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Showing 301 to 320 of 1469 Records
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2021 (7) TMI 1171
Addition of development expenses - surrender made by assessee in survey operation u/s 133A - During the course of survey, the assessee had surrendered many amount on various heads including, cash unexplained pertaining to Kartar estate and development cost of Kartar estate(project phagwarah) - AO has opined that the amount was income from other sources falling under the group of section 69A to 69 C and was not account of the business income - HELD THAT:- In the present case the assessee was not able to demonstrate the source of investment made for development of Kartar estate ( s. no 4 of surrendered statement )from the books of account of the assessee or otherwise the source of investment .Instead of showing the source of cost incurred for development of project, the assessee had treated the same to be business income in the computation and it claimed set off against the same in the trading account . In our considered opinion , the initial onus is on the assessee to show the source of investment /cost incurred for development of project and thereafter only the same can be treated as business income and as per section 71 of the Act, the losses can be set off against business income only , needful was not done, hence the income disclose during the survey for the cost incurred for development appellate is required to be treated as investment made outside the books of account and is required to be held as income from any other sources. Hence the set off the business losses can not be permitted against the income from any other source.See M/S KIM PHARMA (P) LTD. VERSUS COMMISSIONER OF INCOME TAX. PANCHKULA AND ANOTHER [2013 (1) TMI 495 - PUNJAB AND HARYANA HIGH COURT] - Decided against assessee.
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2021 (7) TMI 1170
Difference in the amount of lease money claimed by the assessee and that confirmed by the Mining Department - HELD THAT:- It is an admitted fact that the account statement received from the mining department is not complete and it doesn’t contain the details of payments of royalty for month of December 2011 and January 2012 as admitted by the AO in his remand report dated 24.01.2018. Therefore, the said statement cannot be a sole basis for denying the claim of the assessee where the assessee has submitted the details of actual payment of royalty during the said period of Dec 2011 to Jan 2012. Therefore, on the face of actual payment which has been made and credited to the account of the mining department as so claimed, the claim of the assessee deserve to be allowed - we set-aside the matter to the file of the AO for the limited purposes of verifying the said payments so claimed by the assessee as made to the mining department and where the same is found to be in order, allow the necessary relief to the assessee subject to ₹ 72,79,773/- as claimed by the assessee and which is subject matter of disallowance. The ground of appeal is thus allowed for statistical purposes.
Addition u/s 41(1) - HELD THAT:- We find that the liabilities are still being recognized in the books of accounts of the assessee and there is nothing on record in terms of remission/cessation of liability. Therefore, the addition so made is hereby directed to be deleted and the ground of appeal is allowed.
TP Adjustment - ALP towards interest on loans to M/s Malmor Enterprises INC USA to whom the loan has been advanced by the assessee - HELD THAT:- The contention that the outstanding loan has been brought forward from preceding year and there is no fresh loan/advance during the relevant previous year, therefore the same cannot be characterized as international transaction during the relevant previous year u/s 92CA(3) of the Act is bereft of any merit. Once a transaction has been characterized as an international transaction and the same continue to remain outstanding during the relevant financial year, there is no necessity to record a fresh finding as far as characterization of the said transaction is concerned and only thing which needs to be determined is determination of ALP as relevant for the relevant year under consideration. In the instant case, the ld CIT(A) following the order of the Coordinate Bench for A.Y 2007-08 has restricted the ALP interest @ 8.9% as against 11.4% applied by the AO.
The Revenue is not in appeal before us and the assessee has not been able to establish any alternate basis for determination of ALP, hence, the ground of appeal is hereby dismissed.
Disallowance of depreciation claimed by the assessee on plant and machinery - AO has disallowed the depreciation on the plant and machinery as there was no activity towards manufacturing of readymade garments carried on by the assessee during the year and as a result, the assets have not been put to use during the relevant previous year - HELD THAT:- Similar findings have been recorded by the AO in A.Y 2011-12 and against such findings, there is nothing on record that the assessee has challenged the said findings before the appellate authority. Once under similar fact pattern, depreciation claim has been disallowed by the AO and the assessee having not challenged the same and thus accepted the position adopted by the AO, the principle of consistency warrants that no interference is called for - We find that similar contentions have been raised before the ld CIT(A) who has rightly considered the same and disallowance of depreciation claim has rightly been upheld by him. The findings of the ld CIT(A) are hereby affirmed and the ground of appeal is dismissed.
