|
Advanced Search Options
Case Laws
Showing 381 to 400 of 1658 Records
-
2024 (10) TMI 1278
Reopening of assessment u/s 147/148A - inability and omission on the part of the petitioner to submit reply / response along with documents to the Section 148A(b) notice - HELD THAT:- Petitioner has not submitted reply / response along with documents to Section 148A(b) notice.
In view of the specific assertion on the part of the petitioner that if one more opportunity is granted, petitioner would submit reply along with documents, deem it just and appropriate to set aside the impugned order passed u/s 148A(d) and subsequent notice / orders, etc., and remit the matter back to respondent No.1 for reconsideration afresh from the stage of submitting of reply by the petitioner to Section 148A(b) notice and to proceed further in accordance with law.
-
2024 (10) TMI 1277
Appeal challenging the determination of the ALP - substantial question of law - whether High Court is precluded from considering the determination of the ALP determined by the Tribunal, in exercise of powers u/s 260A ? - HELD THAT:- We agree with Respondent/assessee that in the case at hand while passing the order dated 14th January 2019, this Court has not refused to scrutinise the Tribunal’s findings on the ALP. This Court has considered the matter on merits and came to the conclusion that no substantial questions of law arise.
We are also informed by respondent that the judgment in Principal Commissioner of Income Tax-2, Pune v. PTC Software (I) (P.) Ltd. [2018 (4) TMI 1002 - BOMBAY HIGH COURT] on which the Court had relied upon, has attained finality. In the case of PTC Software (Supra), the appeal that was filed by Revenue, was withdrawn.
-
2024 (10) TMI 1276
Validity of TP order due to lack of digital and physical signatures within the prescribed period - HELD THAT:- TPO order was not digitally signed on 31.07.2021 or subsequently even on 02.08.2021 when the respondent addressed an email to the petitioner and that the same was subsequently physically / manually signed on 12.08.2021 and furnished to the petitioner along with an email on 13.08.2021 is clearly borne out from the material on record. In other words, despite recognising, confirming and affirming that the TPO order was not signed either physically or digitally on 31.07.2021, the 1st respondent signed the same physically only subsequent on 12.08.2021 and it is this manually / physically signed copy that was uploaded on the ITBA portal on 16.08.2021, thereby leading to the sole inference that as on the last date of limitation i.e., 31.07.2021, a legally valid TPO order had not been passed by the 1st respondent and as such, the impugned order deserves to be quashed.
TPO order was not passed on the last date of limitation i.e., 31.07.2021 as contended by the respondents - TPO order, even if passed, had not been digitally or physically / manually signed by 1st respondent on the last date i.e., 31.07.2021, thereby rendering the same illegal, invalid and barred by limitation - TPO order had not been uploaded on the ITBA portal on 31.07.2021, the last date of limitation.
2nd respondent addressed an email on 02.08.2021 to the 1st respondent confirming that the TPO order had not been digitally signed and asked him to take necessary action, thereby also indicating that the TPO order had not been physically / manually signed even as on 02.08.2021.
Petitioner received an email on 02.08.2021 enclosing a copy of the TPO order which was neither signed digitally nor manually / physically as on that day, thereby rendering the same invalid, illegal and barred by limitation. The petitioner received an email on 13.08.2021 enclosing a copy of the TPO order which was physically / manually signed only on 12.08.2021, much beyond the last date of limitation i.e., 31.07.2021.
The undisputed fact that the 2nd respondent noticed that the TPO order was digitally unsigned on 31.07.2021 as evident from the email addressed by him to the 1st respondent on 02.08.2021 is sufficient to come to the conclusion that digital / physical / manual signature of the TPO on the order is an essential and mandatory requirement, failing which, the TPO order would be rendered invalid, illegal, and non-est in the eye of law.
The physically / manually signed TPO order was also uploaded in the ITBA portal only on 16.08.2021, much beyond the last date of limitation i.e., 31.07.2021. The mere generation of DIN number in the TPO order is not sufficient to cure the various inherent defects, lacunae, omissions and deficiencies in the TPO order which was barred by limitation warranting interference by this Court in the present petition.
The impugned TP Order at Annexure-C said to have been passed on 31.07.2021 and the consequent draft assessment order at Annexure-M dated 29.09.2021 are illegal and arbitrary and deserves to be quashed. WP allowed.
