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Showing 321 to 340 of 1664 Records
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2022 (9) TMI 1345
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - Time limitation - service of demand notice - whether the demand notice in Form 3 dated 13.11.2019 was properly served? - HELD THAT:- The petitioner has placed a copy of the notice which was delivered to the corporate debtor.
Whether the operational debt was disputed by the corporate debtor? - HELD THAT:- It is to be noted that none appeared on behalf of the corporate debtor despite repeated service and has been set ex parte vide order dated 30.06.2022. It is deposed by way of affidavit by Operational Creditor that reply dated 30.11.2019 was received to its Demand Notice where Corporate Debtor has raised baseless,frivolous, sham and bogus dispute. Also, it is stated that no notice was given by the Corporate Debtor relating to a dispute of the unpaid operational debt. It shows that there is no pre-existing dispute.
Whether this application is filed within limitation? - HELD THAT:- This application was filed on 24.02.2020 vide Diary No.1482. Whereas the date of default is 18.05.2019 i.e. 30 days from the date of first outstanding invoice dated 18.04.2019, therefore, this Adjudicating Authority finds that this application has been filed within limitation.
It is seen that the petition preferred by the petitioner is complete in all respects. The material on record clearly goes to show that the respondent committed default in payment of the claimed operational debt even after demand made by the petitioner. In view of the satisfaction of the conditions provided for in Section 9(5)(i) of the Code, the petition is admitted - moratorium declared.
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2022 (9) TMI 1344
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- The sale was confirmed and the Financial Creditor has released a sum of Rs. 6.32 crores by selling one of the mortgaged properties of the Corporate Debtor. Hence, the amount due and payable would come to a sum of Rs.1.02 Crore (Approx) after deducting the sale proceed amount from the default amount as mention in this application.
It emerges that the Financial Creditor has filed its application only for the recovery of the interests and also that the Corporate Debtor is a going concern and in view of the recent judgment of Hon’ble Supreme Court in VIDARBHA INDUSTRIES POWER LIMITED VERSUS AXIS BANK LIMITED [2022 (7) TMI 581 - SUPREME COURT], it is not satisfying that the present petition has been filed only for resolving the insolvency, as the Corporate Debtor had even tendered the balance amount, which the Financial Creditor did not accept.
Petition dismissed.
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2022 (9) TMI 1343
Seeking to declare that the Lease Property is not an asset of the Corporate Debtor and shall not form part of the resolution plan - transfer of the Lease Property or continuation of the lease arrangement in relation to the Lease Property shall be subject to strict compliance with the Agreement and the express approval of the Applicant herein, or not - seeking direction to Respondent No. 1 and Respondent No. 2 to refrain from taking any action in relation to the Lease Property - HELD THAT:- The registered Lease Deed is not a mere Lease Deed and is a registered Lease-Cum-Sale-Agreement under which the Corporate Debtor has already acquired possessory legal rights under the registered document. It is also very clear from the above terms that the Lessee has a right to ask for extension of the lease or for purchasing the above property with absolute rights at the price determined by the Corporation. In fact, the Corporate Debtor has already requested the Applicant/KIADB to fix the price of the land that was allotted to them by means of letter dated 18.10.2016 so as to obtain Sale Deed by them for which the Applicant/KIADB vide their letter dated 28.11.2016 informed the Corporate Debtor that the board of the Applicant/KIADB has not yet fixed the final price to the said industrial area and hence the Sale Deed cannot be considered at this stage. Of course, the Applicant/KIADB also issued notice under Section 34 B of KIAD Act of 1966 to the Resolution Professional to remedy the alleged breaches said to have been committed by the Corporate Debtor in their notice.
It is clear from the terms and conditions of the Lease Deed as well as the various correspondence relied by them that the Corporate Debtor is in physical possession and enjoyment of the land allotted to them under the above registered Lease Deed and both parties are alleging breach of terms and conditions of the registered Lease-Cum-Sale-Agreement against each other and the Applicant/KIADB could not evict the Corporate Debtor due to kicking of moratorium.
Thus, it is held that whatever legal rights the Corporate Debtor had already acquired under the above registered Lease-Cum-Sale-Agreement shall continue to vest with the Resolution Applicant and the Resolution Applicant is entitled to continue in possession of the property till the Resolution Applicant is evicted under due process of law - application dismissed.
