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Showing 341 to 360 of 1642 Records
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2024 (7) TMI 1302
Rejection of petitioner’s appeal u/s 107 of CGST Act, 2017/DGST Act on the ground of delay - failure to file returns for a continuous period of six months - No reasons specified in cancellation order - violation of principles of natural justice - HELD THAT:- It is material to note that the SCN, whereby the petitioner was called upon to show cause as to why the petitioner’s GST registration should not be cancelled, did not specifically state that the petitioner’s registration was proposed to be cancelled from a retrospective date.
The impugned cancellation order dated 21.08.2023, cancelling the petitioner’s GST registration also does not specify any reason as to why the petitioner’s GST registration has been cancelled with retrospective effect from 01.07.2017, being the date on which the petitioner was registered with the GST Authorities - In terms of Section 29(2) of CGST Act/DGST Act, the proper officer is empowered to cancel the registration from such date as he considers fit for the reasons as set out in Section 29 (2) of CGST Act/DGST Act. However, the said decision cannot be whimsical or arbitrary and must be informed by reason.
It is considered apposite to set aside the impugned order dated 28.06.2024 and remand the matter to the Appellate Authority to decide it afresh on merits, uninfluenced by the question of delay, after affording the petitioner an opportunity of hearing - petition disposed off by way of remand.
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2024 (7) TMI 1301
Violation of principles of natural justice - Non-receipt of SCN - HELD THAT:- Whilst the respondent asserts that the impugned SCN has been delivered, the petitioner disputes the same. It is not considered apposite to conduct an inquiry in regard to this question in these proceedings. This is because it is not disputed that the petitioner had repeatedly mentioned that it had not received the copy of the impugned SCN and in any event had claimed that the same is not traceable. As is evident from the above, the petitioner had requested for a copy of the impugned SCN and certain other communications on at least three occasions.
There are no reason as to why the respondent could not forward a copy of the impugned SCN, without prejudice to their stand that the impugned SCN was served to the petitioner earlier.
It is considered apposite to set aside the impugned order and remand the matter to the adjudicating authority for consideration afresh. The respondent shall provide the copy of the impugned SCN and the other communications, if any, as sought by the petitioner in its e-mail dated 15.12.2020 within a period of two weeks from date - petition disposed off by way of remand.
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2024 (7) TMI 1300
Time limit specified under Section 73 (10) of the CGST Act for passing an order under Section 73 (9) of the CGST Act - N/N. 9/2023-Central Tax dated 31.03.2023 - HELD THAT:- The GST Authorities have since addressed the issue and have re-designed the portal to ensure that ‘View Notices’ tab and ‘View Additional Notices’ tab was placed under one heading. However, it is not disputed that the impugned SCN was issued before the GST portal was re-designed.
The present petition is allowed and the impugned order is set aside - The matter is remanded to the adjudicating authority for consideration afresh - petition allowed by way of remand.
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2024 (7) TMI 1299
Time limit specified under Section 73 (10) of the CGST Act for passing an order under Section 73 (9) of the CGST Act - N/N. 9/2023-Central Tax dated 31.03.2023 - HELD THAT:- The GST Authorities have since addressed the issue and have re-designed the portal to ensure that ‘View Notices’ tab and ‘View Additional Notices’ tab was placed under one heading. However, it is not disputed that the impugned SCN was issued before the GST portal was re-designed.
The present petition is allowed and the impugned order is set aside - The matter is remanded to the adjudicating authority for consideration afresh - petition allowed by way of remand.
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2024 (7) TMI 1298
Cancellation of petitioner’s GST registration - default in filing returns for a consecutive period of six months - petitioner’s application for condonation of delay in filing an application for revocation of the impugned cancellation order was rejected - HELD THAT:- The petitioner does not dispute that he has defaulted in compliance with the provisions of Section 39 of the CGST Act and had not filed the returns as required. However, he has set out an explanation for the same and undertakes that all returns will be filed and outstanding dues will be paid.
