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Showing 241 to 260 of 406228 Records
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2024 (5) TMI 123 - SUPREME COURT
Recovery of dues by adjusting them against the refund amount - Delay in processing refund - The default notices were issued after the period within which the refund should have been processed - requirement to follow timeline for refund under Section 38(3) of the Delhi Value Added Tax Act, 2004 - HELD THAT:- The language of Section 38(3) is mandatory and the department must adhere to the timeline stipulated therein to fulfil the object of the provision, which is to ensure that refunds are processed and issued in a timely manner.
In the present case, Section 38(3)(a)(ii) is relevant as both the refunds in the present case pertain to quarter tax periods. Therefore, as per Section 38(3)(a)(ii), the refund should have been processed within two months from when the returns were filed (31.03.2017 and 29.03.2019), which comes up to 31.05.2017 and 29.05.2019. The default notices are dated 30.03.2020, 23.03.2021, 30.03.2021, and 26.03.2022. It is therefore evident that the default notices were issued after the period within which the refund should have been processed. Sub-section (2) only permits adjusting amounts towards recovery that are “due under the Act”. By the time when the refund should have been processed as per the provisions of the Act, the dues under the default notices had not crystallised and the respondent was not liable to pay the same at the time.
The appellant-department is therefore not justified in retaining the refund amount beyond the stipulated period and then adjusting the refund amount against the amounts due under default notices that were issued subsequent to the refund period.
The impugned judgment directing the refund of amounts along with interest as provided under Section 42 of the Act affirmed - appeal dismissed.
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2024 (5) TMI 122 - MADRAS HIGH COURT
Condonation of delay in filing petition - Belated writ petition - by oversight Vakalat was not filed - appellate Tribunal by two separate cryptic orders has allowed the appeals filed by the Commercial Tax Department - HELD THAT:- Although there is a delay in approaching this Court, the substantive right of an assessee cannot be denied, particularly in a peremptory manner by passing a cryptic order. The dismissal of the application for restoring the appeal and allowing the appeal of the Commercial Tax Department without any reasonings especially when the order of the Appellate Commissioner is detailed has to be construed as an arbitrary order and therefore, it is liable to be set aside. It could have been different, if the order is passed on merits.
The impugned orders can be set aside and the appeals be restored back to the file of the Sales Tax Appellate Tribunal for disposal of all the four appeals together on merits and in accordance with law. The petitioner is directed to file Vakalat and file the notes and submissions, if any, as per the procedure followed by the Appellate Tribunal.
Petition allowed.
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2024 (5) TMI 121 - DELHI HIGH COURT
Dishonour of Cheque - vicarious liability of the petitioner in terms of Section 141 NI Act - Company Secretary of the company - The CS was never a Director of the Accused Company - In-charge of the day-to-day affairs of the company or not - exact role of the petitioner in the accused company and her consequent liability for the offence under Section 138 NI Act - HELD THAT:- The petitioner was employed in the company as a Company Secretary. Once the same is established, the question that arises for consideration is whether the petitioner can be made vicariously liable in terms of Section 141 NI Act. A perusal of the subject complaints would show that nowhere in the said complaints has the respondent averred that the petitioner was in-charge of, and responsible for the conduct of the business of the company. The word ‘in-charge of a business’ has been interpreted to mean a person having overall control of the day-to-day business of the company.
In the ordinary course of business, it cannot be said that the petitioner, who was acting as a Company Secretary, would be in-charge of the day-to-day affairs of the company, as required in terms of Section 141(1). Thus, the petitioner cannot be vicariously liable in terms of Section 141(1).
In view of the facts of the present case including the fact that the petitioner was employed as a Company Secretary in the accused company as well as the position of law w.r.t Section 141 NI Act and the application of the same to the subject complaints, it can be observed that the subject complaints are bereft of the adequate averments against the petitioner alleging the Petitioner’s involvement in the conduct of the business of the Company beyond her statutory role as a Company Secretary, more particularly, in relation to the transaction pursuant to which cheque in question was issued. Neither, is there any averment that the offence has been committed with the consent or connivance of is attributable to any neglect on the part of the Petitioner, so as to potentially make her liable under Sub-section (2) of Section 141.
There is no cavil with the proposition of law stated in the decisions cited by the respondent but in the absence of appropriate and adequate averments against the petitioner, and the fact that Petitioner’s impleadment can only be in her capacity as a Company Secretary, the continuation of proceedings against the petitioners would be nothing but an abuse of the process of law.
The present petitions are allowed and the criminal complaints filed under Section 138 read with Section 141 NI Act are quashed qua the petitioner.
