|
Advanced Search Options
Case Laws
Showing 261 to 280 of 1434 Records
-
2021 (8) TMI 1174
Dishonor of Cheque - acquittal of the accused - no finding recorded with regards to service of statutory notice - pre-mature complaint - complaint was filed prior to expiry of the statutory time line - validity of setting aside the trial court’s judgment of acquittal of the petitioner - rebuttal of presumption - preponderance of probablities - HELD THAT:- The present revision having been filed against judgement of appellate court, reversing the judgement of acquittal of the petitioner by the trial court for offence under Section 138 of the aforesaid Act of 1881.
At the stage of trial, the complainant was the sole witness and has supported the prosecution case. The complainant exhibited the aforesaid documents. However, there was no evidence regarding service of legal notice dated 27.09.2010 upon the petitioner sent through registered post with A/D dated 27.09.2010, much less the date of service of notice. The complainant was fully cross examined - this Court also finds that the petitioner had taken a specific plea that he did not receive any legal notice and he obtained bail from the court after receiving notice from the court.
Admittedly, the legal notice in connection with the cheque was sent to the petitioner on 27.09.2010 by registered post with A/D. There is no evidence regarding service of legal notice upon the petitioner, much less the date of service of notice. It has been simply alleged that the petitioner did not pay the cheque amount in spite of service of notice. There is no finding recorded by the learned courts below regarding service of legal notice upon the petitioner, much less the date of receipt of legal notice by the petitioner although the petitioner had specifically denied receipt of the legal notice - this Court finds that the Complainant mentioned the cause of action in the complaint from 31.03.2010, 17.04.2010, 21.09.2010 (date of cheque return memo) and continuing till the date of filing of the complaint case, filed on 04.11.2010.
The condition precedent for filing the case under Section 138 of the Negotiable Instruments Act, 1881, having not been satisfied, the complaint itself was not maintainable on the day it was filed and accordingly, the petitioners could not have been convicted under the said Section. The question of any presumption regarding existing debt under Section 139 of the Negotiable Instruments Act, 1881 did not arise as the complaint itself was not maintainable. Accordingly, the conviction of the petitioner under Section 138 of the aforesaid Act of 1881 by the learned appellate court cannot be sustained in the eyes of law.
Whether the accused has been able to displace such presumption and to establish a probable defence whereby, the onus would again shift to the complainant? - HELD THAT:- The issuance of cheque is not in dispute. Before the trial court, the argument of the counsel for the accused- petitioner was that the amount taken by the petitioner was returned in instalments and a receipt (Exhibit-A) was also issued by the complainant. It was also the case of the accused petitioner that the complainant withheld the cheque in spite of receiving the cheque amount as the cheque was missing and traceless in the hands of the complainant - The trial court held that a doubt was created in the prosecution case and accordingly, the prosecution failed to prove its case beyond reasonable doubts and acquitted the accused - petitioner.
There is no doubt that mere denial of existing debt or discharge of debt may not be sufficient to discharge the burden of proof from the side of the accused on the principles of “preponderance of probabilities”, but, once the accused puts on record further material, the onus of the accused stands discharged on the principle of “preponderance of probabilities”. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus and the accused is not expected to discharge an unduly high standard or proof and the accused need not discharge his burden to the extent of being beyond all reasonable doubt - Once a probable defence is put on record from the side of the accused, the onus shifts upon the complainant to prove the fact regarding existing debt.
Upon perusal of the records, this Court finds that there is no material on record, either in the evidence in chief of the complainant or evidence in chief of the accused or even in their cross examination, that the blank signed pages were signed and handed over by the complainant to the accused – petitioner in connection with the partnership firm and that the same has been misused by the accused- petitioner to create a document of receipt of the cheque amount i.e Exhibit-A - This Court is of the considered view that the defence taken by the petitioner on the basis of Exhibit-A that the entire cheque amount was returned by the petitioner to the complainant was certainly a probable defence when seen in the light of the principles of “preponderance of probabilities” and the appellate court erred in law in rejecting the defence of the petitioner and not considering the case on the principles of “preponderance of probabilities”.
