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Showing 281 to 300 of 1466 Records
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2023 (1) TMI 1186
Rejection of Petitioner’s application for the benefit of the Sabka Vishwas (Legacy Disputes Resolution) Scheme, 2019 - absence or inadequacy of reasons as to why the Petitioner’s application for the benefit of the Sabka Vishwas (Legacy Disputes Resolution) Scheme, 2019 was rejected - violation of principles of natural justice - HELD THAT:- In the cases at hand, either there are no remarks or cryptic unclear remarks. The Respondents have filed exhaustive replies seeking to place on record the reasons. Therefore, it is for the first time in this Court an adjudication will have to take place on the basis of replies filed. Such position cannot be countenanced. The Respondents cannot be permitted to abdicate their duty to fill up the Remarks column in SVLDRS-3 in a meaningful manner. The failure to do so is adding to the already crowded docket of this Court.
The matters are remanded to emphasis upon and inculcate administrative discipline on the offices of the Respondents to provide reasons as required by the Statue, by setting aside the impugned orders/ communications and directing remedial action.
Petition disposed off.
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2023 (1) TMI 1185
Levy of service tax - services provided by the public sector undertaking formed by the Government especially for the purpose of soil conservation and land reclamation - exemption to specified service including conservancy as per N/N. 25/2012 - scope of the term conservancy - supply of tangible service - rent-a-cab service - HELD THAT:- The activity undertaken by the appellant would be specifically covered by the Notification No. 25/2012 –ST dated 20.06.2012 under Sr No.25 thereof. In view of services provided by the appellant would be exempt with effect from 20.06.2012 onwards under the notification.
It is also noticed that the entire amount received by the appellant from the government in the shape of grant is in the nature of reimbursement i.e. to say the actual expenditure incurred for the provision of the service is reimbursed by the Government of Gujarat. For that reason also the amount paid by the Government to the appellant cannot be taxed as does not fall within the definition of consideration for service. In these circumstances, there are no merit in the demand of service tax under the head of business auxiliary service against the appellant. The demand on this count is set aside and the appeal on this count is allowed.
Demand under the head of supply of tangible service - HELD THAT:- Neither show cause notice nor the impugned order gives any grounds to substantiate the claim that the physical possession and effective control of the equipment is not transferred to the clients but is retain to the appellant. In these circumstances, there are no evidence to support the charges levied on the appellant in regard to supply of tangible goods service - Demand on this count is also set aside and appeal is allowed.
Demand under the category of rent-a-cab service - HELD THAT:- There are substantial force in the argument of the appellant that this is not a service provider/ service recipient relationship. The appellants are not in the business of rent – a-cab providing rent a cab service and any recovery is made for private use of vehicle are in terms of the employment agreement. Thus, there are no merit in the argument of the Revenue - Demand on this count is also set aside and appeal is allowed.
Appeal allowed.
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2023 (1) TMI 1184
CENVAT Credit - providing non-taxable output services also i.e. trading of goods as well as exempted output services - non-maintenance of separate records - Rule 6(2) of Cenvat Credit Rules, 2004 - failure to produce any of the original input service invoices for verification by audit officers and submission of randomly selected photocopies of input services invoices on Cenvat credit availed - HELD THAT:- The appellant has violated provisions of Rule 5A (2) of the Service tax Rules, 1994. Further they had availed Cenvat credit amounting to Rs. 7,10,60,401/- by making some consolidated entries in their Cenvat credit register during the period June 2014 to March 2015, which involves hundreds of input service invoices of 2007-2008 to 2013-14. The Cenvat credit has been availed without any proof of having valid documents as prescribed under Rule 9 of the Cenvat Credit Rules, 2004. They have not fulfilled the conditions of Rule 6(3A) of Cenvat Credit Rules 2004 - there is no manipulation in Cenvat credit register and all the documents and information has been provided to the department. All the original invoices are always available at their respective regional office where the input service is received. In this circumstance, the matter should go back to the adjudicating Authority for verification of the invoices /documents and Cenvat credit register maintained by the appellant - this matter is remanded to the adjudicating authority to give another opportunity to the appellant to establish its entitlement.
