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Showing 301 to 320 of 1466 Records
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2023 (1) TMI 1166
Legality of search, seizure, actions and prepared panchnama - legality of release of 5 seized trucks which were empty and not loaded with any goods - direction to respondent No.4 to get the goods stored under seized 20 barrels be tested for its characteristics, specification and ingredients by appropriate government laboratory - HELD THAT:- Since a show cause notice dated 04.12.2020 has been issued to the petitioner and others in which the validity of the panchnama is under consideration, hence the petitioner is having efficacious remedy to contest the show cause notice before the adjudicating authority. The petitioner is free to apply to the adjudication authority. The Writ Petition is disposed of with a direction to the competent authority that if such an application is filed by the petitioner, the same be considered in accordance with the law expeditiously.
Petition dismissed.
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2023 (1) TMI 1165
Percentage of GST input tax - GST paid for the shop on commercial rent to landlord - GST paid on commission to Dunzo and Swiggy for ecommerce online service - GST paid on service charges charged by paytm - GST paid on service charges charged by Banks - Packing material - Printed material - Capital goods like cutting machine, weighing scale, refrigerators, computers and hardware and software goods - GST consequences if goods purchased from unregistered and composition dealers - scope of Advance Ruling.
HELD THAT:- The Applicant is into supply of fresh and semi processed meat products like chicken, Mutton, fish, pork and all types of packed cold cut, spices and masala powder. The Applicant is apparently into trading of both taxable and exempted goods - the Applicant wants to know the percentage of input tax credit to be claimed in view of the nature of their business. Since the Applicant is involved in the supply of both taxable and exempted supplies, the Applicant has to avail the input tax credit proportionately in terms of section 16, 17 of CGST Act 2017 read with Rule 42 of CGST Rules 2017; wherein the procedure to be followed is clearly mentioned.
What will be the GST consequences if we purchased goods from unregistered and composition dealers? - Scope of Advance Ruling - HELD THAT:- This question is not covered under the issues referred to in section 97(2) of CGST Act 2017, in respect of which an applicant can seek Advance Ruling and hence this Authority refrains from giving any ruling.
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2023 (1) TMI 1164
Percentage of GST output tax to be charged - Works contract executed to Indian Railways - On Railway under Bridge works - Construction of Tunnels for Railways - Supply and stacking of ballast - Execution of Earth Works Contract - Subcontract works for the contract works - HELD THAT:- The applicant has stated that they are engaged in supply of works contract services to Indian Railways such as construction of Rail under bridge, construction of tunnels, execution of Earth Works Contract, supply and stacking of ballast and sub-contract of the contract works and wants to know the rate of GST on the same - works contract services supplied by the Applicant to Indian Railways such as construction of Rail under bridge and construction of tunnels are covered under entry No. 3(xii) of Notification No. 11/2017 Central Tax (Rate) dated 28.06.2017 and is exigible to GST at 18%.
Works contract services involving predominantly earth work (that is, constituting more than 75per cent, of the value of the works contract) executed to Indian Railways (Central Government) by the Applicant is exigible to GST at 12% if the Applicant is providing the services either as a main contractor or as a sub-contractor to main contractor.
Supply of ballast to railways is exigible to GST at 5% (HSN 2517) as per entry No. 126 of Schedule I of Notification No. 1/2017-Central Tax (Rate), dated: 28.06.2017.
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2023 (1) TMI 1163
Exemption from GST - providing catering services to Educational Institutions from 1st standard to 2nd PUC - applicability of N/N. 12/2017-Central Tax Rate -under Heading 9992 - recipient of service - HELD THAT:- The applicant is billing to the KLE Independent PU College and the consideration is payable by the said college. Hence the recipient of the service in question is the KLE Independent PU College.
Since the recipient of service is an institution providing education up to higher secondary school, it is covered under the definition of "educational institution" for the purposes of Notification No. 12/2017- Central Tax (Rate) dated 28.06.2017 - Since the Applicant is providing ready to eat food by way of catering to a Pre University College, the services provided by the applicant under question before us is also covered under entry No.66 of Notification No. 12/2017-Central Tax (Rate) dated: 28.06.2017 as amended further and hence exempted from GST.
