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Showing 241 to 260 of 1469 Records
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2021 (7) TMI 1231
Cenvat credit - Bill of Entry in the name of the supplier of the raw material i.e. M/s Marico Limited - goods were received by the appellant as a job worker and used in the manufacture of goods on the job work basis - HELD THAT:- Right from the Show Cause Notice the case of the department is only that whether the appellant is entitled for the Cenvat credit on the strength of Bill of Entry which is in the name of principal supplier M/s Marico Limited along with declaration given by M/s Marico Limited. There is no dispute about receipt, use of the goods supplied by M/s Marico Limited under the cover of Bill of Entry along with declaration in favour of the appellant. Even though the Bill of Entry is in the name of M/s Marico Limited but on the basis of declaration it is established that the material has been supplied to the appellant for job work, therefore, merely because Bill of Entry is bearing the name of M/s Marico Limited, Cenvat credit cannot be denied to the appellant.
In the case of M/S TRICHEM LAB. (BOMBAY) PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, BELAPUR [2016 (6) TMI 616 - CESTAT MUMBAI], Tribunal has considered that on the basis of the Bill of Entry supported with declaration given by the importer is a valid document for availing the credit by the job worker - thus, appellant is entitled for Cenvat credit on the strength of Bill of Entry even though the same is in the name of M/s Marico Limited but with a declaration in favour of the appellant.
Credit allowed - appeal allowed - decided in favor of appellant.
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2021 (7) TMI 1230
Penalty u/s 271(1) (c) - Addition on ad–hoc basis - HELD THAT:- AO imposed penalty under section 271(1)(c) of the Act on ad–hoc basis without adducing any evidence on record for concealment of income. Penalty under section 271(1)(c) of the Act is liable to be imposed only where the assessee has concealed its particulars of income or furnished inaccurate particulars. Action of making addition on ad–hoc basis does not result into imposition of penalty u/s 271(1)(c) and hence cannot be termed as either concealment or furnishing of inaccurate particulars of income. We find support from the series of decisions by different High Courts as well the decision of the Co–ordinate Benches of the Tribunal, wherein it was held that when addition is made on estimate basis, penalty is not sustainable in the eyes of law.
Departmental Authorities has not brought any cogent material to prove otherwise warranting interference at the instance of the Revenue. In this view of the matter, we are of the considered view that the learned CIT(A) was indeed justified in deleting the penalty, as there was no concealment of income on the part of the assessee have been proved by the Revenue and additions made on estimation by the Assessing Officer do not call for initiation of penalty - Decided against revenue.
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2021 (7) TMI 1229
Addition on account of Short Deduction of TDS - Intimation u/s. 200A - HELD THAT:- As per the provisions of Sec.201(1), where the assessee, inter-alia, fails to deduct whole or any part of the tax then such persons shall be deemed to be an assessee-in-default. However, as per the first proviso, the assessee shall not be deemed to be assessee-in-default in respect of such tax if the payee has furnished his return of income u/s 139 and has taken into account such payment for computing income and has paid tax due on income declared by him in such return of income.
For the same, the payee is required to furnish a prescribed certificate to that effect. Thus, if the assessee could demonstrate the fulfilment of all these requirements, he could not be treated as assessee-in-default. To get the benefit of the proviso, the assessee is directed to demonstrate the fulfillment of these requirements before Ld. TDS officer who shall consider the same. If the same are found in order, the assessee could not be treated as assessee-in-default and the demand raised for short deduction of TDS shall stand deleted. We order so. The ground thus raised stands allowed for statistical purposes.
Computation of interest u/s 201(1A) - As per clause (i), The assessee is liable to pay simple interest on short payment of tax from the date on which tax was deductible to the date on which tax was deducted. Clause (ii) provides for interest on the amount of such tax from the date on which the tax was deducted to the date on which the tax was actually paid.
