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Showing 361 to 380 of 1466 Records
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2024 (6) TMI 1106
Input service credit - consultancy service availed from EVIPL for trading carbon credit points - denial of credit on the ground being neither connected with the manufacture or for providing any output service - Rule 2(l) of the CCR - HELD THAT:- It is not the case of the Revenue that the appellant was using separate establishment for the manufacture of R-23. It is the admitted position that the R-23 gas is the most natural by-product generated during the manufacture of R-22, which is destroyed without releasing into the atmosphere for which the manufacturer becomes eligible to earn CC towards CER norms of the Kyoto protocol.
The order of Delhi Bench in the case of SHREE BHAWANI PAPER MILLS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE. LUCKNOW [2012 (12) TMI 741 - CESTAT NEW DELHI] would apply to the facts of the present case as well, where it was held that 'I fully agree with the learned advocate that the above contention of the Revenue that the amount earned as a result of consultancy must be either subject to excise duty or should be taxable under the Service Tax is nothing but a fallacy. The amount earned as a result of such service availed by the party is the income of the appellant and is not required to be leviable to Service Tax.'
Thus, the credit claimed and availed by the taxpayer is in accordance with law as applicable during the year under dispute and therefore the denial of the same was uncalled for - the impugned order is set aside - appeal allowed.
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2024 (6) TMI 1105
Refund of the reversed / payment of CENVAT credit amount and interest - final products in question that attracted nil rate of duty were exported and thus they become eligible for CENVAT credit of duty paid by them on the inputs used in the manufacture of such final products - HELD THAT:- The issue in the present appeal is no more res integra, since the same issue stands settled in their favour in JOLLY BOARD LTD VERSUS COMMISSIONER OF CENTRAL EXCISE [2014 (3) TMI 124 - CESTAT MUMBAI] where it was held that 'In this case, appellant has not executed any bond for export of the goods. If the goods are exempted, execution of bond was not required.'
There are no merit in the impugned order of the first appellate authority and the same is set aside - appeal allowed.
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2024 (6) TMI 1104
Clandestine removal - clearances made beyond the period mentioned in Annexure-I certificate - case of the Department is that the Appellants have received the Annexure 1 Certificates from buyers only for the financial year 2007-2008, however, the goods have been cleared beyond the said financial year thereby violating the conditions stipulated in the Impugned Notification r/w with the 2001 Rules - extended period of limitation - HELD THAT:- On verification of invoices it was seen that the goods cleared on the basis of the Annexure-I certificates included goods of invoices for the period beyond financial year mentioned. Thus, duty has been demanded alleging that clearances of the Annexure-I certificates do not cover the clearances of goods and thus the benefit of notification is not available. It is to be noted that the manufacturer buyer has used the goods for export and there is no dispute raised in this regard. The allegation of the department revolves around the wrong financial year mentioned in Annexure-I certificate - There is no allegation that excess goods have been cleared. The only allegation is that the financial year mentioned does not match with the invoices. The same financial year has been copied continuously in most of the Certificates. The notification or Rules does not put forward any condition to mention financial year.
In the present case, it is the manufacturer buyer who has to make the application before the AC/DC of his jurisdiction. The said application is forwarded to the appellant who has to mention the details of clearances and submit a copy of this application to the Range Superintendent of his jurisdiction - The said application having been verified by the concerned officers of his jurisdiction, the financial year for the specified quantity of goods is not a relevant criteria for the reason that all these clearances are supported by invoices and detailed description of the goods cleared. So, also verified by the jurisdictional authorities of the manufacturer buyer.
The demand of duty has been made on a minor infraction of wrongly stating the financial year in the application. Such a procedural lapse has to be condoned. The demand of duty alleging that the appellant has violated the conditions of the Notification r/w Rules 2001 cannot sustain.