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2023 (1) TMI 1162
Exemption from GST - works contract service provided to Bio Centers, Department of Horticulture and Center of excellence - other service like data entry operator, security, provided to Horticulture Department - material like fertilisers, soil, sand supplied for use of bio centers - HELD THAT:- The applicant is providing manpower supply for tissue culture production and for handling the process of research on flowers, planting and growing for Horticulture department, Government of Karnataka.
Whether tissue culture is covered under 1st entry of eleventh schedule which says 'Agriculture, including agricultural extension'? - HELD THAT:- The tissue culture is not same as agriculture and there is no direct nexus to the items mentioned in eleventh or twelfth schedule of the constitution. Thus supply of manpower for tissue culture production and for handling the process of research on flowers, planting and growing to Horticulture department, Government of Karnataka are not provided by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution or in relation to any function entrusted to a Municipality under article 243W of the Constitution. Hence provision of such manpower services are liable to tax at 18%.
The Applicant wants to know whether supply of materials like fertilisers, soil and sand for use of bio centers are exempted under GST. However, there is no specific exemption for supply of materials like fertilisers, soil and sand for use of bio centers as per notification No.2/2017-Central Tax (Rate), dated 28.06.2017.
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2023 (1) TMI 1161
Reopening of assessment u/s 147 - validity of order passed u/s 148A issued in the wrong name and PAN number - non consideration of reply sent by the petitioner - HELD THAT:- The respondents have accepted the mistake in the counter affidavit filed by them before this Court but however they had stated that there is typographical mistake. When a categorical stand has been taken by the petitioner that he is not the owner of the subject property which is also disclosed in his reply dated 24.03.2022, which was admittedly received by the second respondent on 30.03.2022 even prior to passing of the impugned order dated 31.03.2022 at 6.30 p.m., this Court is of the considered view that the second respondent ought to have given due consideration to the reply dated 24.03.2022 sent by the petitioner in the impugned order dated 30.03.2022, however since the same has not been given due consideration and that too when the impugned order has wrongly disclosed the name of Muktha Seth and wrong PAN number has been given whereas the petitioner's name is Devarajulu Jayakothandaraman and his PAN number is different, this Court is of the considered view that by total non-application of mind and by violating the principles of natural justice, the second respondent has passed the impugned order u/s 148A(d) of the Act and has erroneously issued the consequential notice dated 31.03.2022 to the petitioner under Section 148 and, therefore, the impugned order as well as the consequential notice will have to be quashed by this Court and remand it back to the second respondent for fresh consideration on merits and in accordance with law.
Since the petitioner claims that he was not given sufficient time to send detailed reply to the notice dated 17.03.2022, this Court is of the considered view that the petitioner must be given an opportunity to send additional reply to the one already sent on 24.03.2022 to the second respondent.
Thus the impugned order dated 30.03.2022 as well as the consequential order dated 31.03.2022 issued by the second respondent are hereby quashed and the matter is remanded back to the second respondent for fresh consideration on merits and in accordance with law.
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2023 (1) TMI 1160
Reopening of assessment u/s 147 - notice has been issued in the name of Assessee who has passed away - curable u/s 292BB - HELD THAT:- As it is quite clear that any notice which has been issued in the name of the deceased person is bad and illegal and here notice u/s 148 is issued in the name of the deceased. Therefore, even when this aspect has been brought to the notice of the department, subsequent issuance of notice u/s 148A to the legal heir suffers from the initial defect.
The defect being fundamental and as it is not curable u/s 292BB of the Income Tax Act (the Act). Resultantly, petition stands allowed quashing and setting aside the notices. Decided in favour of assessee.
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2023 (1) TMI 1159
Disallowance of exemption claimed u/s. 80P - deduction claimed by the assessee society under section 80P(2)(a) (iii) and (iv) was wrongly claimed as the assessee society has failed to provide the complete details of its members and its activities between the members and outsiders separately and also failed to prove eligibility of specific deduction against the specific activity claim in the return of income u/s. 80P (2) - HELD THAT:- CIT(A) has partly dismissed the appeal of assessee on the issue of interest income and there is no cross appeal or cross objection by the assessee in this regard.