As been provided that in case the assessee is not treated as assessee-in-default in terms of first proviso to sub-section (1) then interest under clause (i) shall be payable from the date on which tax was deductible to the date of furnishing of return of income by the payee.Therefore, the statutory provisions are quite clear. The payment of interest shall be mandatory and the period shall run from the date on which tax was payable to the date of furnishing of return of income by the payee. Payment of interest is mandatory but the same may be re-computed at correct rates after ascertaining the fact that whether the assessee could be treated as assessee-in -default or not. The grounds, thus raised, stand partly allowed for statistical purposes.
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2021 (7) TMI 1228
Assessment u/s. 144 - Cash deposits into Citizen Co-operative bank account as income of the assessee under the head 'income from other sources' - HELD THAT:- AO has proceeded on the assumption that the cash deposits are after the death of assessee's father, and the assessee could not file all the details before the AO and the CIT(A), we deem it fit and proper to remit the issue to the file of the AO with a direction that AO shall reconsider the issue afresh in light of material filed by the assessee in accordance with law. The assessee is directed to cooperate with the AO by giving all details, failing which, AO can take necessary decision as per law.
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2021 (7) TMI 1227
LTCG - registered sale deed was executed by the legal heirs of late Sri G. Sattiah - Assessee along with her sister and 6 brothers, sold 12 plots of land and the assessee's 1/8th share in S.R.O. value (after applying the provisions of section 50C - HELD THAT:- Undisputed facts are that the assessee's father, late Sri G. Sattaiah during his lifetime had sold certain piece of land to various vendees and some of the vendees have also passed away and at the request of the vendees and the legal heirs of deceased vendees, the LRs of the vendor, late Sri Sattaiah, have executed registered documents in their favour. In the light of such circumstances, the assessee and her brothers have executed the sale deed, in respect of properties, whose possession of the property was already given. In view of provisions of section 53A of the Transfer of Property Act, the properties have already been transferred in favour of the vendees except for the execution of the registered sale deeds. As rightly contended by the assessee, the transfer has taken place in the earlier assessment years when late Sri G. Sattiah was alive.
As regards the finding of the AO that LTCG has arisen out of retention of 500 square yards by assessee's brothers, find that the assessee has stated before the CIT(A) that 500 square yards vested with late Sri G. Sattiah and after his demise, his sons received the property and constructed house thereon and that it was not received by assessee's brothers by virtue of gentleman agreement.
CIT(A) has not verified this fact but has merely gone by the presumption that the assessee had relinquished her right over the 500 sq. yards plot retained by assessee's brothers. Since the land retained by the assessee's brothers cannot be treated as transfer in their favour, there cannot be any relinquishment or right by the assessee in such property. Therefore, there is no incidence of any LTCG in favour of the assessee during the alleged assessment year when the registered sale deed was executed by the legal heirs of late Sri G. Sattiah, with regard to the transaction which had taken place during the earlier assessment year. Thus, the assessee's grounds of appeal are allowed.
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2021 (7) TMI 1226
Penalty u/s. 271(1)(c) - Non specification of specific charge - irrelevant portion in the notices were not striked off and contended that such a levy of penalty was void ab initio and requested to be deleted - additions pertain to bank deposits and deduction claimed u/s. 80C - HELD THAT:- CIT(A) had observed that the A.O. records satisfaction for imposition of penalty was for concealment of income, however, he omitted to strike off the irrelevant part of the blank printed format notice u/s. 274 r.w.s. 271(1)(c) and thus without striking off the irrelevant portion in the notice contemplates in vitiating the penalty proceedings.
The admitted fact that the A.O. has issued blank printed format notices, without striking off irrelevant portion u/s. 274 r.w.s. 271(1)(c) duly signed under its signature. We understand that the A.O. while issuing Notice under section 271(1)(c) of the Income-tax Act, 1961 is under statutory obligation that the assessee must be informed of the grounds of the penalty proceedings only through statutory notice. These notices primarily suffered from ambiguity and the vice of vagueness, thus, vitiated the penalty proceeding.
Decided in favour of assessee.