In TVL. SUGUNA CUTPIECE CENTER VERSUS THE APPELLATE DEPUTY COMMISSIONER (ST) (GST), THE ASSISTANT COMMISSIONER (CIRCLE), SALEM BAZAAR. [2022 (2) TMI 933 - MADRAS HIGH COURT], the Hon’ble High Court of Madras has considered import of the actions of cancellation of the Taxpayer’s GST Registration and noticed that department’s object cannot be to preclude taxpayers from carrying on their business.
The respondents are directed to restore the petitioner’s GST Registration. However, this is subject to the condition that the petitioner shall immediately within a period of one week of the petitioner’s GST Registration being restored, file the necessary returns and pay all its dues along with interest - petition allowed.
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2024 (7) TMI 1297
Revoking the order cancelling its GST Registration - Rejection on the ground of delay - HELD THAT:- Concededly, the petitioner’s appeal was delayed by six days; that is, it was six days beyond the stipulated period of three months provided under Section 107 (1) of the CGST Act. Moreover, the petitioner provided the explanation for such delay. He submitted that the concerned GST officer has raised a ticket for rectification of the order dated 04.11.2023 under Section 161 of the CGST Act and the same was also communicated to the petitioner. The petitioner was thus hopeful that its grievance could be resolved by a rectification order.
A plain reading of the impugned order indicates that the said explanation was not considered. It is relevant to note that in terms of Section 107 (4) of the CGST Act, the Appellate Authority has the power to condone the delay in filing the appeal by one month.
Thus concededly, the delay in filing the appeal could be condoned by the Appellate Authority. However, the Appellate Authority did not examine whether the petitioner was prevented by sufficient cause in filing its appeal and failed to exercise its power for condoning the delay in filing the appeal - the impugned Order-in-Appeal dated 08.05.2024 set aside and the matter remanded to the Appellate Authority for consideration on merits.
Petition allowed by way of remand.
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2024 (7) TMI 1296
Cancellation of GST Registration of petitioner - petitioner also had an additional place of business, which was registered and was reflected in its GST registration certificate - application rejected on the ground that the reasons for revocation were not covered under the Amnesty Scheme - HELD THAT:- The learned counsel appearing for the respondents has secured instructions and submits that the petitioner’s additional place of business would be verified and if the petitioner’s contention that it has been carrying on its business from the said place, is found to be correct, the petitioner’s GST Registration would then be restored. This is also subject to the petitioner applying for rectification of its principal place of business in accordance with law, immediately after its registration is restored.
The present petition is disposed of by directing the respondents to verify whether the petitioner has been carrying on its business from its additional place of business [18, Suraj Kund Road, Pul Pehladpur, South-East Delhi, Delhi – 110044] within a period of three weeks from date.
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2024 (7) TMI 1295
Challenge to order cancelling the registration of the petitioner's proprietorship - order dismissed on the ground of time limitation - total non application of mind by the authority concerned while cancelling the G.S.T registration of the petitioner - sufficient reasons for passing of the order not given - violation of principles of natural justice - HELD THAT:- Bar of limitation may bar the remedy of appeal but it does not bar the petitioner's right to seek his constitutional remedy under Article 226 of the Constitution of India, particularly when the impugned order affects valuable rights of the petitioner and the same has been passed without assigning any reason.
The orders dated 21.01.2021 passed by the Assistant Commissioner, Sector 8, Lucknow and 13.07.2022 passed by the Additional Commissioner, Grade-2 (Appeal) State Tax, Judicial Block-3, Lucknow are hereby set aside - Petition allowed.
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2024 (7) TMI 1294
Delay filling appeal before Supreme court - Revision u/s 263 set aside by ITAT confirmed by HC [2022 (11) TMI 1448 - CALCUTTA HIGH COURT] -
HELD THAT:- There is gross delay of 484 days in filing the Special Leave Petition. The explanation offered for seeking condonation of delay is not satisfactory and therefore, not sufficient in law to be condoned.
Consequently, the application seeking condonation of delay is dismissed.