Gross profit - appellate purchase sugarcane seeds, agricultural equipments etc. and supplied them to its members as per objects of the society and profit from such activity was claimed to be exempt u/s. 80P(2)(a)(iv) - CIT(A) was right in observing that there is no evidence suggest that trading in agricultural equipment was done with persons other than the members. It is also not a case of the AO, therefore the Ld. CIT(A) rightly held that the profit earned from said activities deserve to be exempt u/s. 80P(2)(a)(iv)
Grants received from State Government it was contended that the same was passed to members of the society and the Ld. CIT(A) directed to the AO ascertain if these grants have indeed been passed to the members of the society. To that extent these grants have been distributed to the members then they should be allowed to be deducted. CIT(A) has directed the AO to verify the claim of the assessee and we are unable to see any ambiguity in this regard.
Commission income, entry fee, other income, patte (satte) se income , Upaj Badhotri and Vasooli Kharcha - On a careful perusal of the first appellate order we observe that the AO merely alleged that if the assessee takes sale/purchase of agricultural produce by its members then it must be shown in trading account, while no such transactions has been shown in the trading account maintained by the assessee.
AO alleged that the account maintain by the assessee are defective and not audited u/s. 44AB - CIT(A) after considering the explanation and submissions of the assessee that wherein it was submitted that from the details mentioned it is clear that the activity of supply of sugarcane to the sugar mill constitute a marketing activity of sugarcane which is agricultural produce grown by the appellants members and as the appellant is cooperative society duly registered under Cooperative Society Act 1912 all the essential require for claiming deduction u/s. 80P(2)(iii) are fulfilled and thus the assessee is eligible for deduction.
Assessee also drawn attention first appellate authority towards order of his predecessor for a immediately preceding year A.Y. 2013-14 which was deleted by the Ld. CIT(A), Aligarh after considering the total facts and circumstances of the case and orders of his predecessor for A.Y. 2013-14 the Ld. CIT(A) concluded that the AO has not given any cogent reason why the claim exemption should not be allowed to the appellant. In view of above we note that principle of res judicata does not apply of tax proceedings, however rule of consistency is always respected therefore the Ld. CIT(A) was right in allowing claim of assessee u/s. 80P(2)(a) (iii) - No ambiguity perversity for any valid reason to interfere with the same.
Allowance of cheque book fee - CIT(A) right noted that the appellant is providing credit facilities to its members for that purpose cheque books are issued to the members therefore cheque book fee received by the assessee is incidental to the business of providing credit facilities to the members therefore this amount was also rightly allowed u/s. 80P(2) (a)(iii) .
CIT(A) was right in directing the AO to verify the amounts of grants Anudhan Keetnashak and Anudan Krishi Yantra received from State Government to ascertain if these grants have been indeed to passed to the members of the society and the amount so passed was allowed to be deducted. We are also in the agreement with the conclusion drawn by the Ld. CIT(A) that the claim of assessee regarding commission income, entry fee, other income, patte (satte) se income, Upaj Badhotri and Vasooli Kharcha are incidental receipts relating to the business of marketing of agricultural produce of the members therefore the receipt from said heads is eligible for deduction u/s. 80P(2)(a)(iii)
Assessee has claimed u/s. 80P(2) only on the net profit amount and not gross commission and other incomes therefore the AO was not right in denying the claim of assessee on the basis of quantum of sale of sugar cane and commission. Such kind of allegation could be made in the case of showing or declaring lesser commission in comparison to the quantum of sale but when the assessee is disclosing entire commission income and simultaneously disclosing sale of sugarcane then as per submissions of the assessee is not only undertaking purchase of sugarcane but also taking care of the entire process right from showing sugarcane seeds to procuring crops grown by its members and for entire activities supervise by Cane Commissioner of State Government who grants required approval and the supply of sugarcane is made to the sugar mills nominated by the Sugar Board. In this situation the showing of higher commission income cannot be basis of denying exemption u/s. 80P(2) of the Act. - Decided against revenue.
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2023 (1) TMI 1158
Addition of Long-term Capital Gain on sale of industrial plot - Real owner - owner of the property was Director of the assessee company - benefit of indexation capital gain charged only in the hands of owner or on the name of lender for purchases of HSIDC - whether ownership cannot be transferred to a person without consideration and company cannot become owner who has not made any payment to director? - HELD THAT:- As conveyance deed was signed by the assessee through its director Shri Surender Kumar Gupta. It is also not in dispute that the sale consideration was received by the assessee.
