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2021 (4) TMI 1116
Approval u/s 10(23C) rejected - since the assessee is having mixed nature of educational/other object clauses, it is not eligible for the impugned approval - impugned objects do not fall solely in the category of “educational purposes” and its trustees enjoyed unchecked extraordinary powers - HELD THAT:- There can hardly be any dispute that section 10(23C)(vi) of the Act entitles the assessee to claim exemption relief when it receives any income on behalf of any university or other educational institution existing solely for educational than profitable purposes. We wish to observe here that Revenue’s emphasis is on assessee’s original clauses in its trust deed dated 19/11/1997 that the same also include some of the non-educational purposes as well.
There is further no issue that as per the learned coordinate bench’s discussion that assessee had in fact set up educational institutions in the years 1998-99 imparting education in various recognized colleges, namely, Roland Institute of Computer and Management Studies, Roland Supriya Junior college, Roland Junior College and Roland Institute of Technology. Coming to assessment years before i.e. AYs 2005-06 and 2007-08 to 2012-12, the assessee has placed on record its corresponding income and expenditure accounts indicating figures; after application of income (assessment year wise, surplus application) - all these assessment years except AY 2011-12 have seen more application than receipts since there is nothing left after considering accumulation, revenue expenditure and development heads in assessee’s case. Relevant records indicate that AY 2011-12’s positive figure of ₹ 5,00,504/- is indeed less than the permissible 15% limit of gross receipts of ₹ 8,20,08,082/-; coming to ₹ 12,30,121/-. We thus observe that the assessee has applied and has utilizsed its gross receipts only for educational purposes as per the detailed evidence forming part of the case file.
Whether the clinching statutory expression employed in section 10(23C)(vi) “existing solely for educational purposes” has to be read in isolation or in complete sense i.e. “ any university or college existing solely for educational purposes and not for purposes of profit”? - In our considered opinion, we ought to read this statutory provision as a whole only than in piece-meal. This is for the reason that the legislature has itself made it clear that the institution concerned has to exist only for educational and not for profit purposes. We wish to repeat that the department; in such a cases has to pin point the material against taxpayer before us which could suggest even an iota of material that it has ever existed for deriving profits or the object clauses reveal such an element therein.
Whether CCIT has rightly held that assessee’s trustees had unbridled powers and they had also received payments from the former? - We make it clear that there is no such condition in section 10(23C)(vi) of the Act qua the internal day to day running of an institution set up solely for carrying out educational activities. Hon’ble apex court’s decision Commissioner of Customs (Imports) Vs. M/s Dilip Kumar and Company, [2018 (7) TMI 1826 - SUPREME COURT] has settled the law that only stricter interpretation needs to be applied both in taxing as well as a deduction provision.
Mr. Goutham’s concluding argument sought to highlight the fact that the assessee’s have paid rent as well to its twin trustees in the impugned AYs which deserves to be taken as an undue benefit. The said rental payments are found @ ₹ 1.87 per sq.ft. and much less than that paid to unrelated party i.e. Shri Sushil Kumar @ ₹ 2.20 in AY 2005-06 and ₹ 2 per sq.ft in AY 2006-07. We thus decline all these Revenue’s arguments alleging that assessee’s twin trustees have derived undue benefit from the educational activities carried out in all these AYs. The CCIT’s all impugned orders under challenge in first set of 14 appeals are held as not sustainable in the eyes of law. The same stand reversed therefore. These two assessees’ corresponding appeals seeking section 10(23C)(vi) approval are allowed as necessary corollary ordered accordingly.
In view of the foregoing discussion as well as taking into consideration learned coordinate bench’s decision in AY 2014-15 (supra) we allow the assessees’ claim of section 10(23C)(vi) relief approval raised.
Reopening of assessment u/s 147 - AY 2005-06 - non granting the approval u/s 10(23C)(vi) - HELD THAT:- The assessee demonstrated that there is no escapement of income, as the assessee followed the provision for accumulation of income u/s 11 of the Act. We also observe that once registration granted by the revenue department to the assessee u/s 12AA on 15/01/2003 BY CIT, Bhubneswar and it has not been withdrawn, then if the assessee is complying the other provisions of the Act, it cannot be held as there is any escapement of income . In this case, merely not granting the approval u/s 10(23C)(vi) does not amount to escapement of income as per the decision cited by the assessee as quoted supra.