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2022 (9) TMI 1342
Seeking Liquidation of Corporate Debtor - Section 33 (1) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Upon perusing the material available on record, it is observed from the minutes of the 12th CoC meeting that the COC unanimously decided to liquidate the Corporate Debtor. Even though the COC in its 12th meeting unanimously decided to liquidate the Corporate Debtor, no voting was conducted in this regard for the reason best known to the COC. It is important to observe here that more than 397 days has been elapsed without any Resolution application and therefore this Tribunal by virtue of powers conferred under section 33(1)(b)(i), orders Liquidation.
Application allowed.
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2022 (9) TMI 1341
Seeking Liquidation of Corporate Debtor - Section 33 of the Insolvency and Bankruptcy Code, 2016 read with Rule of the NCLT Rules, 2016 - HELD THAT:- It can be seen from the submissions that the CIRP of the Corporate Debtor ended on 24.08.2021 and the Committee of Creditors in the 9th COC meeting held on 03.03.2022 has resolved to liquidate the Corporate Debtor. In such circumstances, this Adjudicating Authority concludes that this present application deserves to be allowed.
As the CIRP of the Corporate Debtor has come to an end on 24.08.2021 and the COC vide meeting dated 02.03.2022 has unanimously resolved to liquidate the Corporate Debtor. It is noted that a period of 863 days have passed since commencement of CIRP till the date of this Application. As such this Adjudicating Authority is left with no other choice but to liquidate the Corporate Debtor
The liquidation of Corporate Debtor is ordered - application allowed.
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2022 (9) TMI 1340
Disallowance of refund claim - amount in respect of invoices issued by AB Commercial for transportation of iron ore fines - to be qualified under ‘GTA services’ or ‘Cargo Handling Services’? - HELD THAT:- The Adjudicating authority vide Order-in-Original dated 23.09.2010 had allowed the refund claim of the Appellant in respect of the transportation Bills issued by AB Commercial totaling to Rs.2,22,119/- observing that the goods were carried upto the point of port of export from origin and that this is sufficient to have a nexus with the exportation of the goods. Thus, the amount of Rs.2,22,119/- is liable to be considered for sanction. Subsequent to the above order of the Adjudicating authority sanctioning the refund, the Department had preferred an Appeal before the Commissioner of Central Excise (Appeal-I) alleging that the invoices issued by AB Commercial were related to ‘Cargo Handling Services’ and not ‘Goods Transport Agency (GTA)’ as claimed by the Appellant and there is no provision for exemption under Notification No.17/2009 dated 07.07.2009 for ‘Cargo Handling Services’. Hence, the amount of Rs.2,22,119/- has been erroneously refunded vide Order-in-Original.
After following the due process of law, the Ld.Adjudicating authority vide de novo Order-in-Original dated 03.02.2012 disallowed the refund claim of Rs.2,22,119/-. Against the said de novo order, the Appellant filed Appeal before the Ld.Commissioner(Appeals) and the Ld.Commissioner(Appeals) vide the impugned Order-in-Appeal rejected the Appeal filed by the assessee holding that the refund sanctioned on the invoices issued by M/s. AB Commercial to the tune of Rs.2,22,119/- is not admissible.
The facts of the present case are squarely covered by the decision in the case of Rungta Projects Ltd. Vs. CCE & ST, Allahabad [2017 (9) TMI 791 - CESTAT ALLAHABAD] where it was held that transportation of coal was the essential service provided by the assessee and the activity of loading and unloading of coal was instantly for transportation and therefore service rendered by the assessee did not fall within the definition of ‘Cargo Handling Service’.
The impugned orders cannot be sustained and is accordingly set aside - appeal allowed - decided in favor of appellant.
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2022 (9) TMI 1339
Reversal of CENVAT Credit - Capital Goods cleared as waste and scrap - amount required to be paid in terms of rule 3(5A) of the Credit Rules for capital goods cleared as scrap - Appellant is output service provider - period of dispute in the present case is from 1.3.2011 to 16.3.2012 and 27.09.2013 to 31.03.2015 - HELD THAT:- In terms of payment of the amount under rule 3(5A) of the Credit Rules during the said relevant period, only a 'manufacturer' was required to pay the amount in case of clearance of capital goods as scrap and not an output service provider. The appellant, being an output service provider, was not required to pay any amount in terms of rule 3(5A) of the Credit Rules during the period involved in the present appeal for clearance of capital goods as scrap.