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2021 (7) TMI 1225
Penalty levied u/s. 271(1)(c) - transfer of agricultural land were subjected to capital gain tax and as the assessee did not offer the gains in his return of income - As strongly contended that when the assessee sold the impugned piece of agricultural land said land was beyond the distance of 8 KMS from the municipal limits and this was confirmed by the Tehsildar of Sohana - CIT(A) deleted the penalty levied by the AO - HELD THAT:- It is an undisputed fact that the distance of the land sold on the date of CBDT notification No. 9447 dated 06.01.1994 was more than 8 KMS. As equally true that on the date of sale the said distance was less than 8 KMS. We are of the considered view that the chargeability of capital gain tax under such circumstances is a debatable issue. We further find that the appellant claim is well supported by the certificate of the Tehsildar, Sohna which was also confirmed by the A.O. in his remand report.
Hon'ble Supreme Court in the case of Reliance Petro Chemicals Limited [2010 (3) TMI 80 - SUPREME COURT] has held that merely making an incorrect claim would not tantamount to furnishing of inaccurate particulars unless it was established that appellant had acted with mala fide intention. In totality in the light of certificates of the Tehsildar, Sohna we are of the considered view that the CIT(A) has rightly deleted the penalty levied u/s. 271(1)(c) of the Act and calls for no interference. Appeal filed by the revenue is dismissed.
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2021 (7) TMI 1224
Levy of penalty u/s. 271(1)(c) - HELD THAT:- Penalty proceedings u/s. 271(1)(c) of the Act has been initiated by the Ld. AO for concealment of income, but ultimately the penalty has been levied by the Ld. AO for furnishing inaccurate particulars of income. This is a classic case wherein penalty has been initiated under one limb of Section 271(1)(c) of the Act and ultimately levied for another limb of Section 271(1)(c) of the Act.
In the case of CIT vs. Samson Perinchery [2017 (1) TMI 1292 - BOMBAY HIGH COURT] had held that concealment of income and furnishing of inaccurate particulars of income in Section 271(1)(c) of the Act carry different meanings/connotations and therefore, the satisfaction of the AO with regard to only one of the two breaches mentioned u/s. 271(1)(c) of the Act, for initiation of penalty proceedings will not warrant/permit penalty being imposed for the other breach. The order imposing penalty has to be made only on the ground of which penalty proceedings has been initiated, and it cannot be on a fresh ground of which the assessee has no notice. Therefore, where the Assessing Officer initiated penalty proceedings u/s. 271(1)(c) for furnishing inaccurate particulars of income, the order imposing penalty for concealment of income was not valid - we hereby direct the Ld. AO to delete the penalty levied u/s. 271(1)(c). - Decided in favour of assessee.
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2021 (7) TMI 1223
Reopening of assessment u/s 147 - Bogus purchases - information gathered from DGIT (Investigation) Mumbai that Sanjay Choudhary group persons had floated various companies which are engaged in the business of providing accommodation entries in the form of bogus unsecured loans, bogus purchases, bogus capital gains and assessee also was one of the beneficiaries by obtaining bogus purchases - HELD THAT:- Admittedly this information was obtained by the Ld. AO based on search and seizure action carried out in the case of Shri Sanjay Choudhary group wherein it was found that the said group was engaged in providing accommodation entries without actual supply of goods, which had ultimately triggered the reopening of assessment in the case of the assessee.
CIT(A) had observed that from the information so received, the assessee's name appeared in the list of beneficiaries who had taken accommodation entries. Obviously this would result in formation of belief in the mind of the AO that income of the assessee had escaped the assessment as the said information constituted tangible material. We find that the Ld. CIT(A) had also placed reliance on the decision of the Hon'ble Gujarat High Court in the case of Peass Industrial Engineers Pvt. Ltd.[2016 (8) TMI 280 - GUJARAT HIGH COURT]in support of its contentions, while upholding the validity of reopening. Hence, we do not find any infirmity in the order of the Ld. CIT(A) upholding the validity of reopening of the assessment in the instant case. Accordingly, the ground No. 1 raised by the assessee for both the years is hereby dismissed.