-
2024 (10) TMI 1275
Revision u/s 263 - revising the assessment order passed by AO u/s 147 r.w.s. 144B accepting the assessee's claim for exemption u/s 10(23C)(iiiab) - HELD THAT:- The assessee provided detailed calculations showing that when interest income on government grants is included, the government financing exceeds 50% of the total income, thereby meeting the threshold for substantial financing.
AO did not apply Rule 2BBB retrospectively, as the rule was introduced only from AY 2015-16. There was no legal requirement during AY 2014-15 to adhere to the 50% threshold outlined in Rule 2BBB. Moreover, the assessee relied on judicial precedents, such as Institute of Liver and Biliary Sciences and Indian Institute of Management, which support the inclusion of interest income in the calculation of Government financing.
AO’s decision to allow the exemption based on the prevailing legal framework and facts of the case cannot be termed as erroneous. For an order to be prejudicial to the interests of revenue, it must result in a loss to the revenue.
In this case, the AO properly accepted the assessee’s exemption claim after considering the applicable laws and facts. The assessee’s income was primarily derived from government grants and regulated fees, and the AO correctly determined that the university was substantially financed by the Government.
CIT(E)’s conclusion that the AO’s order was prejudicial to revenue is based on the incorrect exclusion of interest income and an erroneous application of Rule 2BBB for AY 2014-15. As such, the order passed by the AO did not cause any loss to the Revenue.
We find that the order passed by the AO was neither erroneous nor prejudicial to the interests of revenue.
AO’s decision to allow the assessee’s exemption under Section 10(23C)(iiiab) of the Act was based on a correct appreciation of the facts and applicable law, and the principle of consistency must be upheld. CIT(E) erred in excluding interest income from the government grants and in attempting to apply Rule 2BBB retrospectively. Accordingly CIT(E)’s order invoking Section 263 of the Act is quashed - Appeal of the assessee is allowed.
-
2024 (10) TMI 1274
Validity of reopening assessment - invalid sanction obtained u/s 151 (ii) and not u/s 151(i) - HELD THAT:- We have perused the copy of the order of the Hon’ble jurisdictional High Court of Bombay in the case of the assessee [2024 (5) TMI 1479 - BOMBAY HIGH COURT] wherein the assessment has been quashed because of invalid sanction obtained u/s 151 (ii) and not u/s 151(i). Therefore, no reason to interfere in the decision of the ld.CIT(A). Accordingly, all the grounds of the Revenue are dismissed.
-
2024 (10) TMI 1273
Denial of deduction u/s 80IA - assessee is a works contractor and not developer - return filed in compliance to notice u/s 153A and not claimed the deduction in its regular return filed u/s 139 (1) - CIT(A) concluded that assessee has made a rightful claim u/s 80IA of the Act in the return filed in compliance to notice u/s 153A
HELD THAT:- As various judgments referred mainly in case of Kirit Dahyabhai Patel [2015 (1) TMI 201 - GUJARAT HIGH COURT] where it has been held that the return filed u/s 153A of the Act will be construed to be return filed u/s 139 of the Act. We also observe that CIT (A) rightly taking note of the judicial precedents that the appellant can make or modify the claim at any time before the completion of the assessment.
CIT (A) has also rightly observed that apart from the fact that the assessee failed to make claim of deduction u/s 80IA of the Act in its regular / original return filed u/s 139(1) of the Act, the Revenue authorities/ ld. DR failed to bring on record any concrete evidence which could negate the rightful claim made by the assessee u/s 80IA of the Act which is duly supported by the documents demonstrating that the assessee is a developer and has carried out the business of designing, constructing, testing, commissioning, operating and maintenance of water works for Bihar Rajya Jal Parisad (unit of state Government of Bihar) therefore, under the given facts and circumstances of the case the settled judicial precedents, we fail to find any infirmity in the finding of the ld. CIT (A) allowing the claim of deduction u/s 80IA - Decided in favour of assessee.
-
2024 (10) TMI 1272
Deduction claimed u/s 80P(2)(a)(i) - interest income earned out of surplus fund invested with a Co-operative Banks in the form of fixed deposits - HELD THAT:- As respectfully following the decision of The Ismailia Urban Co–operative Society [2024 (6) TMI 1404 - ITAT NAGPUR] we set aside the impugned order passed by the learned CIT(A) and hold that the assessee is eligible to claim deduction u/s 80P(2)(a)(i) of the Act. Thus, grounds no.1 and 2 are allowed.