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2024 (5) TMI 120 - SUPREME COURT
Maintainability of writ petition - time limitation - time limitation ought to have been dismissed on the ground of delay and latches itself or not - Whether the writ court was justified in entertaining the writ petition filed by the Respondent No. 1 herein challenging the approval dated 03.06.2014 granted in favour of the Appellant herein for starting LPG distributorship at Jamalpur, District Burdwan? - HELD THAT:- An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity. Delay or latches is one of the factors which should be born in mind by the High Court while exercising discretionary powers Under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action.
There being no stiff opposition or strong resistance to the alternate land offered by the Appellant herein not being as per the specifications indicated in the advertisement, there are no reason to substitute the court's view to that of the experts namely, the Corporation which has in its wisdom has exercised its discretion as is evident from the report filed in the form of affidavit by the territory manager (LPG)/ BPCL.
The order of the Learned Division Bench is liable to be set aside and accordingly, it is set aside - Appeal allowed.
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2024 (5) TMI 119 - MADRAS HIGH COURT
Levy of interest and penalty - transition of amount wrongly claimed as input tax credit under the CENVAT Credit Rules, 2004 - HELD THAT:- Admittedly, the petitioner was not entitled to avail input tax credit on the Basic Customs Duty paid under the Customs Act, 1962, under the provisions of the CENVAT Credit Rules, 2004.
Under Section 140 of the CGST Act, 2017, only input tax credit lying un-utilised under the CENVAT Credit Rules, 2004 and TNVAT Act, 2006 in Tamil Nadu could be transitioned - Sub- Section (2) to Section 140 of the CGST Act, 2017 also makes it clear that the registered person shall not be allowed to take credit unless the said credit was admissible as CENVAT credit under the existing law i.e., CENVAT Credit Rules, 2004 and is also admissible as input tax credit under the CGST Act, 2017 - Therefore, the question of the petitioner transitioning the amount that was wrongly claimed as input tax credit under the CENVAT Credit Rules, 2004 did not arise. The Department however committed a mistake by sanctioning the refund to the petitioner on 17.07.2018 pursuant to refund claim filed by the petitioner.
There has to be restitution of the unjust benefit gained by a dealer/person. These provisions have been framed to ensure that there is proper restitution. Thus, no case is made out to interfere with the impugned order. Therefore, the impugned order is sustainable and this Writ Petition is liable to be dismissed.
Petition dismissed.
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2024 (5) TMI 118 - ALLAHABAD HIGH COURT
Appeal barred by time limitation - Violation of principles of natural justice - order for cancellation of registration passed without any application of mind - HELD THAT:- In the present case, the facts are similar to one in SURENDRA BAHADUR SINGH VERSUS STATE OF U.P. THRU. PRIN. SECY. COMMERCIAL TAX (GST) LKO. AND 2 OTHERS [2023 (8) TMI 1262 - ALLAHABAD HIGH COURT], wherein the appeal was barred by time under Section 107 of the Act. However, the Division Bench in Surendra Bahadur Singh's case took into consideration the original order and set aside the same being non-reasoned and allowed the petitioner therein to file reply to the show cause notice.
The orders impugned herein are liable to be set aside - Petition allowed.
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2024 (5) TMI 117 - ALLAHABAD HIGH COURT
Principles of natural justice - Non-service of notice - demand u/s 73 (1) of Finance Act, 1994 read with Sections 142, 173 and 174 of the Central Goods and Service Tax Act, 2017 and the penalty of the same amount under Section 78 of the Act - HELD THAT:- Without going into any further details of the dispute, this court is of the opinion that the court's endeavour should be to decide the dispute on merits after giving adequate opportunity of hearing to the parties and opportunity of hearing should not be denied on hyper-technical reasons. As the petitioner is willing to cooperate in the proceedings, it would be in the interest of justice to remand the matter for being decided afresh, after giving an opportunity of hearing to the petitioner.
The impugned order dated 08.01.2024, passed by the Principal Commissioner, CGST & Central Excise Commissionerate, Lucknow imposing tax liability and penalty on the petitioner is quashed.
The writ petition is allowed.
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2024 (5) TMI 116 - ALLAHABAD HIGH COURT
Seeking enlargement on bail - evasion of GST - supply of clandestine goods without issuance of invoices - during investigation the statements of two employees were recorded in which the allegations against the applicant were found established - HELD THAT:- On perusal of record, the evidence on record and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Applicant is allowed to be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to the fulfilment of conditions imposed - bail application allowed.