Respectfully following the above judgement we therefore, hold that the reopening merely on the basis of that the assessee has not got approval u/s 10(23C)(vi) is not justified. Another contention of the assessee is that there is no new material brought on record by the AO to reopen the assessment. He also contended that the objections were filed before the AO for the reasons recorded for reopening of the case which have not been disposed off, which is against the ratio laid down by the Hon'ble Supreme Court in the case of GKN Driveshafts (India) Ltd., Vs. ITO . [2002 (11) TMI 7 - SUPREME COURT] - After careful consideration of the submissions from both the sides, we are of the view that the AO has not followed direction of the Hon’ble Jurisdictional High Court for passing the order within the stipulated time. In this regard, we find substance in the submission of the ld. AR that the orders passed by the AO is time barred.
We conclude on the basis of material available on record that the AO has not passed the order as per the provisions of the law and not followed the law laid in this regard; therefore, the Hon’ble Supreme Court as quoted supra the order passed is not valid and accordingly, we annul the assessment orders passed by the AO in all the three years under consideration - Reopening of assessments in AYs 2005-06 to 2007-08 are held as not sustainable in law and the same are hereby quashed.
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2021 (4) TMI 1115
Reopening of assessment u/s 147- Deduction of section 80-IC - validity of the jurisdiction assumed by the Assessing Officer for reopening the assessee's case under section 147 - assessee argued no failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment for the year in question - HELD THAT:- Admittedly, as provided in the "first proviso" to section 147, where any assessment under sub-section (3) of section 143 or section 147 had been made for the relevant assessment year, then, inter alia, unless any income chargeable to tax had escaped assessment by reason of the failure on the part of the assessee to disclose fully and truly all facts necessary for his assessment, its case cannot be reopened after the expiry of four years from the end of the relevant assessment year.
Undisputedly, the return of income of the assessee for the year in question was earlier neither subjected to an assessment under section 143(3) nor under section 147 of the Act. Accordingly, we are of the considered view that in the absence of any assessment having earlier been framed in the case of the assessee under sub-section (3) of section 143 or section 147, the contention of the learned authorised representative challenging the validity of the jurisdiction assumed by the Assessing Officer in the backdrop of the "first proviso" to section 147 does not merit acceptance, and is accordingly rejected.
Mere "change of opinion" on the part of a successor Assessing Officer as against that arrived at by his predecessor, on the same set of facts - As the return of income of the assessee for the year in question was earlier processed under section 143(1) of the Act and was not subjected to any regular assessment under section 143(3) or section 147 of the Act, thus, there was no occasion for the Assessing Officer to have formed any "opinion" on the issue pertaining to quantification of the assessee's claim for deduction under section 80-IC. In sum and substance, in the absence of any formation of "opinion" by the Assessing Officer on any earlier occasion, the claim of the assessee that the assessee's case was reopened on the basis of a "change of opinion" is beyond comprehension. We, thus, being of the considered view that as on no earlier occasion there had been formation of any "opinion" by the Assessing Officer as regards the quantification of the assessee's claim for deduction under section 80-IC of the Act, thus, its contention that the subsequent reopening of its case was backed by a mere "change of opinion", being devoid of any logic cannot be accepted, and is accordingly rejected.
In the absence of any fresh tangible material coming to the notice of the Assessing Officer after issuing of the intimation under section 143(1), the reopening of the assessee's case could not have been validly done - On a perusal of the aforesaid "reasons to believe", we find, that there is no whisper of any fresh tangible material that had came to the possession of the Assessing Officer subsequent to the issuance of the intimation under section 143(1) of the Act. In fact, the Assessing Officer holding a conviction that the quantification of deduction under section 80-IC being fallacious had resulted to allowing of excess claim of deduction therein raised by the assessee, had thus, for withdrawing such excess part of deduction so allowed taken recourse to proceedings under section 147 of the Act. At this stage, we may herein observe that though an intimation issued under section 143(1) cannot be equated with an "assessment", the same, however, cannot lead to a conclusion that the requirements of section 147 can be dispensed with when the finality of an intimation under section 143(1) is sought to be disturbed.