-
2024 (10) TMI 1271
Addition u/s 68 - cash deposit during demonetization period as unexplained cash credit assessee’s claim of having introduced cash in form of capital with his proprietary concern - HELD THAT:-Although the assessee in his statement recorded u/s. 131 had claimed to have introduced cash amounting to Rs. 21.70 lacs by way of capital addition (out of personal funds available with him) in his proprietary concern, but I am afraid that the same in absence of any material which would irrefutably evidence availability of the aforesaid substantial amount of cash with him to source the capital introduction on the respective dates, cannot be summarily accepted.
AO’s conviction that now when the assessee during the pre-demonetization period was already having substantial amount of cash available with him, i.e. sourced out of opening CIH and cash withdrawn from bank accounts of the proprietary concern therefore, it was beyond comprehension and against the principle of preponderance of human probabilities that he would be in possession of substantial amount of cash-in-hand (in his personal account) carries substance.
If the assessee during the pre-demonetization period was in possession of substantial amount of cash in hand (personal account), then neither there would have been any need for him to have made heavy cash withdrawals from the bank accounts of his proprietary concern nor made cash withdrawals from his bank accounts for incurring business expenses. Accordingly, the assessee’s claim of having introduced cash in form of capital in his proprietary concern, viz. M/s. CP Coal Company in absence of any supporting material, and being beyond human probabilities cannot be accepted.
Based on my aforesaid observations, the cash in hand available with the assessee in the “books of account” of his proprietary concern, i.e. on the date on which he had made a cash deposit of Rs. 33 lacs in Allahabad Bank stand reduced by an amount of Rs. 21.70 lacs, i.e. the capital (in cash) allegedly claimed to have been introduced by him during the period 13.10.2016 to 02.11.2016 out of cash in hand (from personal account). As the “cash book” of the assessee reveals availability of the CIH as on 22.11.2016 of Rs. 33,14,870.58, therefore, after reducing the same by an amount of Rs. 21.70 lacs (supra) the balance remains at Rs. 11,44,870.58.
Thus cash in hand available with the assessee to source the cash deposit of Rs. 33 lacs on 22.11.2016 is explained only to the extent of Rs. 11,44,870.58 - Appeal of the assessee is partly allowed
-
2024 (10) TMI 1270
Excess exemption claimed u/s.54EC - AO restricting the exemption u/s.50EC of the Act to Rs.50 Lakhs only - DR said limit of Rs.50 Lakhs in the investment of bonds as stipulated u/s.54EC of the Act was cumulative investment in respect of each transaction of transfer of long term capital asset and that the law doesn’t envisage differential treatment on the basis of date of transfer
HELD THAT:- The decision in the case of M/s. Areva T & D India Limited [2008 (9) TMI 510 - MADRAS HIGH COURT] was considered in the subsequent decision in the case of Coromandel Industries Ltd. [2014 (12) TMI 852 - MADRAS HIGH COURT] and the Hon’ble High Court had held that exemption of Rs.50 Lakhs each claimed in two financial years, within six months period from the date of transfer of capital asset, was eligible for exemption u/s 54EC
Co-ordinate Bench of this Tribunal in the case of Shri Atushbhai B. Amin [2017 (3) TMI 890 - ITAT AHMEDABAD] held that the investment of Rs.1 Crore claimed in two financial years was allowable as deduction.
CIT(A) was not correct in holding that the assessee was eligible for deduction of Rs.50 Lakhs only u/s. 54EC of the Act. As the assessee had fulfilled all the necessary conditions as stipulated in Section 54EC of the Act at the relevant point of time, he was eligible for deduction of Rs. 1 Crore as claimed u/s.54EC of the Act. Accordingly, the addition of Rs.50 Lakhs on account of excess exemption u/s.54EC of the Act is deleted. Appeal of the assessee is allowed.
-
2024 (10) TMI 1269
Deduction u/s 80P(2) - interest received on investment held by the assessee with other co-operative societies and bank - HELD THAT:- The chief determinant factor entitling a claim of deduction u/s 80P(2)(d) in the hands of assessee society is that, interest income should have been earned by it from an investment made with any other cooperative society registered under the provisions of law, irrespective of its nomenclature.
