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Showing 321 to 340 of 1464 Records
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2021 (10) TMI 1145
Validity of reopening of assessment - non-service of notice u/s. 143(2) - as per AO Assessee did not comply with the notice u/s. 148 of the Act by filing the return of income, therefore he issued notice u/s. 142(1) of the Act calling for certain details which was also not responded by the assessee - HELD THAT:- We agree that the AO had no other alternative but to proceed with framing assessment u/s. 144 of the Act since it is admitted that the assessee had not filed the return of income pursuant to the service of notice u/s. 148 of the Act. Therefore, the AO rightly did not issue notice u/s. 143(2) of the Act, because there was no statutory requirement of the AO to issue the same. Ergo this legal issue raised stands dismissed.
Non participation from the side of the assessee - Addition as long term capital gain - According to assessee this amount was sale consideration of his Shaiel Dhan Bhumi/Shaiel Raice Land/Rural Agricultural Land which is exempted u/s. 10(37)(1) read with Section 2(14) - HELD THAT:- First of all it is not in dispute that the assessment order has been passed after reopening u/s. 147 of the Act and thereafter by framing the assessment u/s. 144 of the Act because according to AO the assessee did not co-operate during the assessment proceedings. And it is the assessee's case that for reasons beyond his control being not well he was prevented from responding to the notice u/s. 142(1) and notice u/s. 144 of the Act. So, as held by the Hon'ble Supreme Court Tin Box Compan y[2001 (2) TMI 13 - SUPREME COURT] if sufficient opportunity is not given by the AO while framing of assessment, then the assessee should be given opportunity before the AO.
Since the assessee has to explain the amount deposited in his bank account supported by the documents and the AO had to examine the veracity of the same, we deem it fit to set aside the impugned order of Ld. CIT(A) for de novo assessment on the issue of addition made by the AO - Appeal of assessee is allowed for statistical purposes.
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2021 (10) TMI 1144
Revision u/s 263 by CIT - scope of revisionary jurisdiction of ld. PCIT - validity of declaration made under IDS - income declared by assessee under IDS was accepted without any variation or objection - AO issued notice u/s 153C requiring the assessee to file return of income - search and survey of SRK group and it related parties, of which the assessee is also part, has resulted in to impounding of documents/ books of accounts and evidence related with evidence of undisclosed receipt and expenses in respect of project “Amrut Sarovar Residenty” - HELD THAT:- We find the there is no dispute that the AO while passing the assessment order accepted the claims of the assessee in non- speaking order. It is not the case of ld PCIT that the AO is not authorised (empowered) to accepted the return of income in non-speaking order. We have seen that the AO while passing the assessment order recorded that “the Authorized representative of the assessee vide various order sheet entries have furnished the relevant details and information called for. After affording ample and adequate opportunities of being heard to the assessee, assessment proceedings have been completed on the basis of the submissions and details collected and in consequence upon the conclusion of proceeding and hearing of evidences, assessment is made by this order - A perusal of show cause notice under section 263 dated 08.03.2021, clearly demonstrate that the ld PCIT identified all the issues which were the subject matter of the notice under section 142(1) and the questionnaire attached thereto, were issued by the assessing officer, except the issue of initiation of penalty 271D. The ld PCIT in his show cause notice (SCN) under section 263 has accepted that the AO made detailed questionnaire dated 03.12.2018. And on perusal record and details /evidences available on record, the PCIT noted that AO has not made further inquiry.
PCIT has not made a case that there was “no enquiry” or “lack of inquiry” rather recorded that the AO called detailed inquiry. We find that the ld. PCIT has not specified that what kind of further inquiry was required, when the income disclosed in IDS was duly accepted by higher authority. And the acceptance of IDS was never questioned by Board or other superior authority then PCIT.
We find that in SCN the ld PCIT observed that the assessee made declaration on the basis of misrepresentation of fact. However, the ld PCIT failed to mentioned the nature of misrepresentation or the basis of his such observation. PCIT failed to give any specific finding on his observation while revision the assessment order. After going through the entire material, we find that the AO had taken a conscious decision on the basis or explanation furnished by assessee. Furthermore, the assessment order was duly approved by the ld JCIT. There in not finding of ld PCIT that the approval granted by the JCIT is not proper or non-application of proper procedure.