Extended period of limitation - Suppression of facts or not - HELD THAT:- Though it is alleged in the show cause notice that the appellant has suppressed facts with intent to evade payment of duty there is no positive act of suppression established against the appellant. It is also seen that all the certificates are endorsed by the jurisdiction officers at the time of clearance as well as receiving the goods by the manufacturer buyer. The appellant has filed ER1 returns declaring the exemption availed by them and also furnished copies of the relevant certificates. In such circumstances, the demand raised alleging suppression of facts with intent to evade payment of duty cannot sustain. The issue on limitation is answered in favour of the appellant.
The impugned order is set aside - Appeal allowed.
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2024 (6) TMI 1103
Rejection of sanction of refund - duty paid in regard to paper wrapper which was later set aside by the order of Commissioner (Appeals) - HELD THAT:- The said issue has attained finality when the Tribunal dismissed the department appeal by Final order [2019 (12) TMI 470 - CESTAT CHENNAI]. The Commissioner (Appeals) has observed in the order impugned herein that the order of Tribunal would be only of persuasive value which is totally erroneous.
The decision passed by the Commissioner (Appeals) when appealed before the Tribunal and having decided by passing Final order has become final. In such circumstances, the impugned order interfering with the classification and the demand of duty which has been already decided in favour of assessee cannot be disturbed. There are no grounds to reject the refund claim sanctioned by the original authority.
The impugned order set aside. The order passed by the original authority is restored - Appeal allowed.
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2024 (6) TMI 1102
Maintainability of application of rectification of mistake - Section 35C of the Central Excise Act - HELD THAT:- The decision of the Larger Bench of the Tribunal in Lal Chand Anand [1985 (7) TMI 118 - CEGAT, NEW DELHI-LB] would apply to the facts of the present case. Section 35C of the Central Excise Act is identical to section 35C of the Central Excises and Salt Act, 1944. The Larger Bench construed that the order passed under 35C of the said Act is a final order and not an order deciding the reference. In this view of the matter if an application for rectification of mistake of any order passed under sub-section (1) of section 35C of the Central Excise Act can only be filed, the present application filed for rectification of mistake of an interim order of the Larger Bench deciding the reference, would not be maintainable.
The same position was reiterated by a Larger Bench of the Tribunal consisting of Three Members in Hico Enterprises [2005 (11) TMI 104 - CESTAT, MUMBAI]. This was a case where the rectification of mistake application was filed under sub-section (2) of section 129B of the Customs Act 1962 [the Customs Act]. Sub-section (2) of section 129B, which deals with rectification of mistake, refers to an order passed under sub-section (1) and sub-section (1) of section 129B is identical to sub-section (1) section 35C of the Central Excise Act. The Larger Bench of the Tribunal held that the order answering the reference is not a final order and so the application filed for rectification of mistake in this order would not be maintainable.
The contention advanced by the learned special counsel for the department that the order passed by the Larger Bench of the Tribunal deciding the reference should be treated as a final order for the purposes of section 35C(1) of the Central Excise Act as the Division Bench would ultimately be bound by the order of the Larger Bench cannot also be accepted in view of the decision of the Larger Bench of the Tribunal consisting of Five Members in Lal Chand Anand.
The inevitable conclusion that flows from the aforesaid discussion is that the present applications filed by the department for rectification of mistakes in the interim order dated 06.06.2023 passed by the Larger Bench of the Tribunal answering the reference made by a Division Bench of the Tribunal, are not maintainable.
The five applications filed for rectification of mistakes are, accordingly, rejected.
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2024 (6) TMI 1101
Correction of mistake in filing annual returns for the year 2014-15 - existence of provision to enable the filing of a revised copy of stock inventory as on 31-03- 2015 - HELD THAT:- The petitioner is entitled to an order permitting him to file / upload a revised stock statement as of 31-03- 2015. Sub-rule (4A) of Rule 22 of the 2005 Rules contemplate the filing of a revised return where the dealer detects any omission or mistake in the return submitted by him under sub rule (1) of Rule 22. Sub-rule (3) of Rule 22 deals with the documents that have to be uploaded by the dealer along with the return filed under sub-rule (1) of Rule 22.
