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Showing 341 to 360 of 1687 Records
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2023 (9) TMI 1347
Revision u/s 263 - Non deduction of TDS u/s 194I - Threshold limit for deduction of TDS - assessee paid rent to four different persons - HELD THAT:- We find that there is no reference of the issue of claim rental expenses in the assessment order, identified by the ld. Pr.CIT. CIT identified the issue with regard to applicability of TDS Proviso on the rental expenses incurred by assessee which were more than Rs. 1.80 lacs per annum. The assessee in his reply before ld Pr CIT has clearly submitted that he had paid the rent to four different persons, therefore, the regress of section 194I or 40a(ia) is not applicable.
The assessee also filed copy of the rent agreement executed by four different persons. We find that the ld Pr CIT has not given his finding on the reply of the assessee. Before us, assessee filed copy of rent agreement showing the tenancy of assessee with four different landlords/owners.
Assessee also shown evidence of payment of rent to different four persons @ Rs. 96,000/- per annum only. Such payment of rent to four different persons are clearly disenable in the bank account of assessee. Thus, the threshold limit of attracting the provisions of Section 194I of the Act is not applicable on the payment of rent by assessee, thus, in our considered view, the order of the Assessing Officer is not prejudicial to the interest of revenue. Appeal of assessee is allowed.
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2023 (9) TMI 1346
Expenditure claimed under the head marketing staff commission and site development expenses - balance amount of 5% of the addition restricted by the Ld.CIT(A) - HELD THAT:- As find from the order of the CIT(A) that the assessee has not produced any verifiable documents before the Ld.CIT(A) also.
CIT(A) has therefore held that since the self made vouchers are not completely verifiable and since the assessee has not proved beyond doubt that the said expenditure is genuine, he directed the AO to restrict the disallowance to 5% - assessee failed to provide any genuine vouchers before me. In the absence of cogent evidences produced either before the revenue authorities or before me, find that no intereference is therefore required on this ground. Hence, sustain the order of the Ld.CIT(A) on this ground.
Disallowance of cash payments u/s 40A(3) - HELD THAT:- AR did not bring any material or confirmation from the vendors to substantiate that there is any business expediency for making payments in cash for purchase of the lands. Further, observe that the payments have been made by way of banking channels and also by cash and hence, the argument of the Ld.AR that the vendors are agriculturists and therefore, the amount is exempted under Rule 6DD of the IT Rules is not sustainable. As find from the order of the CIT(A) that the payments were not made on bank holidays to the vendors. No material was also placed before me, substantiating the business expediency of the vendors for the payment made by cash for purchase of lands. we inclined to confirm the order of the CIT(A) on this ground.
Powers of the Joint Commissioner (Appeals) or Commissioner (Appeals) u/s 251(1A) - HELD THAT:- CIT(A) has rightly, after considering the materials on record and by exercising powers vested in him u/s 251(1)(a) of the Act, enhanced the assessment. Therefore, find no infirmity in the order of the Ld.CIT(A) and the ground raised by the assessee is dismissed
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2023 (9) TMI 1345
Recovery proceedings - Assessment order has not yet been taken up for hearing though three years have passed - garnishee notices have been issued by respondent No.2 to the banker of the petitioner.
HELD THAT:- As appeal filed by the petitioner is required to be heard expeditiously. In this connection, we may refer to Sub-Section (6A) of Section 250 of the Act which says that in every appeal, the Commissioner (Appeals), where it is possible, may hear and decide such appeal within a period of one year from the end of the financial year in which such appeal is filed before him under Sub-Section (1) of Section 246A of the Act. Though the aforesaid provision pertains to appeal filed under Section 246A of the Act, nonetheless the objective behind the aforesaid provision is to hear appeal as early as possible.
That being the position, we direct respondent No.1 to take on board the appeal filed by the petitioner on 23.02.2020 against the assessment order dated 14.11.2019 for the assessment year 2017-18 and dispose of the same within a period of three (03) months from the date of receipt of a copy of this order.