In our considered opinion, no purchaser would pay a consideration of Rs. 90 lakhs unless he is satisfied with the title of the property. The title was in the name of the assessee though the assessee has given a different color by referring to Supplementary Agreement.
Ownership was changed from Shri Surender Kumar Gupta to the assessee and hence there should not be any dispute in so far as who is the seller of the property is. Facts on record clearly demonstrate that the seller of the property is the assessee and the property has been sold by Shri Surender Kumar Gupta in the capacity of being the director of the assessee company - we do not find any reason to interfere with the findings of the ld. CIT(A). Ground No. 2 with its sub-grounds is dismissed.
Disallowance made of claim of bad debts - short payment received on full and final settlement of debts with M/s Park Non-Woven Pvt. Ltd. the debtor of the company - HELD THAT:- Assessee has written off provision for bad debt and has credited the account of Park Non Woven Pvt Ltd by the said provision.
The assessee has clearly written off provision for bad and doubtful debt which is not allowable and interestingly, on 31.03.2015, outstanding debit balance in the account of Park Non Woven Pvt Ltd was Rs. 90,74,626/- from which provision was written off to the tune of Rs. 17 lakhs and balance carried forward was Rs. 51,03,331/-.
After provision for bad debt, the assessee has received entire outstanding amount of Rs. 51,03,331/-. We fail to understand, if the debtor was not in a position to pay debt as on 31.03.2015, then how the assessee has received Rs. 51 lakhs after write off. Facts on record clearly go against the assessee and, therefore, Ground No. 3 is, accordingly, dismissed.
Disallowance being excess paid which was excise duty written off - HELD THAT:- The undisputed fact is that the assessee was having credit balance with the Excise Department - As the assessee was left with no stock, the assessee could not claim the set off of the said Excise balance and, therefore was left with no choice but to write off the same. We do not find any error in this write off as the same has to be allowed as business loss. The Assessing Officer is directed to allow the claim - Ground No. 4 is, accordingly, allowed.
Reversal of excise duty as sales return and service tax - HELD THAT:- We find that on 20.08.2014, there is a reversal entry of sales return amounting to Rs. 2,61,180/- and on 07.01.2015, there is a debit of Rs. 1,36,723/- being service tax transferred to closure of factory.
As per Exhibit 104, the assessee has paid basic Excise Duty in the month of May 2014 and as per Exhibit 106 which is ledger account of service tax, the assessee has credited Excise Duty RG -23A Part 2 being balance transfer of closure of factory.
Copy of ledger account show that the amount debited earlier has been reversed during the year under consideration. In our considered opinion, when the amounts were debited, they were claimed as expenditure and since now the entries have been reversed, the same become income of the assessee. No reason to interfere with the findings of the ld. CIT(A). Ground No. 5 is dismissed.
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2023 (1) TMI 1157
Reopening of assessment u/s 147 - chargeability of capital gains arising out of sale of property - HELD THAT: CIT(Appeals) has passed a non-speaking order without considering the facts in right perspective. The assessing authority computed capital gain purely on the basis of conjectures. AO has recorded that assessee vide letter dated 8.11.2016 intimated that he had not sold any property. He was having power of attorney of his mother in respect of land admeasuring 1288 sq. yards in Shaheed Malkhan Singh Colony, Gharaunda. However, the AO made addition on the basis that the entire sale proceeds had been credited in the account of the assessee, therefore, being the actual beneficiary, addition was made in his hand.
We are unable to affirm the view of the Assessing Officer as the law is clear regarding taxability of capital gain arising out of transfer of immovable property.
Whether capital gain can be charged from the person who sold property as attorney of the owner? - In our considered view, there is no ambiguity under the law for chargeability of capital gain in respect of transfer of any capital asset. It is the owner of capital asset who would be liable for capital gain. In case the sale consideration is credited into the account of third party or the attorney of such owner, in that event also the money which has been credited in the account of the third party or the power of attorney cannot be subjected to tax under the head ‘capital gains’. Therefore, the action of the authorities below is contrary to the statutory provisions. The money credited to the account of the assessee could not have been subjected to tax as a capital gain earned by the assessee. Addition made by AO under the head of ‘capital gain’ is not justified. Hence, the Assessing Officer is directed to delete the addition. However, it is clarified that the Assessing Officer would be at liberty to tax the capital gains/business receipts in correct hands - Grounds of appeal raised in this appeal are allowed.