We find that in the case in hand the AO has made required inquiry and came to a plausible, reasonable and legally sustainable conclusion in allowing the claims to the assessee.
Non initiation of penalty under section 271D/ 271E - We find that in case of CIT Vs Suresh G. Shah [ [2006 (8) TMI 101 - HIGH COURT, GUJARAT] and CIT Vs Parmanand M. Patel [2005 (7) TMI 72 - GUJARAT HIGH COURT] it was held that CIT cannot exercise his jurisdiction under section 263 for the purpose of initiation of penalty proceedings. Otherwise also we find that the assessee has specifically in its reply to the SCN to the ld PCIT has stated that the cash was received only against the booking and no loan or such transaction was undertaken by them.
PCIT failed to specify the transaction on which initiation of penalty either under section 271D or 271E was warranted. And on the issues of validity of discloser in IDS, the ld PCIT has not specified that while making declaration the assessee made any misrepresentation of any facts. Once the IDS in all cases were accepted by ld. PCIT, the AO or the Range head no authority to relook or power to revoke or to examine its validity. We further find that the ld PCIT while directing the AO has not himself revoked the IDS nor directed to refund the payment of tax to the assessee.
In the IDS the assessee has paid more tax to the revenue then the rate of normal tax, so there is no loss of revenue. At the cost of repetition, we note that the AO while passing the assessment order in all years have made inquiry and took reasonable, plausible and legally sustainable view. The Hon’ble Delhi High Court in CIT Vs Kelvinator of India Ltd [2002 (4) TMI 37 - DELHI HIGH COURT] held that if the AO has adopted one of the course permissible in law, which resulted in loss of revenue or where two view is possible and the AO has taken one view with which the CIT does not agree, it cannot be treated as erroneous order prejudicial to the interest of revenue unless view taken by the AO is not sustainable in law. At the cost of repetition, we may note that the ld PCIT neither in his show cause notice nor in ultimate / final order has held that the order passed by the AO is unsustainable in law.
We are of the considered view that the ld PCIT was not justified in subjecting the assessment order for all three years to revision proceedings by taking view that the AO has not made further inquiry, therefore we quash the revision order (s) in all three assessment years.- Decided in favour of assessee.
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2021 (10) TMI 1143
Validity of reopening of assessment u/s 147 - Period of limitation - notice issued beyond 4 years - taxability of goodwill as credited to the accounts of retiring partners - HELD THAT:- AO has power to reassess if he has reason to believe that any income chargeable to tax escaped assessment but however, the proviso limits that power that no action shall be taken after expiry of four years from the relevant assessment year, which means to say that if the AO has reason to believe that any income chargeable to tax as escaped assessment, the notice should be issued within four years from the end of said assessment year.
Therefore, in our opinion proviso to section 147 of the Act is meant to limit the scope of provision u/s. 147 of the Act, going by this, it is safe to say that the proviso to section 147 of the Act is a qualifying proviso and it only seeks to limit the main provision in section 147 of the Act with stipulation or condition. In the present case, we already discussed the same in the aforementioned paragraphs that the AO should have issued notice u/s. 148 of the Act on or before 31-03-2013 whereas the notice issued was on 23-04-2014. Further, we also discussed that all the relevant details regarding the admission of new partners and also retiring partners were fully disclosed in the audit report in Form No. 3CD, and payment of goodwill thereon Thereby, we find no infirmity in the order of CIT(A) and it is justified - Decided against revenue.
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2021 (10) TMI 1142
Non speaking order passed by CIT-A - Disallowance of set off claimed - HELD THAT:- AO has not given any cogent reason or referred to the necessary provision of law as to why the claim by the assessee is not allowable. CIT(A) again has copied the order of AO not spelling out as to why and what violation of section 72 of the Act, the claim is being dismissed.
Addition being the difference in business income arrived by the A.O - Again Ld. CIT(A) has passed a non speaking order. The Ld. CIT(A) mention that assessee could not file any documents and the reconciliation warranting, the AO to make the addition. But this is totally wrong appreciation as AO has mentioned that the reconciliation has been given by the assessee, but it is not acceptable.