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2023 (9) TMI 1344
Reopening of assessment - re-assess the income/loss of the petitioner Co-operative Bank - cash deposits made during the period of de-monetization - re-opening of the completed assessment on the basis of information on the Insight Portal - HELD THAT:- We find in the facts of the present case that on the basis of the information supplied by the petitioner pursuant to the questionnaire issued under Section 142(1) of the Act of 1961 vide notices dated 30.08.2019 and 18.12.2019, re-opening of the completed assessment only on the basis of information on the Insight Portal would amount to seeking to re-open such assessment due to change of opinion.
Assessing Officer in absence of any independent verification of the information available on the Insight Portal has proceeded to re-open the completed assessment without indicating the basis for having a reason to believe that the information in the hands of the petitioner had escaped assessment.
Re-opening is on the basis of gross incorrect facts that the assessment had been completed under Section 143(1) of the Act of 1961 and was hence no assessment under Section 2(40) of the Act of 1961 when infact the assessment had been completed under Section 143(3) - re-opening was thus merely an outcome of change of opinion of the AO - The notice issued on 31.03.2021 under Section 148 of the Act of 1961 is thus liable to be quashed. It is accordingly quashed having been issued in absence of statutory jurisdiction in that regard. Consequentially, steps taken pursuant to the said notice issued u/s 148 would not survive. Decided in favour of assessee.
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2023 (9) TMI 1343
Revision u/s 263 - claim deduction u/s 10AA - Tribunal held that it was not the case of PCIT that AO failed to make any additions/disallowance as he conducted enough inquiries to examine the debit and credit in the bank statement and he also examined the eligibility to claim deductions u/s 10AA of the Act and that is why he disallowed the deduction under section 10AA - HELD THAT:- Having considered the order of the Tribunal in light of the findings of the Principal CIT, we find that the Assessing Officer had conducted sufficient inquiry and examined the eligibility to claim deduction under section 10AA of the Act. It was not a case of ‘no inquiry’ or ‘lack of inquiry’. When an opinion is formed as a result of the inquiries, which was in the exclusive domain of the Assessing Officer, it is not open for the revisional authority to arrive at conclusions merely on the basis of a subjective exercise. Thus as perused the order of the Tribunal, no substantial questions of law arise.
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2023 (9) TMI 1342
Late fee as payable in terms of u/s 234E - HELD THAT:- The issue is squarely covered by the decision of the Karnataka High Court in Sri.Fatheraj Singhvi and others Vs. Union of India and others [2016 (9) TMI 964 - KARNATAKA HIGH COURT] and in Rajesh Kourani Vs. Union of India and others[2017 (7) TMI 458 - GUJARAT HIGH COURT] and in M/s.Viswabharathi Textiles Private Limited [2011 (10) TMI 620 - ITAT CHENNAI]
The issue as to whether the petitioner is liable to pay late fee u/s 234E of the IT Act can be decided by the respondents independently by disposing of the petitioner's various representations last of which is dated 07.02.2023.
We direct the respondents to dispose the petitioner's aforesaid representation within a period of six weeks from the date of receipt of a copy of this order.
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2023 (9) TMI 1341
Additions for non deduction of TDS u/s 194C r.w.s. 40(a)(ia) - non-deduction of inward freight expenses - HELD THAT:- We note that the contention of the assessee that the inward freight charges were part of purchase of materials was nowhere doubted by the authorities below. Besides the above, we have also perused copies of the invoices placed in the paper book and note that the party (supplier of the materials) has given the break-up of the gross sale bill raised to the assessee which is inter-alia comprising of purchase cost as well as transportation charges.
From the invoice, it becomes crystal clear that the freight inward charges were part and parcel of the purchase of the goods. It is settled law that the provisions of the TDS cannot be attracted on the transaction of purchase and sale of the goods. Thus, in the absence of any contract between the assessee and the transporter, we hold that the assessee was not under the obligation to deduct TDS of inward freight expenses incurred under the provisions of section 194C - Accordingly, the question of making the disallowance under the provisions of section 40(a)(ia) is not warranted. Hence, we set aside the order of ld. CIT(A) and direct the Assessing Officer to delete the addition made by him. Thus, the grounds of appeal of assessee are allowed.
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2023 (9) TMI 1340
Penalty u/s 271(1)(c) - denial of claim of exemption u/s. 54B - NFAC condoned the delay of 391 days in filing the appeal, but rejected the claim of additional documents stating that the assessee has not explained why the additional documents were not filed before the Assessing Officer.