Department has been consistently filing Special Leave Petitions before this Court even when there is gross delay of hundreds of days. It appears that there is no immediate attention bestowed on the cases so as to seek urgent relief and possibly, despite enormous delay, the Special Leave Petitions have been filed only to seek an imprimatur of this Court in the cases. We do not appreciate this practice of the Department in doing so.
It is necessary that the Department takes into consideration only those cases which are fit enough and have merit to be filed before this Court expeditiously and does not make it a habit to assail almost every order or judgment which is otherwise correct in law and facts and file Special Leave Petitions belatedly.
This Special Leave Petition is dismissed on the ground of delay.
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2024 (7) TMI 1293
Delay filling SLP - Applicability of provisions of Section 206AA of Act relating to deducting of tax at higher rate in the absence of Permanent Account Number to the payments made to Non Resident – Companies
The High Court [2023 (6) TMI 1406 - KARNATAKA HIGH COURT] dismissed the appeal both on the ground of delay as there was 273 days delay in filing the appeal as well as on merits.
There is also a delay of 255 days in filing this special leave petition.
HELD THAT:- We are not satisfied with the explanation offered by the petitioners for seeking condonation of delay in filing the special leave petition.
In the circumstances, the special leave petition is dismissed on delay keeping open the question of law.
In dismissing this special leave petition, we have followed the judgment of this Court in Postmaster General and Ors. vs. Living Media India Ltd. and Anr [2012 (4) TMI 341 - SUPREME COURT] and other cases which have followed the aforesaid judgment.
Pending application(s), if any, shall also stand disposed of.
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2024 (7) TMI 1292
Validity of reassessment proceedings - period of limitation prescribed u/s 153(2) - whether the reassessment made by ITO without communicating the order of reassessment and the demand notice of the said reassessment within time can be treated as a valid assessment made within the period of limitation prescribed under section 153(2)? - HELD THAT:- The question that arose for consideration is whether the said reassessment proceeding shall be deemed to be completed when the impugned order of assessment was passed on 28-12-2006 or whether such proceeding shall be deemed to be completed only after communication of the impugned assessment order to the assessee on 05-01-2007.
This issue is no longer res-integra and the same has been decided by the Hon'ble Apex Court and various High Courts of the country in a catena of its decisions that the order of any authority cannot be said to be passed unless it is in some way pronounced or published or the party affected has the means of knowing it and that it is not enough if the order is made, signed, and kept in the file, because such order may be liable to change at the hands of the authority who may modify it, or even destroy it, before it is made known, based on subsequent information, thinking or change of opinion.
It is hereby held that the proceeding of the reassessment of the Return submitted by the assessee for the AY 2003-2004 shall be deemed to be completed only on 05-04-2007 when the assessment order was served/ communicated to the representative of the assessee and the same was not completed within the period prescribed under section 153(2) of the Act.
Objection raised by the DSGI about the maintainability of the present writ petition on ground of availability of filing a statutory appeal u/s 246 - It is to be pointed out that it is a settled principle of law that availability of an alternative and effective remedy does not exclude or completely barred the High Court from entertaining a writ petition under Article 226 of the Constitution of India. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, however, there are certain exceptions to this rule.
Some of the exceptions are where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principle of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, or where the writ petition seeks enforcement of any of the fundamental rights, or where the order or proceeding are wholly without jurisdiction, or where the vires of an act is challenged or where the controversy is purely a legal one and it does not involve disputed question of facts but only question of law then such writ petition should be decided by the High Court instead of dismissing the petition on ground of an alternative remedy being available.
Writ petition allowed by quashing and setting aside the impugned assessment orders passed by the AO as being illegal and violative of the provisions of section 153(2) of the Income Tax Act, 1961.
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2024 (7) TMI 1291
MAT computation u/s 115JB - income of agricultural land as exempt from tax -as claimed that the profit from the sale of that property would be exempt from taxation since it constituted a sale of agricultural land and would thus not fall within the ambit of the expression ‘capital asset’ as defined by Section 2(14) - HELD THAT:- As not disputed that the land constituted rural agricultural land and would not fall within the scope of Section 2(14) (iii).