CIT(A) has passed the order without application of mind. It is settled law that even administrative orders have to be construct with rule of natural justice. The order by Ld. CIT(A) is on the cusp of abandonment of statutory duty cast upon him as the first appellant authority. This is more palpable by a reading of ground No. 1 of the assessee as above. Accordingly, remit the issue to the file of Ld. CIT(A) to pass a proper speaking order after giving the assessee proper opportunity of being heard. Assessee appeal allowed for statistical purpose.
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2021 (10) TMI 1141
Addition invoking provisions of section 69 and 40A/40a(ia) - CIT- A deleted the addition - HELD THAT:- We agree with the Ld. Sr. DR that the orders of Ld. CIT(A) are cryptic and is passed without recording proper reasoning. The Ld. CIT(A) reproduced the submissions filed by assessee and decided the issue without giving reasons. In the interest of justice we remand this issue back to the Ld. AO to verify the claims in both the appeals based on evidences/submissions filed by assessee and in accordance with law. Needless to say that proper opportunity of being heard must be granted to assessee in accordance with law. Revenue appeals stands allowed for statistical purposes.
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2021 (10) TMI 1140
Claims of amount paid for employees taken on Secondment - Revenue attribution - As submitted assessee was rendering management consultancy services to the group entities of K.K. Modi Group by availing services of seconded employees for which it was setup - HELD THAT:- AR has pointed out that in A.Y. 2011-12, assessee had taken on seconded employees who were originally employee in the flagship group company i.e. Godfrey Philips India (P) Ltd. and then seconded to the assessee on cost to company basis, without any mark-up. It has been further pointed by the Learned AR that no disallowance of secondment cost to employees was disallowed by the AO in earlier years. The aforesaid contention of the Learned AR has not controverted by the Revenue. We find that AO on one hand had held the secondment agreement to be not a genuine agreement but on the other hand had disallowed only 50% of the expenditure which according to us appear to be contrary. We further find that CIT(A) for the reasons stated in the order has deleted the addition. Before us, Revenue has not pointed any fallacy in the findings of CIT(A). In such a situation, we find no reason to interfere with the order of CIT(A) and thus the ground of Revenue is dismissed.
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2021 (10) TMI 1139
Addition u/s 69A - Cash deposits during the demonetization period - Assessee submitted that the savings were out of accumulated savings in the form of pin money and minor cash gifts received by her from her parents and in-laws on the occasion of birthdays, anniversaries etc. - HELD THAT:- CIT(A) grant relief to ₹ 50,000/- and upheld the addition to the extent of ₹ 2,00,000/-. Before us, assessee has submitted that the deposits to be out of accumulated savings and out of the cash gifts received by her on the occasion of birthdays and anniversaries. It is also a fact that assessee's husband is an income tax payer working for an MNC.
in view of the CBDT Circular vide Instruction No. 03/2017 dated 21st February 2017 and relying on the decision of SMT. UMA AGRAWAL BABA KAPUR SUNARAN KA MOHALLA VERSUS I.T.O –1 (3) GWALIOR, M.P. [2021 (6) TMI 712 - ITAT AGRA], the explanation of the assessee about the source of cash deposits cannot be brushed aside without there being any evidence to the contrary.- Decided in favour of assessee.
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2021 (10) TMI 1138
TDS u/s 195 - payments abroad of export commission to non-resident the foreign agent for the procurement of export orders - FTS' under the India-France DTAA - disallowance u/s 40(a)(i) - HELD THAT:- As relying on STERIA INDIA LTD. (EARLIER KNOWN AS XANSA (INDIA) LTD.) [2018 (4) TMI 578 - DELHI HIGH COURT] for bringing the services under the net of Fee for Technical Services (FTS) under the India France DTAA, the 'make available' clause has to be satisfied. But in the services rendered by the non-resident of procuring export order for the assessee, no knowledge has been provided to the assessee which could be exploited further by the assessee. In such circumstances, the services rendered by the non-resident cannot be held as 'FTS' under the India-France DTAA. Accordingly, such services will not be chargeable in India in the hands of nonresident under DTAA and, therefore, no liability to deduct tax at source will arise. Consequently, payment to said non-resident is not liable to disallowance under section 40(a)(i) of the Act. - Decided in favour of assessee.