HELD THAT:- It is well settled principle of law that merely because exemption on merit was not granted by the Authority, which will not attract penalty provisions. The assessee in the penalty appeal has produced all the relevant documents by way of additional documents, but the same were not accepted by the Ld. CIT(A). As decided in INTAS PHARMA LTD. [2021 (12) TMI 205 - GUJARAT HIGH COURT] merely because claim on merit was not granted, penalty could not be levied - Also see RELIANCE PETROPRODUCTS PVT. LTD. [2010 (3) TMI 80 - SUPREME COURT] - Decided in favour of assessee.
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2023 (9) TMI 1339
Condition of delay - Delay of 168 days - HELD THAT:- As per Form no. 35, the date of service of order is stated to 7.1.2019. Therefore, the assessee ought to have filed appeal within thirty days from 7.1.2019. Hence, there was a delay of 168 days as computed by the learned CIT(A). It is well settled law that the appeal should not be dismissed purely on the ground of limitation. While adjudicating the issue of limitation the appellate authority should also examine whether there is a strong merit in the case of the appellant.
Contention of the assessee that the AO has wrongly made addition on account of non-furnishing of Form 28 and making cash payments exceeding rupees twenty thousand - The contention of the assessee is that the AO had wrongly invoked the provisions of Section 40A(3) as in cash payment was exceeding rupees twenty thousand to a single individual. The learned CIT(A) without examining this issue dismissed the appeal purely on the ground of limitation. However, CIT(A) ought to have examined the correctness of contention of the assessee that the impugned additions have been wrongly made. Therefore, hereby condone the delay in filing the appeal before the CIT(A) and restore the issue to the file of the learned CIT(A) to pass a speaking order on the issue related to the impugned addition.
Assessee’s appeal stands allowed for statistical purposes only.
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2023 (9) TMI 1338
Penalty order u/s. 271(1)(c) - expenditure claimed u/s. 57 - Assessee has shown gross “income from other sources” and claimed the expenses/deduction against the above income - AO during the assessment proceedings required the assessee to justify the expenses/deduction u/s 57 against the income earned from other sources - HELD THAT:- As seen from the Penalty order, the A.O. proceeded with the Penalty proceedings after the disposal of appeal by CIT(A) who has confirmed the disallowance - AO issued a show cause notice dated 08-01-2018 and served on the assessee by RPAD to explain its case on 29-01-2018. Even for this Penalty proceedings, the assessee has not responded thereby the AO imposed a minimum penalty u/s 271(1)(c) - Even before the Ld. CIT(A), the assessee has mentioned about the pendency of the appeal before the ITAT and not explained the expenditure claimed u/s. 57 - CIT(A) also confirmed the levy of penalty u/s. 271(1)(c) of the Act.
As it can be seen from the assessment proceeding as well as penalty proceeding, the assessee failed to substantiate its claim of expenditure made u/s. 57 to earn the “income from other sources”.
In the absence of the same, even before the Lower Authorities as well as before this Tribunal mere filing written submission for 5 pages without any material evidences cannot yield good result to the assessee. We do not find proper assistance from the assessee by simply filing a written submission without any material evidences before us as well as before Ld. CIT(A). It is not the case of the Revenue that made the addition without hearing the assessee, whereas five opportunities were given to the assessee to explain its case which were never responded by the assessee and nor filed any details or evidences in respect of the expenses claimed u/s. 57 of the Act.
Therefore, we have no hesitation in confirming the order passed by the Lower Authorities. Thus the grounds of appeal raised by the assessee is hereby rejected.
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2023 (9) TMI 1337
TP Adjustment - comparable selection - assessee’s functional profile as, being, a company engaged in the retail trade of frozen fish and other seafood products both in the domestic as well as overseas markets and not carrying out any processing activity. The final product of the assessee is not ready to cook and eat but needs to be processed by its customers till it reaches that stage - HELD THAT:- Tolar Ocean Products Pvt. Ltd company is engaged in diverse activities and also in processing of marine products. It has outside processing as well. As against that, the assessee is only in retail trade of fish and sea products. Since the assessee is not in processing of any marine products, we hold that the ld. CIT(A) was justified in excluding this company from the list of comparables.