In the facts of the present case the mistake on the part of the petitioner was that she uploaded the stock inventory as on 28-05-2015 instead of the stock inventory as on 31-03-2015 [which is the requirement under Rule 22 (3)(v) of the 2005 Rules].
This writ petition will stand disposed of directing the 2nd respondent to permit the petitioner to correct the copy of stock inventory (closing stock) as on 31-03- 2015 which was filed along with the annual returns submitted by the petitioner for the year 2014-15. Thereafter, the petitioner shall suitably reply to Exts. P6 to P8 notices.
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2024 (6) TMI 1100
Applicability of Tamil Nadu Industrial Establishments (Conferment of Permanent Status to Workmen) Act, 1981 to the Corporation qua the employees and their Union - suggestion to institute an ‘Industrial Disputes Claim’ questioning non-employment was sustainable or not, given that the Inspector of Labour had already passed orders in that regard.
Whether the Corporation can be termed as an industrial establishment as per the provisions reproduced supra and whether the members of the Union would qualify as workmen and therefore would be eligible for permanent status under Section 3 of the Act? - HELD THAT:- For any establishment to be commercial, it has to be established that the activities undertaken by it are for making some monetary gain. Commercial in the most rudimentary sense means buying or selling of goods in exchange of money - this act shall not apply to those workmen who are engaged in the construction of buildings and the like or other construction work be it structural, mechanical, or electrical. Therefore, those establishments and their workmen shall be exempt, who are engaged exclusively, in the work of construction.
Both requirements, of the establishment being covered under the definition of industrial establishment as provided and that of the employee having uninterruptedly continued in service for 480 days or more for 24 months, having been met there are no hesitation in holding that the Act would apply to the parties to the present dispute.
Whether the High Court on remand, could have ignored the order of the Inspector of Labour and suggested that the employees raise an industrial dispute questioning their non-employment? - HELD THAT:- Since the High Court concluded that the Act would apply, there was no reason for it to disturb the finding of the Inspector of Labour and, therefore, it ought to have simply ordered that the order of Inspector of Labour which concluded that the members of the respondent-Union be given permanent employment, be complied with. When an issue stands already decided and such decision does not suffer from any vice of authority or jurisdiction then, putting those who enjoy an order in their favour through the wringer once more of having to re-establish their claim, this time before the authority under the Industrial Disputes Act, 1947, would be unjustified.
The appeal filed by the Corporation is dismissed.
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2024 (6) TMI 1099
Cognizance of the offences punishable under Sections 13 (1) (d), 13 (1) (e) read with 13 (2) of the PC Act and under Section 109 of IPC - challenge to charge sheet and taking cognizance of the offence - undeclared assets and income of the petitioner - no preliminary enquiry conducted to verify about the disproportionate assets said to be in possession of the petitioner - HELD THAT:- It is well settled by the Hon'ble Supreme Court in order to calculate the disproportionate asset, it is necessary to place the assets and liabilities held by the petitioner or a public servant during joining of the public service and subsequently what was the assets held by him and what was the income earned and expenditure, then only they should ascertain. After ascertaining the same, only then they should come to the conclusion regarding prima facie case or register the FIR and then schedule property is required to pass an order under Section 17 of the PC Act for investigation. Herein this case, the income tax authorities not concluded the investigation and sent letter to the Chief Secretary, in turn the Chief Secretary forwarded the letter to the ACB and ACB immediately registered FIR by preparing alleged source report, which does not contain any details of the property.
There is no basic foundation in this case to say that the petitioner was having so much assets and liabilities at the time of joining the service and Subsequently he has amassed the assets, absolutely there is no material place either in the source report or in the FIR or in the charge sheet. Totally blank regarding the assets and liabilities which were declared by the petitioner while joining the service. The prosecution blindly stated, he has amassed the property between 1987 to till date but there is no details in the case records. Therefore, continuing proceedings is nothing but abuse of process of law.
Such being the case absolutely there is no ground for framing of charge and proceeding the trial against the petitioner - this petition is allowed.