This Court is of the considered view that the materials on record suggest that the accused-petitioner had discharged his burden and rebutted the statutory presumption under Section 139 of the aforesaid Act of 1881 on the principles of “preponderance of probabilities “and the complainant failed to further shift the burden to the accused petitioner. This Court finds that the accused has been able to displace presumption under Section 139 of the aforesaid Act of 1881 and established a probable defence whereby, the onus again shifted to the complainant and the complainant failed to discharge the same - the conviction of the petitioner for offence under Section 138 of the aforesaid Act of 1881 passed by the learned appellate court cannot be sustained in the eyes of law.
Petition allowed.
-
2021 (8) TMI 1173
Assessment u/s 153C - disallowance of expenditure u/s 140A(3) - whether any incriminating materials concerning the present Petitioner were found in the search? - HELD THAT:- There is no denial that no incriminating materials concerning the present Petitioner were found in the premises of the two searched persons i.e. Sri Jami Ramesh and Sri Jami Sivasai. The absence of the satisfaction note of the AO of the searched persons about any such incriminating material vis-à-vis the present Petitioner is also not disputed - Assessment order challenged in the present petition relates to disallowance of expenditure u/s 140A(3) that is payable to the cultivators, expenses towards Hamali i.e. labour charges, unexplained money u/s 69A of the Act, negative cash and unaccounted stock. This was not on account of the discovery of incriminating materials concerning the Petitioner found in the course of the search. In fact there was no search warrant under Section 132 of the Act against the Petitioner firm.
In the absence of incriminating materials vis-a-vis the present Petitioner being found in the course of the search of the searched persons viz., Sri Jami Ramesh and Sri Jami Sivasai, the impugned assessment order and the consequential demand order are unsustainable in law and are hereby set aside.
-
2021 (8) TMI 1172
Seeking grant of Bail - availment of fraudulent ITC - Offence u/s 132 (1) (b) C.G.S.T. Act - HELD THAT:- On going through nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment, and larger mandate of the Article 21 of the Constitution of India, the dictum of Apex Court in the case of DATARAM SINGH VERSUS STATE OF UTTAR PRADESH AND ANR. [2018 (2) TMI 410 - SUPREME COURT] and without expressing any opinion on the merit of the case, this is found to be a fit case for bail.
The application is allowed.
-
2021 (8) TMI 1171
Unabsorbed depreciation loss set-off pertaining to assessment year 1997-98 against income of assessment year 2006-07 - HELD THAT:- Substantial questions of law framed for consideration have been answered against the Revenue in the case of CIT vs. Sanmar Speciality Chemicals Ltd. [2020 (9) TMI 770 - MADRAS HIGH COURT] - Decided against the Revenue.
-
2021 (8) TMI 1170
Seeking grant of bail - fake invoices - Section 132(1)(B)(C) (F) (I) of Central Goods and Services Tax Act, 2017 read with sub-section 5 of Central Goods and Services Tax Act, 2017 - HELD THAT:- Taking into consideration the submissions advanced by learned counsels for the respective parties, the nature of allegation against the petitioner, his length of custody, filing of complaint, material contained therein, the offence being triable by Magistrate, the maximum punishment being 5 years and absence of criminal antecedents; but, without expressing any opinion on the merits of the case, this Court deems it just and proper to enlarge the petitioner on bail.
Bail application allowed.
-
2021 (8) TMI 1169
Recovery of refund granted erroneously - section 11A of the Central Excise Act, 1944 - inordinate delay in adjudicating the show cause notice - violation of principles of natural justice - HELD THAT:- Insofar as the show cause notice in the instant case is concerned, the same has been issued under Section 11A of the Act on 18.8.2004 but it was adjudicated vide Order-in- Original dated 28.3.2017. According to learned Consultant, the show cause notice dated 19.8.2004 was decided by the Order-in-Original dated 28.3.2017 but the same was handed over to the appellants only on 21.9.2017. Although in his submissions, learned Authorised Representative tried to justify the delay in passing the adjudicating order but there was not a whisper about it in the Adjudicating Order or in the impugned order. The Adjudicating Authority only mentioned that the personal hearing was held on 14.3.2017, without mentioning anywhere that due to the pendency of department’s appeal before the Hon’ble Court the hearing of the show cause notice was delayed.
It is settled legal position that inordinate delay in adjudication results into denial of principles of natural justice. In the case in hand, the assessee cannot be blamed for delay as they had never delayed the proceedings. Adjudication proceedings have to be culminated within reasonable time and if not, it would be vitiated. The act on the part of Revenue of keeping the show cause notice pending for unduly long period is arbitrary and it would, in my opinion, vitiate the entire proceedings.