Thus, in substance, the Hon'ble High Court of AP &TS [2017 (4) TMI 663 - ANDHRA PRADESH HIGH COURT] held that interest income derived on investment with banks is earned / derived from by a co-operative society in the course of its regular business of accepting deposit & providing credit facilities to its members hence eligible for deduction u/s 80P(2)(a) of the Act.
Revenue could place no contrary decision of Hon'ble Jurisdictional High Court. Therefore, without multiplying judicial precedents on the aforestated issue in view of the ratio laid down in ‘Smt. Godavari devi Saraf [1977 (9) TMI 24 - BOMBAY HIGH COURT] we adjudicate the issue in favour of assessee following the decision of ‘Vavveru Co-operative Rural Bank Ltd.’ [2017 (4) TMI 663 - ANDHRA PRADESH HIGH COURT] by holding that, the interest income earned by the appellant from its investment held with co-operative & other banks qualifies for deductions u/s 80P(2)(a)(i) of the Act since arisen in the course of regular business - Decided in favour of assessee.
-
2024 (10) TMI 1268
Rejection of application for grant of regular 80G as time barred - Need to file regular 80G registration within a period of six months therefrom provisional registration granted - HELD THAT:- The appellant assessee was granted a provisional registration u/c (iv) of s/s (5) of section 80G of the Act by an order u/c (vi) of s/s (5) of section 80G of the Act by the Ld. CIT(E). Therefore, there remains no reason to draw out appellant’s case from claiming benefit of extended period for filing application for regular registration.
The circular 08/2023 also clarified that the extended period upto 30/09/2023 shall apply even in cases, (i) where the application was rejected by the CIT(E) on or before issuance of this circular dated 24/05/2023 (ii) where due date for making/filing application has expired, on or before 30/09/2023.
In addition to above, in reply to a specific query, the appellant spelt out the reasons beyond delayed filing of application, which in our considered view also formed sufficient & reasonable ground to condone the delay. We find in similar facts & circumstance, the co-ordinate benches allowed benefit of extended time period in ‘Rotary Club of Akurdi Charitable Trust’[2024 (10) TMI 1246 - ITAT PUNE], ‘Shashvat Paediatric Care Foundation’[2024 (3) TMI 1365 - ITAT PUNE], ‘Sarathi Youth Foundation’ [2024 (6) TMI 798 - ITAT PUNE], ‘Birmani Charitable Foundation’ [2024 (4) TMI 89 - ITAT PUNE], ‘Swachh Vapi Mission Trust [2024 (3) TMI 614 - ITAT SURAT], ‘TB Lulla Charitable Foundation [2024 (6) TMI 798 - ITAT PUNE] and ‘Gujarat Hira Bourse & Ors’ [2024 (1) TMI 946 - ITAT SURAT],‘Bhamashah Sundarlal Daga Charitable Trust’ [2023 (11) TMI 1210 - ITAT JODHPUR].
Thus, we hold the application of the appellant was filed well within the extended time limit and in consequence we set-aside the impugned order of rejection for remand with a direction to treat appellant’s application dt. 22/08/2023 as filed within the time limit prescribed u/c (iii) to first proviso to section 80G(5) of the Act r.w.c. 06/2023 (supra) and adjudicate the same on merits in accordance with law.
-
2024 (10) TMI 1267
Assessment u/s 153A - addition on account of undisclosed foreign asset in the form of foreign bank account and interest income earned on the deposits in the said undisclosed foreign bank account - incriminating material found in search or not? - HELD THAT:- We observe that the AO, in the first round of proceedings, confronted the assessee information/documents in the form of client profiles of HSBC Bank also showing unique code assigned to the assessee for operation of the bank account maintained with HSBC Bank. The profile of the assessee was found to be linked to 5 client profiles. Thus, evidently, the Revenue was in possession of definite material claimed to be obtained under DTAA/DTAC with foreign countries which seeks to indicate holding of foreign bank account by the assessee with HSBC Bank, Switzerland. The particulars available with the Revenue were thus overwhelming and specific in nature. With a view to verify the credibility and precision of such information on purported foreign bank account, a reference was sent to competent authorities in Switzerland and other countries by the Indian Revenue Authorities.
