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Showing 241 to 260 of 1564 Records

• 2024 (8) TMI 1324
  

  Clarification of the galvanized iron sheets - whether the Deputy Commissioner, could have refused deferment of hearing despite the said question being before this Court? - HELD THAT:- Under Section 14 (iv) of the CST Act, the various products of Iron & Steel were sub-categorised into (i) to (xvi). The issue before the Hon’ble Supreme Court in the case of STATE OF TAMIL NADU VERSUS PYARE LAL MALHOTRA [1976 (1) TMI 151 - SUPREME COURT] was whether a product, which is created or procured from another product within the same sub-category, can be treated commercially as a different product, whose sale is exigible to tax. The Hon’ble Supreme Court replied in the negative - This entry under the Central Sale Tax, Act has now been shifted as the Entry 70 (vi) of the IV Schedule of the AP VAT Act.

  Entry 70 (vi) of the IV Schedule of the AP VAT Act includes sheets, hops, strips and skelp, which could be black or galvanished or hot and cold rolled or plain and corrugated. This would mean that corrugating plain sheets resulting in corrugated iron sheets or corrugated coil from iron or steel into sheets would not move any of the products out of the sub-entry.

  The view of the Calcutta High Court in the case of PHANINDRA NATH MANNA AND COMPANY VERSUS COMMERCIAL TAX OFFICER AND OTHERS [1973 (9) TMI 85 - CALCUTTA HIGH COURT] can also be taken into account. The Calcutta High Court while dealing with a similar issue had held 'In commercial parlance galvanised sheet includes both corrugated and plain sheets. The certification marks scheme formulated by the Indian Standard Institute for steel products shows that galvanised sheet includes corrugated and plain sheets. Such sheets after corrugation do not lose their character as iron sheets.'

  Petition disposed off.

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• 2024 (8) TMI 1323
  

  Restrictive scope of appellate jurisdiction under Section 125 of the Electricity Act, 2003 - Applicability of the force majeure clause - Whether the extension of the Scheduled Commissioning Date was occasioned under the force majeure clause of the Power Purchase Agreement? - whether the reduction in tariff payable to the respondents is justified.

  HELD THAT:- The law on force majeure, specifically in the context of PPAs, has been comprehensively dealt with by this Court in Energy Watchdog v. Central Electricity Regulatory Commission [2017 (4) TMI 1385 - SUPREME COURT]. The Court delved into contractual jurisprudence on force majeure clauses and frustration of contracts. It held that Sections 32 and 56 of the Indian Contract Act, 1872 govern the law on force majeure. When the contract contains an express or implied force majeure clause, it is governed under Chapter III of the Contract Act, specifically Section 32. In such cases, the ‘doctrine of frustration’ in Section 56 does not apply and the court must interpret the force majeure clause contained in the contract. It held that a force majeure clause must be narrowly construed.

  The entire dispute before the KERC and the APTEL revolves on a question of fact – whether the respondents were negligent or not diligent in securing approvals and hence, is the delay in commissioning attributable to them. The KERC’s appreciation of the evidence has led it to the conclusion that the delay in commissioning was due to the respondents’ delay in making the applications, despite the approval of the PPA. However, the APTEL has taken note of certain additional factors affecting the time taken to secure the approvals that were not considered by the KERC. These include the time taken by the government to provide the PTCL that is required for approval of land conversion, and the delay caused by the authority in evacuation approval - there is no error in the APTEL’s approach, and it is reasonable in its reappreciation of evidence.

  The delay is not attributable to the respondents and that the force majeure clause is applicable, it rightly held that the extension of time under Article 2.5 is warranted and the commissioning of the project on 24.08.2017 is within the extended period of 24 months. Consequently, the APTEL also rightly held that there is no occasion for the imposition of liquidated damages under Articles 2.2 and 2.5.7 or for the reduction of tariff under Article 5.1 of the PPA - The APTEL has primarily decided a question of fact as to the attributability of the delay, and from the above, it is clear that the APTEL’s findings are neither illegal nor unreasonable. There are no reason to interfere with the same.

  Appeal dismissed.