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2021 (10) TMI 1137
Assessment u/s 153A - Addition u/s 68 - action of CIT(A) in holding that no addition was warranted in the present case - HELD THAT:- CIT(A) while deciding the issue in favour of the assessee has given a finding that the original return of income filed by assessee was processed u/s. 143(1) of the Act and at the time of search action no assessment or reassessment proceedings were pending or abated. He has further given a finding that the addition made u/s. 68 of the Act was not based on any incriminating document/record or any other material found/seized during the course of search proceedings. Before us, no fallacy in the findings of CIT(A) has been pointed out by the Revenue. In such a situation, we find no reason to interfere with the order of CIT(A) and thus the ground of Revenue is dismissed.
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2021 (10) TMI 1136
Revision u/s 263 by CIT - validity of declaration made under IDS - Before issuing the notice under section 153C of the Act, the assessee made disclosure under income disclosure scheme (IDS) - understatement of income of the project - HELD THAT:- The phrase 'prejudicial to the interests of the revenue' is not an expression of art and is not defined in the Act. Understood in its ordinary meaning it is of wide import and is not confined to loss of tax. The scheme of the Act is to levy and collect tax in accordance with the provisions of the Act and this task is entrusted to the revenue. If due to an erroneous order of the Income-tax Officer, the revenue is losing tax lawfully payable by a person, it will certainly be prejudicial to the interests of the revenue. The phrase 'prejudicial to the interests of the revenue' has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer, cannot be treated as prejudicial to the interests of the revenue, for example, when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue, or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the revenue unless the view taken by the Income-tax Officer is unsustainable in law.
There must be material available on the record called for by the Commissioner to satisfy him prima facie that the aforesaid two requisites are present. If not, he has no authority to initiate proceedings for revision. Exercise of power of su motu revision under such circumstances will amount to arbitrary exercise of power. It is well-settled that when exercise of statutory power is dependent upon the existence of certain objective facts, the authority before exercising such power must have materials on record to satisfy it in that regard. If the action of the authority is challenged before the Court, it would be open to the Courts to examine whether the relevant objectives were available from the records called for and examined by such authority. The decision of the ITO could not be held to be 'erroneous' simply because in his order he did not make an elaborate discussion in that regard. Moreover, the Commissioner himself, even after initiating proceedings for revision and hearing the assessee, could not say that the allowance of the claim of the assessee was erroneous, he simply asked the ITO to re-examine the matter, which was not permissible.
After affording ample and adequate opportunities of being heard to the assessee, assessment proceedings have been completed on the basis of the submissions and details collected and in consequence upon the conclusion of proceeding and hearing of evidences, assessment is made by this order”. A perusal of show cause notice under section 263 dated 08.03.2021, clearly demonstrate that the ld PCIT identified all the issues which were the subject matter of the notice under section 142(1) and the questionnaire attached thereto, except the issue of initiation of penalty 271D and validity of IDS. The ld PCIT in his show cause notice (SCN) under section 263 has accepted that the AO made detailed questionnaire (para -5) dated 03.12.2018. And on perusal record and details /evidences available on record, the PCIT noted that AO has not made further inquiry. Thus, the ld. PCIT has not made a case that there was “no enquiry” or “lack of inquiry” rather recorded that the AO called detailed inquiry. We find that the ld. PCIT has not specified that what kind of further inquiry was required, when the income disclosed in IDS was duly accepted by higher authority. And the acceptance of IDS was never questioned by Board or other superior authority then PCIT. It is the AO who has to take a conscious decision if any further inquiry is required or not. Furthermore, the assessment order was duly approved by the ld JCIT. There in not finding of ld PCIT that the approval granted by the JCIT is not proper or non-application of proper procedure. AO has made required inquiry and came to a possible conclusion in allowing the claims to the assessee.
Non initiation of penalty under section 271D/ 271E - We find that in case of CIT Vs Suresh G. Shah [ [2006 (8) TMI 101 - HIGH COURT, GUJARAT] and CIT Vs Parmanand M. Patel [2005 (7) TMI 72 - GUJARAT HIGH COURT] it was held that CIT cannot exercise his jurisdiction under section 263 for the purpose of initiation of penalty proceedings. Otherwise also we find that the assessee has specifically in its reply to the SCN to the ld PCIT has stated that the cash was received only against the booking and no loan or such transaction was undertaken by them.