Disallowing the interest paid to Banks holding the same as attributable to interest free loans provided by the assessee to its sister concerns - HELD THAT:- Though it is the claim of the assessee that loans/advances in the name of sister concerns in most of the cases have been brought forward from preceding years and have no nexus with interest bearing funds, however, there is nothing on record to substantiate the said contentions. Even where the loans and advances have been lent in earlier years, the onus still lies with the assessee to demonstrate that in the year when the funds were advanced, the same had no nexus with borrowed funds and were from the interest free funds. Given that the loans and advances continue to remain outstanding as well as the fact that loans taken by the assessee continue to remain outstanding and the interest expense have been claimed, proportionate disallowance of interest has been made by the AO and which has rightly been upheld by the ld CIT(A). Therefore, we donot find any infirmity in the findings of the ld CIT(A) and the same are hereby confirmed and the ground of appeal is hereby dismissed.
Addition of penalty paid to Mining Engineer, Jaipur for breach of contractual obligations - HELD THAT:- We find that all the contentions raised before us have been raised earlier before the ld CIT(A) and which have been duly considered by him. Merely passing a journal entry in the books of accounts is not determinative of the incurrence of the expenses and claim thereof for tax purposes. There is nothing on record in terms of any demand notice from the mining department or actual payment by the assessee towards such penalty. Though it is the claim of the assessee that the amount has been paid by account payee cheques, however, there is nothing on record to substantiate the said contentions. Therefore, we donot find any infirmity in the findings of the ld CIT(A) and the same are hereby confirmed and the ground of appeal is hereby dismissed.
Addition towards disallowance of various expenses - disallowance have been made on the ground that the expenses have been claimed through self-made vouchers and possibility of personal expenses of directors cannot be ruled out - HELD THAT:- Unless the nature and quantum of expenses are specified, merely stating that expenses are supported by self-made vouchers cannot be a reason for disallowance. Further, as far as personal expenses of directors are concerned, only an apprehension has been raised and in any case, the assessee being a corporate entity, where any expenses of directors are incurred/borne by the assessee, what is relevant to examine is whether such expenses have been incurred pursuant to any arrangement or understanding between the two for the purposes of business or not. However, in absence of any specific finding by either of the authorities below, the disallowance so made and sustained is clearly adhoc in nature and the same is directed to be deleted.
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2021 (7) TMI 1169
Revision u/s 263 - A.O has not carried out the independent enquiries or verification and examination of the loan creditors and also fail to verify the fact of repayment of loans were made through account payee cheques - HELD THAT:- We found that the assessee firm has fought a long litigation before the Honorable Tribunal up to the year 2016 being the three rounds of litigation
On perusal of the Pr.CIT order we found that the Pr. CIT has only verified the facts of loan and the assessee firm is in the litigation before the Hon’ble Tribunal for the third time and the Pr.CIT has not pointed out any specific error in the A.O. order and emphasized only on the status of repayment of loan by account payee cheques and has relied on the observations of the A.O. duly endorsed by the Range Head
CIT should specifically point out the error in the order passed by the A.O. which is erroneous and prejudicial to the interest of the revenue. We find that there is no enquiry which was conducted by the Pr.CIT except relying on the A.O. submissions endorsed by the range head. We also observe that the assessee has fought the litigation for the fourth time in the present case before this Hon’ble Tribunal. We find the A.O as per the directions of the Honorable Tribunal in order [2016 (7) TMI 1618 - ITAT MUMBAI] has taken a possible view considering the litigation for a period of more than 20 years. We are convinced that the order passed by the A.O are on facts, circumstances, possible and reasonable views. We find the action of the Pr. CIT revising the A.O. order with out conducting of enquiry is not tenable. Accordingly we set aside the order of the Pr. CIT and allow the grounds of appeal in favour of the assessee.