The confirmatory verification report in respect of the foreign bank accounts allegedly maintained by the assessee could not however be obtained by the Revenue Authorities owing to the conditional handicap namely ‘Consent Waiver Form’ which is required to be necessarily signed by the account holder. The Swiss authorities would, otherwise, in the absence of consent from the account holder would not officially part with the information of the customer to authorities of other sovereign state.
The Revenue is in possession of cogent material which indicated the details of bank account maintained in the name of the assessee including the date of opening of bank account (06.10.1998) and date of closure (25.01.2006). The authenticated copy of such bank account could be obtained only with the consent and concurrence of the assessee, i.e., bank account holder, owing to limitations fastened by the stated policy, protocols and regulations of Swiss Govt.
The question of self incrimination by signing the consent waiver form would arise only in the case of a finding of any offence committed. Where the assessee has not maintained any bank account, the existence of ‘offence’ would not arise. Besides, a person who is called upon to assist the deptt. in the course of enquiry and investigation of facts is not an ‘accused’ per se. Hence self incrimination plea is a damp squib. This view is supported by the judgment rendered in the case of Ramesh Chandra Mehta vs. State of West Bengal [1968 (10) TMI 50 - SUPREME COURT]
Therefore, in the context of income tax proceedings, providing consent waiver form on non existent bank account, in our view , would not tantamount to testamentary compulsion violative of Article 20(3) of the Constitution. We thus see no substance in justification advanced for refusal to provide consent waiver form.
Hon’ble Bombay High Court in the case of Soignee R Kothari vs. DCIT [2016 (12) TMI 59 - BOMBAY HIGH COURT] in identical facts, observed that the conduct of the assessee is not forthcoming and opposed to normal human conduct. The Hon’ble Court declined to turn a blind eye to the fact of refusal to sign consent waiver form to support absence of any undisclosed foreign bank account. The remedy sought by way of Writ challenging reopening action was thus not entertained.
Notwithstanding, an undertaking of voluntary nature by the assessee addressed to DDIT (Inv.) post search filed by the assessee is entitled to due weight. Such undertaking, in the light of specific bank particulars of overseas bank confronted to the assessee, is a good evidence to draw adverse inference even if not conclusive. Decided against assessee.
Addition of imputed interest income attributable to amount deposited with HSBC Geneva Switzerland - As purported bank account maintained by the assessee in HSBC bank is shown to be closed on 25.01.2006 and thus where the deposit itself is not available with the bank, the question of notional interest on deposits in the subsequent financial years is incomprehensible. The imputed interest @ 4% in the deposits kept with HSBC bank as a secondary adjustment cannot be countenanced on such facts. The grievance of the Revenue on account of imputed interest on deposits with HSBC bank in the respective appeals captioned above thus stands dismissed. Additions on account of notional interest attributable to undisclosed bank account in HSBC Bank is not permissible owing to closure of the bank account itself.
Unexplained investment in jewellery found during the search - For gifts received on wedding, name and address of the persons, relationship and the description of item of jewellery is mentioned along with the corresponding serial number of the valuation report prepared during search matching the respective jewellery item. The total value of jewellery received on the occasion of the wedding comes to Rs. 25,36,118/-. The appellant has also filed hand written "Aashirvad Patras" in substantiation of the above.
In view of the same, there is enough evidence and material in support of the appellant's contention that the said jewellery items were received on its wedding. AO in case he disbelieved the version of the appellant could have conducted inquiries from the persons gifting jewellery items for which names and addresses are available in the details filed by the appellant. AO failed examine the issues and disprove the contention of the appellant. In view of the same, addition to the extent of Rs. 25,36,118/-, out of total addition of Rs. 29,02,002/- is directed to be deleted.
As regards the balance amount it is seen from the above table that the same is claimed to have been received as small jewellery items on the occasion of children's birthdays from friends and relatives. However, the names and addresses of friends and relatives have not been furnished. Even the description of certain items of jewellery reveals that expensive items such as 1 pair of Kara, aggregating Rs. 1,60,000/- has been received on birthday which is highly unlikely even for a person of the status of the appellant. Thus, addition is hereby confirmed due to lack of proper details and substantiating documents filed by the appellant.
-
2024 (10) TMI 1266
Delay in processing this bill of entry - expiry of shelf-life of some goods - HELD THAT:- At this stage, it is not required to either discuss such difficulties or redress them. The Respondents have ample statutory powers to deal with this type of situation.