Thus in the backdrop of the facts involved in the case before us, the assumption of jurisdiction by the Assessing Officer under section 147 in the absence of any tangible material coming to her possession subsequent to the accepting of the return of income under section 143(1) of the Act, is nothing short of an arbitrary exercise of powers conferred under section 147 - See ORIENT CRAFT LTD. [2013 (1) TMI 177 - DELHI HIGH COURT]
Entitlement for deduction under section 80-IC(7) read with section 80-IA(5) - As the assessment year 2007-08, as rightly observed by the Assessing Officer, is the initial assessment year within the meaning of section 80-IC of the Act, we shall now deal with the observations of the lower authorities that on a conjoint perusal of section 80-IC(7) read with section 80-IA(5) of the Act, the losses suffered by the eligible unit of the assessee in the assessment year 2007-08 were liable to be "set-off" against the profits of the said eligible unit for the year in question, i. e., the assessment year 2008-09, as a result whereof the assessee's entitlement for deduction under section 80-IC was to be restricted to an amount of ₹ 10,85,588. On a perusal of sub-section (7) to section 80-IC, we find that the same as an enabling section imports the provisions of sub-section (5) of section 80-IA, which, thus, are to be read for the purpose of quantifying the assessee's entitlement for deduction under section 80-IC
On a conjoint reading of section 80-IC(7) read with section 80-IA(5), it can safely be gathered that for the purpose of determining the quantum of deduction under section 80-IC the profits and gains of the eligible business shall be treated as the only stream of income of the assessee during the previous year relevant to the initial assessment year and also for every subsequent assessment year. Accordingly, in the backdrop of our aforesaid deliberations, we find no infirmity in the view taken by the Assessing Officer who had rightly observed that the losses suffered by the eligible unit in the assessment year 2007-08, i. e., the initial assessment year could only have been "set off" against the profit of the said eligible unit for the year in question, i. e., the assessment year 2008-09, as a result whereof the assessee's entitlement towards deduction under the aforesaid statutory provision, i. e., section 80-IC was to be restricted to an amount of ₹ 10,85,588.
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2021 (4) TMI 1114
TP Adjustment - international transaction of AMP and adjustment on account of the same - HELD THAT:- As relying on ow case [2020 (8) TMI 130 - ITAT DELHI] we hold that no international transaction of AMP exist in the case of assessee. Hence, we delete the adjustment made on account of the AMP transaction. Corresponding grounds raised by the assessee are accordingly allowed. Accordingly, the appeal of the assessee is allowed.
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2021 (4) TMI 1113
Concealment of documents - false statements - in what circumstances and categories of cases, a criminal proceeding may be quashed either in exercise of the extraordinary powers of the High Court Under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court Under Section 482 Code of Criminal Procedure? - HELD THAT:- It is settled that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception.
The issue involved in the matter under consideration is not a case in which the criminal trial should have been short-circuited. The High Court was not justified in quashing the criminal proceedings in exercise of its inherent jurisdiction. The High Court has primarily adverted on two circumstances, (i) that it was a case of termination of agreement to sell on account of an alleged breach of the contract and (ii) the fact that the arbitral proceedings have been initiated at the instance of the Appellants. Both the alleged circumstances noticed by the High Court, in our view, are unsustainable in law. The facts narrated in the present complaint/FIR/charge-sheet indeed reveal the commercial transaction but that is hardly a reason for holding that the offence of cheating would elude from such transaction - So far as initiation of arbitral proceedings is concerned, there is no correlation with the criminal proceedings. That apart, the High Court has not even looked into the charge-sheet filed against 2nd Respondent which was on record to reach at the conclusion that any criminal offence as stated is prima facie being made out and veracity of it indeed be examined in the course of criminal trial.
Appeal allowed.