Forstar Frozen Foods Private Limited is engaged in the business of manufacturing and export of fish and fish products which has ready to eat different packaged products using individually quick frozen technology. This company has also installed the breeding line instruments producing ready to eat value added seafood in Unit No.2. These facts indicate that this company was rightly excluded by the ld. CIT(A) from the list of comparables. We, therefore, countenance the same.
Nekkanti Sea Foods Ltd - this company is in the business of processing and exporting. It has got state of art processing plants in four locations by integrating functions of deep-sea trawling and processing seafood. These facts indicate that it is substantially different from the assessee, which is engaged only in trading of fish and seafood products. We, therefore, approve the view point of the ld. CIT(A) on this score.
Asvini Fisheries Private Limited is in the business of processing and export of shrimps. It has a processing facility at Bhimavaram, Andhra Pradesh and Tuticorin, Tamilnadu. It has a huge fixed asset base of Rs. 62.94 crore. As against it, the assessee is only in trading of fish and seafood products without having any manufacturing facility. We, therefore, approve the action of the ld. CIT(A) in excluding this company from the list of comparables.
Apex Frozen Foods is engaged in processing and export of ready to eat aquaculture products with large shelf life. It has its own intangibles, under which the ready products are sold to direct consumers. Further, it is engaged in shrimp farming activity and hatchery in addition to the business of export of frozen shrimps. In our view, this company was rightly excluded by the ld. CIT(A).
Shree Datt Aquaculture Farms Pvt. Ltd. is engaged in not only fish processing but also other business segments like food processing, tobacco products and further no segmental data is available. Such a contention raised before the TPO remained uncontroverted. The ld. CIT(A) further observed that this company is engaged in the business of manufacture, marine farming and sale of marine products. Obviously, the assessee is not into any manufacture or marine farming. In our view, the ld. CIT(A) rightly excluded it from the list of comparables.
Uniroyal Marine Exports Ltd is engaged in diverse activities of manufacturing shrimps and squids. As the assessee is not into manufacture of shrimps and only in their marketing, we hold that the ld. CIT(A) was right in excluding it from the list of comparables.
Gadre Marine Exports Pvt. Ltd. is a manufacturer and exporter of frozen seafood and manufactures a wide range of products including marinated, ready to cook fish and cut-n-clean raw fish. This company has factories across four locations of west coast of India. Its main business is manufacture and sale of Surimi value added products and fish meal. This company has operational wind mill at its facility at Sadawaghapur, Patan, Satara. These points eminently show its incomparability with the assessee company.
Computation of ALP under dataset - CIT(A) in upholding the assessee’s contention of using the current year data and taking the mean margin of the comparables for benchmarking the specified domestic transaction - HELD THAT:- The first and the second provisos of section 92C(2) read with rule 10B(4) and (5) dealt with the computation of the ALP with reference to the arithmetical mean of the PLI of the comparables computed by considering, usually, the figures for the current year only. Simultaneous with making the first and second provisos inoperative through the third proviso to section 92C(2), rule 10CA has been inserted by the 16th amendment rules. Sub-rule (1) of rule 10CA provides that the ALP of the international or SDTs `shall be computed in accordance with the provisions of this rule’. This shows that where there are more than one comparable, then the ALP for the relevant years, including the year under consideration 2016-17, should be governed by rule 10CA.
The assessee benchmarked the SDT with three comparables. The TPO expanded the list of comparables to twelve. The ld. CIT(A) reduced it to four, which we have countenanced above. As the surviving comparables are four, which is less than six, the case gets covered under sub-rule (7) of 10CA.
Going with this sub-rule, the ALP shall be the arithmetical mean of the PLI of the comparables computed by considering the weighted values of current plus two preceding years, which will be further subjected to the benefit enshrined in the proviso. In our considered opinion, the ld. CIT(A) was not justified in taking recourse to rules 10B(4) and 10B(5), when the ALP was required to be mandatorily computed as per rule 10CA.