The dispute relating to admissibility of Cenvat credit in the absence of exercise of option to avail proportionate Cenvat credit under the provisions of Rule 6 of Cenvat Credit Rules 2004 is also remanded to the adjudicating authority for a fresh decision - the condition in Rule 6(3A) to intimate the department is only a procedural one and such procedural lapse is condonable and denial of substantive right for such procedural failure is unjustified.
The matter is remanded to the adjudicating authority to decide the matter a fresh after verifying the Cenvat records of the assessee - the appeal are allowed by way of remand to the adjudicating authority.
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2023 (1) TMI 1183
Levy of penalty - abating the fraud - ex-superintendent of Central Excise with other person - Rebate claim - habitual offender - it is alleged that the goods were neither manufactured nor were exported and rebate claims were filed on the basis of fake documents - demand and recovery of erroneously sanctioned amount and paid as rebate of Central Excise Duty, alongwith interest and penalty - HELD THAT:- From the facts as stated in the impugned order, it is very clear mind that the appellants had conspired and perpetuated the alleged fraud by filing these rebate claims to defraud the exchequer of the amount claimed by them as rebate without payment of any central excise duty and without exporting any goods. It is settled principle in law and The legal maxim "fraud vitiates everything" is very relevant to the facts herein.
The economic offenders/ white collared criminals need to be dealt in the strictest manner so as maintain uniformity and well being in the society and not endanger the economy of the country - It has been settled by various authorities that the word “possession” or similar phrases used in the statute do not imply physical possession of the goods but would imply possession in law.
Reliance placed in the case of MOHAN LAL VERSUS STATE OF RAJASTHAN [2015 (4) TMI 688 - SUPREME COURT], where interpreting the provisions of the Section 9 of Opium Act, 1978, and Section 18 of NDPS Act, 1985 Hon’ble Supreme Court has held that A functional and flexible approach in defining and understanding the possession as a concept is acceptable and thereby emphasis has been laid on different possessory rights according to the commands and justice of the social policy. Thus, the word "possession" in the context of any enactment would depend upon the object and purpose of the enactment and an appropriate meaning has to be assigned to the word to effectuate the said object.
Thus, it is established the phrases like “Any person who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any good.” used in the statute, need not be restricted to their literary meanings or imply actual physical possession or handling of the contraband goods, but these phrases refer to possession and handling of the contraband goods in law. This view has been expressed by the Hon’ble Apex Court in the case of Mohan Lal, any contrary view cannot be upheld.
In view of the fact that appellants were not only responsible for creating the fabricated documents but also responsible for producing the fabricated documents in respect of verification of the payment of duty and export of the goods from the port, cannot claim that they had not handled the goods in law in the manner as stated in Rule 26 of the Central Excise Rules, 2002 - thus, it is quite evident that Rule 25, 26 and 27 of the Central Excise Rules, 2002 have been framed in terms of the Rule to provide for the penalties that may be imposed for the offences as have been provided in terms of the Central Excise Act, 1944. Rule 26 either before the amendment nor after the amendment has created any offence which was not an offence as per the provisions of Section 9 of the Act.
Thus, it transpires that Appellant 1 is habitual offender and has been making use of his official position to perpetuate such rebate frauds. He deserves no leniency - It is not the case that Appellant had perpetuated the fraud of Rs 1,59,07,687/- but they had filed 85 rebate claims, claiming rebate of Rs 8,32,00,658/- the fraud committed cannot be restricted to the amount claimed as rebates, as the fake documents which were prepared would be in respect of the value of goods which would be many times the amount claimed as rebate, might be in neighborhood of Rs 100 crores. The person preparing fake documents showing the export worth Rs 100 crores, without exporting any goods do not deserve any leniency. The misuse of the fake documents prepared cannot be limited to just claiming of the rebate, but these documents can be used for transporting the illegal or criminal wealth amassed by the fraudster elsewhere in the world to India through normal channels which can be used for laundering the money in India or perpetuating more criminal activities including the financing of the terror activities.
Appeal dismissed.
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2023 (1) TMI 1182
CENVAT Credit - availment of input services for the taxable and exempted services - non-maintenance of separate records - whether credit of input services in respect of the Tower/Buildings were not admissible to the assessee post issuance of completion certificate? - gross violation of Rule 6(1) of the Cenvat Credit Rules, 2004 or not - HELD THAT:- There are various findings of fact recorded by the Ld. Commissioner (Appeals). One of the findings of fact recorded by the Commissioner (Appeals) is in paragraph 13 says The respondent vehemently objected to the remand made by the Ld. Commissioner (Appeals). However, the respondent without challenging the impugned order by filing an appeal or cross objection can not seek the quashing of the direction of the Ld. Commissioner (Appeals) for remand for requantification. Hence the submission of the respondent in this regard is rejected.