Appeal allowed - decided in favor of appellant.
-
2021 (8) TMI 1168
Absolute Confiscation - Smuggling - Gold Bars - 8 kgs Gold not claimed by anyone - 100 gms Gold recovered from Shri Ajesh A. Patel, Proprietor of M/s Patidar Bullion - levy of penalty u/s 112(b) of Customs Act, 1962 - HELD THAT:- Penalty on both the Appellants was imposed under Section112(b) of Customs Act, 1962 which provides for imposition of penalty on any person who acquires possession or is concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation u/s 111 of the Customs Act 1962 - In the present case, the investigating DRI officers have booked two different type of cases investigated and covered in a Show Cause Notice and it being a common SCN, adjudicating authority has passed single Order-In-Original covering these two cases.
Revenue has not proved smuggling of Gold into India. Hence, for imposing penalty u/s 112(b) ibid mens rea is necessary which is not coming out from records against the Appellant shri Jitendra Soni. Settled principle of law “Suspicion, however strong it may be, it can not replace the facts” needs to be applied in this case. Evidences on record are not sufficient to impose penalty on him. Suspicion in this case by Revenue has tried to replace the proof and this has resulted in an erroneous order passed by Adjudicating Authority against Appellant. Circumstantial evidence only is relied upon, unless it is conclusive on the fact of smuggling and Appellant dealt with smuggled goods knowingly, such circumstantial evidences cannot be taken to be the proof of the fact of smuggling for imposing penalty.
If revenue wants that gold dealers of foreign marked gold in India should indicate the brand names with respect to each brand then foreign marked gold should have been declared as one of items under Chapter IVA of Customs Act, 1962 - This issue is settled (as revenue has not filed any appeal against above judgments). Thus, there is no requirement under prevailing law to mention brand or marks or numbers of foreign marked gold on sale/purchase documents. Hence, confiscation ordered deserves to be set aside in this case.
Confiscation of 100 gms Gold recovered from Shri Ajesh A. Patel, Proprietor of M/s Patidar Bullion - HELD THAT:- Appellant has substantiated that the seized 100 gms gold was out of his stock inventory of legally purchased Gold. Appellant discharged burden of proof u/s 123 of Customs Act 1962 by maintaining normal business daily account with relevant documents of purchase/sale showing Opening Balance + Receipt – issue = closing stock, while dealing in Gold/silver purchased and sold in open market on large scale in market. Thus, confiscation of 100 gms Gold is not sustainable in facts of this case and deserves to be set aside.
Appeal allowed in part.
-
2021 (8) TMI 1167
Leasehold rights amortised by assessee during the lease period - HELD THAT:- Assessee obtained right to operate and manage Asian Heart Foundation by virtue of an agreement dated 20/01/2008 for 25 years, as paid by assessee. Assessee amortised the said amount over the lease period. When this issue came up before this Tribunal for the first time for assessment year 2009-10 - CIT(A) deleted the disallowance by following the above view taken by this Tribunal. Admittedly there is no difference in the facts considered by the co-ordiante bench for asst. year 2009-10 and the year under consideration.
Amount paid towards the leasehold rights of Modern Medical Institute of society, Raipur - HELD THAT:- Admittedly the laundry observes that the said payment is made by assessee to operate and manage Modern Medical Institute of society, for a period of 15 years with an extension of five years. In the terms and conditions the consideration payable by assessee to Modern Medical Institute is 2.5% per annum of the gross revenue for each financial year of hospital or 1.25 crore per annum whichever is higher - Parties that in the first year 2.5% of the gross revenue shall be payable by assessee as in advance. Assessee has thus paid sum of ₹ 1.25 crore which stands adjusted towards the payment of outstanding loans as a precondition - as agreed between the parties that, all payment made by assessee to Modern Medical Institute shall be subjected to tax deducted at source - amortisation amount paid to Modern Medical Institute is different for every year. Under such circumstances, how the amortisation amount is determined by assessee for every year needs to be verified in terms of the payment condition agreed between the parties. We therefore remand this issue back to the AO for verification of the working. AO to apply the principle laid down by coordinate bench of this Tribunal while considering the payment made by assessee to Asian Heart Foundation.