The direction of the ld. CIT(A) that the assessee adopted a correct approach by using the current year data and taking the mean margin of the comparables, is fallacious and needs modification. It is therefore, held that, firstly, the ALP should be determined w.r.t. rule 10CA and not rule 10B and secondly, sub-rule (7) of rule 10CA will apply mandating the determination of the ALP by considering the arithmetical mean of the PLI of the four comparables computed by taking weighted average of the figures of the current plus two preceding years.
We set aside the impugned order and remit the matter to the file of the AO/TPO with a direction to recompute the ALP of the SDT of `Purchase of Frozen fish and sea food' in the hue of the discussion made above
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2023 (9) TMI 1336
Principle of mutuality - interest income earned by the assessee on the deposits with the bank - assessee-club claimed before the AO that it is a mutual organisation comprising of its members and the surplus income earned from mutual transactions is not taxable as per the principle of mutuality - AO noted that the doctrine of mutuality did not apply on the interest income on FDRs and security deposits as the same are income earned from third party - HELD THAT:- The issue is squarely covered in the case of Secundrabad Club etc [2023 (8) TMI 925 - SUPREME COURT] has categorically held that the principle of mutuality does not exempt from tax interest income earned by clubs from FDs in banks, irrespective of whether the banks are corporate members of the club or not. There is no infirmity in the orders of the lower authorities. There is no merit in the appeals of the assessee and the same are accordingly dismissed.
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2023 (9) TMI 1335
Revision u/s 263 - lack of verification and application of mind by AO - Aas per CIT AO has allowed the deduction claimed u/s 80IA of the Act despite the fact that the assessee did not furnish all the supporting documents required as laid down in Rule 18BBB of the income Tax Rules for claiming deduction - Whether the assessee has submitted unit-wise Balance Sheets or not? - HELD THAT:- In response to notice under section 142(1) of the Act, the assessee has submitted unit-wise reply and detailed explanation before the Assessing Officer and the assessee also submitted further reply before the Assessing Officer. We note that Assessing Officer has issued further notice under section 142(1) of the Act, wherein the Assessing Officer asked the assessee to submit the details and documents of windmill unit-wise. In response to notice issued by the Assessing Officer, the assessee submitted its detailed reply along with documents and evidences.
Therefore, we note that detailed reply and explanation were submitted before the Assessing Officer. We note that Assessing Officer could not download the unit-wise balance sheets due to technical error, therefore ld. Counsel submitted that there is no mistake on the part of the assessee in submitting the unit-wise balance sheets.
From the judgment of the Hon'ble Gujarat High Court in the case of PCT vs. M/s. Shreeji Prints Pvt. Ltd. [2020 (2) TMI 1021 - GUJARAT HIGH COURT] it is vivid that the revisional powers cannot be exercised for directing a fuller inquiry to merely find out if the earlier view taken is erroneous particularly when a view was already taken after inquiry.
A mere observation that no proper details have been obtained, cannot be sufficient to come to a conclusion that the AO did not make proper and adequate inquiries which he ought to have made in the given facts and circumstances of this case.
None of the reasons set out by the PCIT for invoking the jurisdiction u/s 263 of the Act are sustainable. The impugned order of the PCIT has to be quashed for the reason that order of the AO sought to be revised in the impugned order was neither erroneous nor prejudicial to the interest of the revenue for the reason of any lack of inquiry that the Assessing Officer ought to have made in the given facts and circumstances of the case. We accordingly quash the order u/s. 263 of the Act, and allow the appeal of the assessee.
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2023 (9) TMI 1334
Reopening of assessment u/s 147 - Addition made in respect of unexplained investment towards purchase of agricultural land - HELD THAT:- AO observed that since the assessee had purchased part of such land from one of the parties to the aforesaid MOU, the AO was of the view that since the aforesaid MOU mentioned the price of properties at a much higher value, the AO had “reason to believe” that substantial cash consideration was given by the assessee for the purchase of the aforesaid land and therefore, income had escaped assessment. It was on the basis of the aforesaid facts, that the Assessing Officer initiated proceedings u/s 147 of the Act.
In our view, the AO has given detailed reasonings on the basis of which he formed the belief that looking into the instant set of facts, the AO had reasonable belief that the assessee had made cash payments in respect of purchase of the aforesaid properties, thereby leading to escapement of income. It is a well settled principle of law that that while recording the reasons, the AO need not establish the actual escapement of income.