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• 2024 (8) TMI 1322
  

  Seeking release of export subsidy of Rs. 8,08,50,000/- - Respondent No. 2 submitted a report confirming that the Milk Powder exported by the Petitioner, i.e., 1617 metric tonnes, is out of the stock which was in existence on 30th June 2018 and hence the Petitioner was entitled to receive the export subsidy under the Government Resolution dated 31st July 2018 - HELD THAT:- It is observed that once a party like Indapur, who was similarly placed like the Petitioner, was in receipt of such subsidy, which is certainly in the nature of a State largesse, all attributes of reasonableness and fairness emanating from Article 14 of the Constitution of India would stare at the Respondents in similar treatment to be meted out to a person like the Petitioner who was identically placed. A different treatment being meted to the Petitioner would result in breach of the basic rights of the Petitioner of non-discrimination guaranteed to the Petitioner under Article 14 of the Constitution. The subsidy scheme in question is a welfare scheme and which was fully implemented and acted upon in the case of Indapur. Thus, no technical argument would prevent this Court from recognizing such Constitutional rights as conferred on the Petitioner as also recognized by the Scheme.

  So far as the judgements of the Supreme Court in the case of M/S. VISHAL PROPERTIES PVT. LTD. VERSUS STATE OF U.P. & ORS [2007 (10) TMI 647 - SUPREME COURT] relied upon by the Respondents in the context of negative equality are concerned, they lay down the proposition that Article 14 is not meant to perpetuate an illegality. They further lay down that Article 14 provides for positive equality and not negative equality and the Courts are not bound to direct any authority to repeat any wrong action done by it earlier.

  There can be no dispute about the proposition of law laid down in these judgements. However, these two judgements are squarely distinguishable on facts in the present case. In the present case, on identical facts, this Court has directed release of payment of Export Subsidy to Indapur. This Court has done so on the basis that Indapur was legally entitled to the same and that there was no illegality involved in making payment of the said Export Subsidy to Indapur. Therefore, the question, of any illegality or negative equality, does not arise in the present case.

  Thus, this Court has directed release of payment of export subsidy to Indapur on the basis that Indapur was legally entitled to the same.

  The Respondents are directed to release in favour of the Petitioner the export subsidy amount of Rs.8,08,50,000/- within a period of six weeks from the date of this order - petition allowed.

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• 2024 (8) TMI 1321
  

  Seizure of huge quantity of fake Indian currency notes of Rs. 500/- denomination and the nature of the currency notes - ingredients under Section 489B of the Indian Penal Code present or not - HELD THAT:- In the case of HODA SK. VERSUS STATE OF WEST BENGAL [2020 (1) TMI 1695 - CALCUTTA HIGH COURT], the Hon’ble Division Bench of this court on an interpretation of the facts of the case in the background of the word ‘possessing’ as used in the charge framed under Section 489B by the learned trial Court was displeased with the language as used in the charge and, as such, decided to acquit the appellant under Section 489B of the IPC. Although, it upheld the conviction under Section 489C of the IPC.

  In the case of DOLON SK. AND ORS. VERSUS STATE OF WEST BENGAL [2022 (2) TMI 1461 - CALCUTTA HIGH COURT], the Hon’ble Division Bench took into account the words ‘traffic’ and ‘otherwise trafficking in’ and compared the same with the charges which were framed therein, thereby, acquitting the appellant under Section 489B of the IPC and sentenced him to suffer imprisonment for the offence under Section 489C of the IPC.

  Here, it would be apposite to rely upon the findings of the Hon’ble Division Bench in the judgment of JUBEDA CHITRAKAR VERSUS STATE OF WEST BENGAL [2019 (11) TMI 1836 - CALCUTTA HIGH COURT], wherein while interpreting Section 489B of the IPC relying upon the judgment of Gujrat High Court as well as the Madhya Pradesh High Court, it was held that when an accused person is carrying sizeable quantity of fake currency notes on a public road or otherwise in a concealed manner, it would amount to active transportation of such currency notes at the time when the accused person is apprehended. As such, while no explanation is offered by the accused, when questioned, under Section 313 of the Code of Criminal Procedure. regarding the possession of the fake currency note, the burden of proof of facts within the knowledge of the person which is to be discharged in terms of Section 106 of the Evidence Act – calls for an explanation.