Further it is found that the Ld. Commissioner (Appeals), decided the subject disputed matter on the basis of judgment of THE PRINCIPAL COMMISSIONER VERSUS M/S ALEMBIC LTD. [2019 (7) TMI 908 - GUJARAT HIGH COURT] and grievance of the revenue is that departmental appeal is pending against the decisions of said order. In these circumstances, the matter should be remanded to the original adjudicating authority to decide the matter afresh.
Appeal allowed by way of remand.
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2023 (1) TMI 1181
Interest on the refund amount - respondents contends that the amount deposited by the petitioner as a pre-condition for maintaining the appeal, is required to be considered as tax, as it was against the pending liability - inaction for an inordinately long period - Section 30(4) of the Delhi Sales Tax Act, 1975 - HELD THAT:- In the instant case the petitioner had pursued the respondents for processing its claim for tax and interest. Despite the same, the respondents had failed to take any action - Undisputedly, in compliance with the directions passed by this Court, the respondents were required to process the petitioner’s application for refund along with interest in accordance with law. No contention has been advanced before this Court as to why the petitioner is not entitled to interest on the said amount. In the circumstances, we do not consider it apposite to relegate the petitioner to the alternate remedy, in this case.
Guilty of inaction for an inordinately long period - HELD THAT:- Once the petitioner had filed the application for seeking refund of the amount along with interest, it was incumbent upon the respondents to either allow or reject the same as per law. The inaction, if any, is largely on the part of the respondents. First of all, the respondents ought to have refunded the amount as it was deposited to avail of the remedy of appeal without awaiting filing of any form - Admittedly, the petitioner had once again filed a written representation on 14.10.2020, however, this representation was also not disposed of within a reasonable period and the petitioner was constrained to approach this Court.
The respondents are directed to pay interest on the sum of ₹10,00,000/- at the rates as specified under Section 30(4) of the Act, computed from the ninetieth day after the date of application dated 18.05.2012 till the date of payment - Petition allowed.
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2023 (1) TMI 1180
Refund of excess amount of CST paid - claim of sales at concessional rate of 2% has been rejected by the respondent no.3 on the ground that the tax had been borne by the petitioner and not by the Petronet - HELD THAT:- The legal issue is well settled not only by the decision of CARPO POWER LIMITED VERSUS STATE OF HARYANA AND OTHERS [2018 (4) TMI 146 - PUNJAB AND HARYANA HIGH COURT], but also by the decision of this Court in the case of J.K. CEMENT LTD. VERSUS STATE OF GUJARAT [2020 (3) TMI 140 - GUJARAT HIGH COURT], where this Court had categorically permitted the petitioner the refund of excess amount of the tax paid to the seller. It was a case where the petitioner had purchased from the Reliance Industries Limited the HSD in the course of inter-state trade for use of mining activities. The petitioners as the ultimate consumers had sought before the Court the amount of excess tax by producing the C-form, which had been issued by the Rajasthan authority. The excess tax had been collected by the seller – Reliance Industries Limited, the CST Authority at Rajasthan. Since they issued the C-form declaration in respect of the transaction in question and the seller had already been collected the tax from the petitioner, the refund was directed not to be given by the Reliance Industries on the ground that it was not entitled to such refund as the claim would be hit by the principles of unjust, enrichment. In that case, the petitioner had furnished the statement showing the details of the purchases, tax charged and submission of ‘C’ forms against the purchases as well as copy of sample invoices, etc. and the Court therefore, held that the petitioner duly complied with the direction issued by the Rajasthan High Court, the respondent authority was bound to process the refund claims under Section-11(B) of the Central Excise Act. The respondents accordingly were directed to process the refund claims of the respective petitioners and grant refund of the tax amount collected from the petitioners and deposited by the seller in accordance with law within stipulated time period.
The respondents shall process the refund claim of the petitioner and grant the refund of tax amount collected from the petitioner and deposited by the seller in accordance with law, within period of four weeks from the date of receipt of a copy of this order - Petition allowed.