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2021 (7) TMI 1168
Disallowance u/s 37(1) - security deposit encashment claim - AO observed that encashment of bank guarantee being penal in nature on account of nonperformance of contract at assessee’s behest - as per AR impugned encashment of bank guarantee is outcome of failure to perform its contractual obligation only without involving any offence or penal component u/s.37(1) - HELD THAT:- Faced with this issue, we find that a catena of case law (GUJARAT STATE FINANCIAL CORPORATION [2013 (8) TMI 78 - GUJARAT HIGH COURT], NEO STRUCTO CONSTRUCTION LTD. [2013 (7) TMI 851 - GUJARAT HIGH COURT], REGALIA APPARELS (P.) LTD. [2013 (7) TMI 114 - BOMBAY HIGH COURT], Jamna Auto Industries[2008 (1) TMI 62 - PUNJAB & HARYANA HIGH COURT] and Green Delhi BQS Ltd. [2018 (5) TMI 632 - ITAT DELHI] holds that such an encashment of bank guarantee is incurred in the normal course of business than involving any penalty element at all. We adopt the very reasoning herein as well and direct the Assessing Officer to delete the impugned disallowance/addition in issue - Decided in favour of assessee.
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2021 (7) TMI 1167
Disallowance of appellant's claim of deductions u/s 80(P)(2)(d) and 36(1)(vii)(a) - HELD THAT:- Hon'ble apex court’s landmark decision in National Thermal Power Co. Ltd.,[1996 (12) TMI 7 - SUPREME COURT] as considered in tribunal’s Special Bench’s decision All Cargo Global Logistics Ltd. [2012 (7) TMI 222 - ITAT MUMBAI(SB)] holds that we can very well entertain a new ground going to root of the matter so as to determine correct tax liability of a taxpayer. We go by the very analogy and find that the assessee’s foregoing petition seeks to raise its additional substantive ground that it is eligible for Section 36(1)(viii) deduction in respective amounts transferred to special reserve since covered within the definition of; a specified entity; as per the provisions of the Act.
DR fails to dispute that neither the Assessing Officer nor the CIT(A) has adjudicated the above clinching issue in their respective orders.
We deem it appropriate to restore the impugned issue of Section 80P(2) disallowance claim back to the Assessing Officer to be examined afresh in light of Section 36(1)(viii) of the Act; as applicable in case of the specified entity; as per law, within three effective opportunities of hearing. It is further made clear that it shall be assessee’s responsibility only to file all the necessary details. Assessee’s appeal is treated as allowed for statistical purposes
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2021 (7) TMI 1166
Refund claim - time limitation - whether the refund application filed by the appellant is time barred by the period of limitations in terms of Section 54 of the CGST Act, 2017? - HELD THAT:- The instant refund application was filed by the appellant on the ground of excess tax payment made by him and it was arised due to not reporting of credit note in GSTR-3B mistakenly and wrongly/erroneously paid the tax on cancelled invoices during the period 2017-18 by filing of GSTR-3B - other remedies are available in the Section 34(2) and Section 39(9) of CGST Act, 2017 but the appellant failed to opt the same and applied the instant refund application on 15-5-2020. The refund application has been rejected by the adjudicating authority by the impugned order on being time barred issue in terms of Section 54 of CGST Act, 2017.
There is a settled law that if the statutory provisions are available in the relevant Act, there is no need to draw the inference by applying/interpreting the other statutory provision. In the instant matter the appellant has taken incorrectly recourse of Limitation Act or other Laws by placing reliance of it. The appellant’s contention that the relevant date should be taken in the instant case as the date of filing of annual return is not correct/acceptable - In the instant case the appellant filed the refund application on 15-5-2020 for the tax period July, 2017 to March, 2018 which is clearly beyond the two years from the relevant date.
The refund claim pertaining to the month of February, 2018 to March, 2018 cannot be disputed on barred by the limitation and contended that the time limit has been extended to 31-8-2020 in terms of Notification No. 35/2020-Central Tax, dated 3-4-2020 as amended by Notification No. 55/2020-Central Tax, dated 27-6-2020 - the appellant did not clarify the date of payment of tax for the month of February, 2018 in the said submission and there is no disputed amount mentioned for the month of March, 2018.