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2023 (1) TMI 1156
Depreciation on intangible asset being “License to Collect Toll” - AO following the direction issued by the CBDT’s vide its circular 09/2014 dt. 23/04/2014 appears to have amortized the assessee’s corresponding cost of construction of development of infrastructure facility over the period of concessionaire agreement - CIT(A)’s reversing the findings of Ld. AO in disallowing the claim of depreciation u/s 32(1)(ii) on intangible assets being “License To Collect Toll”- HELD THAT:- No merit in the Revenue’s stand as the very same issue had arisen between these parties in earlier AYs, more particularly in Revenue’s appeal [2022 (8) TMI 561 - ITAT PUNE] Co-ordinate bench has adjudicated the matter against the Revenue and in favour of the assessee
Revenue is fair enough in its pleadings and not pin-pointing any distinctive facts or law in all these assessment years so far as the assessee’s treatment of its right to collect toll as an intangible asset u/s 32(1)(ii) is concerned, consequently we see no reason to deviate from the aforesaid decision of the Co-ordinate bench. Appeals of the Revenue is dismissed.
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2023 (1) TMI 1155
Income from House Property - Addition on account of notional rent - AO observed that in view of the provisions of section 23 of the Act, the deemed rental income of the property in question which remained vacant during the year was required to be taxed under the head ‘Income from House Property’ - AO, confronted the assessee who stated that the property could not be let out due to poor access and for want of regularisation - HELD THAT:- As decided in SH. KAMAL KUMAR [2022 (6) TMI 574 - ITAT DELHI] has considered the property located in similar locality and, after elaborate discussion, has found that there was reasonable cause for not putting the property on rent.
Since on similar facts in similarly located property, ITAT has found the reasonable cause for not putting the property on rent, it was sufficient to permit the assessee to get away from the rigors of notional rent.
We note that the submissions of the assessee’s counsel is that there was a sealing drive in the locality, so, it was difficult to find tenant and this was the reason the property could not be let out. It is the plea that identical facts were appreciated by the ITAT in the aforesaid order. Decide the issue in favour of the assessee.
Addition of jewellery found in premises of the assesse - CIT-A held that sources of the jewellery have remained to be explained and accordingly, the ld. AO has rightly taxed it in the Assessment Year 2014-15 - HELD THAT:- We find that on a query as to whether there is any evidence of the source of investment and the mode of payment, the ld. Counsel fairly accepted that these cannot be substantiated. In this view of the matter, in our considered opinion, the assessee has been granted reasonable relief by the AO. The addition sustained is appropriate, hence, we do not find any infirmity in the order of the Revenue authorities in this regard. - Decided against assessee.
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2023 (1) TMI 1154
Reopening of assessment u/s 147 - share premium received was in excess of intrinsic value, which has escaped assessment - HELD THAT:- A perusal of the reasons recorded specifically shows that there is no quantification of the income which is alleged to have escaped assessment much less the estimate of the income that is alleged to have escaped assessment.
A perusal of the decision in the case of Khubchandani Healthparks (P) Ltd. [2016 (2) TMI 710 - BOMBAY HIGH COURT] clearly shows that the notice for reopening of assessment itself does not indicate the approximate amount of income, which the AO has reason to believe has escaped assessment nor does it quantify the extent of such income, then the reasons recorded is liable to be held to be invalid and reopening quashed.
As the reasons recorded does not quantify even an estimated amount of the alleged income which has escaped assessment and as it is noticed that the reasons recorded do not contain any live link to the alleged illegal mining, the reasons recorded for the purpose of reopening of assessment are invalid and is nothing but fishing enquiry. Consequently, the reasons recorded are held to be invalid and notice issued u/s. 148 of the Act for the purpose of reopening stands quashed. Consequently, the assessment also stands quashed.Appeals of the assessee stand allowed.
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2023 (1) TMI 1153
Benefit/perquisite u/s 2(24)(iv) - CIT(A) deleting the addition made on account benefit/perquisite u/s 2(24)(iv) and further holding that provisions of section 115BBE are not applicable - reply of the assessee was dismissed by the AO estimated the benefit by taking rate of interest @ 6% p.a. and made the impugned addition - HELD THAT:- As in the case of Anil Kumar Sharma [2020 (2) TMI 1684 - ITAT DELHI] we restore all this issues raised before us to the file of the Assessing Officer for reconsideration as per the direction of the Tribunal.