Bogus purchases - In the instant case, the sales made by the assessee within the disputed purchases had not been doubted by the Revenue. Hence, it could be safely concluded that assessee could have made purchases from grey market in order to have some savings in indirect taxes and incidental profit element thereon by making cash purchases. Hence, it would be just and fair to bring to tax only profit element embedded in the value of such disputed purchases. We find based on the report of the task group for diamond sector published by the Government of India, Ministry of Commerce and Industry, in this regard, wherein the benign/presumptive taxation threshold was set at 2.5%. We hold that profit percentage embedded in the value of disputed purchases estimated at 2.5% thereon, would meet the ends of justice. The Ld. AO is directed accordingly.
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2021 (7) TMI 1222
Assessment u/s 153A - Non-service of notice - HELD THAT:- There is no dispute of the fact that the search & seizure operation in this case took place on 20.06.2014, by which date the time period to issue notice u/s. 143(2) for assessment year 2009-10 stood expired. There is also no dispute that no incriminating material was found during the search and seizure operation to base any addition qua this assessment year.
In CIT vs. Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] Hon'ble Delhi High Court held that the assessment cannot be made arbitrarily without any relevance or nexus with the seized material and the assessment in such cases has to be made only on the basis of incriminating material found during the search and completed assessments cannot be interfered with arbitrarily. In such circumstances, the finding of the ld. CIT(A) cannot be interfered with. - Decided against revenue.
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2021 (7) TMI 1221
TDS u/s 194I - rent paid to five person - Addition u/s. 40(a)(ia) - HELD THAT:- In so far as the payment to four persons is concerned, none of such persons received an amount exceeding ₹ 1,80,000/- in the financial year and therefore, under proviso to section 194-I, no deduction need be made. This is the reason why the ld. CIT(A) did not confirm such an addition and she confined her discussion to the addition of ₹ 3,36,000/-. Though it is implied from the order of the ld. CIT(A), now we expressly state that the addition made by the Assessing Officer in respect of payments made to four individuals is unsustainable and shall stand deleted.
Amount paid to one Sh. Chandra Kant Adrekar - The record reveals that Form 26A dated 10.01.2017 was issued by the assessee and it was countersigned by the Chartered Accountant and inasmuch as it was not submitted to DCIT(Systems), the ld. CIT(A) held that there was no sufficient compliance with the Rules. Be that as it may, the leaned CIT(A) was not sure as to the fact whether the income of the payee was below the maximum amount not chargeable to tax.
As submitted before the ld. CIT(A) that the assessee was required to file the details of expenses, on which TDS was deducted and the Assessing Officer did not seek any explanation for non-deduction of TDS in respect of this amount. According to the assessee before the ld. CIT(A), this prevented the assessee from producing Form 26A before the Assessing Officer. In these circumstances, when once form 26A was produced before the CIT(A), the fact of income of the payee below the maximum amount not chargeable to tax assumes importance, and in the absence of any finding on this aspect, the addition cannot be sustained. In the circumstances, we find it difficult to sustain the orders of the authorities below and accordingly allow the grounds of appeal. - Decided in favour of assessee.
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2021 (7) TMI 1220
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - reply to the demand notice made or not - HELD THAT:- This Adjudicating Authority is satisfied that the Operational Creditor has proved its case by placing evidence that default has occurred for which the Corporate Debtor was liable to pay.
Reply to demand notice - HELD THAT:- It is seen that no reply to the demand notice served u/s. 8 of the Code was ever made by the Respondent to indicate either existence of dispute or proof of payment of the impugned debt. In fact, during the initial phase of the instant proceedings upto 13.02.2020, the Respondents sought time for settling the matter and for filing Joint Memo of Settlement, but there was no representation thereafter.
The Operational Creditor has fulfilled all the stipulations as required under the provisions of the IB Code, 2016 for the purpose of initiating Corporate Insolvency Resolution Process. In these circumstances, having satisfied with the submissions made by the Petitioner/Operational Creditor, this Adjudicating Authority is inclined to admit the instant Application.