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2023 (1) TMI 1179
Levy of purchase tax - penultimate sale - raw hides and skin purchased without tax were converted as dress hides using materials purchased at concessional rate of tax under Section 3(3) of the TNGST Act - whether the exemption under Section 5(3) of the Centrals Sales Tax Act, 1956 r/w. Article 286 of the Constitution of India would inure to an exporter like the petitioner who purchased goods from a dealer without payment of sales tax, part of which was utilized for export?
HELD THAT:- To facilitate a selling dealer to avail exemption, the exporter has to obtain Form-H prescribed under Rule 12(10) of the Central Sales Tax Act (Registration and Turnover) Rules, 1957 and furnish it to the dealer who effected such penultimate sale to the exporter. Only such penultimate sale prior to the export is exempt from sales tax under the respective enactment when read in conjunction with Article 286 of the Constitution of India - It is on the strength of Form H given by an exporter, the local dealer effecting a local sale or an inter-State sale can treat the sale as an exempted sale under Section 5(4) of the Central Sales Tax Act, 1956. This is the statutory mechanism prescribed for exempting a dealer effecting penultimate sale of goods to an exporter prior to export. As far as payment of purchase tax under Section 7A is concerned, there is no mechanism provided under the Act.
If the ratio of the Hon’ble Supreme Court in STATE OF KARNATAKA VERSUS AZAD COACH BUILDERS PVT. LTD. AND ANOTHER [2010 (9) TMI 879 - SUPREME COURT] is to be applied to the facts of the present case, the petitioner would be entitled to claim exemption provided the petitioner is able to establish an inextricable link between the purchase of raw hides and the export of goods viz., raw hides with the export order. There are no records to establish the same in the present case. Further, the petitioner also had local sales of dressed hides and skin.
Though, on a cursory reading of the decision of the Hon’ble Supreme Court, it may appear that there was an apparent contradiction between the law declared by it in Paragraph 19 and its conclusion in Paragraph 31. However, it must be borne in mind that what was sold by the assessee M/s.Azad Coach Builders (P) Limited to the exporter Tata Engineering Locomotive Co. Limited was bus body manufactured by it which was mounted on the chassis supplied by the exporter Tata Engineering Locomotive Co. Limited for export. Thus, sale of bus body was prior to the export and was a penultimate sale. It is in this background the Court held that “same goods theory” was not applicable to the facts of the case.
In the present case, the petitioner purchased the raw hides and converted it into dress hides and skins. Thus, there was a change in the character of the goods in the hands of the petitioner before the goods were exported by the petitioner. What was purchased by the petitioner was different and what was exported by the petitioner was different - the petitioner is therefore not entitled to exemption under Sections 5(3) and 5(4) of the Central Sales Tax Act, 1956 in the light of the observations of the Hon’ble Supreme Court in Paragraph No.19 in Azad Coach Builders (P) Ltd.
There are no merits in the present case - petition dismissed.
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2023 (1) TMI 1178
Issues Involved:
1. Refund of excess Central Sales Tax paid by the petitioner before respondent No. 3.
Analysis:
The petitioner, a limited company and a public sector undertaking, entered into a "Gas Sale and Purchase Agreement" with M/s. Petronet LNG Ltd. to purchase "Regasified Liquefied Natural Gas." Before the introduction of the Goods and Service Tax regime, the petitioner procured goods at a concessional rate of 2% against the production of C-forms as per the Central Sales Tax Act and the Gujarat Value Added Tax Act. With the GST regime, certain commodities continued to be governed by State Value Added Tax laws. Due to non-issuance of C-forms, Petronet charged tax at the full rate of 15% on inter-State sales to the petitioner, which the petitioner claims is contrary to Section 8 of the CST Act and previous court decisions.
The petitioner sought a refund of the excess amount of CST paid before respondent No. 3. The prayers included requesting the court to issue a Writ of Mandamus for sanctioning the refund claim, directing the respondents to adjudicate the refund application, and providing ad-interim relief. The petitioner's advocate referred to previous court decisions, such as J.K.Cement Ltd. vs. State of Gujarat, and argued that the non-availment of the refund is contrary to established law.
The court noted the arguments presented by the petitioner's advocate and scheduled a notice for final disposal returnable on a specific date. The learned Assistant Government Pleader waived service of notice on behalf of respondent No. 1, while direct service to Respondent Nos. 2 and 3 was permitted, including service through e-mode on the official e-mail ID.