The refund application of the appellant is barred by the time limitation in terms of Section 54 of CGST Act, 2017 - Appeal dismissed.
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2021 (7) TMI 1165
Refund of Input Tax Credit - credit accumulated due to Inverted Tax Structure - time limitation - period July, 2017 to March, 2018 - whether application of refund filed by the appellant is time barred as per Section 54 of CGST Act, 2017 as amended, or not? - HELD THAT:- The due date for filing of refund application for remaining period i.e. for the month of Mar., 2018, has been extended upto 31-8-2020, in terms of the CGST Notification No. 55/2020-Central Tax, dated 27-6-2020 - it is obvious that refund application for the period July, 2017 to February, 2018 is time barred as the same was filed on 13-6-2020. Whereas, the refund application for the month of Mar., 2018 falls within time limits.
Whether refund claim for the tax period of March, 2018 is inadmissible or not? - HELD THAT:- The adjudicating authority has rejected the refund for the period of March, 2018, as mentioned inadmissible since the refund amount works out to negative figures as per Rule 89(5) of the CGST Rules, 2017. Thus the adjudicating authority has correctly rejected the refund for the month of March, 2018 by applying the formulae as provided in Rule 89(5) of the CGST Rules, 2017.
Whether principle of natural justice has been followed in the instant case or not? - HELD THAT:- The adjudicating authority had issued Show Cause Notice in form of RFD-08 to the appellant, also provided opportunity for ‘personal hearing’. However, the appellant neither attended the same on the stipulated day nor filed any reply of the same. Further, the appellant wished to clarify the issue from the adjudicating authority/proper officer through letter via e-mail and the adjudicating authority properly replied to the appellant - there are no merit in the contention of the appellant.
Appeal dismissed - decided against appellant.
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2021 (7) TMI 1164
Refund claim - zero-rated supplies - appellant did not furnish the DRC-03 as required in case where the refund is applied again after issuance of deficiency memo - sufficient opportunity of being heard not provided - HELD THAT:- The appellant has filed Refund for ₹ 7,35,253/- for which deficiency memo No. ZW0801200310312 was issued stating that supporting documents attached are incomplete. The appellant filed afresh ARN Receipt AA080120043271Y (GST RFD-01), dated 28-1-2020 for ₹ 7,62,291/- for which the show cause notice No. ZO0802200237580 (RFD-08) was issued by the Proper Officer i.e. Assistant Commissioner, Division-F, Jaipur on 19-2-2020 and served the same through Common Portal.
The appellant only received the e-mail dated 26-2-2020 stating that ‘This mail is in reference to the AA080120043271Y; 26-2-2020 filed by you. Sanction Order RFD-06/ZY0802200326224/26-2-2020 has been issued for above mentioned refund application.’ And has not received the refund order i.e. RFD-06 (ZY0802200326224, dated 26-2-2020) issued by the Proper Officer i.e. Assistant Commissioner, Division-F, Jaipur - it is deduced that the appellant was neither received the Show cause notice (RFD-08) in appropriate manner nor got the opportunity of being heard to put their submission before the proper officer.
The Proper Officer while passing the refund order of the appellant neither considered their defence submission/reply nor granted the opportunity of personal hearing - matter remanded with the direction to make necessary verification regarding the correctness of the averment of the appellant - appeal allowed by way of remand.
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2021 (7) TMI 1163
Assessment u/s 153A - jurisdiction of the AO - HELD THAT:- We are of the view that addition made by the AO has already been deleted by the CIT(A) on merit. The order of the CIT(A) has not been challenged by the Revenue in further appeal - adjudication of legal issue at this stage would only an academic exercise. It is not going to materially affect the assessee in any manner. No other proceedings, in consequence to this proceeding qua the assessee are pending. We do not deem it necessary to devote time energy for resolving an academic litigation. To our mind, to some extent this appeal of the assessee has become redundant.
We observe that dismissal of this appeal will not cause any prejudice to other assessee, who may challenge identical notice on account of search conducted at Barter. It will not affect the case of the AO qua other assessees. In future, on account of some proceedings for adjudication on the validity of the notice arises, then the assessee will be at liberty to apply for recall of this order, and may press this ground of appeal. With the above observation, this appeal is dismissed.