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2024 (6) TMI 1098
Dishonour of Cheque - service of notice - failure to produce an evidence that in fact the notice was served - non-fulfilment of essential condition for taking cognizance, as provided under Section 138 clause (c) read with section 142(1)(b) of the NI Act - whether non-filing of track report or acknowledgement due card would illegal to proceed with the case filed under Section 138 of the Negotiable Instruments Act, 1881 or not? - HELD THAT:- The complainant issued and sent a demand notice on 28.01.2021 to the address of the accused person in terms of Section 138(b) of the Negotiable Instruments Act, 1881 and amendment thereto asking the accused person to pay the said amount within a period of 15 days from the date of receipt of the said notice. But the accused person has failed and neglected to pay the said amount covered by the said cheques and when he failed to pay the payment of the same amount covered by the aforesaid cheques, the complainant filed this case on 16th March, 2021 - it appears from the complaint itself the requirements as provided under Section 138 of the Negotiable Instruments Act, 1881 have been fulfilled by the complainant.
In the instant case, the trial Court seems to have drawn a presumption of law with regards to service of demand notice. Furthermore, onus lies upon the claimant to prove his case at the time of trial. At the same time, accused person also gets opportunity to contest the same during trial.
This Court does not find any illegality or infirmity in taking cognizance by the learned Magistrate and issue summon upon the accused person. Accordingly, CRR 1708 of 2021 is devoid on merit and required to be dismissed - application dismissed.
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2024 (6) TMI 1097
Interpretation of statute - Section 140 (5) of the CGST Act - Transition of credit as per Section 140 (5) of the Central Goods and Services Tax Act, 2017 - rejection of application filed by petitioner seeking extension under the proviso to Section 140 (5) of the CGST Act - application not filed within time limitation - HELD THAT:- Section 140 (5) of the CGST Act provides that a registered person can take credit of eligible duties and taxes in respect of inputs or input services received on or after the appointed day on which duty or tax has been paid under the erstwhile regime, provided that the invoice is recorded in the books of accounts within a period of thirty days from the appointed day. First proviso to the said section provides that on sufficient cause being shown, the Commissioner may extend the period by a further period not exceeding thirty days - proviso to Section 140 (5) of the CGST Act permits the Commissioner to extend the time of recording the invoices in the books of account by a further period of thirty days, i.e., by 28th August 2017 provided the registered person shows a sufficient cause.
Sub Section 5 of Section 140 of the CGST Act only requires the supplier of service to have paid before the appointed day and the invoice or the duty or tax paying document being recorded in the books of account of registered person within a period of thirty days from the appointed day, i.e., 1st July 2017, which period could be extended by a further period of thirty days on sufficient cause being shown - rejection of the application by the impugned order dated 1st November 2023 on the ground that it was filed only on 27th December 2017 is incorrect.
The impugend order is set aside - appeal disposed off.
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2024 (6) TMI 1096
Deduction u/s 80P(2)(a)(i) - Assessee is an agricultural credit Cooperative Society which is engaged in the business of acceptance of deposits from members and lending the same to its members - HELD THAT:- The Hon’ble Apex Court in the case of Mavilayi Service Co-operative Bank Ltd. & Ors. [2021 (1) TMI 488 - SUPREME COURT] had held that the co-operative societies providing credit facilities to its members is entitled to deduction u/s 80P(2)(a)(i). The Hon’ble Apex Court after considering the judicial pronouncements on the subject, had stated the term “member” has not been defined under the Income-tax Act. It was, therefore, stated by the Hon’ble Apex Court that the term “member” in the respective State Co-operative Societies Acts under which the societies are registered have to be taken into consideration.
The Hon’ble Apex Court held that if nominal / associate member is not prohibited under the said Act, for being taken as a member, the income earned on account of providing credit facilities to such member also qualify for deduction u/s 80P(2)(a)(i) of the Act. It was further held by the Hon’ble Apex Court that section 80P(4) of the I.T. Act is to be read as a proviso.