Disallowance made under corporate social responsibility - HELD THAT:- For year under consideration, it is not the case revenue that expenditure has not been incurred. As the facts are identical, and the expenditure incurred for CSR are of similar nature, in our opinion they are allowable as expenditure under section 37 of the Act, as it has been clearly incurred for furtherance of assessee’s business in other parts of the country. Respectfully following the view taken by the co-ordinate Bench herein above we do not find any infirmity in the view taken by the Ld.CIT(A).
Disallowance of provision of leave salary expenses - HELD THAT:- This issue now sand settle against assessee by the decision of Hon’ble Supreme Court in case of UOI vs. Exide Industries [2020 (4) TMI 792 - SUPREME COURT] as upheld constitutional validity for the allowability of deduction for leave encashment u/s 43B(f) of the Income Tax Act, 1961, on payment basis.We therefore direct the Ld.AO to compute the disallowance to the extent of unpaid amount, in accordance with the ratio of Hon’ble Supreme Court.
Claim raised under section 35AD - Authorities below rejected the claim of assessee as it was not made before the Ld.AO by way of revised return - HELD THAT:- Similar issue was considered in case of Goetze India Ltd vs.CIT [2006 (3) TMI 75 - SUPREME COURT] held that the claim of deduction not made in the return cannot be entertained by the assessing officer otherwise than by filing a revised return. The court also held that the decision does not impinge upon the powers of the Tribunal under section 254 of the Act. Respectfully following the above ratio, we remand this issue back to the Ld.AO for consideration
-
2021 (8) TMI 1166
Addition u/s 68 - receipt of share capital and premium - whether Appellant has established the Identity, Credit worthiness and Genuineness (ICG Test) in respect of share capital and premium received from the three share holder companies during the assessment proceedings by filing various documents with the AO - HELD THAT:- We note that Hon’ble jurisdictional High Court in Veedhata Tower Pvt.Ltd. [2018 (4) TMI 1004 - BOMBAY HIGH COURT] has held that when all documentary evidences has been submitted by the assessee, and adverse inference is drawn only for non response by the concerned party, such adverse inference against the assessee is not sustainable.
No adverse inference has been noted from the bank statement, balance sheet and other document of the parties from whom share capital & share premium has been received, which were duly filed before AO. Hence, the addition on merits also is not sustainable. Accordingly, on the touchstone of above Hon’ble jurisdictional High Court decision, we set aside the order of the authorities below and decide the issue in favour of the assessee
-
2021 (8) TMI 1165
Revision u/s 263 by CIT - proof of AO's order as erroneous or prejudicial to the interest of revenue - violation of the provisions of section 40A(3) - Disallowance u/s 40(a)(ia) - HELD THAT:- AO as made enquiries into transactions of cash payment in excess of ₹ 20,000/-, and the action of assessing officer in accepting the claim of assessee that transactions in question were not in violation of the provisions of section 40A(3) of the Act, after detailed enquiry, is a plausible view.
AO also made detailed enquiry about TDS to be deducted under section 40(a)(ia) of the Act, therefore, we find that the twin conditions required for exercising the jurisdiction u/s 263 is missing, that is, order passed by the assessing officer is neither erroneous nor prejudicial to the interest of revenue, therefore, the Ld. CIT ought not to have exercised his revisional jurisdiction under section 263 of the Act and, hence, we cancel the impugned revisional orders for assessment year 2010-11 and assessment year 2013-14 - Decided in favour of assessee.
-
2021 (8) TMI 1164
Revision u/s 263 by CIT - proof of lack of enquiry - unaccounted income disclosed during the course of survey proceedings is taxable u/s68/69/69C being unaccounted income - no deduction in respect of any expenditure or allowance or set off any loss is allowable against such income in accordance with the provisions of section 115BBE - HELD THAT:- Assessee has no explanation to offer on this point and agrees that the claim of set off of brought forward loss against business income is a wrong claim, is required to be disallowed.
PCIT was of the opinion that AO was required to treat the entire income disclosed during the survey as income taxable u/s 68/69/69C and not allow any standard deduction u/s 24 of the Act. The unaccounted income admitted during the survey but not disclosed in the return of income was also required to be added by the AO - as per provision of section 115BBE, the wrong set-off of brought forward loss against unaccounted business income should have been disallowed by the AO. Since no such disallowance and addition have been made by the AO in the assessment order u/s 143(3) dated 14/03/2016, therefore ld PCIT held that assessment order is erroneous and prejudicial to the interest of the revenue. We uphold the above findings of ld PCIT for assessment year 2013-14.