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2021 (7) TMI 1162
Characterization of income - Proceeds realized on sale of Certified Emission Reduction Credit - assessee had earned on the Clean Development Mechanism in its wing energy operations - Whether a capital receipt and not taxable? - HELD THAT:- More or less, in a similar case, the Apex Court had an occasion to consider such an issue in the case of Commissioner of Income Tax v. Maheshwari Devi Jute Mills Ltd.[1965 (4) TMI 10 - SUPREME COURT] wherein the question came up for consideration before the Apex Court as to whether by sale of loom-hours, the amount received could be termed as capital receipt or the income out of business. In the said decision, the Apex Court held that the amount received out of sale of loom-hours can be termed as capital receipt and not income out of business. Also see M/S. AMBIKA COTTON MILLS LTD. [2021 (3) TMI 442 - MADRAS HIGH COURT] - Decided in favour of the assessee.
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2021 (7) TMI 1161
Maintainability of petition - Validity of SCN - SCN asking the petitioner to submit their reply within 30 days - HELD THAT:- The power of judicial review is to scrutinise the processes through which the jurisdiction is taken by the competent authorities in consonance with the law, but not the decision itself. Thus, the Courts always exercise restraint in entertaining a Writ Petition filed against the show cause notices.
In the present case, the impugned show cause notice provides all the details regarding allegations. The petitioner is asked to submit their representations/defence or documents to defend their case by availing the opportunity. Therefore, the petitioner is expected to defend their case before the competent authority by submitting their explanations/defence statements and thereafter, the authorities are bound to consider the materials available on record as well as the grounds raised by the petitioner in their defence statement and take a decision and pass speaking order by furnishing reasons for such a decision
This Court is of the considered opinion that the writ petitioner has not established any acceptable ground for the purpose of entertaining the Writ Petition - Petition dismissed.
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2021 (7) TMI 1160
Maintainability of petition - alternative remedy of appeal was not exhausted - validity of assessment order - HELD THAT:- Admittedly, the present Writ Petitions are filed challenging the final assessment orders and therefore, the petitioner is bound to exhaust the statutory remedies provided under the provisions of the Act. The importance of the appellate remedy at no circumstances be undermined, as the appellate authorities are the final fact finding authorities - Preferring an appeal is the rule. Entertaining a Writ Petition before exhausting the appellate remedy is an exception. Undoubtedly, writ proceedings may be entertained before exhausting the appellate remedy.
The power of judicial review of the High Court under Article 226 of the Constitution of India is to scrutinize the processes through which a decision is taken by the competent authority by following the procedures as contemplated, but not the decision itself. Therefore, the routine entertainment of a Writ Petition by dispensing with appellate remedy is not preferable and such an exercise would cause injury to the institutional hierarchy and the importance attached to such appellate institutions. The appellate institutions provided under the statute at no circumstances be undermined by the higher Courts - The High Court cannot conduct a roving enquiry with reference to the facts and circumstances based on the documents and evidences. Based on the mere affidavits filed by the litigants, the disputed facts cannot be concluded.
The practise of filing the Writ Petition without exhausting the statutory remedies are in ascending mode and such Writ Petitions are filed with a view to avoid pre-deposits to be made in statutory appeals and on the ground that the appellate remedies are time consuming - the petitioner is at liberty to prefer an appeal before the jurisdictional competent authority, in a prescribed format, complying with the provisions of the Acts and Rules, within a period of four weeks from the date of receipt of a copy of this order - Petition disposed off.
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2021 (7) TMI 1159
Interest on delayed payment of tax - Section 50 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The petitioner submitted a representation to the first respondent on 03.11.2020, which is yet to be disposed of and such representation is entertainable under the provisions of the Act and the Authorities Competent is duty bound to dispose of the same on merits and in accordance with law.
The first respondent is directed to consider the representation submitted by the petitioner on 03.11.2020 and pass an order on merits and in accordance with law and by affording an opportunity to the writ petitioner, as expeditiously as possible, preferably within a period of twelve weeks from the date of receipt of a copy of this order - Petition disposed off.
