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Showing 261 to 280 of 1635 Records
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2022 (3) TMI 1375
NP estimation - re-computation of net profit - assessee could not furnish the books of accounts and supporting documents as the factory of the assessee at that time was sealed - AO in the absence of books of account and documents and required verification etc. re-computed the net profits of the assessee against nil income by disallowing the deduction claimed by the assessee u/s 80IC - HELD THAT:- DR as submitted that the Ld. CIT(A) has given substantial relief to the assessee on assumptions and presumptions of certain facts without appreciating the evidences on record. The Ld. DRs, therefore, have submitted that the matter may be restored to the file of the Assessing Officer for assessment afresh. It has been further submitted that since the facts in all the captioned appeals are identical, therefore, the matter in relation to all the appeal be restored to Assessing Officer.
AR has submitted that even the assessee is not satisfied with the order of the ld. CIT(A). He has also requested that the matter may be restored to the file of the Assessing Officer for de novo assessment.
In view of the submissions of the Ld. representatives of both the parties, the impugned orders of the CIT(A) are set aside in relation to the captioned appeals and matter is restored to the file of the Assessing Officer for de novo assessment in each case. Appeals of the assessee are treated as allowed for statistical purposes.
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2022 (3) TMI 1374
Legal Jurisdiction - power of NCLT to deal with the matters falling under PMLA - Validity of Provisional Attachment Order - seeking Stay of operation of the Provisional Attachment Order - seeking order of injunction restraining the Respondents from giving any effect or further effect to and/ or taking any steps or further steps on the basis of the Provisional Attachment Order dated December 30, 2021 - HELD THAT:- This Adjudicating Authority, with utmost regard to the order relied upon by the Applicant, is bound by the order dated 3rd of January, 2022 passed by Hon’ble 3 Member Bench of NCLAT which took the view that NCLT is not empowered to deal with the matters falling under PMLA.
In the present case since notice impugned has been issued under the Prevention of Money Laundering Act, 2002 therefore, this application is not maintainable and the same is hereby rejected.
Application dismissed.
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2022 (3) TMI 1373
Reopening of assessment u/s 147 - Date of issuance of notice - communication in electronic form - objection of the petitioner against the notice under Section 148 - Whether digitally signing notice would automatically amount to issuance of notice ? - Whether digitally signing a notice and issuing it are two different acts ? - Whether issuance of notice shall take place on the date and time when it is dispatched either electronically or through other mode ? - whether merely generating notice from the Departmental Portal and digitally signing it thereafter, would amount to issuance of notice ? - HELD THAT:- All the learned counsels for the parties jointly state that the question of issuance of notice has been decided today by this court in Daujee Abhushan Bhandar Pvt. Ltd. vs. Union of India and 2 others[2022 (3) TMI 784 - ALLAHABAD HIGH COURT] - They jointly state that since the petitioner has raised objection before the Assessing Authority on the point of issue of notice which is pending disposal before the Assessing Authority, therefore, the Assessing Authority may be directed to decide the objection in accordance with law after considering the judgment in the case of Daujee Abhushan Bhandar Pvt. Ltd. (supra).
In view of the aforesaid, the writ petition is disposed of directing the respondent-authority concerned to decide the objection of the petitioner against the notice under Section 148 of the Act, 1961, in accordance with law on the point of date of issuance of notice.
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2022 (3) TMI 1372
Seeking grant of Regular Bail - availment of fake GST credit - Creation of fake firms - HELD THAT:- After hearing learned counsel for the parties, without commenting anything on merits of the case and considering the long custody of the petitioner and the fact that no investigation is pending against him and it will take some time in conclusion of the trial, as only 01 PW has been examined so far, this petition is allowed and the petitioner is directed to be released on regular bail subject to furnishing his bail bonds and two sureties of the like amount, to the satisfaction of the trial Court/Illaqa Magistrate/Duty Magistrate, concerned.
Petition allowed.