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2023 (1) TMI 1152
Exemption u/s 11 - application for registration u/s 12AA rejected - whether assessee shall be held as “State” and thus no tax can be levied on it under the income tax act? - As per Commissioner (Exemption) appellant was carrying on activities in the nature of commerce & the object of the appellant were not to be treated as for Charitable purpose u/s 2(15) - HELD THAT:- As per the definition of “State”, if we check under which head the assessee company would fall, the probable answer is “Local or Other Authorities”. But, the definition of “Local or Other Authority” was not defined in the constitution or any other statute, however, a fundamental guidance was accorded by Som Prakash Rekhi vs Union Of India [1980 (11) TMI 113 - SUPREME COURT] wherein the Hon‟ble Apex Court has prescribed certain tests to determine as to whether an institution is “State‟ within the meaning of Article 12 of the Constitution of India or not.
We have carefully perused the submissions of the assessee (supra) regarding fulfillment of the aforesaid tests/conditions carved out by the Apex court and found that the assessee company has satisfied the said tests, thus, we hold that the assessee company falls under the definition of “State” within the meaning of Article 12 of the Constitution of India and, therefore, in our considered opinion entitle for immunity from the taxation under the provisions of Income Tax Act 1961 as directed under article 289 of constitution of India 1949.
WATCO, the assessee company hold the status of “State” within the meaning of Article 12 of the Constitution of India and entitle for immunity from taxation under the provisions of Income Tax Act 1961 as declared by Article 289 of the Constitution of India 1949. Consequently, the additional ground of the assessee stands allowed.
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2023 (1) TMI 1151
Deduction u/s 10AA - interest on FDR along with Forward Premium, Bank Charges and Interest paid - These activities are inextricable part of the business of the assessee or not - CIT (A) treating the income from Fixed Deposit as income from other source where in the nexus of business transaction was already proved - HELD THAT:- The assessee in the ordinary course of business had to furnish fixed deposits on the Import Export transactions to banks for the purpose of availing loans and making payments to the suppliers. A new Fixed Deposit is given to the Banks for each and every import export transaction who after completing all the formalities gives fresh loans to our clients. Thus each and every Fixed Deposit has a corresponding Bank Loan for each and every Import Export trading transactions undertaken by our clients. Therefore none of the Fixed Deposits are independent of business.
The Banks charges interest/processing charges etc on all such loans given. Net residue (difference between the Interest Earned and the Finance Loan and other Charges etc) if any, by our clients is nothing but an outcome of undertaking an Import Export Transaction which is in the normal course of trading business of diamonds eligible for exemption u/s. 10AA - The above income can be compared to the Forex Gains which is earned due to Currency Fluctuations. Fluctuations in Forex Gains is considered to be a part of the business activity and is treated as a resultant of the Import Export Activity undertaken, thus exempt u/s. 10AA of the Income Tax Act.
On similar lines, since the Interest on Fixed Deposits are attributable and incidental to the trading business carried on by the assessee, the same has rightly been claimed as exempt u/s. 10AA - In the result, the results declared by the assessee after netting off the FDR Interest with interest paid and Forex loss are eligible to be adjusted against Business Profit. Ground raised by the assessee are allowed.
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2023 (1) TMI 1150
Violation of principles of natural justice - non-speaking order - HELD THAT:- It appears that communications continued on the part of the petitioner to comply with the directions, after considering all the judgements on all the issues raised by the petitioner, but, to no avail.
Let the Assessing Officer/ Adjudicating Authority decide all these aspects and pass a detailed speaking order within a period of two months, without fail - Petition disposed off.
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2023 (1) TMI 1149
Levy of penalty of various persons - Allegation of abating the Smuggling - Detention of goods - illegal removal of the container using forged documents from the customs area - creation of forged out of charge (OOC) and Pass- out documents and handing over documents for clearance to Karthikeyan and told him to take delivery - HELD THAT:- There is much contradiction as to the dates on which the container was removed. The investigation of the removal of this container was taken up along with alleged illegal removal of containers in respect of five other bills of entry. However, the date of removal of the container of this case is not satisfactorily established. That apart from the statement of Shri Karthikeyan, there is nothing to establish that the appellant had any role in forging documents or removing the container from the CFS area. The contradiction pointed out by the learned counsel also shakes the case put up by the department.