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2021 (7) TMI 1158
Detention of motor vehicle - RANGE ROVER motor vehicle transported from Coimbatore to Thiruvananthapuram as 'used personal effect' of the 2nd respondent - detention on the ground that the same was transported without the E-way bill - requirement of e-way bill for personal effect goods - Rule 138 of the Kerala Goods and Service Tax Rules, 2017 - HELD THAT:- It must be remembered that goods that are classifiable as used personal and household effect falls under Rule 138(14) (a) of the Kerala Goods and Services Tax Rules, 2017 and are exempted from the requirement of e-way bill. The 2nd respondent had purchased the vehicle after payment of IGST. A temporary registration was also taken apart from the motor vehicle insurance.
The decision in the case of KUN MOTOR CO. PVT. LTD. AND VISHNU MOHAN VERSUS THE ASST. STATE TAX OFFICER, SQUAD NO. III, KERALA STATE GST DEPARTMENT AND STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, THIRUVANANTHAPURAM [2018 (12) TMI 531 - KERALA HIGH COURT] held that used vehicles, even if it has run only negligible distances are to be categorized as 'used personal effects' - the facts in the present appeal is similar if not almost identical to the facts in the above referred decision, except for the change in place from Puthuchery to Coimbatore.
Appeal dismissed.
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2021 (7) TMI 1157
Provisional release of imported goods - Return of bank guarantees - Areca nuts - proper officer in terms of Section 45(1) of Customs Act - country of origin certificate - HELD THAT:- Section 45 of the Act provides all goods imported into India and unloaded in customs area shall remain in the custody of such person as may be approved by the Principal Commissioner of Customs or Commissioner of Customs unless they are cleared for home consumption or are warehoused or are transhipped in accordance with the provisions of Chapter VIII of the Act. On the other hand, Section 100 deals with seizure of goods on a reasonable belief that the goods are liable to confiscation under the Act.
In the present case the customs authorities had not seized the goods on such reasonable belief that they are liable to confiscation. On the other hand, the goods had been kept in custody in exercise of powers under Section 45 of the Act, pending its clearance - no case of unconditional release of the goods in the factual matrix with reference to sub-section (2) of Section 110 of the Act is made out.
The provisional clearance of the goods is pending consideration for over 2 and ½ years purportedly on the ground of verification of genuineness of the certificate with regard to country of origin. The scheme of the Act does not permit the customs authorities to undertake such an exercise for an indefinite period of time. Hence, the customs authorities cannot be permitted to continue such exercise indefinitely and keep the petitioner bound to the sureties furnished by them - Petition disposed off.
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2021 (7) TMI 1156
Termination of dealership - breach of Clause 45 (d) of dealership agreement - Co- operative Society appointed as dealer, involved in a criminal offence or not - petitioner was convicted under Section 138 of Negotiable Instruments Act, 1881, for dishonor of cheque - heinous case or case involving moral turpitude or otherwise? - HELD THAT:- Apex Court in the case of P. MOHANRAJ & ORS. VERSUS M/S. SHAH BROTHERS ISPAT PVT. LTD. [2021 (3) TMI 94 - SUPREME COURT] has reiterated that proceedings under Negotiable Instruments Act are basically civil in nature having criminal colour. Apex Court has defined the proceedings aptly as "civil sheep in a criminal wolf's clothing" and has reiterated the law laid down - Similarly, in M/S. METERS AND INSTRUMENTS PRIVATE LIMITED & ANR. VERSUS KANCHAN MEHTA [2017 (10) TMI 218 - SUPREME COURT], it has been held that nature of offences under Section 138 of Negotiable Instruments Act is primarily a civil law and 2002 amendment specifically made it compoundable.
Thus, it is clear that proceedings under Section 138 of Negotiable Instruments Act are civil in nature with criminal overtones - impugned order is quashed - respondent is directed to allow petitioner to run the Petroleum outlet allotted to him vide agreement dated 1.8.2008 - petition allowed.
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2021 (7) TMI 1155
Smuggling - Foreign Origin (FO) Gold - recovery of the gold from the secret cavity beneath the driver’s seat of that vehicle - recording of statements u/s 108 of the Customs Act, 1962 - HELD THAT:- The case diary which has been produced in a sealed cover, has been perused. Undisputedly, the investigation is pending and Challan has not been filed so far.