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2022 (3) TMI 1371
Seeking issuance of Writ of Habeas Corpus for for release of brother of petitioner - the brother of the present petitioner is alleged to be illegally confined by GST - Respondent No.2 herein since 18.3.2022 - It is the grievance made on the part of the petitioner that he was permitted to give two pairs of clothes to one GST officer at the main gate of the GST Office building on 20.3.2022 but till date he is not permitted to meet his brother - HELD THAT:- The safeguards mandated through the guidelines in VIMAL YASHWANTGIRI GOSWAMI VERSUS STATE OF GUJARAT [2020 (11) TMI 40 - GUJARAT HIGH COURT], particularly the requirement to prepare an arrest memo, are directed towards “transparency and accountability” in the powers to arrest and detain. These safeguards flow from the fundamental rights guaranteed in Articles 21 and 22 respectively of the Constitution of India. The life and liberty of a person is secured under Article 21 and supplemented by Article 22 that provides key protection against the arbitrary arrest or detention to every arrested person.”
Issue Notice returnable on 24.3.2022 - Respondent No.2 shall present himself before this Court along with the Corpus at 11:00 a.m. tomorrow.
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2022 (3) TMI 1370
Territorial Jurisdiction - proper officer or not - Registration was assigned to Central GST Officer - SCN was issued and adjudicated by the State GST officer - validity of impugned show cause notice and the impugned assessment order - HELD THAT:- It is admitted fact that the taxpayer i.e. the petitioner has been assigned to the Central Officer whereas the impugned show cause notice was issued by the State Officer i.e. the respondent no. 4 ( Dy. Commissioner, Commercial Tax Saharanpur, Sector 10, Saharanpur (B), Uttar Pradesh) before whom, despite show cause notice, the petitioner did not raise any objection as to the jurisdiction and instead participated in the proceedings and submitted to his jurisdiction. Thereafter the respondent no. 4 passed the impugned assessment order creating certain demand against the petitioner. It is thereafter that the petitioner filed the present writ petition and challenged the show cause notice and the assessment order solely on the ground that it is without jurisdiction.
It is clear that the proper officer as defined under the CGST Act and UPGST Act, both are proper officers within their territorial jurisdiction and have been conferred with jurisdiction and powers under both the Acts to exercise their jurisdiction as proper officers subject to a rider that if an order is issued by a proper officer under the State Act or the Union territory Act on a subject matter then on the same subject matter, order shall not be passed by a proper officer under the CGST Act and vice versa and the orders so passed shall be intimated to the other jurisdictional officer under the other Act - Since proper officers under both the Acts have been empowered to exercise powers within their territorial jurisdiction and since both the set of officers i.e. under the CGST Act and UPGST Act are authorized to pass assessment orders, therefore, there arose necessity for division of work between two sets of officers, i.e. under CGST Act and UPGST Act having same territorial jurisdiction.
A proper officer under the UPGST Act/CGST Act has inherent jurisdiction over assessees falling within his territorial jurisdiction but that jurisdiction has to be exercised as per cases assigned by the designated committee comprising Chief Commissioner/Commissioner, Commercial Taxes of respective States and jurisdictional Central Tax Chief Commissioners/Commissioners. In the present set of facts, the Chief Commissioner of Central Taxes, Lucknow and Meerut Zone, Lucknow and the Commissioner of Commercial Taxes, U.P. issued the aforesaid order no. 04/2018 assigning the taxpayers to proper officers and the case of the petitioner has been assigned to the proper officer under the CGST Act i.e. Central Officer and not to the respondent no. 4.
Present case is not a case of inherent lack of jurisdiction rather it is a case of error of jurisdiction on account of non allotment of case of the petitioner assessee to the respondent no. 4/State officer.