The department has failed to establish the allegations raised against the appellants. The penalties imposed therefore require to be set aside - Appeal allowed.
The allegation is that the goods have been misdeclared. Though the adjudicating authority has absolutely confiscated goods under Annexure II, the reason for such confiscation is that the goods have violated IPR / BIS Rules. In regard to goods imported under Annexure I and III, the adjudicating authority has given an option to the importer to redeem the goods on payment of redemption fine. The appellant who is a Customs Broker cannot be expected to have knowledge about the goods in the container - On such circumstance, when there is no dispute with regard to the KYC documents submitted on behalf of the importer, the penalty imposed under sec. 112(a) alleging that the appellant has abetted smuggling of misdeclared / undeclared goods is without any factual basis.
The penalty imposed on the appellants alleging abetment, that they have rendered the goods liable for confiscation, is totally unwarranted. The penalty imposed on the appellants require to be set aside - Appeal allowed.
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2023 (1) TMI 1148
Imposition of penalty u/s under Section 112 and Section 114 AA of the Act - using fake/fabricated gate passes and on being unsuccessful, have filed bill of entry on forged/fabricated Air Way Bill (AWB) - removal of imported goods on fake gate passes without filing bill of entry - HELD THAT:- Shri Dhananjay Kumar Singh is the kingpin in the attempted removal of valuable cargo from Customs-Custodian by resorting to forgery and other acts of omissions and commissions. It is he, who received instructions from Ms. Sonia of Hong Kong for removal of cargo from the Customs Department of India without filing bill of entry. For this work, Ms. Sonia agreed for giving remuneration @Rs.750/- per kg. or Rs.7,00,000/- approximately. Thereafter, Shri Dhananjay Kumar Singh, who was handling the clearance for Shri Mohit Jain of M/s.Shankeshwar Impex, used the IEC of M/s. Shankeshwar Impex for import of the goods. Shri Mohit Jain has allowed the use of his IEC in good faith, not knowing about the illegality or attempt to smuggle the goods by Shri Dhananjay Kumar Singh - Shri Dhananjay Kumar Singh had also admitted that on earlier two occasions also, he had cleared the valuable consignment by resorting to smuggling, as the earlier two consignments were cleared without filing bill of entry by resorting to forgery and delivery without actual gate pass. Accordingly, penalty imposed on Shri Dhananjay Kumar Singh of Rs.5,00,000/- under Section 112 and Rs.20,00,000/- under Section 114 AA are confirmed and his appeal is rejected.
Penalty on Shri Upendra Kumar Chaubey - HELD THAT:- He has actively connived in the whole episode of smuggling, morefully described hereinabove. He has knowingly used forged documents like gate pass etc. having knowledge of its forged nature. However, he is a person of small means and employee of the importer - M/s.Shankeshwar Impex. The penalty imposed upon him is disproportionate. Accordingly, this appeal is allowed in part. The penalty of Rs.4,00,000/- under Section 112 reduced to Rs.1,00,000/- and penalty of Rs.15,00,000/- under Section 114 AA to Rs.3,00,000/-.
Penalty on Shri Abhishekh Mishra - HELD THAT:- He is H-Card Holder employed with CHA firm viz. M/s Aeroship Logicare Pvt. Ltd., being engaged in the Customs clearance work for the last few years, was aware of the basic Customs procedure. Further, he was promised for Rs.10,000/- for abetting in the smuggling done by Shri Dhananjay Kumar Singh. Normally, this high amount of remuneration is not given for simple delivery of the import consignment. Thus, connivance on the part of this appellant is evident on the basis of the record - penalty for falsification of the documents and its use, having knowledge of false/or forged nature of the documents is not attracted. Accordingly, the penalty of Rs.1,00,000/-under Section 112 is confirmed and the penalty under Section 114 AA of Rs.5,00,000/- is set aside. Accordingly, the appeal is allowed in part.
Penalty on M/s. Krishna Logistics Management - HELD THAT:- They have acted bonafidely as a CHA and there is no lapse on their part in taking instructions and filing the bill of entry. Further, they have filed the bill of entry on first check basis and also requested for examination of the goods and the documents before the Customs Department. Further, there is no allegation of any connivance on their part in the attempted smuggling of the imported goods on 28.07.2017. Accordingly, appeal is allowed and the penalties imposed is set aside.