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2021 (4) TMI 1112
Levy of GST - Supply of services or not - Principles of mutuality - amount collected as membership subscription fees paid by the members of the applicant towards facilities provided by the applicant - amount collected as infrastructure development fund for the development and maintenance of the facilities provided by the applicant - HELD THAT:- Finance Act, 2021 has over ruled what the Courts have held till now and has countered the Principle of Mutuality by way of Explanation which states that the members or constituents of the club and the club are two separate entities and persons for the purpose of Section 7 of CGST Act, 2017 which defines Supply - by virtue of Section 1 of Finance Act, 2021, the amendment brought in Section 7 of CGST Act, 2017 by way of Section 108 of Finance Act, 2021, will only come into effect on the date when Central Govt notifies the same and then the same will be notified with the corresponding amendments passed by the respective States and Union territories in respective SGST/ UTGST Act.
Thus, unless the amended Section 7 of CGST Act, 2017 is notified, the applicant is not liable to pay GST on subscription fees and Infrastructure development fund collected from the members as per the Hon'ble Supreme Court judgment in the case of STATE OF WEST BENGAL & ORS. VERSUS CALCUTTA CLUB LIMITED AND CHIEF COMMISSIONER OF CENTRAL EXCISE AND SERVICE & ORS. VERSUS M/S. RANCHI CLUB LTD. [2019 (10) TMI 160 - SUPREME COURT] - application allowed.
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2021 (4) TMI 1111
Reopening of assessment u/s 147 - re-opening beyond a period of four years - DGIT (Investigation) has for forwarded information regarding Assessee who had taken bogus purchase bills to reduce and suppress profits - HELD THAT:- There is some merit in the case.
Till the next date, there shall be ad-interim relief in terms of prayer clause (d) which reads thus:-
“ that pending the hearing and final disposal of the present petition, this Court may be pleased to stay the operation of the notice dated 28th March, 2019 (“Exhibit E”), subsequent proceeding which has been undertaken in consequence of the said notice and the subsequent order dated 29th March, 2021 (“Exhibit T”) and grant an injunction restraining the Respondents, their subordinates, servants, agents, successors-in-office from taking any steps in furtherance or in implementation of the notice dated 28th March, 2019 (“Exhibit E”) subsequent proceeding which has been undertaken in consequence of the said notice and the subsequent order dated 29th March, 2021 (“Exhibit T”).”
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2021 (4) TMI 1110
Copy of reply not placed on record - HELD THAT:- Mr. Ravi Prakash will ensure that the reply is placed on record. Furthermore, Ms. Venus Mehrotra, who appears on behalf of Ms. Sonu Bhatnagar, i.e., the counsel for respondent no. 2 and 8 says that a reply to the captioned application as well as a counter-affidavit to the main writ petition will be filed.
In the previous order, i.e., order dated 17.03.2021, the appearance of Ms. Sonu Bhatnagar has been recorded, albeit incorrectly, for respondents no. 2 to 8. We are told that Ms. Bhatnagar appears on behalf of respondent no. 2 and 8. Furthermore, Mr. Ravi Prakash appears on behalf of respondent no. 1, 3, 4, 5, 6, 7, and 9. The record shall stand corrected to that extent.
List on 07.07.2021.
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2021 (4) TMI 1109
Default in payment of duty - Applicability of Rule 8(3A) of CER or section 11A of CEA - applicability of the case of Gujarat High Court in Indsur Global Ltd's case [2014 (12) TMI 585 - GUJARAT HIGH COURT]- HELD THAT:- In the instant case, admittedly the assessee had already paid as duty even before the audit declared amounts as payable. Rule 8(3A) applies to cases where the assessee had defaulted in payment of excise duty beyond 30 days from the due date. So, the said rule cannot apply to the instant case and as rightly held by the CESTAT, the said Rule does not apply to every case where in the department, during the scrutiny of returns, during audit or during investigation finds any additional amount payable as duty of excise. Such demands would be recoverable by issuing a notice under Section 11A of the Act and would be covered under Rule 8(3A) - The Tribunal has given cogent reasons for its finding that the assessee's case is a case of demand under Section 11A and is not covered by Rule 8(3A) and the Revenue was not correct in denying utilization of Cenvat Credit to the assessee by applying the said sub-rule.