In conclusion, the judgment revolves around the petitioner's claim for a refund of excess Central Sales Tax paid due to non-issuance of C-forms, citing provisions of the CST Act and previous court decisions as the basis for their argument. The court has scheduled further proceedings to address the petitioner's refund application comprehensively.
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2023 (1) TMI 1177
Legality of the impugned order passed by the National Company Law Tribunal, New Delhi Bench whereby the winding up petition filed against the Respondent company was dismissed - HELD THAT:- In view of the Judgment passed by Hon’ble three Member Bench of this Tribunal in the case of REGISTRAR OF COMPANIES NCT DELHI AND HARYANA VERSUS APOORVA LEASING FINANCE & INVESTMENT CO LTD, UNION OF INDIA, THROUGH THE SECRETARY, MINISTRY OF CORPORATE AFFAIRS, NEW DELHI. [2019 (12) TMI 1634 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI.] which has attained finality as the Civil Appeal has also been dismissed by the Hon’ble Supreme Court in UNION OF INDIA VERSUS APOORVA LEASING FINANCE AND INVESTMENT CO LTD AND ANOTHER [2021 (1) TMI 1293 - SC ORDER], it is found that facts of the instant Appeal are same and identical to the case which was dismissed by this Appellate Tribunal in the case of Registrar of Companies Vs. Apoorva Leasing Finance & Investment Company Limited and Another - It was held in the said case that Under the provisions of Section 423, this Court is empowered to condone a delay (beyond the original period of limitation of 60 days) only to the extent of a further period of 60 days. Hence, since the appeal has been filed beyond the maximum period that can be condoned under the proviso to Section 423, the appeal cannot be entertained and is accordingly dismissed on the ground of limitation.
There is no merit in the Appeal, the instant Appeal is hereby dismissed.
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2023 (1) TMI 1176
Transfer of jurisdiction - Validity of notices issued u/s 142(1) by ACIT, Balasore Circle, Balasore - transfer of jurisdiction of the Income Tax Circle of the Petitioner for the said AY from Kolkata to Balesore was without complying with Section 124 (4) of the IT Act - HELD THAT:- The fact remains that merely because the Petitioner hapens to be a Director of M/s. Nabadurga Minerals, Rairangpur, Mayurbhanj which has been assessed in the Balasore Circle would not automatically transfer the jurisdiction as far as Petitioner is concerned from Kolkata to Balasore. What the counter affidavit, however, does not answer is how the transfer of jurisdiction could take place without complying with the mandatory requirement of Section 124(3) of the IT Act. See DEVIDAS VERSUS UNION OF INDIA AND OTHERS (AND OTHER PETITIONS) [1991 (9) TMI 18 - BOMBAY HIGH COURT]
No convincing answer given by the Department to shift the jurisdiction to the Balasore Circle, when admittedly, the Petitioner has already shifted to Kolkata and has been filing returns there. Accordingly, the Court quashes the impugned notices issued by the ACIT, Balasore to the Petitioner.
It is clarified that the Petitioner will continue to be within the jurisdiction of the relevant Income Tax Circle at Kolkata where he has been filing his returns. This order will not preclude the Department from proceeding in accordance with law if it proposes to transfer the jurisdiction of the Petitioner to any other circle.
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2023 (1) TMI 1175
Reopening of assessment u/s 147 - income chargeable to tax accrues or arises in India - whether the investment in shares of Agile by the petitioner was a capital account transaction, given the fact that there is no allegation of round-tripping - HELD THAT:- We may note, that there is no reference to Section 115A of the Act, for whatever its worth, either in the show-cause notice or in the impugned order passed by the AO.
As to whether the said provisions are, at all, applicable to a non-resident company is a moot point which the AO will have to decide.
Having regard to the overall facts, we are of the view, that this writ petition can be disposed of with the following directions:
(i) The impugned order passed u/s 148A(d) of the Act and the consequent notice of even date issued under Section 148 of the Act are set aside.
(ii) The AO will carry out a de novo exercise. The AO will, inter alia, deal with the petitioner’s contention, that the transaction in issue is a capital account transaction, and that no income whatsoever chargeable to tax accrues or arises in India.