PCIT failed to specify the transaction on which initiation of penalty either under section 271D or 271E was warranted. And on the issues of validity of discloser in IDS, the ld PCIT has not specified that while making declaration the assessee made any misrepresentation of any facts. Once the IDS in all cases were accepted by ld. PCIT, the AO or the Range head no authority to relook or power to revoke or to examine its validity. We further find that the ld PCIT while directing the AO has not himself revoked the IDS nor directed to refund the payment of tax to the assessee.
In the IDS the assessee has paid more tax to the revenue then the rate of normal tax, so there is no loss of revenue. At the cost of repetition, we note that the AO while passing the assessment order in all years have made inquiry and took reasonable, plausible and legally sustainable view. The Hon’ble Delhi High Court in CIT Vs Kelvinator of India Ltd [2002 (4) TMI 37 - DELHI HIGH COURT] held that if the AO has adopted one of the course permissible in law, which resulted in loss of revenue or where two view is possible and the AO has taken one view with which the CIT does not agree, it cannot be treated as erroneous order prejudicial to the interest of revenue unless view taken by the AO is not sustainable in law. At the cost of repetition, we may note that the ld PCIT neither in his show cause notice nor in ultimate / final order has held that the order passed by the AO is unsustainable in law.
We are of the considered view that the ld PCIT was not justified in subjecting the assessment order for all three years to revision proceedings by taking view that the AO has not made further inquiry, therefore we quash the revision order (s) in all three assessment years.- Decided in favour of assessee.
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2021 (10) TMI 1135
TDS u/s 194B or 194BB - disallowance in respect of payment of stake money under section 40(a)(ia) - stake money and cups disbursed to horse owners without deducting TDS - HELD THAT:- As decided in own case [2020 (12) TMI 1280 - ITAT BANGALORE] CBDT Circulars are binding on the Department as it clarifies the understating of the provisions of the Act by the Revenue which cannot be disregarded by the income-tax authorities while construing the provisions of the Act. The ld. DR was not able to point out why the interpretation given in the CBDT Circular relied upon by the assessee should not prevail. We find that the Department has tried to indirectly tax what cannot be taxed by virtue of Circular issued by the CBDT, a situation which is impermissible in law. Thus, on this aspect also, we hold that 'stake money' is not liable to TDS u/s 194B of the Act. - we also hold that stake money paid by assessee to the horse owners are not liable to TDS under section 194B or section 194 BB of the Act. Consequentially no disallowance could be made under section 40 (a) (ia) of the act in the hands of assessee.
Nature of expenditure - Expenditure on modification of TV towers - claim un/s 37 - AR submitted that, during the year six TV towers were modified to fit the technology cameras which could be used during horse races and there is no enduring benefit in the hands of assessee and that, amount paid for purchase of technological camera are capitalised the books of account on which depreciation is claimed in accordance with section 32 - HELD THAT:- In present facts assessee incurred expenses on re-modification of TV towers which might, undergo further modification as and when the technologically upgraded camaras are brought in. It is submitted that the towers were remodified to fit in the new camaras purchased. Admittedly, the cameras purchased by assessee were capitalised on which depreciation is claimed. Thus in our view though expenditure do not have the character of enduring benefit, the advantage is not for indefinite future. Accordingly, respectfully applying the principles laid down in EMPIRE JUTE COMPANY LIMITED VERSUS COMMISSIONER OF INCOME-TAX [1980 (5) TMI 1 - SUPREME COURT] we hold the expenditure to be revenue in nature. We direct the Ld.AO to delete the disallowance made on expenses towards re-modification of TV towers.
Nature of expenditure - expenditure incurred on constructing temporary stables, repairs to existing stables and gun greeting of such stables - HELD THAT:- We agree with the argument advanced by the Ld.Sr,DR that the structures are permanently made for outstation horses that come to Bangalore for races and therefore to be catagorised as capital asset.