Gujarat High Court in Indsur Global Ltd's case declared that portion of sub-Rule (3A) of Rule 8, which requires a defaulter to clear the finished products on payment of excise duty without availing the Cenvat Credit as unreasonable and violative of Article 14 of the Constitution of India holding that it amounts to a serious restriction on the assessee's fundamental right to carry on trade or business of his choice which is guaranteed under Article 19(1)(g) of the Constitution of India - Merely because the Hon'ble Supreme Court granted stay of the said order of the Gujarat High Court, it is not open to the appellant herein to contend that the ratio of the Gujarat High Court ought not to be followed by this Court.
The Tribunal rightly set aside the penalty imposed on the respondent and also the demand imposed on the respondent under Rule 8(3A) - no substantial question of law arises for consideration in this Appeal - Appeal dismissed - decided against Revenue.
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2021 (4) TMI 1108
Prohibition of Benami Property Transactions - petitioners contend that the impugned show cause notices have been issued under the 1988 Act which do not record any reasons as mandated by law - HELD THAT:- Bombay High Court judgment in Joseph Isharat [2017 (3) TMI 1618 - BOMBAY HIGH COURT] and decision in Niharika Jain [2019 (7) TMI 1001 - RAJASTHAN HIGH COURT] are not binding on this Court even though they are having persuasive effect. As already concluded earlier, the Division Bench Judgment in M/s. Ganpati Dealcom Pvt. Ltd [2020 (3) TMI 899 - SUPREME COURT]is binding upon this Court even though the operation of the said judgment has been stayed by the Supreme Court. Accordingly, we are prima facie of the opinion that the writ petitioners are entitled to interim orders at this stage. However, I am of the further view that the Revenue is to be protected as the matter is sub-judice before the Supreme Court. Accordingly, the following interim orders are passed:
A. The reference referred to in Section 24(5) of the 1988 Act shall not be treated as final and shall only be treated as provisional during the whole period, the writ applications are pending before this Court.
B. Subject to its result, the reference will be treated as final. Thereafter, time to pass the adjudication order under Section 26(7) of the 1988 Act will start to run. Hence, it follows that the respondent authorities will not take any further steps in the matter till the disposal of these writ applications.
C. The writ petitioners shall not sell, otherwise transfer, deal with, encumber or part with possession of the subject properties till the disposal of these writ applications.
The respondent authorities are granted a period of six weeks to file their affidavits-in-opposition from date. Affidavits-in-reply, if desired to be submitted by the writ petitioners, be submitted within a period of two weeks thereafter.
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2021 (4) TMI 1107
Revocation of Customs Broker - penalty under Regulation 18 r/w Regulation 14 of the Customs Brokers Licensing Regulations, 2018 (CBLR) for alleged violation of Regulations 10(a) and 10(n) of the CBLR - whether the timelines are mandatory or directory? - HELD THAT:- Once the limitation prescribed is held to be mandatory, then the force of that mandate would have to be adhered to strictly. Moreover and additionally, the Central Board of Excise and Customs in Circular No.9/2010-Cus., dated 08.04.2010 in F.No.502/5/2008-Cus VI has set out an overall time limit for completion of suspension proceedings against a license holder - Evidently, the purpose is to ensure that suspension is not indefinite and proceedings are completed promptly so as to cause the least prejudice to the parties concerned. In this case this constitutes the fourth violation of the time limits.
In the case dealt with by the Division Bench in SANTON SHIPPING SERVICES VERSUS THE COMMISSIONER OF CUSTOMS, THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL [2017 (10) TMI 621 - MADRAS HIGH COURT], there was a violation only of one timeline whereas, as noticed by me earlier, in the present case the time lines set out have been violated not once, but on four occasions. Thus, the impugned order has no legs to stand, particularly, since there is no dispute on the sequence of events or the dates on which the events have transpired.
Petition allowed.
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2021 (4) TMI 1106
Dishonor of Cheque - joint complaint by two complainants - Section 138 read with Section 142 of NI Act, allows for such joint complaints or not - HELD THAT:- From the legal position enunciated by various High Courts in reference to Section 200 of Cr. P. C, a joint complaint by two or more person against an accused is clearly not maintainable - reliance may be placed in the case of Parijanashram Swamiji vs. Kailaje [1985 (11) TMI 242 - KARNATAKA HIGH COURT].