As stated by the Hon’ble Apex Court that section 80P(4) of the Act now specifically excludes only co-operative banks which are co-operative societies engaged in the business of banking i.e. engaged in lending money to members of the public, which have a license in this behalf from the RBI. The Hon’ble Apex Court had enunciated various principles in regard to deduction u/s 80P of the Act. On identical factual situation, in the case of M/s. Ravindra Multipurpose Cooperative Society Ltd. [2021 (9) TMI 342 - ITAT BANGALORE] had remanded the issue to the files of the A.O. for de novo consideration.
Thus we restore the issue of claim of deduction u/s 80P(2)(a)(i) of the Act to the file of the A.O. for de novo consideration.
Deduction u/s 80P(2)(d) - appellant earned interest income from funds invested in Co-operative banks other than Cooperative societies - As regards the claim of deduction u/s 80P(2)(d) of the I.T. Act, we direct the A.O. to verify whether interest / dividend is received by the assessee out of investments made with Cooperative Societies. If the assessee earns interest / dividend income out of investments with co-operative society, as observed in the case of Kerala State Co-operative Agricultural and Rural Development Bank Ltd. [2023 (9) TMI 761 - SUPREME COURT] the same is entitled to deduction u/s 80P(2)(d) of the I.T. Act.
Deduction u/s 57 - We make it clear that if the interest earned by assessee from the banks is considered under the head “Income from other sources”, relief to be granted to the assessee u/s 57 of the Act in accordance with law. Accordingly, the issue is restored to the file of ld. AO for de-novo consideration with the above observations.
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2024 (6) TMI 1095
Violation of principles of natural justice - grievance of the petitioner is that the petitioner has not received notice from the 1st respondent before passing an order under Section 73 (9) of the Act - non-intimation of correct address - HELD THAT:- Having not intimated the correct address for communication, the petitioner cannot complain that there is violation of the principles of natural justice inasmuch as the petitioner was not served with notice. Therefore, Ext. P3 cannot be impugned for violation of the principles of natural justice. There are no reason to entertain the writ petition under Article 226 of the Constitution of India.
Without prejudice to any other remedy as may be available to the petitioner in law, this writ petition is dismissed.
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2024 (6) TMI 1094
Attachment order in terms of the provisions contained in Section 79 (1) (c) of the WBGST/CGST Act, 2017 - notification dated 2nd November 2023 as well as pre-deposit requirements complied with - HELD THAT:- Admittedly, the petitioner has complied with the conditions set forth in paragraph 3 of the notification and had made a deposit of additional 2.5 per cent of the amount of tax in dispute. It is, however, noticed that notwithstanding the Coordinate Bench of this Court by its order dated 17th November 2023 directing the appellate authority to dispose of the said appeal filed by the petitioner on merits, the same has been kept pending and the order of attachment dated 8th August 2023 has also not been revoked.
It may be noted that the petitioner has a statutory right to challenge the determination made under Section 73 of the said Act. Although, the petitioner had preferred an appeal and the said appeal has been kept pending, the respondents are continuing with the proceeding for recovery of tax under Section 79 of the said Act. Despite the aforesaid appeal filed by the petitioner now stands regularized in terms of the notification dated 2nd November 2023 and the petitioner having complied with the conditions indicated, the respondent could not have denied the benefit of Section 107 (7) of the said Act.
Since, the said Act does not permit continuance of recovery proceeding for the balance amount and the same is deemed to be stayed, once, the provisions of Section 107 (6) of the said Act are complied with, the order of attachment dated 8th August 2023 passed by the respondents cannot be permitted to continue.
Petition disposed off.
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2024 (6) TMI 1093
Challenge to assessment orders pertaining to distinct assessment periods - challenge on the ground that such orders were issued to a dead person - HELD THAT:- The petitioner has placed on record the death certificate. Such certificate indicates the date of death as 08.05.2021. All the relevant communications, including the impugned assessment orders, are subsequent thereto. Consequently, orders impugned herein cannot be sustained.
The impugned orders dated 19.09.2023 are set aside by leaving it open to the respondent to initiate proceedings against the legal heirs of the late Mr. Munusamy Nagabushanam.