  It is found from the factual circumstances that the appellant was at a public place being Dhuliyan Ferry Ghat, where he was found to be in possession of 71 pieces of FICN of Rs. 500/- denomination which were recovered from his waist.

  The burden of proof at this stage is upon the appellant to divulge regarding his personal knowledge or information relating to the manner he at least received the FICN. The concept of trafficking is not the only concept under Section 489B IPC. There are other terms which are also embedded in the said Section being ‘sells to, or ‘buys’ or ‘receives from, any other person’ - As such the appellant had ample scope to explain as to how he obtained the FICN. The learned trial court in the charge has used the term ‘you brought and for circulating’. The said two phrases is enough to cover the meaning and interpretation as also the spirit incorporated under Section 489B IPC as there is no hard and fast rule that in the contents of charge, the specific words of the Section is to be used.

  Having considered that the incident is of the year 2013 and the appellant has already suffered almost 12 months in custody during the stage of investigation, trial and during the pendency of the appeal, the sentence of seven years so imposed in respect of the offence charged under Section 489B of the Indian Penal Code be reduced to five years of rigorous imprisonment and fine of Rs.10,000/-. The sentence in respect of Section 489C of the Indian Penal Code is also modified to a period of three years with fine of Rs.5000/-.

  The appellant is on bail. As such his bail bonds are cancelled. The appellant is directed to surrender before the learned trial court immediately - Appeal allowed in part by modifying the sentence without interfering with the order of conviction.

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• 2024 (8) TMI 1320
  

  Classification of imported goods - Heavy melting scrap or not - to be classified under Customs Tariff Heading 7204 4900 as claimed by the importer-appellant or under Customs Tariff Heading 7215 9090 for Iron Rods and under Customs Tariff Heading 7308 9010 for Channels as held by the adjudicating authority - valuation of imported goods - value declared by the appellant should be accepted as assessable value in the absence of any documentary evidence as urged in the grounds of appeal or not - difference of opinion - majority order.

  Classification of goods - HELD THAT:- On careful analysis of the observation of the learned Member(Judicial) as well as that of learned Member(Technical), it is found that there is no difference in finding on the issue of classification of the iron rods and channels to be under CTH 7215 9090 and CTH 7308 9010 of the Customs Tariff Act respectively. Learned Member(Judicial) has laid emphasis that the mutilation as per Section 24 of the Customs Act, 1962 should have been allowed for conversion of said iron rods and channels into scrap in the event if such option is not availed / exercised by the appellant, duty can be demanded for goods as iron rods under CTH 7215 9090 or channels under CTH 7308 9010 - In the present circumstances, since no such request for mutilation was advanced nor any direction for such mutilation was issued initially, the classification of the iron rods and channels would be under CTH 7215 9090 and CTH 7308 9010, respectively.

  Valuation of imported goods - HELD THAT:- It is noticed that initially for the entire 212.13 MTs of “Heavy Melting Steel scrap” imported, the value was declared as Rs. 36,01,729/-. After change in the classification, the adjudicating authority has applied contemporaneous import price of Rs. 20/- per kg. for 22.920 MTs of channels and 47.200 MTs of iron rods against the imported scrap price of Rs. 16.97 per kg. The appellant claimed that the contemporaneous import value should be adopted as Rs. 19/- per kg. However, no evidence has been placed by the appellant in support of their claim - there are no discrepancy in the said enhancement of value of the iron rods and channels based on contemporaneous import, once the classification of the scrap has been changed with regard to total quantity of 70.12 MTs. of channels and iron rods - the findings of the learned Member(Technical) on the issue of determination of value based on the contemporaneous import price of iron rods and channels, agreed upon.

  The matter may be placed before the regular Bench for appropriate action/order.

  As per the majority opinion, the impugned order is upheld - Appeal filed by the assessee is dismissed.