Unaccounted income relating to the land at Katargam, Surat disclosed in the statement recorded during the survey proceedings - If test of human probabilities is applied to the facts of the case becomes evident that transaction reflecting in the above mentioned impounded document pertain to the assessee and have taken place otherwise no reason can be there to keep the record of any financial transaction. Shri Manjibhai Patel had admitted that these papers were found from his office which lends to credibility that the document impounded assumes much greater value than what it would have been otherwise - entries reflecting in the impounded document(s) cannot be washed away lightly. - impounded documents itself and more so because of the nature of entries contained therein do not make those papers as a dumb document - AO concerned ought to carry out enquiries in this aspect which was not done at all by him during the course of scrutiny proceedings - there are proof in form of receipts, who has received this payment, but the AO concerned failed to analyse the same and pass on the information to the jurisdictional AOs concerned.
On the pages as discovered it is mentioned that Karan is having share of 53% rest 47% is of Gopalji. However, the AO concerned has accepted the fact that Shri Karankumar M Dungrant is having only 53% share in the land and he did not enquired about the ownership of remaining 47% in the impugned land whether the ownership of the remaining 47% is in just a dummy name or in name of some real person, has not been investigated. All these facts narrated above have been accepted without proper verification which has resulted in the assessment order being erroneous and prejudicial to revenue - we hold that assessment order passed by the AO is erroneous in so far it is prejudicial to the interest of revenue. Therefore, we do not find any infirmity, so far the above findings of ld PCIT is concerned for assessment year, 2014-15.
We note that issues raised by the ld PCIT were not responded by the assessee during the assessment stage. The assessing officer also did not raised the queries by issuing notice under section 142(1) of the Act, therefore, it is a case of complete lack of inquiry. - Decided against assessee.
-
2021 (8) TMI 1163
Revision u/s 263 - inadequate or improper enquiry by the AO - cash deposited in a particular Bank - HELD THAT:- AO has examined and verified the IndusInd Bank Account during the assessment stage, thus we note that, Ld. Pr. C.I.T. by invoking his jurisdiction u/s 263 of the Act, is giving another opportunity to the assessing officer to examine it again, which is not permissible. In the case of Ranka Jewellers [2010 (3) TMI 544 - BOMBAY HIGH COURT] relying on the decisions of Hon’ble Supreme Court in the cases of Malabar Industrial Co. Ltd. vs. CIT [2000 (2) TMI 10 - SUPREME COURT] and CIT vs. Max India Ltd. [2007 (11) TMI 12 - SUPREME COURT] has held that once the issue was considered by the A.O., the remedy of the revenue could not lie in invoking of the jurisdiction u/s 263 of the Act
Therefore, the order of the Ld. C.I.T. was definitely outside the purview of section 263 of the Act. As noted above, the exercise aimed at ascertaining the correct income of the assessee has been fulfilled by the Ld. A.O. by exercising his quasi-judicial functions vis-a-vis passing the assessment order u/s 143(3) of the Act. Therefore, certainly it is not a case wherein adequate enquiries at the assessment stage were not carried out or assessment was made in haste. However, what is an opinion formed as a result of these enquiries and verification of the materials is something which is in exclusive domain of the Assessing Officer, and even if Ld. Pr. Commissioner does not agree with the results of such enquiries, the resultant order cannot be subjected to revision proceedings. - Decided in favour of assessee.
-
2021 (8) TMI 1162
Disallowance u/s 14A r.w.r. 8D - Assessee contented that no disallowance in respect of interest expenditure should be made as the assessee has sufficient own interest free funds for making the investment, interest bearing funds were not utilized for the purpose of investments - HELD THAT:- For earning tax free income, the assessee made suo-motu disallowance - During the period relevant to the assessment year under appeal no new investments were made - assessee referred to Balance Sheet to show that own funds of the assessee are much more than the investments made. Since, this argument has been made for the first time at Second Appellate stage, we deem it appropriate to restore this issue to the file of Assessing Officer to examine availability of own funds of the assessee for investment. If own funds of the assessee are sufficient to meet the investments, no disallowance under Rule 8D(2)(ii) is warranted. Ground of the appeal of assessee is allowed for statistical purposes.