Section 2(1-A) came to be amended with retrospective effect from 01 April 1970 and in terms of which agricultural land, though broadly excluded from the definition of a capital asset, was conceptually amended and the statute thereafter for the purposes of exemption restricting the same to rural agricultural land only. According to definition of ‘capital asset’ was also amended pursuant to which the concept of “urban agricultural land” came to be introduced and specifically included within the meaning of the expression ‘capital asset’.
Tribunal appears to have not only refused to admit the additional grounds which was sought to be urged, it also and simultaneously appears to have ruled on the merits of the question which stood raised as read coming to the issue of 115JB as raised in ground no.3, we find that, firstly neither the issue of computation or taxation of book profit u/s. 115JB has been raised by the AO, nor such grounds were raised in the original grounds of appeal by the Department. Apart from that, once AO has not treated the said gain for the purposes of book profit then by way of such ground the issue cannot be raised by the Department. Otherwise also when the income of agricultural land is exempt from tax, then the said exempt income cannot be added to the books profit while calculating the MAT u/s.115JB. Thus, the said ground raised by the Revenue cannot be entertained and same is dismissed.
We are of the opinion that since the question which was raised was purely legal, the Tribunal would have been well advised to have accorded an opportunity to respective sides to address submissions on the merits before proceeding to hold that the same could not be entertained.
We, allow the instant appeal and answer the question framed for our consideration in the negative and in favour of the appellant. The order of the Tribunal is hereby set aside.
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2024 (7) TMI 1290
Validity of reopening of assessment - Notice beyond expiry of the period of limitation as Section 149 (1) (b) HELD THAT:- The legislature has clearly provided for the applicability of the provisions of Section 148 or Section 143(1) or Section 143C and has categorically avoided any procedural steps, as Section 148A would contemplate. Thus, in our opinion, mere issuance of the notice under Section 148A which is a provision for conducting inquiry by providing an opportunity before issuance of notice under Section 148 cannot be read within the ambit of the first proviso to sub-section (1) of Section 149. In this view of the matter, we are clearly of the opinion that the impugned notice as issued to the Petitioner dated 4th April, 2022 u/s148 of the Act was issued beyond the prescribed period of limitation and hence, the consequent actions as taken thereunder would also be required to be held illegal.
Validity of notice being issued by the JAO - applicability of provisions of Section 151A - As provisions of the faceless assessment of income escaping assessment as provided for under Section 151A and the scheme in that regard notified by the Central Government being Notification dated 29th March, 2022 [Notification No.18/2022/F. No.370142/16/2022-TPL], which provides that the assessment, reassessment or recomputation under Section 147 of the Act and the issuance of notice under Section 148 of the Act shall be through automated allocation, in accordance with risk management strategy formulated by the Board as referred to in Section 148 of the Act for issuance of notice and in a faceless manner, to the extent provided under Section 144B of the Act. The Court held that in the said case, as the notice impugned therein dated 27th August, 2022 was issued by the JAO and not by the National Faceless Assessment Centre, the same would fall outside the faceless scheme.
Assessee appeal allowed.
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2024 (7) TMI 1289
Compounding of offences - order denying the benefit of compounding of offences u/s 279(2) of the Act solely on the ground of prior conviction of the appellant - whether the contention of the appellant that the authorities ought not to have rejected his compounding application, which contention was also negatived by the learned Judge, is correct or not? - HELD THAT:- With regard to the conduct of the assessee, it is seen that right from the year 1997 the conduct is not good. At each and every point of time, the appellant was dragging on the issue thus having mentality trying only to evade the taxes and not otherwise. The respondent also commented about the conduct of the appellant in not extending his co-operation right from filing of return of income voluntarily till the date of completion of assessment u/s 144 of the Act.
Since the financial year in which the offences were committed is 1996-1997 (AY 1997-98) and the assessment proceedings were going on, the appellant could have very well filed the compounding application during this period. Here it has to be underlined that even though the penalty order under the Act was passed on 04.02.2002 and the same was confirmed by the CIT(A) on 10.12.2002, the appellant had not filed the compounding application even after that date.