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• 2024 (8) TMI 1319
  

  Revision u/s 263 - date of filing of the original return of income -There was an international transaction - Assessee carried forward losses - HELD THAT:- Since there was an international transaction the assessee took the due date for its return of income as 30th November and as per the provisions of Section 92E of the Act, the assessee obtained a report from an accountant and furnished the same in Form 3CEB. Merely because the assessee had raised objections before the AO, who was referring the matter to the TPO, the PCIT cannot say that the assessee accepted the due date for filing its return of income as 30th October.

  In our considered view, the assessee may have objected for the reference to the TPO but that would not have changed the colour of the mandatory provisions of the Act as mentioned elsewhere. As per the provisions of Section 92E, since the assessee has entered into an international transaction it obtained the report from an accountant in Form 3CEB and furnished the same and since the AO was about to refer the matter to the TPO, it shows that there was an international transaction and, therefore, the due date for the assessee for filing the return of income was 30th November.

  Assessee has simply carried forward losses and the apprehension of the PCIT are premature as the same will be considered only when the assessee claims set off of brought forward losses which will happen in the subsequent AYs as and when the assessee claims the set off of losses. For the year under consideration the assessee has simply carried forward losses.

  Thus, we are of the opinion that the assessment order is neither erroneous nor prejudicial to the interest of the revenue - Appeal of the assessee is allowed.

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• 2024 (8) TMI 1318
  

  Cancellation of registration of the petitioner under the provisions of the WBGST/CGST Act, 2017 - non-filing returns for a continuous period of six months - HELD THAT:- Although, an appeal was filed by the petitioner, such appeal was dismissed on the ground of limitation without there being any adjudication on merits - It may be noted that the petitioner is only a small businessman and claims that he had suffered reverses during the Pandemic.

  It is not the case of the respondents that the petitioner had been adapting dubious process to evade tax. Taking note of the fact that the suspension/revocation of license would be counterproductive and works against the interest of the revenue since, the petitioner in such a case would not able to carry on his business in the sense that no invoice can be raised by the petitioner and ultimately would impact recovery of tax, the respondents should take a pragmatic view in the matter and permit the petitioner to carry on his business - the petitioner through his Advocate has undertaken to comply with the provisions of the said Act and has agreed to make payment of tax, interest, fine and penalty as may be found due.

  The respondents are directed to activate the portal within one week from the date of communication of this order, so that the petitioner can file his returns, pays requisite amount of tax, interest, fine and penalty if not already paid - the order of cancellation dated 8th July, 2022 and the order dated 7th June, 2024 passed by the Appellate Authority also stands set aside.

  Petition disposed off.

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• 2024 (8) TMI 1317
  

  Appeal dismissed on the ground of non-filing of certified copy of the order - appeal dismissed on the ground of delay - HELD THAT:- It is not in dispute that the appeal was filed well within the limitation on 12.11.2022 through electronic mode and thereafter certified copy of the decision has been filed. However without considering the merits of the case, the appeal has been dismissed on the ground of delay.

  This Court on various occasions has held that merely non filing of certified copy of the impugned order within time in the appeal filed through electronic mode is a technical error and on this technical ground, the appeal cannot be dismissed.

  This Court in the cases of M/s Enkay Polymers [2024 (5) TMI 917 - ALLAHABAD HIGH COURT] and Jai Prakash Shiv Charan Bidi [2024 (4) TMI 418 - ALLAHABAD HIGH COURT] have held that non filing of certified copy within the time in the appeal filed through electronic mode, is only a technical error and on this ground the appeal may not be dismissed on delay.

  The impugned order dated 31.5.2023 passed by the appellate authority is set aside. The matter is remanded to the appellate authority who shall decide the appeal on its own merit by reasoned and speaking order, expeditiously, preferably within a period of three months from the date of production of certified copy of this order.

  Petition allowed in part.

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• 2024 (8) TMI 1316
  

  Violation of principles of natural justice - all notices/ communications were uploaded by the respondent under the column, viz., "View Additional Notices and Orders", in the GST portal - petitioner was not aware of the said notices - HELD THAT:- In the present case, it appears that no opportunity of personal hearing was provided to the petitioner prior to the passing of impugned order. Hence, this Court is of the view that the impugned order was passed in violation of principles of natural justice. In such view of the matter, this Court is inclined to set aside the impugned order dated 20.07.2023 passed by the respondent.