Penalty on M/s. Celebi Delhi Cargo Terminal Management India Pvt. Ltd. - HELD THAT:- It is evident that they are not party to the attempted removal by other appellants in the nature of smuggling, particularly, Shri Dhananjay Kumar Singh. However, there appears to be lack of ‘internal control procedures’ in their office/warehouse, and taking advantage of such loop holes in the procedures/mechanism, Shri Dhananjay Kumar Singh and others in collusion have attempted to remove the imported goods without filing bill of entry by using forged documents - M/s Celebi Delhi Cargo Terminal Management India Pvt. Ltd. have immediately informed the Customs of the incident, which had happened on 28.07.2017 as 29th and 30th July, 2017 were holidays in the Customs Department, and on 31.07.2017, the whole episode was brought to the knowledge of the Customs along with evidences collected by them as well as the statement of Forklift driver.
The penalty of Rs.5,00,000/- imposed under Regulation 12 (8) of the Handling of Cargo in Customs Areas Regulations, 2009 is reduced to Rs.1,00,000/-. Penalty of Rs.5,00,000/- under Section 112 of the Act is set aside - Appeal allowed in part.
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2023 (1) TMI 1147
Initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - demand notice was defective or not - service of demand notice - existence of debt and dispute or not.
Whether the demand notice was defective? - HELD THAT:- The rival contention of the Operational Creditor is that the acronym “LI” stands for Lex Innova and the Corporate Debtor have themselves used the word Lex Innova in the letter-head of the Appointment Letter dated 02.08.2018 issued by them to the Operational Creditor. Thus, the Corporate Debtor is also clearly associated with the name “LexInnova" - even in the Settlement slip at page 117 of Appeal Paper Book (APB), the word Lexinnova has been used by the Corporate Debtor Company. Further the forwarding email from the HR Team of the Corporate Debtor to the Respondent No.1 also uses the word Lexinnova as may be seen at page 116 of APB - thus there are no cogent reasons to disagree with well-considered findings of the Adjudicating Authority that there was no deficiency in the Demand Notice with regard to nomenclature of the Corporate Debtor Company.
Effective service of the Demand Notice - HELD THAT:- This aspect has also been dwelled upon at length by the Adjudicating Authority and that after taking due cognisance of the address mentioned on the Letter-head of the Settlement Slip issued by the Corporate Debtor to the Operational Creditor it has been correctly held in the Impugned Order that the said slip clearly depicts that the aforesaid address 4th Floor, Plot No.30, STPI Building, Electronic City, Udyog Vihar, Sector 18, Gurgaon-122015 belongs to the Corporate Debtor. The postal tracking report has also been perused by the Adjudicating Authority and thereafter it has been rightly held at Paras 28 and 29 of the Impugned Order that the service having been done on the Gurgaon address, the demand notice has been correctly serviced without defects. In the circumstances, the reasoned findings of the Adjudicating Authority are agreed upon that the Demand Notice was not defective and that it had been both despatched and serviced properly.
Existence of pre-existing dispute or not - HELD THAT:- A plain reading of the FIR reveals that the Operational Creditor does not appear to figure in the list of the accused. Going by the contents of the said FIR, the inference drawn by the Adjudicating Authority after perusing the said FIR that the Operational Creditor was not an accused party in the FIR and that no consequential investigation was going on against him is factually in order and stands to reason. Moreover, the clear admission of operational debt as evidenced in the revised Full and Final Statement of settlement of dues as sent by the Corporate Debtor to the Operational Creditor on 21.11.2019 which notably is post filing of FIR also corroborates that there was no pre-existing dispute at the time of admission of liability of the operational dues. It is pertinent to add here that the issue of the Settlement Slip has not been denied by the Appellant - there are no hesitation in observing that in the present case, all the requisite conditions necessary to trigger CIRP under Section 9 stands fulfilled with operational debt having been acknowledged and a default having been committed thereto; demand notice served but remained un-replied; and there being no real pre-existing dispute discernible from the given facts.
The Adjudicating Authority has not committed any error in admitting the Section 9 Application for initiation of CIRP of the Corporate Debtor. We are satisfied that the impugned order does not warrant any interference - Appeal dismissed.
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