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2024 (5) TMI 115 - ALLAHABAD HIGH COURT
Appeal barred by time limitation - Violation of principles of natural justice - order for cancellation of registration passed without any application of mind - HELD THAT:- In the present case, the facts are similar to one in SURENDRA BAHADUR SINGH VERSUS STATE OF U.P. THRU. PRIN. SECY. COMMERCIAL TAX (GST) LKO. AND 2 OTHERS [2023 (8) TMI 1262 - ALLAHABAD HIGH COURT], wherein the appeal was barred by time under Section 107 of the Act. However, the Division Bench in Surendra Bahadur Singh's case took into consideration the original order and set aside the same being non-reasoned and allowed the petitioner therein to file reply to the show cause notice.
The orders impugned herein are liable to be set aside - Petition allowed.
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2024 (5) TMI 114 - CALCUTTA HIGH COURT
Levy of penalty @200% - e-way bill which was generated by the appellant had expired and at the time when the vehicle was intercepted four days had lapsed - intent to evade to tax or not - HELD THAT:- In the instant case, it is found that the order of adjudicating authority does not deal with the specific submission made by the appellant in the reply dated 13.09.2022 to the show cause notice. In other words, no reasons have been set out to record satisfaction of the authority that it is a fit case for imposition of penalty. Further, the adjudicating authority did not reject the stand taken by the appellant in their reply dated 13.09.2022.
In the absence of any allegation that there is an intention to evade payment of taxes and in the absence of any adverse inference drawn pursuant to the physical verification except that e-way bill had expired, the court if of the view that some lenience can be shown to the appellant. However, the conduct of the appellant in not extending the e-way bill for four days after its expiry cannot be absolutely condoned.
A transporter/owner of the goods is bound to carry certain documents as mentioned in the Act which are to accompany the goods. In the instant case, prior to the movement of the goods e-way bill was generated in which the tax invoice number was duly incorporated proof of payment of tax has also been established and e-way bill was valid till 05.09.2022 and mistake committed by the appellant is not extending the e-way bill after the expiry despite such liberty being granted under the Rules. The appellate authority in fact has accepted the contention of the appellant that the penalty amount has been computed on a higher value than the invoice value without proper evidence and reason.
Cnsidering the totality of the circumstances and the peculiar facts and circumstances of the case, the court is inclined to grant some indulgence to the appellant but will not completely exonerate the appellant - Considering the peculiarity of the facts, the appellant is liable to pay Rs. 1,00,000/- - appeal allowed in part.
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2024 (5) TMI 113 - MADRAS HIGH COURT
Eligibility for Input Tax Credit - failure to report outward supply - discrepancy between the petitioner's GSTR 1 and GSTR 3B - items not notified for being taxed on reverse charge basis - HELD THAT:- The respondent proceeded on the basis that it was an outward supply of goods. Such conclusion indicates non application of mind.
The petitioner submitted an explanation that the discrepancy was rectified while filing subsequent returns or that the discrepancy occurred on account of lower payments being made. On examining the impugned order on this aspect, it is noticeable that the respondents were not fully satisfied with the documentary evidence placed on record by the petitioner. The failure of the petitioner to provide all relevant documents certainly contributed to the state of affairs. With regard to the findings on these issues, it is appropriate to put the petitioner on terms as a condition for reconsideration.
The impugned order is set aside subject to the condition that the petitioner remits 10% of the disputed tax demand, on the assumption that tax is leviable at 12% thereon. Such remittance shall be made within two weeks from the date of receipt of a copy of this order. Subject to receipt thereof, the 1st respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue a fresh order within a period of three months from the date of receipt of remittance from the petitioner.
The writ petition is disposed off.
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2024 (5) TMI 112 - DELHI HIGH COURT
Violation of principles of natural justice - impugned order does not take into consideration the reply submitted by the Petitioner and is a cryptic order - non-application of mind - claim of ITC - HELD THAT:- The observation in the impugned order dated 28.12.2023 is not sustainable for the reasons that the reply dated 24.10.2023 filed by the Petitioner is a detailed reply with supporting documents. Proper Officer had to at least consider the reply on merits and then form an opinion. He merely held that the reply is not supported with complete relevant documents, which ex-facie shows that Proper Officer has not applied his mind to the reply submitted by the petitioner - Further, if the Proper Officer was of the view that any further details or documents were required, the same could have been specifically sought from the Petitioner. However, the record does not reflect that any such opportunity was given to the Petitioner to clarify its reply or furnish further documents/details.