  The impugned order dated 20.07.2023 is set aside and the matter is remanded to the respondent for fresh consideration on condition that the petitioner shall pay 10% of disputed amount to the respondent within a period of two weeks from today (09.08.2024) and the setting aside of the impugned order will take effect from the date of payment of the said amount - Petition disposed off by way of remand.

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• 2024 (8) TMI 1315
  

  Violation of principles of natural justice - notices/ communications were uploaded under the "View Additional Notices and Orders" in the GST portal - petitioner is not aware of the notices uploaded in the GST portal and thus, failed to file their reply within the time - HELD THAT:- Having regard to the admitted fact that the impugned orders came to be passed without hearing the petitioner in violation of the principles of natural justice, and also considering the submissions made by the learned counsel on either side and as the disputed tax has already been recovered, this court has set aside the impugned order and remanded the matter to the respondent for fresh consideration.

  Petition disposed off.

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• 2024 (8) TMI 1314
  

  Cancellation of GST registration of petitioner - SCN does not contain any reason or ground as to why the registration of the petitioner is sought to be cancelled - order of cancellation also does not contain any reason as to why the registration of the petitioner is being cancelled - Time to reply to SCN not given - violation of principles of natural justice - HELD THAT:- A perusal of the show-cause notice and the order of termination of cancellation of registration placed do not show any reasons either in the show-cause notice or in the order of cancellation. The contention of the respondents that there are certain restrictions on what can be placed in these documents cannot in any manner protect such orders when there is a violation of principles of natural justice. It is, at best, a case of self-inflicted injury.

  The fact that the specific allegation in regard to the signatures that are said to be appended by Sri B. Obulesh and Sri Munendra, has not been denied by the respondents is sufficient to hold that the said allegation is correct. Even otherwise, it is a very roundabout way of denying allegations by stating that the said allegations could have been placed before the 1st respondent.

  In these circumstances, this Court finds that the entire process of issuing show-cause notice and issuing the order for cancellation of registration without assigning any reason, is a clear case of violation of principles of natural justice.

  Petition disposed off.

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• 2024 (8) TMI 1313
  

  Refund of the input tax credits available to the petitioner - petitioner had not filed the bill of shipping for supply of electricity - taxability of continuous supply of goods - HELD THAT:- Section 12 (2) of the CGST Act provides for fixing the time of supply on either of two eventualities. The time of supply can be fixed on the date when the invoice for such supply is prepared and sent by the supplier or on the date on which the payment for such supply is made by the person receiving such goods. However, the legislature has also stipulated that the earlier of these two eventualities would be treated as the time of supply for the purpose of assessment of tax - the time of continuous supply of goods is not relevant and it is only the point of time when the invoice is raised or price is paid, whichever is earlier, that would be relevant for determining the point of tax in time and consequently, the period of supply of goods for which an invoice is raised should be taken into account, rather than the point of time at which the invoice has been raised, should be taken as the “relevant period”.

  In the present cases, the undisputed fact is that the petitioner was required to raise an invoice for the supply of electricity for a particular month by the 7th day of the succeeding month. This stipulation is contained in the power purchase agreement executed between the petitioner and M/s. Bangladesh Power Development Board. This would mean that though supply of electricity was done in the month of December, the time of supply, by legal fiction, would be the date on which the bill was presented in the month of January and so on and so forth.

  In such circumstances, furnishing of the REA for the preceding month, while making an application for refund in the succeeding month would be in accord with the said provisions of the Act and Rules.

  These Writ Petitions are allowed, setting aside the orders in appeal and the orders in original.