As further seen from the records that the appellant had not filed the compounding application even before 06.03.2019, the date on which the appellant was convicted by the Court, when he had ample time. Thus, for almost 20 years, he kept on dragging the issue.
Therefore, this Court is of the considered view that it cannot be stated that the application for compounding was rejected on the sole ground that the appellant was convicted by the Court, but for multiple reasons. The default committed by the appellant has to be termed as wilful. The claim of the appellant that Circular No.25 of 2019 dated 09.09.2019 had intended to extend the benefit of compounding to all persons who had applied on or before 31.12.2019 is not correct, in view of the terms of the Guidelines and Circular mentioned aforesaid.
In Umayal Ramanathan's case [2009 (4) TMI 36 - MADRAS HIGH COURT] and Inbavalli's case [2016 (9) TMI 209 - MADRAS HIGH COURT], the Court had not taken note of the aforementioned Circular issued u/s 119 of the Income Tax Act, 1961, specifically in the context of compounding of offences. The learned Judge has correctly held that the Circular of the Board also makes it clear that there is no scope for compounding of the offences, if there was a conviction of the person by a Court of law under Direct Tax Laws and that the application filed by the appellant was belated. Of course, finally the appellant has paid the tax, penalty and interest, but that would not mean that he is entitled for compounding of the offence.
Judge has also correctly held that by paying the tax, penalty and interest, the appellant has done no favour for the revenue. Thus, the rejection of the compounding application of the appellant by the authorities and confirmation of the same by the learned Judge, cannot be interfered with by this court.
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2024 (7) TMI 1288
Seeking Refund remained unpaid - Adjustments made against alleged arrears from previous assessment years - petitioner submitted that the respondent has unlawfully made adjustments against alleged arrears from previous assessment years and the petitioner did not receive intimations or demand notices in respect of the adjustments made - All these adjustments were made after the writ petition was filed and it is unclear from paragraph 5 of the counter as to whether these adjustments were made after issuing demand notices in relation thereto.
HELD THAT:- WP disposed of by permitting the petitioner to submit a consolidated grievance petition before the jurisdictional assessing officer not only in respect of assessment year 2009-2010 but also in respect of other assessment years in relation to which adjustments were made. Such grievance petition shall be submitted within a period of 15 days from the date of receipt of a copy of this order. Upon receipt thereof, the assessing officer is directed to consider the grievance petition, including contentions regarding the unlawful adjustments without issuing demand notices, provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter dispose of such grievance petition by a speaking order. This exercise shall be completed within a period of two months from the date of receipt of the grievance petition.
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2024 (7) TMI 1287
Validity of recovery steps for recovery of the amounts confirmed against it by the order - appellant has preferred stay petition before the 2nd and 3rd respondent seeking out of turn hearing of the appeal. In the meantime, coercive steps were taken for realisation of the demands - Single Judge disposed of the writ petition with a direction to the 2nd respondent to consider and pass appropriate order on stay application, however, did not grant stay of recovery proceedings pending disposal of the stay petition by the said respondent.
HELD THAT:- Since the learned Single Judge had relegated the appellant to the alternative remedy before the statutory authority, it was incumbent upon the learned Judge to protect the appellant from recovery proceedings pending disposal of the petitions by the respondent appellate authority. Accordingly, we modify the impugned judgment of the learned Single Judge to the limited extent of clarifying that pending disposal of the stay petition or appeal, whichever is earlier by the appellate authority, the recovery proceedings against the appellant for recovery of the amounts confirmed against it by Ext.P13 order shall be kept in abeyance. Ext.P19 application for early hearing of the appeal shall also be considered by the 3rd respondent in accordance with law. Save for this limited modification, the rest of the directions in the impugned judgment are not interfered with.
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2024 (7) TMI 1286
TP Adjustment - AMP expenses incurred - characterized as an international transaction under the provision of Section 92B or not? - HELD THAT:- As in Maruti Suzuki India Ltd. [2015 (12) TMI 634 - DELHI HIGH COURT] held that the AMP expenses incurred could not be characterized as an international transaction under the provision of Section 92B of the Act and deleted the addition. Assessee appeal allowed.