Whether the capital goods involved in the present case which were cleared by the appellant without payment of any amount under rule 3(5A) of the Credit Rules can be considered as used capital goods or waste and scrap? - HELD THAT:- In the present case the appellant has also undertaken an internal procedure for determination of the nature of the capital goods to be cleared by it. The goods are thereafter sent to OEM and Chartered Engineer for further verification as to whether the goods qualify as scrap. Only when the goods have been certified that they were sold as to scrap management companies having registration under Hazardous Waste Management Rules - It is, therefore, clear that the capital goods cleared by the appellant would qualify as scrap and no amount was required to be paid while clearance of the same by the appellant.
Extended period of limitation - HELD THAT:- It is not necessary to examine the contention advanced by learned counsel for the appellant that the extended period of limitation could not have been invoked in the facts and circumstances of the present case.
The impugned order dated 29.07.2016 passed by the Additional Director, therefore, cannot be sustained and is set aside - Appeal allowed - decided in favor of appellant.
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2022 (9) TMI 1338
Clandestine Removal - Gutkha - period involved in the show cause notice is from December 2007 to 04.08.2008 - demand of duty alongwith levying penalty on Partner - HELD THAT:- It is not in dispute that the search was conducted on 04.08.2008. At that time the unamended rule 17(2), which had come into force on 01.07.20008, was operating. The amended rule 17(2) came into force on 20.10.2008 and there is nothing in the amended Rules that may show that they shall apply retrospectively w.e.f. 01.07.2008. The contention of the learned authorised representative appearing for the department that merely because the amended rule 17(2) states that such machine shall be deemed to have been in operation since 01.07.2008 it would mean that the amended rule 17(2) shall apply retrospectively from 01.07.2008 cannot be accepted The amended rule 17(2) would apply to any search conducted after 20.08.2008 and it would only be in such a situation that the consequence would flow from 01.07.2008. At the time when the search was conducted on 04.08.2008, rule 17(2) had not been amended and the amended rule 17(2) cannot impose duty at a higher rate with retrospective effect.
In the present case, if the contention of learned authorised representative appearing for the department is accepted, the respondent would be subjected to higher rate of duty then what was prevailing at that time the search was conducted.
Penalty on Sumit Agarwal - HELD THAT:- No submission was made by learned authorised representative regarding that part of the order by which the Principal Commissioner refrained from imposing penalty on Sumit Agarwal as penalty had already been imposed upon M/s. OM Fragrances.
Appeal of Revenue dismissed.
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2022 (9) TMI 1337
CENVAT Credit - inputs (used in the Cement manufacturing process) or not - Welding Electrodes and Dissolved Acetylene Gas (D.A. Gas) - period from April, 2013 to June, 2017 - HELD THAT:- The adjudicating authority had observed that Welding Electrodes and D.A. Gas were used in the cement manufacturing plant of the Appellant for the purpose of repair and maintenance of its plant and machinery. This being observation of the adjudicating authority there is no denial of the fact that plant and machinery which were being used for manufacturing of final product were being kept in usable with condition periodic repair and maintenance, in which these two components were being used. Hence, both Welding Electrodes and D.A. Gas are required for smooth process of manufacturing, for which definition of input provided under Rule 2(k)(i) is squarely applicable as the clarificatory Circular of the Board issued on 29.04.2011 clearly mentions that goods used in relation to manufacture of final product in indirect way also excludes the definition contained in the said Rule 2(k)(F) that deals with goods having no relationship with manufacture of final product.
The credits availed by the Appellant on Welding Electrodes and D.A. Gas are eligible credits and Appellant had rightly availed the same - Appeal allowed - decided in favor of appellant.
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2022 (9) TMI 1336
CENVAT Credit - capital goods or not - square rail - input services - insurance premium on motor vehicles owned by the Appellant - violation of Rule 16 of Central Excise Rules, 2002 read with Rule 9 of Cenvat Credit Rules, 2004 - duty paying invoices - suppression of facts or not - extended period of limitation - penalty.
Denial of credit of 50% amounting to Rs.17,650/-, which has been used for construction of support structures for movement of cranes - HELD THAT:- The issue is no more res integra and is squarely covered by the decision of the Tribunal in the case of EURO CONTAINERS VERSUS COMMISSIONER OF C. EX., CHANDIGARH-I [2013 (9) TMI 1089 - CESTAT NEW DELHI] where reliance has been placed on Tribunal in the case of Mastech Technologies Pvt. Ltd. v. CCE, Jaipur-I [2013 (5) TMI 241 - CESTAT NEW DELHI], where it was held that the steel items used for fabrication of Gantry rails on which the EOT cranes moves would be eligible for Cenvat credit - the denial of credit cannot be sustained and is set aside.