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• 2024 (8) TMI 1312
  

  Violation of principles of natural justice - none of the notices, that are said to have been sent by the 3rd respondent, had been received by the petitioner and as such the petitioner had no notice of any of the proceedings - HELD THAT:- The admitted fact is that the registration of the petitioner had been cancelled on 21.02.2019 and all proceedings resulting in the impugned orders had commenced only after the said cancellation of registration. It may also be noted that the registration had been cancelled on the ground that the petitioner was not filing GST returns. These facts coupled with the fact that the physical notices sent to the petitioner being returned with the noting “Left” should have been sufficient for the 3rd respondent to take steps to ascertain the whereabouts of the petitioner and to serve notices at such address. Though it cannot be said that service of notice on the petitioner by way of the E-Mail ID has not been done, the fact remains that the cancellation of the registration could have resulted in the petitioner not looking into the mails sent to the E-Mail ID which was registered with the department.

  In view of the fact that the petitioner is now aware of the order passed by the 3rd respondent, the present proceedings shall be treated as notice of the pending assessment before the 3rd respondent and the show cause notice dated 22.04.2022 as well as the impugned order dated 21.12.2022 shall be treated as show cause notices and the petitioner is granted three (03) weeks time to file his response to these notices.

  It would only be appropriate to give an opportunity to the petitioner to set out his case. Accordingly, the Writ Petition is allowed, setting aside the order of the 3rd respondent dated 21.12.2022 and remanding it back to the 3rd respondent for adjudication.

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• 2024 (8) TMI 1311
  

  Invocation of provision of section 16 (2) (c) of the GST Act - respondent-Authority has not taken into consideration the detailed reply filed by the petitioner while arriving at a conclusion - It was submitted that there is a prima facie case in favour of the petitioner as the respondent-authorities could not have invoked the provision of section 16 (2) (c) of the GST Act - HELD THAT:- The petitioner has made out a strong prima facie case to grant interim relief and therefore, the impugned order dated 27.10.2023 passed under section 74 of the GST Act is hereby stayed during the pendency of the petition on the condition of depositing Rs. 20 Lakh by the petitioner with the GST authority within a period of two weeks from today.

  Application disposed off.

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• 2024 (8) TMI 1310
  

  Principles of natural justice - Validity of SCN issued u/s 73(1) of the Central Goods and Services Act, 2017 - petitioner received the notice only on the date of personal hearing fixed - HELD THAT:- The respondents admittedly thought it proper to give third opportunity of personal hearing and accordingly, issued the notice, dated 13.03.2024. However, the there are substance in the argument of learned counsel for the petitioner that said opportunity became illusory for the petitioner, because of service of notice on the same date. The respondents have not paid any heed to the petitioner’s prompt communication, dated 19.03.2024, informing that notice is received on the date of hearing and another opportunity may be granted.

  It is deemed proper to set aside the OIO, which has been passed without considering the petitioner’s communication (Annexure P3) which shows that the notice was received by him on the date of hearing itself - petition disposed off.

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• 2024 (8) TMI 1309
  

  Tax liability of the petitioner for the period 01.04.2021 to 01.01.2022 - Whether M/s. APIIC is a government entity? - whether any of the three conditions set out in the N/N. 24/2017– Central Tax (rate), dated 21.09.2017 (which provided for concessional rate of tax) are applicable to the works executed by the petitioner? - HELD THAT:- The works undertaken by the petitioner, as described above, are works taken up to create infrastructure in the Electronic Manufacturing Cluster and the Mega Industrial Hub at the locations mentioned above. The purpose of these constructions is to create infrastructure for assisting the entrepreneurs and others who would set up their manufacturing units or service units in these places which are created for such purposes.

  Whether the 4th respondent would be using these works for commerce industry or any other business or profession? - HELD THAT:- Though the 4th respondent is an entity of the Government and is involved in promotion of industry in the state, the fact remains that the 4th respondent is conducting the business of developing industrial parks and industrial areas and recovering the cost of development from the entrepreneurs who set up units in these areas by including the same in the price charged for selling the said developed lands to these entrepreneurs - it must be held that none of the three conditions would be applicable and the 1st respondent has not committed any error in assessing the tax payable by the petitioner @ 18% for the period 01.04.2021 to 01.01.2022.