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2024 (7) TMI 1285
Estimation of income - bogus purchases - disallowance of purchases to the extent of 12.05% on account of purchase from non-genuine parties - HELD THAT:- The assessee is engaged in trading in Ferrous and Non-ferrous Metals. Since, the assessee failed to discharge onus of proving the genuineness of the transactions in question, the AO has rightly proceeded to make the addition of profit element embedded in the total bogus purchases. Considering the nature of business of the assessee and other relevant facts as well as the judicial pronouncements, we deem it reasonable to estimate the profit @5% of the total non-genuine purchases.
Addition to the extent of 5% which works out is sustained. Thus, appeal of the assessee is partly allowed.
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2024 (7) TMI 1284
Revision u/s 263 - genuineness of the business and source of cash deposits and credits entries - HELD THAT:- We are of the view that now when the order passed by the Pr. CIT u/s. 263 of the Act had been quashed by the Tribunal, therefore, the consequential assessment order passed by the A.O u/s.143(3) r.w.s. 263 cannot survive on a standalone basis and is liable to meet the same fate.
Accordingly, as the order passed by the A.O u/s. 143(3) r.w.s. 263 does no more survive pursuant to quashing of the order passed u/s. 263 therefore, the Pr. CIT could not have assumed jurisdiction to revise the same vide his order passed u/s. 263 of the Act dated 21.03.2024.
It transpires that the Pr. CIT vide his order passed u/s. 263 of the Act dated 18.03.2021 had set-aside the original assessment order passed u/s. 143(3) of the Act dated 30.11.2017 with a direction to make adequate enquiries as regards the genuineness of business; and source of cash deposits and all credits entries in the backdrop of Sections 68/69A of the Act.
We are of the view that as the original assessment order u/s. 143(3) as set-aside with a direction to look into certain specific issues, therefore, the consequential assessment order so passed by the A.O could not have been held to be erroneous for the reason that he had wrongly allowed the assessee's claim for deduction of depreciation i.e. an issue which had not formed a basis for setting aside of the original assessment order.
We are of the view that now when the scope of jurisdiction of the A.O in the course of set-aside proceedings was circumscribed by the directions of the Pr. CIT u/s. 263 therefore, he was divested from dealing with any such stray issue which did not flow from the aforementioned directions.
CIT had referred to the failure of the A.O to allow the assessee's claim for depreciation while framing the original assessment u/s. 143(3).
This order passed u/s. 263 as seeking to revise the original assessment framed u/s. 143(3), then, the same being barred by limitation could not have validly been done by him vide the impugned order passed u/s. 263. We, thus, in terms of our aforesaid observations quash the order passed by the Pr. CIT u/s. 263 - Appeal of the assessee is allowed.
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2024 (7) TMI 1283
LTCG - Deductions claimed u/s 54B - whether the capital gain was utilized for the purchase of new asset before the date of furnishing return of income u/s 139? - HELD THAT:- In the present case, we are concerned with the utilization of capital gains by purchase of new asset for which the legislature has referred to Section 139 of the Act and not 139(1) of the Act, which is referred to for deposit in capital gain scheme.
Thus, a reasonable view may be taken to say that Section 139 would cover extended time limit provided u/s 139(4) of the Act in case of purchase of new agricultural land. Thus, when an assessee furnishes return subsequent to due date of filing return u/s 139(1) but within the extended time limit u/s 139(4), the benefit of investment made up to the date of furnishing of return of income prior to filing return u/s 139(4) cannot be denied.
In the instant case, assessee has paid to the seller, Sri Laxmanbhai Hamirbhai Rabari on 29.03.2017 and filed the return of income on 29.03.2017. Accordingly, we hold that the capital gains utilized towards purchase of new asset before furnishing of return of income u/s 139(4) will be deemed to be sufficient compliance of Section 54B(2) of the Act. Ground raised by the assessee is allowed.
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