We also note that assessee incurred repair work towards existing stables. We direct the Ld.AO to allow the expenditure incurred is towards repair work as revenue expenditure.
Expenditure incurred on upgrading of UPS system u/s 37 - HELD THAT:- We note that the server installed in the racecourse premises was originally supported by UPS of 8 KVA. Assessee upgraded it to16 KVA in the year 2012. The upgradation of UPS has brought into effect a new asset for advantage of assessee and therefore has to be treated as capital asset. However, assessee is eligible for depreciation. We direct the Ld.AO to grant depreciation to assessee on the UPS.
Expenditure incurred towards maintenance of betting systems and other equipments and asphalting of roads - Revenue or capital expenditure - HELD THAT:- We note that both these expenditure are incurred by assessee for maintenance of existing asset. It cannot be ignored that, there would arise ware and tear of machines used and the road on which horse racing takes place. These needs to be maintained on regular basis for the purposes of business. We are therefore convinced with the view of Ld.CIT(A) that they are in the nature of revenue expenditure.
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2021 (10) TMI 1134
100% EOU - non-fulfilment of export obligation - requirement that the entire manufactured goods shall be exported or the unit should achieve positive net foreign exchange earnings as a percentage of export fixed by the authority prescribed as per N/N. 53/1997 Cus dated 03.06.1997 - HELD THAT:- The matter under consideration would certainly go beyond the inter-se dispute between the parties and would partake the character of general public importance as enunciated by Hon’ble Apex Court in COMMISSIONER OF CUSTOMS, BANGALORE-1 VERSUS M/S MOTOROLA INDIA LTD. [2019 (9) TMI 229 - SUPREME COURT].
More particularly, inasmuch as the interpretation of the Notification No.53/1997, the subject matter of the appeal as to whether duty could be levied if the unit fails to achieve Net Foreign Exchange Earning as a Percentage (NFEP) and Export Performance (EP) as specified in Appendix-1 of the Export and Import Policy, within one year of importation or procurement of such goods or within such extended period not exceeding one year, vis-à-vis Clause 6(1) and 6(4) of the Notification No.53/1997.
The appeal under Section 130 of the Act before this Court would not be maintainable and the appellant/revenue has to pursue its grievance by filing an appeal under Section 130E of the Act before the Hon’ble Apex Court - the appeal filed under Section 130 of the Act is held to be not maintainable.
Appeal dismissed.
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2021 (10) TMI 1133
Seeking unconditional release of seized goods - Smuggling - Gold - Section 110(2) of Customs Act, 1962 - HELD THAT:- When the matter was taken up today, the learned counsel for the revenue has produced the original record before us and has pointed out that in pursuance of show cause notice dated 13.03.2014 issued to the appellant, adjudicating authority has passed an order originally on 28.02.2015 and as per the appellant on 13.03.2014.
The appeal is disposed of with liberty to the appellant to challenge the order dated 28.2.2015 passed by the Adjudicating Authority by way of the appeal in accordance with law.
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2021 (10) TMI 1132
Levy of fine on the corporate debtor - delay in making certain compliances in terms of Regulation 7(3) of SEBI (Listing Obligations & Disclosure Requirements) Regulations, 2015 - corporate debtor is undergoing CIRP during relevant time - moratorium is under effect - HELD THAT:- It is to be seen that the fine was levied for the delay in making certain compliances. In view of the fact that due to the failure of the Board of Directors of the corporate debtor in managing the company in a proper manner, the company went into the CIRP process. After the company was taken over by the applicant Resolution Professional, certain compliances have been made, may be belatedly and with regard to other compliances, the Resolution Professional explained the impediments being faced by him.
In view of the moratorium declared in terms of Section 14 of the Code and also in view of the fact of making certain compliances subsequently and also in view of the fact that the Resolution Professional is facing certain reasonable impediments with regard to certain other compliances, the impugned order of National Stock Exchange of India Ltd. is unsustainable. Burdening the corporate debtor with imposition of fines further is against to the interest of the corporate debtor and also against to the object of the Code.
The imposition of fine on the corporate debtor for delay in making the subject compliances is condoned - application allowed.