The instant application is hereby admitted - Moratorium declared.
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2021 (7) TMI 1219
Addition u/s 40A(7) - contribution towards the gratuity funds - HELD THAT:- It is the case of the assessee that the assessee had made contribution towards the gratuity funds during the assessment year under consideration and therefore the assessee is entitled to the dedication liable under section 40A(7) of the Act.
Once the assessee had made the payment during the year under consideration then the same is required to be allowed. However, the above said fact have not been considered by the lower authorities and therefore we deem it appropriate to remand back the matter to the file of the concerned AO to verify whether the contribution towards the gratuity funds were paid by the assessee during the year under consideration or not. If on verification the AO comes to the conclusion that the contribution were made in the year under consideration then the AO is directed to allow the benefit of 40A(7) to the assessee - while verifying above set back of contribution the AO shall afford the opportunity to the assessee and also permit him to support the contention on the basis of the documents/evidence may be advised. Accordingly, the appeal of assessee is allowed for statistically purposes.
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2021 (7) TMI 1218
Refund of CENVAT Credit - pre-deposit made under protest - invoices issued fraudulently - rejection on the ground of time limitation - Section 11B (5) (ec) of Central Excise Act, 1944 - HELD THAT:- There is no denial for the fact that ₹ 10,30,000/- was deposited by the appellant at the stage of investigation itself. Any deposit made at the time of investigation is settled to be an amount to be called as pre-deposit under protest.
The second proviso to section 11B of CEA is sufficient to hold that the adjudicating authority below has wrongly invoked Section 11B ofCentral Excise Act to hold the impugned refund as barred by time.
The relevant date in terms of 11 B (ec) shall be the date of the final order which is 10 November, 2017. The application for refund in question has been filed on 9 July, 2018 as is apparent from the documents annexed with the written synopsis and has also been noted by Adjudicating Authority - the document submitted by the appellant which apparently bears the acknowledgment of receipt by the Department as well has to be considered as the date of application of refund which is 9 July, 2018. Seen from this angle, the application is held within one year from the date of Final decision in favour of the appellant.
The cumulative finding of the entire discussion is that Section 11 B has wrongly been invoked by adjudicating authority below. Otherwise also the refund claim has been made well within the reasonable period - appeal allowed - decided in favor of appellant.
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2021 (7) TMI 1217
Penalty u/s 271(1)(c) - disallowance on account of direct expenses - HELD THAT:- Whether or not the learned CIT(A) was justified in deleting the penalty u/s 271(1)(c) of the Act imposed by the AO. After hearing the Departmental Representative, we are of the considered opinion that penalty u/s 271(1)(c) levied by AO has no legs to stand, when the corresponding additions made by the AO has already been reduced substantially on the basis of estimation by the Tribunal - when the aforesaid quantum addition is based purely on estimation, the penalty levied u/s 271(1)(c) cannot be sustained. Such proposition of law has been laid down by the Tribunal time and again in plethora of cases.
Consequently, we do not have enough reason or do not find any infirmity in the order of the learned CIT(A) deleting the penalty under section 271(1)(c) of the Act imposed by the AO. Accordingly, the order of the learned CIT(A) is hereby upheld. The grounds raised by the Revenue are dismissed.
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2021 (7) TMI 1216
Interest on late payment of sanctioned refund - Section 11BB of Central Excise Act, 1944 - despite order, refund not ordered till date - HELD THAT:- The refund claim of the appellant stands already allowed with consequential relief. Since the order of Commissioner (Appeals) is silent about the sanction of interest and the law if mandates the interest to flow consequent to sanction of refund that shall be covered under the order of consequential relief already passed by Commissioner (Appeals).
There are no cause of action as of now available with the appellant to challenge the said order. The appropriate remedy would have been sought by filing an application to the Department seeking implementation of the impugned order No.81/2019 dated 25th November, 2019.