The belief at that time is only prima-facie and not conclusive. In the case of Raymond Woollen Mills Ltd. [1997 (12) TMI 12 - SUPREME COURT] observed that the Court has only to see whether there was prima-facie some material on the basis of which the Department could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at this stage.
Accordingly, in our view, the AO had sufficient material to form a prima facie belief that the assessee had made cash payments for purchase of aforesaid properties, thereby leading to escapement of income. Therefore, we find no infirmity in the order of Ld. CIT(Appeals) when he held that issuance of notice under Section 147 of the Act was valid in the instant set of facts.
Violation of Rule 46 of the Income Tax Rules - allegation of Department that there was violation of Rule 46A of the Income Tax Rules in the instant set of facts, wherein the CIT(Appeals) did not confront the AO with the additional information on the basis of which the relief was granted to the assessee - HELD THAT:- As relief has been granted to the assessee only on the basis of the fact that on comparison of the MOU and the Registration Deed of properties which were purchased by the assessee, there was only one plot of land pertaining to survey number 171 palki which was mentioned in the MOU. The other plots of land which were purchased by the assessee did not form part of the MOU and were purchased from third parties / persons.
Accordingly, we observe that no additional documents / information formed the basis for Ld. CIT(Appeals) allowing relief to the assessee which was not present before the AO. During the course of appellate proceedings, Ld. CIT(Appeals) made a comparison between the contents of MOU and the details of properties which were purchased by the assessee, and on comparison of the two, CIT(A) was of the view that since there was only one common property in the aforesaid agreements, and therefore the additions could be made only on the basis of the aforesaid property which was mentioned in the MOU and not with respect to other properties not forming part of the MOU.
We are of the considered view that there was no violation of Rule 46A of the Income Tax Rules, since no additional documents / information / data was made the basis of allowing relief to the assessee which was not before the Assessing Officer at the time of framing the assessment.
CIT(A) giving part relief to the assessee and excluding those plots of land which should not form part of the MOU - HELD THAT:- CIT(Appeals) while allowing the assessee’s appeal observed that no additions have been made by the Assessing Officer in the case of the other family members, who were the joint holders in the aforesaid property. We observe that in the instant facts the additions were made only on the basis of MOU entered between third parties and there was no mention of the assessee’s name in the MOU. Further, the aforesaid MOU on the basis of which additions were made by the Assessing Officer had also been subsequently cancelled and was not acted upon. Therefore, in view of the aforesaid judgements cited above, we are of the considered view that CIT(Appeals) has not erred in facts and in law in holding that it would not be legally correct to extrapolate the addition in the hands of the assessee on the basis of facts relating to 1.25 bighas mentioned in the MOU, to the total land of 13.75 bighas purchased by the assessee.
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2023 (9) TMI 1333
Validity of assessment u/s 144C - AO without passing draft assessment order and providing an opportunity to file objections before the DRP by the assessee passed final assessment order u/s 144C - HELD THAT:- As the AO passed the final assessment order without passing draft assessment order the ratio of the decisions of Headstrong Services India Pvt. Ltd. [2020 (12) TMI 1086 - DELHI HIGH COURT] and Nokia India Pvt. Ltd. [2017 (9) TMI 1838 - DELHI HIGH COURT] squarely applies to the facts of the assessee’s case. Thus, respectfully following the above said decisions, we quash the final assessment order passed by the AO u/s 143(3)/144C/254 of the Act for the AY 2009-10 also. Ground no.1 of cross objection filed by the assessee is allowed.
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2023 (9) TMI 1332
Direction to respondents to pay his due gratuity along with interest - Offence involving moral turpitude - It is the contention of the petitioner that the Deputy Chief Labour Commissioner failed to appreciate the scope of Section 4(6) of the Payment of Gratuity Act, 1972 and that payment of gratuity is not a gesture of charity, rather is a recognized statutory right to be provided in favour of the employee - HELD THAT:- Section 4(6) of the Payment of Gratuity Act, 1972 specifically states ‘termination’ as a pre-requisite condition for forfeiture of gratuity in all cases, including the present allegation of “offence involving moral turpitude”.