The respondent no. 4 being proper officer under the Act having territorial jurisdiction over the petitioner assessee is competent to exercise the powers conferred under the Act in respect of assessee, falling under his territorial jurisdiction. But as per minutes of the meeting of the G.S.T. Council and the circular issued in this regard, the distribution of work for administrative convenience was made and as per which the case of the petitioner was assigned to a central officer. Thus it is not a case that the state officer i.e. the respondent no. 4 lacks inherent jurisdiction but it is a case where the jurisdiction has been exercised by the respondent no. 4 in the absence of any objection or pointing out by the petitioner that the case has been assigned to a central officer - the impugned show cause notice and the impugned assessment order do not suffer from any inherent lack of jurisdiction and instead it is the result of contributory error of jurisdiction by the respondent no. 4., in the circumstances that the petitioner submitted to the jurisdiction of the respondent no. 4 without informing or without raising objection as to the assignment of the case to the central officer and after well participating in the assessment proceedings allowed the assessment order to be passed by the respondent no. 4.
The writ petition is dismissed.
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2022 (3) TMI 1369
Validity of Show Cause Notice (SCN) - service tax is leviable on royalty paid on mining operations or not - petitioner contended that this issue is pending before the larger bench of the Supreme Court in a reference to 9 judge bench in the meantime, service tax should not be allowed to be recovered - HELD THAT:- Firstly this petition is directed against the show cause notice and in this adjudication process is still not over. It is true that even against the show cause notice this Court would entertain the writ petition if jurisdiction question is raised. In other words, if the authority issuing show cause notice has no jurisdiction to levy a tax, this Court would not insist on the assessee submitting to such notice. However in the present case the issues as of now stand concluded against the petitioner.
Petitioner has candidly placed for consideration a Division Bench judgment of this Court in the case of UDAIPUR CHAMBERS OF COMMERCE AND INDUSTRY VERSUS THE UNION OF INDIA, THE SUPERINTENDENT, CENTRAL EXCISE AND OTHERS [2017 (10) TMI 975 - RAJASTHAN HIGH COURT] in which the question of service tax on royalty on mining lease was examined and decided against the assessee. The decision of 5 judge bench of the Supreme Court in case of STATE OF WEST BENGAL AND ANOTHER VERSUS KESORAM INDUSTRIES LTD. AND ANOTHER [2004 (1) TMI 71 - SUPREME COURT] would also be applicable. Merely because the Supreme Court in subsequent decisions has doubted the correctness of the view of the 5 judge bench and referred the issue to 9 judge bench, would not persuade us to stay the department from issuing notice and adjudicating the demands.
It is noted that the reference was made to the larger bench by an order passed in MINERAL AREA DEVELOPMENT AUTHORITY ETC. VERSUS M/S STEEL AUTHORITY OF INDIA & ORS [2011 (3) TMI 1554 - SUPREME COURT]. If all the proceedings are stayed awaiting the reference judgment even before the adjudication has been completed, there is serious apprehension of the evidence and materials getting lost. We would therefore not like to stop the department from even carrying out the adjudicating process on the petitioner’s expectation that the larger bench of 9 judge may reverse the decision in the case of Kesoram Industries.
Petition dismissed.
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2022 (3) TMI 1368
Input Tax Credit - ITC on Gift - GST paid on inputs/input services procured by the appellant to implement the promotional scheme under the name 'Buy n Fly' - Section 16 read with Section 17 of the CGST Act, 2017 and TNGST Act, 2017 - contention is that these goods/services do not fall under 'gift' (Section 17(5)(h)) as the same was not given in volition, but on contractual obligation, on retailers achieving the targeted sales nor these goods/services called as goods/services used for personal consumption - HELD THAT:- Section 16 of the CGST Act, 2017 empowers the taxpayer for entitlement of taking the tax charged on the Inputs as input tax credit on the goods or services or both supplied to him which are used or intended to be used in the course or furtherance of his business and such unbridled flow of input tax credit got restriction in section 17 of the Act. The sub-section (5) of the section 17 begin with Non-obstante clause that Notwithstanding anything contained in sub-section (1) of section 16 and sub-section (1) of section 18 and hence the sub-section (5) of section 17 would independently apply and the Parliament consciously restricts the input tax credit which is a concession and not a vested right.