Disallowance of interest expenses on loan converted into share application money - HELD THAT:- As relying on ROHIT EXHAUST SYSTEMS PVT. LTD. AND VICE-VERSA [2012 (10) TMI 1101 - ITAT PUNE] interest paid upto the date of allotment of shares i.e. 21/12/2012 is allowable as revenue expenditure. - Decided in favour of the assessee.
MAT computation on disallowance u/s 14A - Inclusion of disallowance u/s 14A r.w. Rule 8D while computing Book Profit under Section 115JB - HELD THAT:- As decided in the case of ACIT vs. Vireet Investments Pvt. Ltd.[2017 (6) TMI 1124 - ITAT DELHI] has held that while determining book profit under section 115JB of the Act the provision of section 14A r.w. Rule 8D are not to be invoked. Thus, in light of the decision rendered by Special Bench, the assessee succeeds.
-
2021 (8) TMI 1161
Delay in filing of appeal before the Commissioner (Appeals) - Non-Receipt of Order-in-original - Recovery of service tax - Even the SCN also not come to the notice of the appellant till the recovery proceedings were initiated against him - principles of natural justice - HELD THAT:- It is apparent that the appellant could not appear before the Original Adjudicating Authority despite three opportunities for hearing was afforded to the appellant. But from the arguments of the appellant, it is coming apparent that appellant in-fact, was not served with even with the copy of Show Cause Notice which became the reason for him to not to appear before the Original Adjudicating Authority and the same was the reason for acquiring no knowledge of Order-in-Original dated 16.11.2018 till the recovery proceedings got initiated against the appellant. The affidavit to this effect is placed on record.
Mere dispatch of the order cannot be considered as service. The period of 2 months for filing the appeal has to reckon not from the date of order announced but from the date of receipt of said order by the assessee in terms of Section 35 of Central Excise Act, 1944. Section 37 C further provided the mode of service. In view of those statutory provisions, it is not held appropriate to consider the proof of dispatch as sufficient proof of service - the circumstances reflect no fault on part of the appellant for while approaching Commissioner (Appeals) with his grievance.
Since admittedly no acknowledgement receipt was received by the Revenue, question of the production thereof on the record does not at all arise - there are no option but to hold that the Original Adjudication order was not received by the appellant prior to 20th February, 2019. The appeal filed before Commissioner (Appeals) on 18.04.2019 was very-much within the period of two months as is required under section 35 of Central Excise Act. Commissioner (Appeals) definitely erred while rejecting the appeal on the ground of being barred by time.
Appeal allowed by way of remand.
-
2021 (8) TMI 1160
Maintainability of appeal - appeal not filed in time - non-compliance of Section 35 F of Central Excise Act - HELD THAT:- Apparently and admittedly the appeal against Order-in-Original date4d 20th March, 2019 was filed on 4th June, 2019. Admittedly the order was received by the appellant on 25th March, 2019. In terms of Section 35 F of CEA, 1944, the appeal against the said order would have been filed within two months reckoning from 25th March, 2019.
Apparently and admittedly, the appeal was filed on 4th June, 2019 i.e. beyond the said period of two months. No doubt Section 35 F gives power to Commissioner (Appeals) to condone the delay for another a month and to accept the appeal which is filed not later than three months from the receipt of order challenged before him and the appeal in hand was filed within said three months period. But there has been a statutory mandate that the said time extension of one month could be provided only when there has been a sufficient cause which restrained the assessee from filing the appeal within the two months from the date of the receipt of the order.
There are no reason to differ with the case law relied upon by the appellant but the said decisions are not applicable to the above discussed facts and circumstances of the present case. Even if, the date of appeal is allowed to be that of 4th June, 2019 instead of 29th June, 2019 still the appeal is beyond the permissible period of two months, with no sufficient explanation of delay beyond said two months.
Appeal dismissed.