(iii) The AO will accord personal hearing to the authorized representative of the petitioner. For this purpose, the AO will issue a notice fixing the date and time of hearing.
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2023 (1) TMI 1174
Exemption u/s 11 - assessee is rendering specific service to its members as well as non-members and charging fees from them which is liable to be taxed under head ‘Profit and gains of Business & Profession’ and as such its activities are not charitable in nature as envisaged u/s 2(15) - CIT-A held that the activities of assessee organization charitable in nature and eligible for exemption u/s 11 - HELD THAT:- It is not in dispute that for the Assessment Year 2006-07 and 2007-08 exemption had been denied on the ground that the assessee was involved in trade, commerce or business since the assessee was receiving fees and other income from known members also. The denial of the exemption has been set aside by the Ld.CIT(A) against which the Department of Revenue had approached this Tribunal and his Tribunal had allowed the exemption but directed the assessee to maintain separate books of accounts u/s 11(4A) of the Act. As against the order of the Tribunal, the assessee preferred an appeal before the Hon’ble Delhi High Court [2012 (11) TMI 429 - DELHI HIGH COURT] treated the assessee as charitable institution u/s 11(1) of the Act.
Even in the year under consideration the exemption u/s 11(1) has been denied by invoking mischief of proviso to Section 2(15) mainly on the ground that the assessee involved in trade, commerce or business. The Ld.CIT(A) by following the principles of consistency and also orders made in assesses’s own case right from the Assessment Year 2006-07 to 2014-15 and also by following orders of the Tribunal, the Hon’ble Delhi High Court which treated the assessee as charitable institution u/s 11(1) of the Act and allowed the appeal.
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2023 (1) TMI 1173
Income deemed to accrue or arise in India - CIT(A) treating the amount as non taxable in India, on the ground that the services were rendered outside India - Whether assessee had failed to fulfill all conditions as laid down in clause (b) of section 9(1)(vi) of the I. T. Act - CIT(A)’s action in issue reversing the assessment findings holding the assessee’s receipts in issue as taxable in India despite the fact that it had rendered the corresponding services in USA only - HELD THAT:- Fact remains that the assessee has not rendered any services in India itself forms the most clinching aspect for us to follow our earlier above extracted order deciding the issue against the department. It is made clear that the Revenue’s pleadings nowhere pinpoint any distinction on facts or law; as the case may be, in all these three assessment years. Faced with the situation, we adopt judicial consistency to affirm both the CIT(A)’s orders herein under challenge. This Revenue’s identical sole substantive ground fails therefore.
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2023 (1) TMI 1172
Income from undisclosed source u/s 68 - creditworthiness & genuineness of the transactions remain unproved as the two companies from whom advances have shown to received had meager income not capable to advance such huge amount - AO while making the addition has mentioned that the ‘assessee has not furnished the necessary detail for ascertaining identity of the person and genuineness of advance received,’ accordingly, made addition u/s 68 - CIT(A) has deleted the addition made by the A.O - HELD THAT:- As found that the assessee had filed loan confirmations with address, bank statement of the two parties i.e Vedanga Vinimoy Pvt. Ltd. and M/s R. R. Dealers Pvt. Ltd. showing the payment to the assessee and the photo copies of the income tax return of the said two parties. During the course of assessment proceedings vide letter dated 16/11/2015. However no enquiries were made by the A.O. during the course of the assessment proceedings.
As found that the Ld. A.O. has made necessary enquires during the remand proceedings to verify the genuineness of the advance of 5,00,00,000/- received by the assessee from the above said two parties. The Ld. A.O. has also issued notice u/s 133(6) of the act to the aforesaid creditors. The above said parties have duly acknowledged the notice issued u/s 133(6) of the Act and thereafter they have sent their confirmation, final account and ITR for the Assessment Year 2013-14. There were no adverse comment or finding has been made by the A.O. on the above said parties. Besides the same, the assessee had proved the identity, creditworthiness and genuineness of the two parties in relation to the advance in question.
We are of the opinion that there is no error or legal infirmity in the order of the Ld.CIT(A) in deleting the addition made by the A.O - Decided against revenue.