The clause (g) forbid the input tax credit for the goods or services used for personal consumption and the Parliament in its wisdom did not place any further restriction as to who use the goods or services or both for personal consumption and it is obvious reason that under the GST law the flow of input tax credit is allowed until its consumption and hence such personal consumption be by the appellant or by its retailers would disentitle them to avail such input tax credit. Hence the plain reading of clause (g) reveals that the goods or services or both used for personal consumption by the appellant or its retailers would make the related input tax credit unavailable for the appellant, as the retailers of the appellant ultimately consumed the goods and services provided under reward scheme and the contention that the clause (g) would be applicable to the stage of procurement use and not on the last use would be of no avail to the appellant
In the case at hand, the actual costing which is assessed has not been substantiated to hold the expenses at hand tor which credit is claimed. It is pertinent to note that the appellant has stated that the M.R.P. remained the same both Pre and Post Campaign, which points that the goods and services distributed under the scheme were without valuable consideration - It is interesting to note that the appellant provided rewards by way of goods and also foreign tours by providing valid air tickets and that's why they coined the reward scheme as “Buy n Fly”. Thus what they provided in the scheme was goods and services. The provisions of the clause (h) stipulates that input tax credit would not be available for goods lost, stolen, destroyed, written off or disposed of by way of gift or free samples.
The appellant has referred to the Circular No.92/11/2019 dated 7.3.2019 issued under Section 168 (1) of the Act, and claimed that their situation falls under ‘C. Discounts including 'Buy more, save more offers'. Para: 'C' provides clarification in cases when staggered discount is offered to customers; periodic/year ending discounts to stockiest, etc based on the criteria spelt in, whereas in the case at hand, the retailers/stockiest are extended rewards which are definitely not' 'Discounts' discussed in Para C of the circular. The appellants case more aptly falls under Para A of the Circular - It has been established that the giving away of goods/services under the scheme is not a 'Supply' and therefore ITC of the GST paid on the goods/services procured for the 'Buy n Fly Scheme' is not available to the appellant.
Thus, as per the provisions of the CGST Act/TNGST Act 2017 more precisely, Section 17 (5) of the Act, the gifts or rewards given without consideration even though they were given for sales promotion do not qualify as inputs for the purposes of Credit, since no GST is paid on its disposal. Therefore, the input tax credit on the inputs and input services involved in the goods and services used for the purpose of reward is not available for the appellant and accordingly the ruling given by the Advance Ruling Authority of Tamil Nadu requires no intervention.
The appeal is dismissed.
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2022 (3) TMI 1367
Classification of supply of services - composite supply - principal supply is supply of services or not - activity of design and development of patterns used for manufacturing of camshafts for a customer - naturally bundled services or not - intermediary services or not - HELD THAT:- The applicant, on instructions of the OEMs / Machinists and on the basis of the specifications agreed between itself and the OEM / Machinist identifies and engages a third party Indian manufacturer to manufacture the pattern and tools which are then delivered to the applicant on behalf of the overseas OEMs/Machinists (since the ownership of tools lie with OEMs/ Machinists), for use in manufacture of camshaft prototype. Therefore, the applicant on behalf of the overseas OEMs/Machinists, not only identifies third party vendors who can manufacture the pattern and tools as per the design/drawings, but also explains and closely works with third party manufacturer to develop the patterns and tools thereby engaging with the third party manufacturers for supply of tools.
The applicant is not only providing services to the overseas OEMs/Machinists, but they also actively identify and closely engage with third party vendors on behalf of the overseas OEMs/Machinists. The supply in the instant case consists only of service and there is no supply of goods. Such supply of services appears to be that of an intermediary service - the Applicant is located in India and in the subject case, in respect of patterns and tools, the applicant represents it's overseas OEMs/Machinist as their representative. The applicant actively identifies and closely engages with third party vendors, for manufacture of patterns and tools; by such third party vendors (on behalf of the overseas OEMs/Machinist). Thus, the applicant is effectively connecting the third party vendors in India with the requirements of its overseas OEMs/Machinist.