-
2021 (8) TMI 1159
Conspiracy - Smuggling - prohibited goods or not - Chinese origin fire crackers - goods wrongly declared bicycle parts - principle of criminal jurisprudence - HELD THAT:- Apparently and admittedly, present appellant is the importer of bicycle products. Admittedly the impugned consignment was not in the name of M/s. Rahul Traders the importing firm of the appellant, but was in the name of M/s. Kirat Sales Corporation. Though the show cause notice recites that the consignment was initially booked in the name of M/s. Rahul Traders but in the light of the statement of Mr. Manish Shrivastava, Dy. Manager of Orient Overseas Life, the shipping agency and in the light of the document as that of Bill of Lading, the said allegations is not sustainable and the confirmation based thereupon is nothing but a result of presumption. This being a clear cut case of absence of any evidence against Rahul Sehgal, it shall be appropriate to hold that the adjudicating authority below has erred fastening liability upon the present appellant by way of imposition of penalty.
The question of meeting of mind of the present appellant with said Saurabh Aggarwal gets closed with the element of doubt. Conspiracy being a criminal offence principle of criminal jurisprudence gets readily attracted. The foremost principle being that the benefit of doubt has to be extended in favour of the accused. In the present case there is not merely the doubt but the lack of substantial evidence as against Rahul Sehgal that the findings of authorities below cannot sustain.
Appeal allowed - decided in favor of appellant.
-
2021 (8) TMI 1158
Registration u/s 12AA - proof of charitable activities u/s 2(15) - power of Commissioner to look into objects of society and genuineness of same - CIT(E) has rejected the application of the Assessee by holding that there are certain defects and deficiencies in the basic documents and rules and regulations and doubts about the charitable activities to verify basic purpose of objectives of the Society and that the Appellant Society was not incorporated for solely education purpose and had been engaged in profit making activities - HELD THAT:- Under section 12A, the provisions of sections 11 and 12 shall not apply in relation to the income of any trust or institution unless various conditions are fulfilled. The power of the Commissioner to look into the objects of the Society and the genuineness of the same cannot be doubted when the basis is of non-supply of information. In such circumstances, it would be appropriate that the Commissioner undertakes the exercise afresh, on the basis of the application which has already been filed, keeping in view the material which can be produced by the assessee or filed on record by digital mode.
In the case of "CIT-1, Chandigarh vs. Sri Guru Gorakh Nath Charitable Educational Society",[2015 (5) TMI 363 - PUNJAB & HARYANA HIGH COURT] had answered the question that Whether power of Commissioner to look into objects of society and genuineness of same could not be doubted when basis was of non-supply of information and as such it would be appropriate for Commissioner to undertake exercise afresh on basis of application which had been filed keeping in view material which could be produced by assessee and matter remanded back.
Hon'ble Apex Court in the case of "Ananda Social & Education Trust Vs. CIT" [2020 (2) TMI 1293 - SUPREME COURT] has held that Even without any activity having been undertaken by trust, it is entitled to be considered for registration under section 12AA and various high court on the issue for grant of registration, that the CIT(E) has to be examine the genuineness of the objects only the stage of registration, and not genuineness of activities - we hereby set aside the order of the CIT(E) with a direction to decide expeditiously, the application, filed for registration under Section 12AA, afresh with the following observation verify that whether the objectives of the assessee trust are charitable in nature and activities carried out are genuine during the year for which the registration is sought for by the assessee society in the light of evidences prima facie relevant, for the year under consideration for the purpose of grant of registration u/s. 12AA - Appeal is treated allowed for statistical purposes.
-
2021 (8) TMI 1157
Exemption u/s 11 - Registration u/s 12AA denied - Assessment of trust - manipulative treatment of funds - genuineness of the activities carried out by the Appellant Society - contradictory treatment of the same amount in one year as Unsecured Loan and another year as Donation and that this is against the Accounting Principle - HELD THAT:- CIT exemption while denying the registration to the assessee had wrongly mentioned that as the assessee has shifted from the regime of 10(23C) to 12AA, the same is not permissible in the law and therefore the CIT exemption has denied the registration. Further CIT exemption mentioned above the acceptance of loan by the assessee in the previous year and thereafter the assessee in the financial year 2015-16 had claimed that the loan received by were in the nature of donation.
Reasoning given by the CIT exemption cannot be countenanced as the same is contrary to the law laid down in Beant College of Engineering & Technology[2019 (5) TMI 631 - PUNJAB AND HARYANA HIGH COURT] Therefore this ground of rejection is not sustainable and therefore we reject the same.