The impugned order cannot be sustained, and the matter is liable to be remitted to the Proper Officer for re-adjudication. Accordingly, impugned order is set aside and the matter is remitted to the Proper Officer for re-adjudication - petition disposed off by way remand.
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2024 (5) TMI 111 - DELHI HIGH COURT
Seeking cancellation of the GST registration on the ground of closure of business - Rejection of application for cancellation - order does not give any particulars or details - principles of natural justice - HELD THAT:- There is no cogent reason on behalf of the Respondents as to why the applications seeking cancellation of the GST registration are being denied. If a trader seeks to shut the business and surrender its GST registration, there is no ground under which the department can refuse such an application except in cases where the interest of the revenue is at stake.
In the instant case, no such ground has been taken by the department. Furthermore, mere cancelation of the registration does not preclude the department from taking any action in accordance with law for recovery of any tax, penalty or fine that may be due and even from retrospectively cancelling the registration is circumstances so warrant - It may be noticed, that on an application being filed for cancellation of the registration, the registration is automatically suspended and no business can thereafter be carried out under the said registration.
In view of the fact that the Petitioner does not seek to carry on business or continue with the registration, the registration of Petitioner shall now be treated as cancelled with effect from 30.05.2023 i.e., the date when Petitioner first filed an application seeking cancellation of GST registration.
Petition disposed off.
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2024 (5) TMI 110 - SC ORDER
Maintainability of appeal before SC on tax effect - income qualification for deduction u/s 80HHC of the Act - excluding the net profit or gross profit - Benefit of netting - HELD THAT:- As petitioner states that there is no reason to dispute the tax effect calculation submitted by the learned counsel appearing for the respondent. The tax effect is below the threshold limits. Therefore, the Special Leave Petition is disposed of.
However, question of law, if any, is kept open.
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2024 (5) TMI 109 - SC ORDER
Validity of Revision u/s 263 - ITAT has set aside the said order of the Principal CIT as noted “this is not a case of inadequacy of enquiry. It is a case of absence of enquiry” - HC confirmed that ITAT appears to be a plausible one and not erroneous in law - HELD THAT:- We are not inclined to interfere with the impugned judgment and hence, the special leave petition is dismissed.
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2024 (5) TMI 108 - ALLAHABAD HIGH COURT
Revision u/s 263 - as per CIT AO failed to enquire the deduction claimed u/s 54 - ITAT justification in holding that the order passed u/s 263 suffered from "hypertechnical approach" in following the provision of Section 54(2) - HELD THAT:- Tribunal has opined that the order may not have been prejudicial to the interest of revenue. Though not worded as such that appears to be the real finding of the Tribunal inasmuch as the Tribunal has observed that the revisional authority has not expressed any doubt regarding the quantum of capital gain arising at the hands of the assessee and that it was invested in purchase/construction of residential house.
We find, there is no material to doubt the correctness of the findings recorded by the Tribunal. While procedural lapse may have been caused by the assessee in observing the provision of Section 54 of the Act, in absence of real prejudice having arisen to the revenue, upon claim capital gain having been allowed by the Assessing Officer the Tribunal may have rightly allowed the assessee's appeal.
Seen in the context of an assessee with modest means, we find, the CIT had unnecessarily drawn up revision proceedings upon a procedural lapse as no real prejudice may have ever arisen to the revenue authorities in the context of petty amount involved. No substantial question of law arises.
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2024 (5) TMI 107 - ALLAHABAD HIGH COURT
Reference to Departmental valuation officer[DVO] without first rejecting the books of accounts - HELD THAT:- Provision of law empowers the assessing officer to make a reference, however, the stage for making the reference being after rejection of books of account, the decision in Sargam Cinema [2009 (10) TMI 569 - SC ORDER] holds the field.
Since the essential facts with respect to making of reference have not been dealt by the Tribunal, we would not like to allow that discussion to arise before us. Accordingly, the order of the Tribunal is set aside and the matter remitted to the Tribunal to pass a fresh order keeping in mind the observations made above. Thus the Tribunal may first determine if the books of account of the assessee had been rejected before reference was made to the DVO. Only in the event the books are found to have been rejected before the reference order was made, the further issue of a edition may survive for consideration.