In the subject case the main supply would be supply of tools and patterns to the overseas customers by the third party vendors, which is not actually happening physically since the tools and patterns are moving from the third party vendors directly to the applicant. Such movement of goods to the applicant appears to be on behalf of the overseas vendors because the ownership of the tools and patterns is with such overseas vendors as submitted by the applicant. Secondly the ancillary supply would be the supply of designs and drawings of the patterns and tools by the applicant, on behalf of the overseas customers to third party vendor/s and also the activity of identifying the third party vendors who can manufacture the pattern and tools as per the design/drawings (requirements) and explaining and closely working and engaging with such third party manufacturer to develop the patterns and tools.
It is very clear from the applicant's submissions that they are not providing any services on its own account. The designs are provided to the third party vendors on behalf of the overseas customers of the applicant. The service provided by them is to their overseas customers and as per the requirements and directions of its overseas principals - thus the applicant is satisfying all the conditions of an intermediary and we have no hesitation in holding that, the applicant is supplying intermediary services as per the relevant provisions of the IGST Act, 2017.
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2022 (3) TMI 1366
Maintainability of Advance Ruling application - appropriate forum - Levy of GST - HR supply service received by pimpri chinchwad smart city - exemption from GST - HELD THAT:- As seen from the material papers submitted by the applicant, the place of supply of service under Section 12(2) of the IGST Act is in the State of Maharashtra and therefore this AAR is not the appropriate forum in terms of Section 96 of the CGST Act, 2017.
The application is rejected.
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2022 (3) TMI 1365
Maintainability of Advance Ruling application - appropriate Forum - Requirement of registration - provision of service related to Renting of Immovable property - requirement of registration of person registered in the State of Telangana who is in possession of an immovable property in the State of Maharashtra - HELD THAT:- As seen from the material papers submitted by the applicant, the place of supply of service under Sub Section 3 of Section 12 of the IGST Act is in the State where the immovable property is located and therefore this AAR is not the appropriate forum in terms of Section 96 of the CGST Act, 2017.
The application is rejected.
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2022 (3) TMI 1364
Levy of GST - classification of "Interest" portion of equated installments under Annuities Model - payment of interest is a Pure Service or not - applicable rate of GST - HELD THAT:- The clause (d) of sub section 2 of Section 15 clearly states that the value of supply shall include interest or late fee or penalty for delayed payment of any consideration for any supply. Therefore all the monies paid to the contractor by the applicant including the interest on delayed payments is liable to tax under CGST Act, 2017 under this provision.
Interest is part of consideration as per the valuation rules discussed above. Therefore no separate classification exists - there is no requirement of discussing the issue applicability of Entry No. 3 of the Notification Number 12/2017 - Central Tax (Rate), dt: 28th June, 2017.
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2022 (3) TMI 1363
Classification of services - rate of GST - Ready to Eat popcorn sold in retail packages - HELD THAT:- As seen from the facts of the case the tariff heading ‘2008’ pertains to a class of commodities covering fruits, nuts and other parts of plants and not the preparations pertains to cereals etc., which are enumerated in the competing tariff entry ‘1904’. Therefore the commodity under question clearly does not fall under tariff head ‘2008’ - Regarding the contention of the applicant with respect to classification of RTE popcorn under a general tariff heading ‘2016’ it is to inform that, the Hon’ble Supreme Court of India in a catena of case laws held that a general entry or a residual entry will be preferred for a classification of commodity only in the absence of a specific entry.
Hon’ble Supreme Court of India in the case of DUNLOP INDIA LTD. & MADRAS RUBBER FACTORY LTD. VERSUS UNION OF INDIA AND OTHERS [1975 (10) TMI 94 - SUPREME COURT] held that “when an article has, by all standards, a reasonable claim to be classified under an enumerated item in the Tariff Schedule, it will be against the very principle of classification to deny it the parentage and consign it to an orphanage of the residuary clause.