The Supreme Court in Jorsingh Govind Vanjari Vs. Divisional Controller, Maharashtra State Road Transport Corporation, Jalgaon Division, Jalgaon, [2016 (12) TMI 1905 - SUPREME COURT] stated that termination of service was an essential pre-requisite for denial of gratuity.
The co-ordinate bench of this High Court in Steel Authority of India Ltd. & Anr. Vs. Taraknath Sengupta & Ors.,[2009 (4) TMI 1057 - CALCUTTA HIGH COURT], affirmed the right of an employee to receive payment of gratuity and postulated the need for ‘termination’ as a requisite for invoking Section 4(6) of the Payment of Gratuity Act, 1972.
Payment of gratuity is not charity, rather is a statutory right recognized by the Payment of Gratuity Act, 1972 - Section 4(6) of the Payment of Gratuity Act, 1972 stipulates specific conditions where the employer may forfeit gratuity. Through the aforementioned judgements, specifically, Jorsingh Govind Vanjari Vs. Divisional Controller, Maharashtra State Road Transport Corporation, Jalgaon Division, Jalgaon, alleged misconduct of the employee as per the report of the domestic inquiry is not enough to constitute an “offence involving moral turpitude”, rather termination of services on account of the alleged misconduct, which constitutes an offence involving moral turpitude is essential for forfeiture of payment of gratuity.
Petition allowed.
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2023 (9) TMI 1331
Validity of SCN - summary has not been issued in the requisite form - Section 74 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- Although the summary in the electronic form is required to be furnished along with the show cause notice, furnishing of the said summary at this stage would be substantial compliance with the said provisions.
The present petition is disposed of with the direction to the proper officer to issue a summary of the notice and demands electronically, in FORM GST DRC-01 & FORM GST DRC-02 as expeditiously as possible and preferably within a period of one week from date.
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2023 (9) TMI 1330
Blocking of its Input Tax Credit - Vague SCN - Principles of natural justice - applicability of Circular No. F.3(429)/GST/Policy/2022/1067-1072 dated 08.03.2022 - HELD THAT:- The impugned show-cause notice issued to the petitioner cannot be sustained. It does not effectively provide any reasons for raising a demand. The opening sentence of the impugned show-cause notice appears to be a mechanical reproduction of the statutory provision.
In so far as the Circular is concerned, the same cannot be read as permitting the proper officer to mechanically create a demand. The proper officer can issue a show cause notice only if he has reasons for raising any demand against the tax payer. The said reason must specifically be stated in the show cause notice. It does, prima facie, appear that the respondent had followed the said Circular in a mechanical manner.
It is not apposite to enter this controversy as the same is required to be addressed by the proper officer in the first instance. Since the impugned show cause notice does not contain any allegations as stated in the counter affidavit filed by the respondents, the proceedings initiated pursuant to the impugned show cause notice cannot cover the said allegations.
The impugned show cause notice is liable to be set aside as the same fails to disclose any reason for proposing the recovery and is incapable of eliciting any meaningful response - Petition disposed off.
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2023 (9) TMI 1329
Maintainability of petition - non-constitution of Second Appellate Tribunal - petitioner has already deposited 10% of the demanded tax amount before the first appellate authority - HELD THAT:- Since the petitioner wants to avail the remedy under the provisions of law by approaching 2nd appellate tribunal, which has not yet been constituted, as an interim measure subject to the Petitioner depositing entire tax demand within a period of fifteen days from today, the rest of the demand shall remain stayed during the pendency of the writ petition.
Application disposed off.
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2023 (9) TMI 1328
Validity of SCN - the impugned summary of order was neither uploaded nor served - HELD THAT:- The prayer in the captioned main writ petition cannot but be acceded to. Prayer in the captioned main writ petition acceded to. Captioned Writ Petition is disposed of as allowed albeit making it clear that if the respondents are to initiate proceedings afresh, it is open to the respondents to do so and all the rights and contentions of both sides are preserved if proceedings are initiated afresh by the respondents. Consequently, connected Writ Miscellaneous Petitions are also disposed of as closed.
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9911796707