  Though the petitioner is primarily liable to pay the aforesaid tax, the arrangement between the petitioner and the 4th respondent is that the 4th respondent would pay the tax due to the petitioner who would then pass it on to the GST Department. The letter dated 22.05.2023 reflects this arrangement. Further, there is no contention in the counter affidavit of the 4th respondent that it is not liable to pay such tax. In any event, the fact that the 4th respondent had paid 12% tax for the period 01.04.2021 to 01.01.2022, on account of the understanding of both the petitioner and the 4th respondent that the rate of tax is 12%, would also show that the arrangement between the two is that the 4th respondent would bear the burden of the payment of the GST through the petitioner.

  This Writ Petition is disposed of, affirming the impugned order passed by the 1st respondent for the tax period 01.04.2021 to 30.11.2022.

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• 2024 (8) TMI 1308
  

  Jurisdiction of carrying out impugned show cause notice proceedings - scope for seizure or confiscation of cash - HELD THAT:- The Court is of the view that there is no merits in the present Writ Petition and this Writ Petition is liable to be dismissed.

  The petitioner cannot scuttle the Show Cause proceedings initiated under the provisions of the respective GST enactments, merely because, the petitioner has secured favourable Order from the Tribunal in Naya Carnation Fireworks, Sri Cornation Fireworks Pvt. Ltd., Bee Cee Fireworks Industries, The Coronation Fireworks Factory, K. Balaji, K. Jeyakumar, A.R. Arumugarajan and B. Saravanan Versus Commissioner of GST & Central Excise, Madurai [2024 (5) TMI 1109 - CESTAT CHENNAI].

  Further, the impugned show cause notice has also only sought to appropriate the amount that was seized on 08.10.2020 from the custody of the petitioner's partner. That apart, the amount, that was seized on 08.10.2020, can be appropriated only towards the tax liability, if any of the petitioner under the provisions of the respective GST enactments and it is for the petitioner to explain as to why the aforesaid amount should not be appropriated towards the tax liability of the petitioner.

  The petitioner is directed to participate in the impugned show cause notice proceeding by filing proper reply within a period of 30 days from the date of receipt of a copy of this order - Petition dismissed.

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• 2024 (8) TMI 1307
  

  Seeking grant of custodial bail - accused declares that he has no criminal antecedents - illegal mining - revenue loss - HELD THAT:- In the present case, the petitioner chose to come straightway to this Court and has given reasons for that in para no. 3 of petition. Reasons for filing petition before this Court is that during the pendency of the quashing petition when petitioner prayed for stay on proceeding/investigation, this Court permitted him to file petition under Section 438 CrPC. Given the explanation, there would be no justification to dismiss the present petition only on the grounds that he has forfeited one of his rights to file a petition firstly to the Sessions Court. In fact by straightway coming to this Court any accused would lose one of the statutory right of getting their bail petition adjudicated by the Sessions Court first. In this process such an accused, who comes straightway to this Court in exercise of the concurrent jurisdiction under Section 439 CrPC would be deprived of jurisdiction of this Court under Article 227 of the Constitution of India. If an accused first files a bail petition before the Sessions Court and the same is rejected they still have right to exercise the jurisdiction of this Court under Section 439 CrPC which is also concurrent jurisdiction of this Court. Thus, in entirety it is such an accused, who would be loser by first coming to the High Court under Section 439 CrPC.

  Given above, the petitioner coming and filing a petition straightway to this Court is also not a ground not to entertain the same or to continue his detention just for these technical reasons. An analysis of above said submissions would lead to the outcome that the petitioner is in judicial custody from 11.04.2024. His remand is judicial not police. Thus, his current custody in a prison is not going to render any help to the investigator at this stage. Simply because, the custody is from 11.04.2024 i.e. only for 15 days is not a ground to deny bail to the petitioner.

  In Gurbaksh Singh Sibbia v State of Punjab [1980 (4) TMI 295 - SUPREME COURT], a Constitutional Bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail.

  Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail, subject to the following terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.

  Petitioner is granted bail subject to fulfilment of conditions imposed - petition allowed.