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2021 (10) TMI 1131
Pre-deposit requirement qua the petitioner - As petitioner submit that he in no way concerned with the affairs of the company after his resignation on 6-5-2006 much less with the agreement dated 21-6-2006. Further, even the earlier agreement was between the two companies to which the petitioner was not a signatory - HELD THAT:- As in our opinion, for the stand taken by the petitioner, we direct the Appellate Authority to exempt the requirement of pre-deposit as regards this petitioner (M. Umesh), in case he resorts to remedy of appeal in light of the liberty given in terms of this order. In other words, the Appellate Authority shall not insist for pre-deposit requirement qua the petitioner herein, i.e. M. Umesh.
Besides, the appellate authority shall not non-suit the petitioner for having filed the appeal beyond limitation as the petitioner was pursuing remedy before the High Court in the first place and thereafter before this Court, after issuance of show cause notice.
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2021 (10) TMI 1130
Foreign contributions - Prior permission u/s 11 to receive foreign contributions in the form of life saving equipment/articles for COVID-19 insofar as to expedite the relief work in our country - exemption to registered associations, organisations or persons, defined under Section 2(1)(m) of the Foreign Contribution (Regulation) Act, 2010 to receive foreign contributions - HELD THAT:- As exemptions and relaxations under different Statutes are not a matter of right. It is the prerogative power of the Government to exempt or give relaxations with or without stringent conditions. It is not for the Court to direct the Government to exercise the power in a particular manner. It is evident from the pleadings and not denied by the Learned Counsel for the Petitioner during the course of hearing that before filing the present petition, Petitioner has not approached the Competent Authority seeking exemption under the Act.
We therefore direct the Competent Authority under the concerned Ministry to treat the present petition as a representation and decide the issues raised and grievances ventilated by the Petitioner, in accordance with law, relevant rules, regulations and Government policies applicable to the facts of the case, as early as practicable, keeping in mind the nature of relief sought.
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2021 (10) TMI 1129
Search and seizure operation carried out by the officers of FEMA - search and specific seizure of certain gold jewellery which, according to him, was part of the stock-in-trade - Jurisdiction of High court - HELD THAT:- As cause of action has arisen within the State of West Bengal, that is, the search and seizure has taken place in West Bengal and the petitioner company is situated at West Bengal, in my view, there is no impediment in entertaining this writ petition before this High Court.
Clause (2) of Article 226 of the Constitution of India clearly allows this High Court to have jurisdiction in such cases wherein the cause of action has partly arisen notwithstanding the fact that the seat of the authority dealing with the issue is outside the jurisdiction.
Search and seizure of the excess jewellery that has been seized by the Enforcement Directorate - As it is to be noted that in the writ petition, the petitioner has relied on several documents to indicate that this “excess jewellery” was duly accounted for and had been sent for job work. In my view, the Enforcement Directorate should look into the documents filed in the writ petition and pass a reasoned order on whether these goods are stock-in-trade or not.
Enforcement Directorate finds that the same are duly accounted for, the same should be released in favour of the petitioner in accordance with law. The above enquiry and the reasoned order should be passed within a period of eight weeks from date.The authorities are also directed to allow the authorized representative of the petitioner-company to have a lawyer of his choice to be present during the summons at an inaudible distance as per the guidelines laid down by the Supreme Court.
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2021 (10) TMI 1128
Money Laundering - seeking grant of Anticipatory bail - criminal conspiracy - cheating and defrauding - siphoning off the commission received from the suppliers through a complex web of fake commercial transactions through multiple companies owned by the accused persons, registered outside India - fraudulent transactions - requirement of custodial interrogation of the petitioner - HELD THAT:- In the present case, it is not disputed by the respondent that the petitioner has not joined the investigation. Rather, it is on record that the petitioner has joined the investigation more than 20 times. The statements of the witnesses U/s 50 of PMLA have already been recorded and there is only an apprehension that the petitioner would tamper with the evidence or threaten the witnesses but till date nothing has been placed on record to show that any such attempt has been made by the petitioner in this regard and there appears to be only an apprehension in this regard. All the documents have been seized by the respondent and have been filed alongwith the charge sheet in the court of Special Judge.