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2024 (5) TMI 106 - BOMBAY HIGH COURT
Validity of reopening of assessment - Validity of grant the approval by the PCIT - relevancy of information reported by Insight portal - reason to believe - AO proceeds on the basis that on a search conducted under Section 132 on one Prathamesh Constructions,as subcontracting its jobs to various subcontractors and Petitioner was one of such sub-contractors - as submitted AO is a mere post office, who finds materials and then forwards it to the Faceless Assessing Officer (“FAO”) and the FAO will go into the details to decide whether there is any escapement of income -
HELD THAT:- Admittedly, in the notice issued under Section 148A (b) of the Act, certain allegations have been made to which reply has been filed and the AO has accepted that the information is accounted for by the assessee. AO, wanted to verify the genuineness of the contract work done by Petitioner or whether any accommodation entry was provided to Prathamesh Constructions. It is necessary to note that, first of all, in re-assessment proceedings, the law is clear. An Assessing Officer cannot indulge in a fishing enquiry.
In this case, the AO has accepted the contention of the assessee and held that the information report by the Insight portal is accounted for by the assessee in his books and income arising out of those transactions is duly offered for taxation. Therefore, the impugned order dated 21st April 2023 under Section 148A (d) of the Act cannot be sustained. At the same time if the AO wishes to, he could issue a fresh notice under Section 148A (b) of the Act if, that is permitted in law. We are expressing no opinion.
In the circumstances, the AO having accepted the explanation of Petitioner, he could not have gone ahead and recommended that it was a fit case where income chargeable to tax has escaped assessment. We would add that the approval granted by the PCIT is also without application of mind. In the approval, it is stated “I have perused the facts of the case vis-a-vis information/material available on record and found the case to be fit case for issue of notice u/s 148 of the I.T. Act, 1961. Accordingly, the draft order u/s 148A (d) of the I.T. Act submitted by the AO is approved.” If only the PCIT had read the impugned order and the notice issued under Section 148A (b) of the Act, he would have refused to grant the approval. The PCIT seems to have done nothing and it is clear that he has mechanically signed the approval. Decided in favour of assessee.
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2024 (5) TMI 105 - BOMBAY HIGH COURT
Validity of reopening of assessment - During the pendency of first reassessment proceedings, Petitioner received another notice u/s 148A(b) once again, alleging escapement of income - HELD THAT:- In absence of information in the notice issued u/s 148A(b) of the Act with regard to the first two items mentioned in the order u/s 148A(d) of the Act [i.e., (i), Purchase of shares by related PAN of penny stock of EML and GBFL Limited and (ii) Sale of shares by related PAN of penny stock of EML and GBFL Ltd] and the fact that assessment orders have already been passed with regard to those two items and item 2 includes item 1 mentioned above, also clearly indicates total non-application of mind by the Assessing Officer (“AO”) as also by the Principal Chief Commissioner of Income Tax (“PCCIT”), who has granted the approval u/s 151.
Such an order has been passed without referring to first two items in the notice that was issued under Section 148A(b) of the Act. Decided in favour of assessee.
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2024 (5) TMI 104 - ITAT AHMEDABAD
TCS u/s 206C - assessee fault as neither collecting tax at source@1% and neither submitting declaration in Form-27 BA from the buyers of the scrap - HELD THAT:- We observe that from plain language of the Statute, since no specific timeline has been prescribed on the date when such declaration is to be received by the person collecting TCS from the purchaser i.e. no specific time obligation has been cast upon the purchaser of goods to furnish Form 27C to the seller. It would be onerous on person collecting TCS (seller) to be denied the opportunity of furnishing Form 27C, provided the seller is able to demonstrate that there was no lack on his part in furnishing Form 27C as soon as it was received by him from the purchaser to whom scrap had been sold.
In the case of Gopallal Ramprasad Kabra [2023 (2) TMI 746 - ITAT RAJKOT] ITAT held that where assessee-company sold scrap without collecting TCS, since, Form no. 27C was submitted by assessee although belatedly before Commissioner (TDS) and as there was no time-limit provided in Section 206C(1A) to furnish declaration in Form no. 27C by buyers, delay in filing said declaration to prescribed authority would not be ground to deny benefit to assessee.
In the case of Chandmal Sancheti [2017 (8) TMI 1182 - ITAT JAIPUR] ITAT held that since no time limit is provided in Section 206C(1A) to make a declaration in Form 27 collected from buyers; hence delay in filing declaration shall not be ground to deny benefit of declaration to assessee.
Looking into the instant facts, in the interest of justice, the entire matter is restored to the file of Assessing Officer to firstly, verify the veracity/genuineness of Form 27C submitted by the assessee with respect to the aforesaid parties, and if the same is found to be in order, to grant necessary relief, accordance with law. Secondly, the AO is also directed to carry out the necessary verification in terms of the directions given by Ld. CIT(A) with respect to the balance 17 parties, in respect of whom the assessee has already furnished Form 27BA - Appeal of the assessee is allowed for statistical purposes.
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