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• 2024 (8) TMI 1306
  

  Offence punishable u/s 50 of the Black Money Act - non-disclosure of foreign assets and false statements made by the petitioners - petitioners, office bearers of certain business establishments of two British Companies - The Act came into force on 01-07-2015, and the petitioners were summoned and assessed u/s 10 of the Act in 2018

  HELD THAT:- As in the Criminal Petition, there was no challenge to the validity of Section 72(c) of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015.

  Issue notice on the prayer for interim relief returnable on 20th September, 2024.

  As decided by HC [2024 (6) TMI 943 - KARNATAKA HIGH COURT] criminal law cannot be set into motion against the petitioners in the aforesaid facts of the case, as it cannot pass muster of Article 20 of the Constitution of India. A caveat, this Court is considering the criminal liability fastened upon the petitioners by the prosecution including under Section 72(c) of the Act and the consideration has led to an unmistakable conclusion that it falls foul of Article 20 of the Constitution of India. The Special enactment is a statute. Article 20 comes under Chapter III of the Constitution of India, a fundamental right. Constitution of India is not a statute. It is the fountain head of all statutes including the special statute. Therefore, the rigour of any provision of the Act should pass muster of Article 20 of the Constitution of India and it fails to pass such muster in the case at hand and the failure leads to obliteration of the crime against the petitioners.

  The aforesaid part of the impugned order will remain stayed.

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• 2024 (8) TMI 1305
  

  Validity of reopening of assessment proceedings - Impugned Notice is that the foundational ingredients of Section 147, including jurisdictional facts, are absent - notice issued beyond period of four years - as argued very issuance of the Impugned Notice purported to be without jurisdiction - HELD THAT:- A vital precondition for invoking Section 147 after the expiry of four years from the end of the relevant assessment year, is that during the original assessment, the assessee ought to have failed to fully and truly disclose all material facts necessary for the assessment. It is evident from the face of the record that the reassessment was initiated in March 2021, which is five years after the end of the Assessment Year 2015-16.

  As examined the sanction granted u/s 151 for the reassessment, along with reasons put up for securing the sanction. These reasons are near-identical to what was eventually provided to the Petitioner on 6th August, 2021, with one paragraph of comments missing.

  We find that the jurisdictional fact necessary to invoke Section 147 for reassessment is absent. Considering that the reassessment is admittedly being undertaken after the four-year period, it is necessary to show that during the original assessment, there had been a failure 0n the part of the Petitioner to disclose fully and truly, the material facts necessary for the assessment.

  The original assessment had been conducted pursuant to scrutiny proceedings. It entailed active examination and thorough engagement between the Petitioner and the AO - The scrutiny proceedings led to the Assessment Order, which increased the total income from the level computed in the returns. Each of the four aspects set out in the reasons for reassessment, related to facts fully disclosed by the Petitioner in the course of the original assessment.

  During the original assessment, a notice u/s 143 (2) had been served on the Petitioner. A notice u/s 142 (1) had also been served. These notices were responded to. Detailed written replies dated 7th December, 2017 and 11th December, 2017 had been provided. Personal hearings had also been held on 29th November, 2017 and 8th December, 2017. On each of the four counts for which reassessment is being proposed, the facts had indeed been disclosed, as is seen from the very reasons provided by the Revenue in support of initiating reassessment.

  Therefore, it is evident that the Revenue is now seeking to express a different opinion based on the very same facts fully disclosed during the original assessment.

  Sanction Mechanism u/s 151 - The power to sanction reassessment u/s 151, is coupled with a duty to exercise such power reasonably, and not arbitrarily. It is trite law that absence of valid reasons constitutes arbitrariness. In the instant case, the entire process of according sanction demonstrates non-application of mind to the ingredients of Section 147, rendering the sanction to be arbitrary, calling for intervention by a writ court.

  Evidently, the proposal, the recommendation and the approval in the instant case was mechanical, without either application of mind to the law and the facts or even a modicum of how the ingredients of the law had been met. In short, the machinery u/s 151 completely failed.

  The imperative requirement of compliance with the ingredients of Section 147 and Section 148 is underlined in innumerable judgments. Decided in favour of assessee.

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