However, the only concern is that the Respondents, by citing various difficulties, cannot simply refuse to process the Bill of Entry in accordance with the law. It is not for this Court, at least at this stage, to direct the Respondents to exercise their statutory powers in a particular manner. However, in a situation where nothing is being done to process the Bill of Entry, surely, this Court will have to step in.
The Respondents are directed to process the Petitioner’s Bill of Entry No. 8048557 dated 28 September 2023 (Exhibit-A) as expeditiously as possible and, in any event, within four weeks from today - petition disposed off.
-
2024 (10) TMI 1265
Seeking grant of bail - planting of drugs - seizure of commercial quantity of contraband item - violation of Sections 8/23, NDPS Act - Delay in filing Section 52A Application under NDPS Act - defective notice - Delay in trial and prolonged proceedings - HELD THAT:- In the present case, the seizure was done on 12 December 2021 when the applicant was apprehended at Terminal 3, Indira Gandhi International Airport, New Delhi. On interrogation, she denied carrying any contraband, however, a search of her baggage revealed about 1.873 kg Methaqualone valued at approximately Rupees 93.67 lacs. It is pertinent to note that the threshold for commercial quantity of Methaqualone is 500 grams.
Alleged Planting of Drugs - HELD THAT:- This is an issue which will be decided post-trial, after all evidence has been led, and whether there is a colour change, is it a natural occurrence, specific to he chemical involved or whether the colour change denotes a defect/tampering in seizure or storage of the contraband. At this stage of bail, this issue cannot give any benefit of reasonable doubt to the applicant-accused.
Delay in Filing Section 52A Application - HELD THAT:- In the present case, the application under Section 52A, NDPS Act was preferred 12 days after the seizure of the contraband from the applicant. The applicant may, in accordance with applicable law, contend prejudice caused on account of this delay, during trial. The judgement of a coordinate Bench in Sovraj v. State [2024 (7) TMI 1538 - DELHI HIGH COURT], on similar lines, had observed 'As long as the prosecution is able to justify the delay on its end, mere delay would not vitiate the evidence. To hold otherwise would lead to an odd situation where even a few hours post the threshold of 72 hours would nullify the evidence. The Court has to be cognizant of the ground realities where situations may arise where the sample was not sent to FSL on time or the application under Section 52A of the NDPS Act could not be preferred on time.'
Although in Sovraj, this Court had enlarged the accused on bail, same was done inter alia on the issue of absence of independent witnesses and lack of photography or videography of the recovery. Same do not form basis of applicant’s contentions herein and thus, application of law in this case will have to be done in the facts and circumstances of this case. In the present matter, at this stage, this Court is of the opinion that the applicant has failed to overcome the threshold as prescribed by Section 37, NDPS Act.
Defective notice - HELD THAT:- It is noted that provision of Section 50, NDPS Act needs to be complied with only in cases of personal search and not of the person searched. In this regard reference is made to the decision of the Supreme Court in Ranjan Kumar Chadha v. State of Himachal Pradesh [2023 (10) TMI 866 - SUPREME COURT]. Objections as regards defective notice under Section 50, NDPS Act or Section 102, Customs Act may not be finally relevant since nothing was revealed in a personal search of the accused. Provisions of Section 50, NDPS Act need to be complied with only in cases of personal search and not where it is of the bag of the person being searched.
A proforma typed notice may ideally have both the options i.e. first that the person requires the personal search to be done before a Gazetted Officer/Magistrate; and second that the person to be searched has no objection to being searched by an officer present (lady officer in case the person to be searched is female).
Delay in Trial/Prolonged Incarceration - HELD THAT:- In this case, the petitioner has undergone almost 3 years of custody and the trial is progressing. An attempt may be made by the Trial Court to expedite the trial. In the event, that the trial does not proceed ahead expeditiously, needless to state that the applicant will have the right to approach the Court at a subsequent stage.
Taking into consideration four times the commercial quantity of contraband seized from the instance of the applicant, there being no prejudicial infirmity in the process adopted by the respondent, rigours of Section 37, NDPS Act, and progressing trial, this Court is unable to reach a prima facie conclusion that applicant is not guilty of the offences and is unlikely to commit the same if enlarged on bail. The threshold of Section 37, NDPS Act not having been crossed, the application for bail cannot be granted.