Denial of credit of Rs.5,799/- for the financial year 2010-11, out of total credit taken amounting to Rs.10,907/- of Service Tax paid on the insurance premium of the motor vehicles owned by the Appellant and used in or in relation to the manufacture of the final products for the year 2010-11 and 2011-12 - HELD THAT:- For the year 2010-11, the Service Tax paid on the insurance premium paid on the motor vehicles which is available to them as input service under Rule 2(l). It is found that the service on which the above credit had been taken is covered under the definition of input service w.e.f. 01.04.2011. Accordingly, the denial of credit is set aside.
Denial of credit of Rs.2,80,091/- for violation of Rule 16 of Central Excise Rules, 2002 read with Rule 9 of Cenvat Credit Rules, 2004 - HELD THAT:- It is found from the records that the Appellant had already approached the jurisdictional Commissioner vide their application dated 28.05.2013 sharing their concern regarding the difficulty they were facing in accounting the returned goods in the ERP SAP system and the Ld. Commissioner had acknowledged vide his letter dated 11.12.2013 appreciating their concern and guided them to observe certain conditions. It was further submitted that the Appellant all along followed those conditions while accounting for the rejected goods.
Extended period of limitation - suppression of facts or not - HELD THAT:- The Show Cause Notice was issued on 21.01.2014 demanding duty for the period 2009-10, 2010-11, 2011-12, 2012-13 and 2013-14 (upto September 2013) by invoking the extended period of limitation on the ground of willful suppression of facts - As the Appellants are filing statutory monthly returns showing clearance of the impugned goods and all along they were in communication with the Department, therefore, the allegation of suppression of facts with intent to evade payment of duty is not sustainable. Hence, the demand beyond the normal period of limitation is barred by limitation, and is accordingly set aside - thus, demand for the normal period along with interest is upheld.
Penalty - HELD THAT:- The allegation of suppression with intent to evade payment of duty is not sustainable therefore penalty under Section 11AC of the Central Excise Act, 1944 is also set aside.
Appeal disposed off.
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2022 (9) TMI 1335
Condonation of delay of 584 days in filing revision - exclusion of COVID period i.e. from 15.03.2020 till 10.02.2021 as per decision in the case of IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2021 (3) TMI 497 - SC ORDER] - satisfactory explanation for delay was given or not - HELD THAT:- The delay is sought to be explained by contending that the order passed by the learned Tribunal was served on the revisionist on 09.04.2019 although a proposal for filing of the revision was sent on 28.10.2020 to the office of Additional Commissioner Grade-2, Commercial Tax, Lucknow and a letter was also forwarded on 06.11.2020 seeking permission and sanction for filing revision was received from the Law Department on 10.12.2020 yet despite best efforts the revision could only be filed on 10.02.2021. The delay is sought to be explained on the ground of inherited bureaucratic lackadaisical attitude imbibed with note-making, file pushing and passing on the buck ethos.
The delay in filing revision has been considered by this Court in the case COMMISSIONER COMMERCIAL TAX U.P. LKO. VERSUS M/S R.C. AND SONS RAKABGANJ LUCKNOW [2022 (9) TMI 533 - ALLAHABAD HIGH COURT], where the delay of 163 days was sought to be explained on the basis of the casual and lethargic attitude of the officials which prevails in the Department, on the part of the Officers concerned.
In the instant case the delay is of 250 days even after ignoring the COVID period in terms of judgment of the Apex Court.
Considering the aforesaid judgments in the case of M/s. R.C. & Sons, and the delay in the instant case of 250 days even after ignoring the COVID period in terms of the judgment of the Apex Court and there being no plausible and cogent reasons for condoning the delay, the application for condonation of delay is rejected.
Application dismissed.
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2022 (9) TMI 1334
Assessment u/s 153A - disallowance made on protective basis - addition on the basis of entries in the Pen Drive found from the premises of the key employees - HELD THAT:- The bench has noted that when the PEN drive find during the search proceeding no questions are raised to the parties not only that the employee from this PEN drive found, his statement is not recorded - merely from that PEN when the veracity about that evidence is not recorded no addition either protective or substantive can be made. Not only that even on the merits the addition cannot be made on two counts, one is that there is no substantiative addition in those persons who claimed to have additional interest as duly confirmed before us by the AO and secondly when the substantive addition is not made protective addition cannot survive.