Whether what is held by various High Courts with reference to Section 200 of Cr. P. C is applicable to the complaints filed under Chapter XVII of the Act? - HELD THAT:- The reference to the complainant as a "person" in Section 138 of the Act, prima facie, indicates that Section 138 too envisages a complaint by a single person. Similarly, if we look at the provisions of Section 141 of the Act, which pertains to the offences by the companies, it also refers to a "person" committing an offence under Section 138 - Section 142, which lays down the procedure as to how the cognizance in a complaint filed under Section 138 of the Act is to be taken by the Court, also speaks of a complaint and not the complaints which would also indicate that it envisages only one complainant in a complaint and, therefore, rules out filing of a joint complaint by two or more than two persons.
As is provided under Section 143 of the Act, the cases under Section 138 of the Act are required to be tried summarily by following the procedure laid down under the provisions of Sections 262 to 265 of the Code of Criminal Procedure. It is only when at the commencement of, or in the course of, a summary trial, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness that may have been examined and proceeded to hear or rehear the case in the manner provided by the Criminal Procedure Code. It is, thus, not correct to say that Chapter XVII is a complete Code in itself and exclude the applicability of the Criminal Procedure Code.
This petition is allowed in part and the impugned complaint and the proceedings taken thereon, in so far as respondent No.2 is concerned, shall stand quashed.
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2021 (4) TMI 1105
Issuance of form SVLDRS-3 either electronically or manually - allowing the Petitioner to pay tax dues beyond 30th June, 2020 either electronically or manually - HELD THAT:- The Opposite Parties 3 and 4 are not justified in contending that only because the Petitioner filed SVLDRS-1 before the Rourkela Commissionerate, its request for acceptance of the declaration and payment of the admitted tax amount could not be considered. The Court finds this to be a hyper technical approach.
As regards the Petitioner not availing the opportunity of hearing, the Court finds plausible the explanation offered by the Petitioner that it was unable to upload the documents in form SVLDRS-2A on 20th March, 2020 unless the answer to the question whether it wanted a personal hearing was answered in the negative. This appears to have been done involuntarily and in any event does not appear to be a good reason for the Opposite Parties to deny processing of the Petitioner’s declaration in Form SVLDRS-1 - a direction is issued to the Opposite Party No.3, Designated Committee, Bhubaneswar which in fact sent SVLDRS-2 to the Petitioner and on whose portal the Petitioner had uploaded its documents in SVLDRS-2A to now issue Form SVLDRS-3 to the Petitioner not later than 3rd May, 2021. Subject to the Petitioner thereafter paying the tax due as indicated therein within fifteen days thereafter, the opposite Party No.3 will issue to the Petitioner the discharge in SVLDRS-4.
Petition disposed off.
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2021 (4) TMI 1104
Deduction u/s 80HHC - Whether Tribunal was right in law that the amendment to the third proviso to Section 80HHC with retrospective effect from 01.04.1998 is violative of Constitution of India when the assessee has not fulfilled the conditions of proviso of Section 80HHC(3)? - HELD THAT:- In view of the submissions made by the learned senior standing counsel for the appellant – Revenue, following the ratio laid down in Commissioner of Income Tax Vs. Avani Exports [2015 (4) TMI 193 - SUPREME COURT] the question of law that has been raised in the above appeals is decided against the Revenue. Accordingly, the Tax Case Appeals are dismissed.
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2021 (4) TMI 1103
Proportionate deduction u/s 80IB(10) with respect to the units less than 1500 sq.ft. where the housing project contains units with built up area exceeding 1500 sq.ft. - HELD THAT:- Question of law involved in the present appeal is covered by the decision of the Hon'ble Division Bench of this Court reported in Commissioner of Income-tax, Chennai Vs. Elegant Estates [2016 (1) TMI 502 - MADRAS HIGH COURT] the question of law is decided against the Revenue and in favour of the assessee wherein held as assessee will be entitled for deduction u/s 80IB(10) with respect to income from flats measuring less than 1500 sq ft limit and assessee will not entitled for deduction u/s 80IB(10) proportionately only with respect to the income from the 2 flats exceeding the limit of 1500 sq ft when the assessee had considered all the flats as forming part of single project on interpretation of the provisions of section 80IB(10)(c) - the language used in the relevant provision of law does not bar a deduction claim altogether if some of the units sold exceed the specified dimensions. - Decided in favour of the assessee
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2021 (4) TMI 1102
Seeking a direction to the respondents to extend the period of time for submitting of Form GSTR-9 and GSTR-9C for the financial year 2019-20 - Section 44 of the CGST Act, 2017 read with Section 35(5) of the RGST Act and Rule 80 of the CGST Rules, 2017 - HELD THAT:- The arguments advanced by the learned counsel for the petitioner cannot be accepted since the period for filing of the return is fixed by the Statute and it is the statutory authority alone who has power and authority to extend any period for compliance. Therefore, we are not inclined to entertain the instant writ application and leave it to the petitioner, if so advised, to approach the statutory authority to seek further extension.