Having regard to the nature of material which has come on record, the release of the applicants during the pendency of the investigation would not be proper as the prosecution is in the process of collecting further evidence against them - application dismissed.
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2021 (7) TMI 1154
Dishonor of Cheque - Trial Court awarded punishment in the form of imprisonment for the said offence - dispute is amicably settled with the respondent no.2-complainant, with regard to the offence, after the order of conviction is passed - complainant filed an affidavit interalia stating that if the order of conviction passed against the applicants is quashed and set aside, he has no objection - compounding of offences - HELD THAT:- This Court, in the case of Khokhar Iliyas Bismilla Khan Vs. State of Gujarat & Anr. [2021 (6) TMI 868 - GUJARAT HIGH COURT] , had an occasion to deal with a similar issue which is involved in the present matter, where it was held that Taking into account the fact that the parties have settled the dispute amicably, in view of this court the compounding of the offence is required to be permitted.
Thus, when the parties have settled the dispute amicably, compounding of the offence is required to be permitted - However at this stage, it is required to be noted that the respondent no.2 has filed a complaint under Section 138 of the N.I. Act for dishonour of cheque amounting to ₹ 1,43,606/- and, hence as per the decision rendered by the Hon'ble Supreme Court, suitable amount i.e 15% of ₹ 1,43,606/- is required to be deposited by the applicants with the Gujarat State Legal Services Authority.
Application allowed.
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2021 (7) TMI 1153
Validity of Notifications dated 04.05.2007, 04.05.2007 and 05.09.2006 - issuance of SCN by proper officer - incompetent authority of Jurisdictional Officer or not - HELD THAT:- The proper officer is defined as “in relation to any functions to be performed under the Act, means the Officer of Customs, who is assigned those functions by the Board or the Commissioner of Customs. Thus, the proper officer is defined so as to include the officer of customs, who is assigned those functions by the Board. In the present case, by invoking the powers under Section 4(1) of the Act, the Board conferred powers to the Commissioner of Central Excise, Goa and authorises him to exercise the powers and discharge the duties conferred or imposed on the Commissioner of Customs, Port Imports, Chennai for the purposes of adjudicating the matters relating to show cause notice. Therefore, it is unambiguous that the Board appointed the Commissioner of Central Excise, Goa as a proper officer under Section 4(1) and the said Commissioner of Central Excise, Goa is empowered to exercise powers of the officers of customs under Section 5 and with reference to the definition of proper officer under Section 2(34) of the Act. Therefore, there is no ambiguity in respect of the powers exercised in the present case.
As far as the show cause notices are concerned, the merits are to be adjudicated by the competent authority/the respondent. High Court cannot adjudicate the disputed facts with reference to the documents and evidences to be produced by the respective parties. Thus, the petitioner has to submit their explanations/objections, if any, along with the documents and evidences to the respondents enabling them to consider the same and pass orders by following the procedures as contemplated and by affording opportunity to the writ petitioners. Such an exercise is to be done as expeditiously as possible.
In view of the fact that the jurisdiction point raised by the petitioner fails, this Court has no hesitation in forming an opinion that the petitioners have not established the ground of jurisdiction and thus, the petitioners are bound to respond to the show cause notices and on receipt of any such objections/explanations, the respondents are bound to continue the proceedings, conclude the same as expeditiously as possible - Petition dismissed.
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2021 (7) TMI 1152
Seeking interest on delayed disbursal of refund - circular bearing No.276/186/2015-CX.8A dated 01.06.2015 - HELD THAT:- Admittedly, there is no interim order in the appeal filed by the respondents and therefore, the petitioner is entitled for the interest as ordered by this Court - But, in spite of the orders passed by this Court and in spite of the circular bearing No.276/186/2015-CX.8A dated 01.06.2015, the first respondent had refused to pay interest to the petitioner and had driven the petitioner to come before this Court once again for his entitlement. The earlier order is very clear as to the interest.
The respondents are directed to pay the interest due to the petitioner within a period of four weeks from the date of receipt of a copy of this order - Petition allowed - decided in favor of petitioner.
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9911796707