Petition disposed off.
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2024 (6) TMI 1092
Seeking entitlement for Input Tax Credit - challenge to vires of the provisions of Section 16 (2) (c) of the Central Goods and Services Tax Act, 2017 - HELD THAT:- Issue Rule returnable on 10.07.2024. By way of ad-interim relief, no coercive steps shall be taken by the respondent authorities during the pednency of these petitions.
To be heard with Special Civil Application No. 15188 of 2020 and allied matters.
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2024 (6) TMI 1091
Challenge to original as well as appellate order - appeal was rejected on the ground that it was presented beyond the condonable period under sub-section 4 of Section 107 of applicable GST enactments - HELD THAT:- On perusal of the appellate order dated 01.03.2024, it is evident that the petitioner filed the appeal on 28.12.2023 and the 30 day period expired on 08.12.2023. Since the delay beyond the condonable period is only 20 days, the interest of justice warrants that the petitioner's appeal be considered and disposed of on merits.
The appellate order dated 01.03.2024 is set aside and the matter is remanded to the appellate authority. If the petitioner re-presents the appeal within 10 days from the date of receipt of a copy of this order, the appellate authority is directed to receive and dispose of the same on merits without going into the question of limitation - petition disposed off by way of remand.
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2024 (6) TMI 1090
Levy of GST - seigniorage fee and mining lease amounts paid to the Government under applicable GST laws - HELD THAT:- The Division Bench Judgment in a batch of cases where the lead case is A. Venkatachalam v. Assistant Commissioner (ST), Palladam [2024 (2) TMI 488 - MADRAS HIGH COURT] where it was held that It is made clear that there shall be no recovery of GST on royalty until the Nine Judge Constitution Bench takes a decision.
This petition is liable to be disposed of on the same terms insofar as it relates to either the issue of seigniorage fee or mining lease. Consequently, the petitioner is permitted to submit his reply to the intimation within a maximum period of four weeks from the date of receipt of a copy of this order.
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2024 (6) TMI 1089
Cancellation of registration - appeals were not received on the ground of limitation - HELD THAT:- The order issued 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], was a conditional order and that the respective petitioner should be directed to comply with all conditions stipulated therein.
The respective petitioner herein is directed to file returns for the period prior to the cancellation of registration, together with tax dues along with interest thereon and the fee fixed for belated filing of returns within a period of forty five (45) days from the date of receipt of a copy of this order - the petition is disposed off.
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2024 (6) TMI 1088
Breach of principles of natural justice - petitioner was unaware of proceedings culminating in the impugned order - wrongful availment of Input Tax Credit (ITC) - HELD THAT:- It appears that the GST proposal pertains to the availment of ITC after specifying amounts in the reverse charge column in the GSTR 3B returns. It is also noticeable that the tax proposal was confirmed because the petitioner did not reply to the show cause notice or attend the personal hearing. In these circumstances, the interest of justice warrants that an opportunity be provided to the petitioner to contest the tax demand on merits, albeit by putting the petitioner on terms.
The impugned orders dated 31.10.2023 are set aside, subject to the condition that the petitioner remits 10% of the disputed tax demand in respect of each assessment period as agreed to within a maximum period of two weeks from the date of receipt of a copy of this order - Petition disposed off.
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2024 (6) TMI 1087
Violation of principles of natural justice - no reasons stated for not accepting the reply of the petitioner - interest on delayed payment of tax - inadvertent error on the part of the petitioner’s accountant - HELD THAT:- In Exts. P10 and P11, no reasons are stated for not accepting the reply of the petitioner. When a show cause notice is issued and a reply is submitted, the authority issuing the show cause notice shall record the reason as to why the reply is not acceptable. Exts. P10 and P11 are set aside being passed in violation of the principles of natural justice.
The 1st respondent shall have a revisit of Exts. P10 and P11. The petitioner shall appear before the 1st respondent on 18.06.2024 at 11 a.m and the 1st respondent shall pass fresh orders within a period of one month therefrom.
The writ petition is disposed of.
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