We refrain to entertain the present writ application and the same stands dismissed.
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2021 (4) TMI 1101
Liability for payment of advance tax - whether the Company is obliged under the Act to pay advance tax between 1-04-2016 and 20-03-2017 for the assessment year 2017-18? - claim of the petitioner was that under the scheme of amalgamation, the petitioner/company ceased to exist with effect from 1.04.2016 notwithstanding the fact that the Tribunal allowed such amalgamation only on 20-03-2017 and further claiming that no advance tax for two quarters between 2016 and 2017, as claimed by the revenue, was payable by the petitioner - HELD THAT:- It is not in dispute that the petitioner/company and two other companies were amalgamated under the scheme of amalgamation before High Court of Delhi. Government of India in the Ministry of Corporate Affairs issued a notification on 17.12.2016 that the scheme of amalgamation of the petitioner was transferred to the National Company Law Tribunal, New Delhi and at Bangalore. Therefore, the scheme of amalgamation was transferred to the Tribunal. The Tribunal on receipt of the scheme from the hands of the Government of India on 17.12.2016 approved the same on 20-03-2017. The stamp of approval of the scheme of amalgamation, which in terms of law happened on 20-03-2017, albeit with retrospective effect i.e., from the date on which they had entered into such a scheme i.e., 1-04-2016. To consider whether the petitioner was liable to pay advance tax between the aforesaid dates, the provision concerning payment of advance will have to be noticed.
Section 211 depicts quarters of payment of advance tax. The first installment/quarter is on or before 15th June, the next installment is on or before 15th September and the third installment is on or before 15th December. Therefore, the petitioner’s claim of amalgamation having been accepted by the Tribunal on 20-03-2017 was obliged to pay advance tax for the said three quarters/three installments. The petitioner/company on the ground that it did not exist with effect from 1-04-2016 cannot escape the liability of payment of advance tax for the said three quarters. On and from the date of acceptance by the Tribunal i.e., 20- 03-2017, the last installment for the assessment year 2017-18 advance tax need not be paid. But, for the interregnum period, as held by the revenue, the petitioner cannot escape payment of advance tax as under Section 207 of the Act advance tax depends upon the current income. The income as declared is current income not as an amalgamated company but as an individual company. Therefore, the petitioner was obliged to pay advance tax for the said period.
In so far as the judgment in the case of PRINCIPAL COMMISSIONER OF INCOME TAX, NEW DELHI v. MARUTI SUZUKI INDIA LIMITED [2019 (7) TMI 1449 - SUPREME COURT] of the Apex Court, the said judgment is also not applicable to the facts of the case at hand, as the scheme of amalgamation came into effect by an order being passed by the Tribunal on 20- 03-2017. The Apex Court in the aforesaid judgment has held that two companies may join to form a new company. When two company are merged and so joined as to form a third company or one is absorbed into one or blended with another, the amalgamating company losses its entity. The crux of the issue is when did the petitioner/company in the case at hand lose its entity.
It cannot but be said that the petitioner company lost its entity only on 20.03.2017, upto this date the obligation to pay advance tax did not vanish. Therefore,find no good ground to interfere with the impugned assessment order passed by the respondent/Assistant Commissioner of Income Tax and the notice demanding an amount of ₹ 356,644,155/-.