The amount in dispute is nothing but the amount of the additional interest demanded and not paid by the assessee. Based on the decision relied upon by the ld. AR and on careful consideration of the facts in this case we hold that the ld. AO before completing the assessments on protective basis, the AO is supposed to point out the name of the assessee who may be the owner of such income.
It is common ground that in the present case, till this date, the authorities below did not bring on record any material to show that the declared income in question really belongs to some other assessee. The ld. DR honestly conceded that till this date no proceedings in respect of the disputed income have been made against any other assessee and the same is also confirmed by the AO in the report presented before us.
Not disputed the findings of the ld. AO that there is no addition on substantive basis. Thus, the protective addition cannot be survived as AR of the assessee explicitly proved that whatever interest that they have paid in the group cases is duly recorded in the books of accounts and wherever applicable TDS is also deducted.
As an additional interest as allegedly demanded by the parties is not paid by the assessee, even those parties are not questioned on that 2.4% found recorded in the Excel-Sheet and same were also not taxed on substantive basis. There cannot be any protective addition without making the substantive addition and Revenue did not controvert the argument of the AR of the assessee and has also not supported by any judicial decision so as to confirm the order of the lower authorities. Thus, the interest which is actually paid is duly recorded in the books of accounts and there is no other material which is found even the person under whom possession the PAN Drive is found his statement is not recorded.
This action itself shows that department find this evidence as dump documents and is not evidence relied upon. The statement of the person from whom the evidence his found is also not checked on its correctness and veracity. Therefore, based on the finding that the revenue has not made any substantive addition in the persons in whose name the interest as alleged addition income is not added and assessee categorically proved that there is no incriminating other document found recording the payment of the additional interest. Based on these observations we vacate the disallowance made for an amount made on protective basis. Appeal of assessee allowed.
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2022 (9) TMI 1333
Refund of IGST and duty drawback - petitioner was categorised as a risky exporter - CBEC Circular No.131/1/2020-GST - HELD THAT:- The petitioner says, that the petitioner would be satisfied, if the respondents are directed to treat the writ petition as a representation, and determine afresh, as to whether the petitioner falls in the category of “risky exporter.
The respondent no.3/Commissioner will treat the writ petition as a representation. The said respondent will also examine the stand taken by the petitioner, in its rejoinder - For this purpose, respondent no.3/Commissioner will afford an opportunity of personal hearing to the authorized representative (AR) of the petitioner.
Petition disposed off.
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2022 (9) TMI 1332
Reopening of the assessment u/s 147 - nature of jurisdiction conferred by Section 147 - Eligibility of reasons to believe - value of consideration for computation of capital gains - HELD THAT:- In the reasons accompanying the impugned notices, significantly, there was not even an allegation about suppressing or concealing the deed of sale or MOU. The reasons referred to record and based on the records suggested that the Assessing Officer may have erred in deducting because there was no reason to pay Resicom Homes Pvt Ltd. and D'Souza Estate Holidays Pvt. Ltd., any compensation. From the reasons furnished, it is apparent that this is a case of change of opinion and not a case of any concealment or suppression of material facts.
After the Petitioners raised the objections, the objections were disposed of by order/communication - In this order/communication, there was a reference made to the Petitioners concealing the fact of the sale deed. The order/communication claim that the Assessing Officer had not considered of the sale deed before allowing the deductions under Section 48 of the I.T. Act.
Respondents will have to stand or fall based on the reasons recorded by the Assessing Officer at the time of issuing impugned notices for the reopening of the assessment. Those reasons nowhere referred to any concealment of documents by the Petitioners or concealment of sale deed by the Petitioners. The record fairly bears out that there was no concealment. After taking up the Petitioners' cases for limited scrutiny, the Assessing Officer considered the material on record and allowed the deductions under Section 48 of the I.T. Act. Therefore, the Respondents cannot now be permitted to add to the reasons recorded by the Assessing Officer at the time of issuing notices for reopening the assessment.
There appears to be no merit in the claim of the concealment of documents like the sale deed or MOU. After the Petitioners' cases were selected for limited scrutiny, particularly on the aspect of the claim for deductions on capital gains, the Petitioners have stated on oath that all documents, including the sale deed and the MOU, were produced before the Assessing Officer in response to his questionnaire. The record shows that the deductions were granted after considering the relevant documents. This is possibly why, at the time of issuing notice for reopening the assessment, the reasons do not refer to any alleged concealment of documents or suppression of documents.