Thus when a specific entry is available for enumerating the commodity ‘RTE popcorn’ to relegate it to the orphanage of the residuary entry will be against the principle of classification as held by Hon’ble Apex Court in the above precedents. Hence RTE popcorn is classifiable under tariff head ‘1904’ enumerated at Serial No. 15 of Schedule III of Notification No. 01/2017 dated: 28.06.2017 - thus, HSN classification is ‘1904’ and the rate of tax is 9% SGST & CGST each.
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2022 (3) TMI 1362
Maintainability of Advance Ruling application - Recipient of supply seeking ruling - Levy of GST - purchase of a plot for residential purpose - Levy of GST on sale/purchase of plots, when it is immovable property - HELD THAT:- Section 95(c) defines applicant as any person registered or desirous of obtaining registration under this Act. And Section 95(a) enumerates that a Advance Ruling needs decision for providing in relation to supply of goods or services undertaken or proposed to be undertaken by the applicant - In the present case, the person applying for Advance Ruling does not qualify under Section 95(c) to be an applicant and also he is not making or proposing to make any supplies of goods or services.
An Advance Ruling cannot be given by this authority. Hence the application is rejected.
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2022 (3) TMI 1361
Validity of Reopening of assessment u/s 147 - assessee is one of the beneficiaries of bogus accommodation entries - ACIT has expressed the view that the assessee has introduced her own undisclosed income in her books of account by way of accommodation entries by showing artificial transactions to make the same valid transactions, though it is simply a planning to introduce unexplained money into books of account - HELD THAT:- A perusal of the reasons recorded by the assessing officer shows that after considering the report of the Assistant Director of Income Tax (Inv.), AO has conducted an investigation and has gone through the income tax return and other related documents of the assessee and has observed that the assessee is a beneficiary of receiving bogus accommodation entries and it is only thereafter that he has recorded that he has reason to believe that the income has escaped assessment in respect of the assessee. When pursuant to an information received from the Assistant Director of Income Tax (Inv.), Unit-3 (3), Kolkata, the assessing officer has conducted an investigation, has gone through the income tax return and other related documents of the assessee and has observed that the assessee is a beneficiary of receiving bogus accommodation entries and he has found a reason to believe that the income has escaped assessment in respect of the assessee, we do not find any force in the submission made on behalf of the petitioner that the assessing officer has acted on a report of the Assistant Director of Income Tax (Inv.), Unit-3 (3), Kolkata and he has not recorded his own reasons to believe, and thus the same is rejected.
When we examine the facts of the present case keeping into view the scope of power of judicial review while scrutinizing a notice issued under Section 148 of the Act as explained in Raymond woolen Mills Ltd. [1997 (12) TMI 12 - SUPREME COURT] and Phool Chand Bajarang Lal [1993 (7) TMI 1 - SUPREME COURT], we find that the notice under Section 148 of the Act has been issued by the assessing officer after conducting an investigation and going through the income tax return and other related documents of the assessee and after giving reason to believe that the income has escaped assessment in respect of the assessee. We are satisfied that there is prima facie material available on record before the assessing officer for issuing a notice for reassessment and the notice under Section 148 - order passed by the Assessing Officer rejecting the petitioner’s objections against issuance of the notice, does not suffer from any such illegality as to warrant interference by this Court in exercise of its Writ Jurisdiction, - Decided against assessee.
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2022 (3) TMI 1360
Deduction u/s 80-IC - assessee was not entitled to claim any benefit under Section 80-IC as Unit-III was not a new Unit and it was re-construction of an existing Unit-II - Appellate Authority held that the Assessing Officer had rightly held that the operation of Unit-III was nothing but an extension of operation of Unit-II - HELD THAT:- Assessing Officer was influenced by the fact that since Unit-III was being run by the assessee in its registered office, therefore, activities done in Unit-III were identical in nature to those done by Unit-II. The Assessing Officer had failed to appreciate that the building, where Unit-III had been started, had in fact been given on rent, whereas, Unit-II was being run in a separate building which was at a distance of about 7 kilometers. The building where the registered office was started in the assessment year 2009-10, was got vacated and thereafter Unit-III was started in the said premises in assessment year 2010-11. It was not a case where plant and machinery of Unit-II had been used for Unit-III. The business of the company had grown and with a view to expand its business, the company started a new Unit by making investment as shown in the Chart reproduced abve. New employees were recruited by the Assessee for Unit-III. Separate account books were maintained by Assessee qua Unit-II & Unit-III.