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2021 (4) TMI 1100
EPCG Scheme - export obligation wrongly discharged with 100 per cent export by its group companies - validity of notices dated 19th August, 2019 and 1st January, 2021 - petitioners say that the said two notices are without jurisdiction and bad in law - HELD THAT:- The two notices respectively dated 19th August, 2019 and 1st January, 2021 have been issued by the authorised officer. The interference by Writ Court at the Show Cause stage can be made only on very limited grounds. The matter being in adjudication stage and that the two notices cannot be said to be without jurisdiction on face on record, the said two notices need not be interfered with, at this stage. The adjudication pursuant to the Show Cause should be brought to a logical conclusion. The petitioner shall cooperate with the adjudicating authority in terms of the notice dated 1st January, 2021.
Since no adjudication has been made by the respondents as yet and that there has been no coercive steps taken since August 2019, it is expected that there shall be no coercive action from the respondents as against the petitioners till one week after the communication of the adjudication order in terms of the show cause notice dated 1st January, 2021. Nothing further remains to be adjudicated in this writ petition and the same is, accordingly, disposed of without any order as to costs.
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2021 (4) TMI 1099
Violation of principles of natural justice - show cause notice has been issued on 11.12.2019 listing the matter for personal hearing on 16.12.2019. However, the same has been served only subsequent to the time of personal hearing and there has been no opportunity of hearing extended to the petitioner - HELD THAT:- It is only if the records of assessment specifically reveal the position that the petitioner was in receipt of show cause notice dated 11.12.2019 crystallising the issues proposed to be dealt with in the assessment and replies have been put forth by the petitioner to the aforesaid proposals, that it could be assumed that the show cause notice, sent through email, has been taken note of and responded to by the petitioner.
Learned Senior Standing Counsel today confirms, on a perusal of the records, that there is nothing in the record to indicate that the proposals in the show cause notice had been discussed in the course of hearing on 12.12.2019.
The benefit of doubt, in the above circumstances, should be extended to the petitioner. It is also admitted that the show cause notice has been received by the petitioner on the date of hearing and beyond the time of hearing. The impugned order is also passed on the same date of hearing proposed in the show cause notice, i.e., 16.12.2019.
The impugned order is set aside. Since the assessments are now to be conducted in terms of the faceless assessment scheme, I refrain from fixing a date of hearing afresh and merely direct that proceedings for assessment be completed after hearing the petitioner within a period of six (6) weeks from today.
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2021 (4) TMI 1098
Validity of reopening of assessment u/s 147 - notice issued on the last day of expiry of limitation - HELD THAT:- Violation in following the procedure for reassessment as set out by the Supreme Court in the case of GKN Drive Shafts V. ITO (2002 (11) TMI 7 - SUPREME COURT) where in conclusion, the Bench states as follows:-
We see no justifiable reason to interfere with the order under challenge. We clarify that when a notice under Section 148 of the Income tax Act is issued, the proper course of action for the noticee is to file return and if he so desires, to seek reasons for issuing notices. The assessing officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a speaking order’.
In the light of the above, the impugned order dated 30.12.2019 is set aside. The petitioner is permitted to file objections to the assumption of jurisdiction within a period of four (4) weeks from date of uploading of this order and an order be passed either accepting or rejecting the same within a period of three (3) weeks from date of receipt of objections, after hearing the petitioner. Proceedings for assessment, if any all, shall be initiated in accordance with law, thereafter.
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2021 (4) TMI 1097
Failure of the petitioner to furnish monthly returns under Section 39 of GST Act - Principles of natural justice - HELD THAT:- The impugned orders dated 29.10.2018, 31.7.2019, 7.8.2019, 24.7.2019 and 20.8.2019 passed by the Respondent No.3, the Joint Commissioner of Sate Taxes, Danapur Circle, East Circle, Muzaffarpur in Form ASMT-13 need to be quashed and set aside, for the same to have been passed without following the principles of natural justice.
In terms of the impugned order, financial liability stands fastened. Thus, it entails civil consequences, seriously prejudicing the petitioner inasmuch as, without affording any adequate opportunity of hearing or assigning any reason. Shri Satyabir Bharti, learned counsel for the petitioner states that without prejudice to the respective rights and contentions of the parties, petitioner is ready and willing to deposit a sum of ₹ 5 lacs with the appropriate authority within a period of two weeks from today.
Petition disposed off.
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