Acceptance of loan and thereafter in the financial year 2015-16, alleging it to be the donation - Merely on the basis of receipt of loan, and subsequent conversion of loan into donation, Assessee would not be disentitled for the registration under section 12AA of the income tax Act. The correct stage to examination of funds/utilisation of the amount/corpus by the assessee, would be at the time of assessment.
Disallowance can be made if any, on examination at the assessment stage it is found that the assessee is not entitled to the exemption under section 11 of the Act and the amount received was chargeable to income of the assessee - at the stage of registration, the CIT exemption cannot deny the registration merely on the basis of the receipt of loan amount. No other reason was given by the CIT exemption for rejecting the application for registration. For that purpose we may rely upon decision in the matter of Ananda Social & Educational Trust [2020 (2) TMI 1293 - SUPREME COURT] - assessee is entitled to registration under section 12AA - Decided in favour of assessee.
-
2021 (8) TMI 1156
Reopening of assessment u/s 147 - eligibility of reasons to believe - HELD THAT:- AO has failed to discharge the obligation cast upon him by the Statute by verifying the correctness of the information before initiating the proceedings.
Before issuing a notice u/s 148 of the Act, the ITO must have either reasons to believe that by reason of the omission or failure on the part of assessee to make a return for any assessment year to the Income tax Officer or to disclose fully or truly all material facts necessary for assessment for that year, income chargeable to tax has escaped assessment for that year or alternatively notwithstanding that there has been no omission or failure as mentioned above on the part of assessee, the ITO has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year.
The records regarding filing of ITR is accessible on line as refund granted to the assessee for the assessment year under review, without information of ITR filed by him clearly indicated in Form No. 26AS, copy of which is enclosed, had the A.O. taken due care to verify the facts before reaching to the above reasons, there could have been not valid reasons for reopening the case u/s 147/148 - unless the requirement of clause (a) and (b) of Section 147 are satisfied, the ITO has no jurisdiction to issue a notice u/s 148 - The important safeguard provided in Sections 147 and 151 of the Act were lightly treated by the A.O. as well as by the Commissioner. Both of them appear to have taken the duty imposed on them under those provisions as of little importance. They have substituted the form for the substance. - Proceedings u/s 147 of the Act stands quashed and resultantly, the demand of tax stands deleted - Decided in favour of assessee.
-
2021 (8) TMI 1155
Seeking direction to RP to verify, entertain and accept the claim of the applicant - seeking permission to bring on record the averments that on the basis of the MoU - HELD THAT:- It is not the case that on 09.03.2018, while admitting the application, the IRP was not appointed by the Bench, rather on 30.07.2018, the earlier IRP Mr. Yogesh Tyagi was discharged and a new IRP Mr. Anurag Nirbhay was appointed. Therefore, we find, no force in the contention raised on behalf of applicant that since the IRP was not appointed on the date of admission of the application, therefore, the insolvency commencement date will shift to the date, when the IRP was appointed.
Mere mentioning of an incorrect insolvency commencement date by the IRP/RP in Form A i.e. Public Announcement cannot change the position of law as referred to in Section 5(12) of IBC, 2016 - the contention of the applicant is not liable to be accepted.
Seeking amendment in the earlier application - HELD THAT:- The only ground for seeking amendment is that the definition of the word "allottee" was not clear prior to pronouncement of the Judgment by the Hon'ble Supreme Court in the MANISH KUMAR VERSUS UNION OF INDIA AND ANOTHER [2021 (1) TMI 802 - SUPREME COURT] - A bare perusal of Section 5(8) of IBC, 2016 shows that there is no "if and but" regarding the meaning of "financial debt" so far as the expression allottee is concerned. By an amendment w.e.f. 06.06.2018, which is prior to the submission of claim by the applicant before the RP, it was crystal clear that any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing and the expressions, "allottee" and "real estate project" shall have the meanings respectively assigned to them in clauses (d) and (zn) of section 2 of the Real Estate (Regulation and Development) Act, 2016.
Merit of the amendment proposed - HELD THAT:- Since the applicant has already submitted his claim in Form B and so far as the reference to the MoU is concerned, that reference was already made in para 5 of the application IA/1442/2020 filed by the applicant, it cannot be said that these facts were not within the knowledge of the applicant at the time of filing of the earlier application - we are unable to accept the prayer of the applicant to permit him to make necessary amendment in the IA/1442/2020.
Application dismissed.
............
|
9911796707