Tribunal rightly came to the conclusion that the assessee was entitled to claim benefit under Section 80-IC of the Act by treating Unit-III of the assessee-company as a separate and distinct Unit - findings recorded by the Tribunal can neither be said to be perverse or result of misreading of evidence and material on record. The substantial question of law decided in favour of assessee.
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2022 (3) TMI 1359
GP estimation - Closing stock estimation - assessee had tried to furnish month wise closing stock and had failed to produce/justify/explain/ substantiate the same during the period of assessment - HELD THAT:- AO had computed month wise and quarter wise trading account for enhancing the gross profit. AO had failed to consider the genuine purchases and sales made by the assessee, which had been duly entered in the books of account. The nature of business carried by the assessee was also not considered by the AO. The assessee was receiving goods throughout the year from different warehouses, through bills or challans. Lump-sum payments were made to the different suppliers throughout the year.
All the records, i.e., books of account, sales and purchase vouchers had been fully produced by the assessee - Assessing Officer had, however, prepared month wise trading account and had found negative stock in the books of account of the assessee. Although, the Assessing Officer had not found any unrecorded purchases, but had, in his own way, prepared the trading account for enhancing the gross profit. No sales were found outside the books of account. AO could have made the assessment as per the provisions of the Income Tax Act, 1961. In the subsequent assessment years, the AO had passed the order u/s 143(3) of the Act in respect of the same business activities of the assessee, which gave rise to net profit of 2.53% and 2.99%.
The learned Tribunal had, thus, rightly dismissed the appeal filed by the department.
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2022 (3) TMI 1358
Search and seizure proceedings - Documents seized during a search and seizure Retained by the Department - Revenue argued that Documents are retained due to proceedings pending before the Supreme Court - period beyond 30 days from the date of order of assessment u/s 158BC - HELD THAT:- The word proceeding is a term of wide importance and it includes the original proceedings as well as the appellate proceedings as it is trite law that an appeal is a continuation of the original proceedings (see the decision in State of Tamil Nadu and Others v. S. Subramaniam [1996 (1) TMI 480 - SUPREME COURT]. In the context in which the word 'proceedings' appear in section 132(8), it can be held to be used in a very comprehensive sense to include even revisional proceedings, provided the same is invoked under the statutory provisions of the Income Tax Act. Thus an assessment proceeding, appellate proceeding, and even revisional proceeding are all "proceedings under this Act".
Proceedings under this Act expired by the disposal of the appeal by this Court. Thereafter, no proceedings under this Act are in existence. On the contrary, the special leave petition having been filed under Article 136 of the Constitution of India cannot be regarded as a proceeding under this Act. As a taxing statute, strict interpretation is to be adopted and that being so, recourse by the assessee to the provisions of the Constitution by filing a special leave petition before the Supreme Court cannot be regarded as 'a proceeding under this Act'. The statutory authority lost its power to grant further authorisation to retain the documents. Therefore, even on this count, the respondents are not authorised or justified in retaining the documents of title seized by them under section 132 of the Act.
Petitioner is entitled to succeed in this writ petition. Accordingly, while quashing Ext.P13 proceedings issued by the first respondent, this Court directs the first and second respondents to return to the petitioner the originals of document all executed before the Sub-Registrar's Office, Ernakulam, as expeditiously as possible, at any rate, within a period of 30 days from the date of receipt of a copy of this judgment.