Apprehension of arrest - HELD THAT:- The father of the petitioner had already been arrested who was lateron granted regular bail by the Special Judge and as far as the petitioner is concerned, he has been called time and again by the respondent (ED) and when he moved his anticipatory bail application before the Ld. Special Judge, it was opposed tooth and nail by the respondent, so it cannot be said that the apprehension in the mind of the petitioner in regard to his arrest is a mere fear or it is a vague apprehension.
There is nothing to show that as to for what purpose, the custodial interrogation of the petitioner is required and the alleged offence entail maximum sentence of 7 years with fine - petitioner is allowed to be released on bail subject to condition imposed - bail application allowed.
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2021 (10) TMI 1127
CENVAT Credit - duty paying documents - denial of credit on the strength of invoices issued by its Head Office as ISD on the ground that the said input service credit was availed on the basis of photocopy of the certificate issued by the Banks in favour of Head Office (ISD) - suppression of facts or not - invocation of extended period of limitation - HELD THAT:- There is no dispute about the receipt of services inasmuch as the appellant has duly received the services from Bank and that payment of the Banking charges for loan processing and upfront fee have been duly made since not disputed in the impugned orders. It is also seen that the order passed by the authorities below have travelled beyond the allegations made in the SCN. When no dispute was made by the adjudicating authority with regard to the photocopies of documents, the objection raised by the Ld. Commissioner (Appeals) is not justified when, in-principle, he has agreed with the service eligibility under Rule 2(l) of the Credit Rules and the fact that receipt of Banking service is not in dispute. Hence, there are no reason to deny the credit and hence, the appeal is liable to succeed.
Time Limitation - HELD THAT:- SCN has been issued in June 2014 by invoking extended period of limitation. Apart from the general aversion, there is no evidence to show that credit has been wrongly availed by way of fraud or suppression when the credit amount availed by the appellant has been duly disclosed in the periodical returns filed with the Department.
Appeal allowed - decided in favor of appellant.
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2021 (10) TMI 1126
Maintainability of petition - availability of alternative remedy of appeal - Revisional/re-assessment orders - escapement of turnover - wrong availment of Input Tax Credit - reasonable opportunity to show cause provided or not - HELD THAT:- This Court is clear in its mind that personal hearing is not statutorily imperative for a legal drill i.e., assessment of escaped turnover/wrong availment of 'Input Tax Credit' (ITC). This is owing to the language in which common proviso to sub-sections (1) and (2) of Section 27 of TNVAT Act is couched.
The expression 'a reasonable opportunity to show cause against such order' occurring in the proviso has been explained by this Court in a detailed and elaborate order in STATE BANK OF INDIA OFFICER'S ASSOCIATION (CC) – SBIOA VERSUS THE ASSISTANT COMMISSIONER (ST) [2019 (9) TMI 698 - MADRAS HIGH COURT]. This Court is informed that this order has not been reported in any law journal. Therefore, this Court deems it appropriate to give case number and date of order for the benefit of all concerned.
In the present case, there is no disputation or disagreement that the writ petitioner has been given an opportunity of personal hearing vide communication dated 11.02.2021, but the writ petitioner did not respond/avail the same. Therefore, the only grievance of the writ petitioner is, mismatch ought to have been examined by the Assessing Officer though the writ petitioner has not responded. However, learned Revenue counsel points out that it would have been examined if the dealer/writ petitioner had responded - There is no disputation or disagreement before this Court that alternate remedy against impugned orders is available to writ petitioner-dealer by way of statutory appeal under Section 51 of TNVAT Act.
The campaign against impugned orders in writ jurisdiction in the captioned main writ petitions fail. However, it is made clear that it is open to the writ petitioner to avail alternate remedy under Section 51 of TNVAT Act, if the writ petitioner chooses to do so, subject to limitation and pre-deposit conditions set out therein, i.e., if the writ petitioner satisfies these conditions and takes alternate remedy route i.e., statutory appeal, the Appellate Authority shall deal with the appeals on its own merits and in accordance with law, uninfluenced by any of the observations made in this order.
The sequitur that follows from the narrative discussion and dispositive reasoning set out thus far is captioned writ petitions fail and the same deserve to be dismissed albeit preserving the rights of the writ petitioner to pursue alternate remedy subject to pre-deposit and limitation conditions - Petition dismissed.
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