In the present case, it is apparent that reassessment is based on a mere change of opinion. The reassessment based on a mere change of opinion is nothing but a review. Admittedly, no such powers of review have been conferred on the Assessing Officer when purporting to exercise powers under Sections 147 and 148 - the impugned notices issued in excess of the jurisdiction conferred upon the Respondents are liable to be quashed and set aside. They are, accordingly, quashed and set aside. - Decided in favour of assessee.
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2022 (9) TMI 1331
Assessment u/s 153C - incriminating documents / material - Satisfaction Note for issue of notice u/s 153C - HELD THAT:- As in the present case a satisfaction note was drawn up u/s 153C - Consequently, the search year would be the AY 2016-17 and Revenue would be entitled to re-open the returns for the AY 2010-11 to 2015-16.
Perusal of the satisfaction note reveals that no document pertaining to AY 2011-12 was seized during search. As in Sinhgad Technical Education Society [2017 (8) TMI 1298 - SUPREME COURT] has held that seized material can be considered to be incriminating in terms of Section 153C of the Act only if the said material pertains to the AY in question.
This Court is of the view that the recovery of the annual report and the share certificate of the Petitioner from premises of Minda Group cannot be considered to be incriminating documents. After all, the Minda Group was not a third party but the issuing authority of the share certificates. In fact, both the appellate authorities below have given a concurrent finding that no incriminating material had been brought on record by the AO to sustain the additions on merit. Also, the genuineness of the share capital has been accepted both by CIT (A) and ITAT and also there is no live link between seized material and the additions made. This Court is of the view that assumption of jurisdiction in the present cases by the Assessing Officer was erroneous. No substantial question of law arises
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2022 (9) TMI 1330
Assessment u/s 153A - incriminating documents/materials found and seized at the time of search or not? - HELD THAT:- It is settled law that where the assessment of the Assessees has attained finality prior to the date of search and no incriminating documents/materials have been found and seized at the time of search, no additions can be made under Section 153A of the Act, as in that eventuality, the cases of Assessee would be of non-abated assessment. (See: CIT vs Kabul Chawla 2015 (9) TMI 80 - DELHI HIGH COURT], Principal Commissioner of Income Tax vs. Bhadani Financiers Pvt. Ltd., [2021 (9) TMI 902 - DELHI HIGH COURT] and PCIT vs. Meeta Gutgutia[2017 (5) TMI 1224 - DELHI HIGH COURT]
In the present batch of matters, both CIT (A) and ITAT have given concurrent findings of fact that no incriminating material had been brought on record by the Assessing Officer to sustain the additions. In fact, the ITAT in the impugned order, has held that the allegation of the Assessing Officer that no notices under Section 133(6) of the Act were received by the investors, is irrelevant as the said parties had filed detailed replies in response to the Section 133(6) notices along with the requisite details as required by the Assessing Officer.
Upon perusal of the Table reproduced hereinabove, which shows the networth of the investor companies and the investment made in the share capital, this Court is in agreement with the contention of learned senior counsel for the Respondents-Assessees that the investor companies had sufficient networth to make investment in the Assessee’s group of companies.
Non examination of witness - As in the present cases, as Assessee were denied the opportunity to cross-examine Mr.Rajesh Agarwal, despite a specific request, this Court is in agreement with the ITAT that his statement needs to be excluded and cannot be relied upon as a piece of evidence to make any addition. In fact the Supreme Court in the case of M/s Andaman Timber Industries [2015 (10) TMI 442 - SUPREME COURT] held that not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected.
This Court is of the view that no substantial question of law arises.
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2022 (9) TMI 1329
Benefit of deduction u/s 80IC - whether the refund of excise duty obtained by the respondent/assessee could have been treated as profit from business and the assessee could have been granted the benefit of deduction under section 80IC ? - HELD THAT:- We find that identical issue was decided in the case of Commissioner of Income-tax vs. Meghalaya Steels Ltd. [2010 (9) TMI 679 - GAUHATI HIGH COURT] refund does amount to income in the hands of the assessee, it is a profit or gain directly derived by the assessee from its industrial activity. The payment of Central excise duty has a direct nexus with the manufacturing activity and similarly, the refund of the Central excise duty also has a direct nexus with the manufacturing activity. The issue of payment of Central excise duty would not arise in the absence of any industrial activity. There is, therefore, an inextricable link between the manufacturing activity, the payment of Central excise duty and its refund. In the circumstances, we are of the opinion that question must be answered in the affirmative in favour of the assessee - Also see SHREE BALAJI ALLOYS VERSUS COMMISSIONER OF INCOME-TAX [2011 (1) TMI 394 - JAMMU AND KASHMIR HIGH COURT] - Decided in favour of assessee.