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2022 (3) TMI 1357
Validity of assessment order passed u/s 147 read with Section 144 - appellants contended that the assessment order is vitiated on account of non-service of notice or in other words, failure to follow the procedure under the Act and the Rules framed therein in the matter of service of notice - respondent submitted that the assessee despite having been granted sufficient opportunity did not submit the return of income which has been specifically recorded by the assessing officer - HELD THAT:- Firstly, the question of jurisdiction, as raised by the appellants in the instant case, is not purely a question of law. It is a mixed question of fact and law and, therefore, a vigilant assessee should raise such an issue at the earliest point of time. This is shown to have not done by the aseessee despite issuance of show cause notice and it has been canvassed for the first time in the writ petition. To decide such an issue, facts have to be examined. Such exercise cannot be done in a writ petition. It would be well open to the appellate authority to reexamine the facts, call for all details as to the manner and procedure adopted by the assessing officer while completing the assessment, examine the procedure for its correctness, whether it satisfies statutory requirement and then take a decision apart from the fact that the appellate authority will also be entitled to re-appreciate the facts which the assessee may place before the appellate authority. Therefore, to state that the appellants are purely questioning the assessment order on account of jurisdictional error, is not acceptable.
We are of the considered view that the appellants should avail the alternative remedy of appeal before the Commissioner of Income Tax (Appeals).
We find no ground to interfere with the order passed by the learned Single Judge. Hence, the appeal fails and is dismissed. Consequently, the connected application also stands dismissed.
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2022 (3) TMI 1356
Revision u/s 264 - Refund of tax paid as advance tax after opting for VDIS scheme - Availing the benefit of VDIS while claimed the benefit by filing belated ITR u/s 139(4) - petitioner took advantage of the VDIS by voluntary disclosing his income in respect of assessment years 1993-94 to 1997-98 - HELD THAT:- In the present case, the petitioner has first availed the benefit of VDIS by submitting the return 01.07.1997 and 31.12.1997 for the assessment year 1993-94 to 1997-98 and paid the income-tax @ 30%. Thereafter, he filed the belated IT returns u/s 139 on 23.01.1998 and deducted income so disclosed in VDIS i.e. voluntary disclose income.
The voluntarily disclosed income is not liable to be included with regular income declared in the return u/s 139 as tax paid under VDIS is not liable to be refunded at any cost. The income tax return submitted under Section 139 is not liable to be reopened after availing of the VDIS. The source of income shown for voluntary disclose income and income source shown in the return under Section 139 is altogether different.
Under Section 64 of the Finance Act only those persons are entitled to give declaration in respect of income chargeable under the tax under the Income Tax Act for any assessment year, firstly for which he has failed to furnish return u/s 139, secondly, which he has failed to disclose in a return of income furnished by him under the Income Tax Act before the date of commencement of the scheme, thirdly, which has escaped assessment by reason of the omission or failure.
As per clause sub-clause (a), in this case, the petitioner did not furnish any return under Section 139 before 31.12.1997, therefore, in voluntarily disclosed income, he ought to have disclosed his all income from all the sources because till 31.12.1997, he did not disclose his any of the income by submitting the return under Section 139. He submitted the return under section 139, after 31.12.1997 i.e. 23.01.1998 to bring his case within clause 64 (1) (b).
As submitted belated IT returns under section 139 but as per the requirement of section 64 (1)(b) that ought to have been filed before the date of commencement of the scheme. Since he did not submit any return under section 139 before this scheme, therefore involuntarily disclosed income, he ought to have disclosed his entire income. He cannot be permitted to commit mischief with the Act or VDIS by disclosing part of his income in VDIS and thereafter part of his income by submitting belated return as the Bombay High Court in case of Earnest Business Services (P) Ltd [2017 (3) TMI 1185 - BOMBAY HIGH COURT] has rightly held that both the tax altogether different and there cannot be any adjustment between them. Section 70 and 71 mandate that the income disclosed in VDIS shall not be included income under section 139 means income which had already been disclosed and that assessment is not liable to be reopened. The petitioner in order to avail the undue benefit of this scheme has filed the belated return by contending that the filing of such belated return is permissible and claimed the deduction of income as well as the refund of the tax.
Thus we are not inclined to interfere with the order passed by the Commissioner, Income-tax. Hence, Writ Petition is hereby dismissed.
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