The appeal is, therefore, held to be pre-mature, accordingly, stands disposed of giving liberty to the appellant to approach the Department.
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2021 (7) TMI 1215
Disallowance u/s 14A - assessee has suo-moto disallowed an amount - HELD THAT:- After considering the submissions of the assessee, we are in agreement with the assessee based on the decisions of the Hon’ble High Court’s that the disallowance under section 14A is restricted to exempt income earned by the assessee.
As relying on Chalet Hotels Ltd [2021 (1) TMI 1134 - ITAT MUMBAI] we are inclined to direct the assessing officer to restrict the disallowance under section 14A to the extent of exempt income earned by the assessee. Accordingly ground raised by the assessee is allowed.
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2021 (7) TMI 1214
Refund of ITC - ITC accumulated due to Invented Tax Structure - denial on the ground that the seller has not remitted tax with the appropriate State/Central Government authorities and disclosed in his GSTR-1 Return - HELD THAT:- On going through the submission of appellant and RFD-06 I find that the out of total amount of refund of ₹ 9,54,051/- only ₹ 6,27,004/- have been sanctioned by the adjudicating authority.
The adjudicating authority has accordingly processed the refund application and sanctioned the refund amount ₹ 6,27,004/- under Section 54 of the CGST Act, 2017. Further, he also mentioned in the remark that assessee requested to refund the pending sum of ₹ 6,27,004/- hence RFD-06 is being issued, and in column of RFD-06 “Wrong ITC Claim” ₹ 3,27,047/- (State/UT Tax) has been entered by him - the appellant has stated in appeal memo that due to the lockdown period he was under financial crisis accordingly he submitted their written intimation in Form of GST RFD-09 and RFD-06 was issued without providing him any personal hearing and out of total amount of refund ₹ 9,54,051/- only ₹ 6,27,004/- was paid to him.
It would be appropriate to remand back the case to the adjudicating authority to examine the eligibility of ITC in detail and consequently the refund claim of the appellant up to the extent of remaining amount of refund which were not sanctioned. Further, to follow the principle of natural justice by being heard to him and pass the speaking order accordingly - appeal allowed by way of remand.
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2021 (7) TMI 1213
Refund of IGST - IGST was paid inadvertently instead of CGST and SGST - refund claim of excess paid CGST - rejection of refund on the ground of time limitation - it is also alleged that reply to SCN does not address the issue of delay in filing refund application - period July, 2017 to March, 2018 - Section 54 of CGST Act, 2017 - principles of natural justice - HELD THAT:- Despite the submission of written reply, adjudicating authority has passed the Orders-in-Original all dated 23-4-2020 wherein he has rejected the refund claims without granting any opportunity of personal hearing to the appellant. Moreover, adjudicating authority did not consider appellant’s request for adjournment of personal hearing until COVID-19 is eased. Thus, it is found that the appellant did not avail the opportunity of personal hearing in the matter.
The adjudicating authority while rejecting the refund claims of the appellant neither considered their defence submission/reply nor first request for seeking adjournment of personal hearing due to COVID-19 lockdown. Moreover, the adjudicating authority did not discuss any provisions of law/rules and method on the issue of time barred on which basis the refund claims become time barred - also, passing of non-speaking order indeed amount to denial of natural justice.
Before passing of orders the request for seeking adjournment for personal hearing in the matter should have been considered and speaking order should have been passed by giving proper opportunity of personal hearing in the matter to the appellant and detailing factors leading to rejection of refund claims should have been discussed - case remanded to the adjudicating authority for decide the case afresh by following the principle of natural justice and for passing the speaking order in view of submission of appellant - appeal allowed by way of remand.
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2021 (7) TMI 1212
Rectification of Mistake - typographical error - error apparent on the face of record or not - HELD THAT:- On perusal of the impugned order, it is noticed that such typographical error has indeed occurred in para No.4.1 and 4.2 and needs correction. “Therefore, this corrigendum order is issued, to correct the above mentioned error.
Appeal disposed off.
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