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2022 (9) TMI 1328
Addition u/s 68 - bogus capital gain generated in penny stock - proceedings u/s143(3) and suspicious transanction in shares cannot be exempted u/s 10(38) - HELD THAT:- It cannot be disputed that an identical issue was considered in a batch of cases in PCIT Vs. SWATI BAJAJ [2022 (6) TMI 670 - CALCUTTA HIGH COURT] and the appeals filed by the revenue were allowed.
There are no distinguishing features in the case on hand to take a different view.
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2022 (9) TMI 1327
Rectification of mistake u/s 154 - Income deemed to accrue or arise in India - substantial questions of law - Whether the subject income could be taken to have accrued in India only for the reason that it was shown in the balance sheet of the assessee? - HELD THAT:- Hon’ble Supreme Court in Ishwar Dass Jain Vs. Sohan Lal [1999 (11) TMI 863 - SUPREME COURT] under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgement of the First Appellate Court without doing so - there are two situations in which interference with the findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the Appellate Court by placing reliance on inadmissible evidence which is it was omitted, an opposite conclusion was possible. In either of the above situations, a substantial question of law can arise.
Applying the ratio laid down in the above decision we have no hesitation to hold that substantial questions of law arise for consideration in this case, more particularly when the orders impugned suffer from utter perversity.
As pointed out earlier on the date when the Miscellaneous Application was heard and decided by the learned Tribunal, there This issue has been decided by the Hon’ble Supreme Court in the case of ACIT vs. Sourashtra Kutch Stock Exchange [2008 (9) TMI 11 - SUPREME COURT] wherein the Hon’ble Supreme Court has held that an application for rectification was maintainable in such factual situation.
The order of rejection of the application under Section 154 issued by the Centralised Processing Centre (CPC), Bangalore are quashed. Consequently, the order passed by the Assessing Officer computed the tax liability as per the intimation under Section 143 (1) and the assessment stands restored to the file of the Assessing Officer who shall review the assessment in terms of the observation made in the preceding paragraphs and also the law on the subject including the circular issued by the CBDT and grant the relief to the assessee by excluding the foreign income received by the assessee excluding the foreign income under Section 10(6)(viii) of the Act and such order shall be passed by the Assessing Officer within six weeks from the date of receipt of the server copy of this order.
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2022 (9) TMI 1326
Reopening of assessment u/s 147 - show cause notice under Section 148A(b) - claim of the LTCG of the petitioner - Claim of deduction u/s 54 - HELD THAT:- The sale of the residential house by the petitioner and purchase of the New Property by the petitioner within the stipulated time is admitted by Revenue - as further admitted that the entire sale consideration for the New Property as well as the stamp duty has been paid by the petitioner.
The respondent has not disputed that this information was available and scrutinised by the AO during the assessment proceedings which resulted in the assessment order dated 07th November, 2017, and the AO was satisfied with respect to the claim of the LTCG of the petitioner. The judgment of this Court in Ravinder Kumar Arora [2011 (9) TMI 343 - DELHI HIGH COURT] relied upon by the petitioner as regards his entitlement to claim LTCG is squarely applicable to the facts of the case.
Re-assessment has been initiated on the basis of change of opinion, which is not permissible. There is no new information available with the respondent to re-assess the LTCG claim. AO had considered the same documents during the earlier assessment proceedings and was satisfied with the claim of LTCG made under Section 54 of the Act.
Petitioner is entitled to claim exemption under Section 54 of the Act on these admitted facts, as the conditions stipulated in Section 54 stand fulfilled. The New Property would be treated as the property purchased by the petitioner in his name and merely because he has included the name of his wife and the property has been purchased in the joint names, it would not disentitle the petitioner from claiming the exemption under the statutory provisions. Accordingly, the order dated 28th July, 2022 under Section 148A(d) of the Act, and notice issued under Section 148 by the respondent with respect to the Assessment Year 2015-16 are set aside. WP allowed.
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