 250(6) of the Act.
Points for determination considered by him are totally different from the points for determination and the grounds of appeal taken up by the assessee. Since the appeal has been decided not on the facts and ground of the appellant but on some other case, we set-aside the order of the Ld. CIT(A) and remit the matter back to the file of the Ld. CIT(A) for passing fresh order in accordance with law after giving reasonable opportunity of hearing to the assessee.
The list of the appealable orders is provided in section 253 of the Act and an order u/s 250 passed by the Ld. CIT(A) is an appealable order. In the present case, the order passed by the Ld. CIT(A) does not deal with the facts and grounds of appeal raised by the assessee in his appeal. In substance, it is not an appellate order in case of the assessee. As stated earlier, it is also not as per the mandate provided u/s 250(6) of the Act.
All the facts are not available before the Bench including the points for determination, decision thereon and the reasons for the decision. Moreover, the valuation report subsequently received by the Assessing Officer was also not considered either by the Assessing Officer or by the Ld. CIT(A). Similarly, the addition of credit entries has also not been considered by the Ld. CIT(A). In view of these peculiar facts, the ratio of the decision relied upon by the Ld. AR cannot be applied to the facts of the assessee. We have already set aside the order of Ld. CIT(A) and remitted the matter back to him. We make it clear that we are not making any view on the merits of claim made by the assessee including adoption of valuation report and direction for consequential relief under section 49(4) of the Act as it is for the appellate authority to consider and decide. For statistical purposes, the appeal of the assessee is allowed.
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