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2023 (1) TMI 1171
Unexplained cash credit u/s 68 - Bogus share capital and share premium - genuineness and creditworthiness of the investors could not be verified due to non-production of the managing directors of share subscribing companies - HELD THAT:- Non-production of directors of the investors cannot be a ground for making addition in the hands of assessee u/s 68 when the other evidences relating to the raising share capital and also qua the share subscribers are available on record as furnished by the assessee and also the cross-verification done by the AO on the basis of notices issued u/s 133(6) - The case of the assessee is squarely covered by the decisions in the case of Crystal Networks Pvt. Ltd. [2010 (7) TMI 841 - KOLKATA HIGH COURT] wherein it has held that where all the evidences were filed by the assessee proving the identity and creditworthiness of the loan transactions the fact that summon issued were returned un-served or no body complied with them is of little significance to prove the genuineness of the transactions and identity and creditworthiness of the creditors.
The assesse has furnished all the evidences proving identity and creditworthiness of the investors and genuineness of the transactions but AO has not commented on these evidences filed by the assessee. AO simply harped on the non production of managing directors of the share subscribing companies to make the addition which is not correct. CIT(A) has passed a very reasoned and speaking order discussing all facts and satisfaction of all the ingredients of section 68 while allowing the relief as stated above.
We are inclined to uphold the order of CIT(A) by dismissing the appeal of the revenue.
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2023 (1) TMI 1170
Estimation of net profit @ 5% of the turnover - non-filing of books of account - HELD THAT:- Looking to the fact of the case referring to the financial data of preceding two years appearing in the audited financial statements and the assessee being unable to bring any other details on record; and considering the factual matrix as well as past trend of profit earned by the assessee and the fact that ld. AO has not pointed out any specific defect in the details filed by the assessee, we, therefore, in order to bring to an end to this litigation estimate the net profit @ 2.5% as against the net profit rate of 5% confirmed by the ld. CIT(Appeals). Appeal of the assessee is partly allowed.
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2023 (1) TMI 1169
Validity of assessment order passed u/s 143(3) - assessee's revised return of income not been taken into consideration by the AO - HELD THAT:- In the light of the judgment of Mangalore Chemicals & Fertilizers Ltd. [1991 (1) TMI 70 - KARNATAKA HIGH COURT] we are of the opinion that since the assessee had filed the revised return of income on 19.03.2015, the original return filed dated 29.09.2013 u/s 139(1) of the Act effaces and obliterates. Since the revised return of income was filed on 19.03.2015 u/s 139(4) of the Act, it was a valid revised return as per the law in force at that time.
In such a scenario, the AO ought to have considered the revised return of income for assessing the income of assessee. But, despite assessee filing the same, the AO erred is not considering the same and passed the assessment on 27.03.2015. Therefore, we set aside the order of the Ld. CIT(A) and remand the assessment back to the file of the AO with a direction to frame denovo the assessment. AO frame de-novo the assessment taking in to consideration the revised return of income. Appeal of the assessee is allowed for statistical purposes.
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2023 (1) TMI 1168
Grant of bail - deposit a sum of Rs.70 Lakhs under protest - HELD THAT:- The condition directing the appellant to deposit a sum of Rs.70 Lakhs is not liable to be sustained and is hereby set aside.
The rest of the conditions in the impugned order are sustained - appeal allowed.
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2023 (1) TMI 1167
Seeking adjudication by this Writ Court under Article 226 of the Constitution of India - classification of the Customs & Central Excise Tariff Act its product and declaration to this effect - Nonwoven Fabric - PSB Bed Sheet manufactured of non-woven fabric - HELD THAT:- This Writ Court in exercise of its Constitution Writ Jurisdiction under Article 226 of the Constitution of India should not act as an expertise to scrutinise the composition and mode of manufacture of a product like of this nature and do the job of classifying a product as to under which classification list of the Customs Tariff Act such product falls since it requires scientific and technical analysis to be conducted by expertise in such scientific and technical field. In exercise of Constitutional Writ Jurisdiction under Article 226 of the Constitution of India Writ Court should not scrutinise an adjudicating authority’s decision itself, by acting as an appellate authority over such order of the authority and substitute the findings of an authority by reappreciating the evidence and material and more particularly the nature of a case like this.
This is not a case where any violation of principles of natural justice has been committed or any procedural irregularity has been committed by the authority in passing the impugned order or violation of any specific statutory provision of law has been committed by the Appellate Authority concerned in passing the impugned order.
Petition dismissed.
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9911796707