Bail application stands dismissed.
-
2024 (10) TMI 1264
Violation of CBLR, 2018 by Customs Broker - violation of Regulations l0(d) and 10 (n) of CBLR, 2018 and/or Regulation 11 of CBLR, 2013 - failure to appreciate the statements on record as a whole - HELD THAT:- CESTAT found that CB had met the IEC holders in person and they handed over the documents as are required under KYC guidelines and they themselves acknowledged Sandeep Jain to be their representative. CESTAT rightly observed that the Regulations nowhere bar such kind of consensual arrangement between the IEC holders and Sandeep Jain. CESTAT has also noted that on behalf of the importing firms, Sandeep Jain had handed over the export documents and the payments also used to go to the respective accounts as disclosed by Sandeep Jain/IEC holders. CESTAT concluded that all the importers were having requisite documents and they were in existence and appellant had not reaped any benefit out of the arrangement between the importers and Sandeep Jain.
The order passed by the CESTAT is based on sound reasoning and due application of principles of law - Appeal dismissed.
-
2024 (10) TMI 1263
Refund claim under N/N. 41/2012-ST dated 29.6.2012 - rejection for non-compliance of procedures / conditions stipulated in Notification No. 52/2011-ST dated 30.12.2011 - appellant has stated that they had claimed a refund of Service Tax based on actuals and upon production of connected documents as per paragraph 3 of Notification 41/2012 dated 29.06.12 by filing a refund application before their range / division Excise Officials.
HELD THAT:- It is seen that the appellant is neither registered with the Central Excise Department nor has he registered his service tax code number and bank account number with the customs. He has also not made a declaration in the Shipping Bill while presenting the same to the proper officer of customs. Hence no verification could possibly have been done by the department. The said conditions are the essence or substance of the notification granting exemption. It helps the department in ensuring that the exemption is granted to an eligible exporter who fulfills its conditions and the facility is not abused. Hence these procedural violations would cause serious prejudice to revenue if refund is to be granted.
While it is true that Government does not seek to burden the exporter with taxes, those who want to get the benefit of a notification benefit extended to them shall have to satisfy the provisions of the notification, so that no misuse of the same is made. The issue stated in the impugned order for rejection of the claim are not flimsy or mere technicalities.
The Hon’ble Supreme Court in Commissioner of Central Excise, Chandigarh – I Vs Mahaan Dairies [2004 (2) TMI 73 - SUPREME COURT], stated that, “It is settled law that in order to claim benefit of a Notification a party must strictly comply with the terms of the Notification. If on wordings of the Notification the benefit is not available then by stretching the words of the Notification or by adding words to the Notification benefit cannot be conferred.”
The he lower authority has taken a view which is reasonable, legal and proper - appeal dismissed.
-
2024 (10) TMI 1262
Interpretation of Sabka Vikas (Legacy Dispute Resolution) Scheme, 2019 regarding adjustment of CENVAT credit and cash payments for service tax - short payment of service tax - zero pre-deposit - HELD THAT:- Considering pursuant to the SCN petitioner had applied under the scheme and in view of aforesaid facts, we direct that the personal hearing will be for purpose of the Department/Designated Committee to conclude on petitioner’s assertion that 50% or more of the demand was paid and it is entitled to relief against the balance, under the scheme. The Department/Designated Committee will do well to pass a reasoned order such that points urged by petitioner in the writ petition and as may be urged before it regarding the scheme applying to it, are dealt with without leaving any ambiguity.
In event the Department/Designated Committee concludes that petitioner is not entitled to relief under the scheme, it will then issue fresh notice for personal hearing on the demand. This direction is made in view of clause (c) in aforesaid circular dated 27th August, 2019 and absence of anything on record or submission made that exercise of reconciliation was undertaken in respect of the particulars of the cash payments.
The writ petition is disposed of.
-
2024 (10) TMI 1261
Time limitation - suppression of facts or not - Failure to pay appropriate Service Tax, in spite of collecting service charges / Service Tax from the clients - failure to file S.T.-3 Returns properly - HELD THAT:- From the documents submitted by the appellant, it is observed that the Service Tax liabilities for each financial year has been included in schedule 11 under the head of ‘current liabilities’ of the respective Balance sheets during the years 2009-10 and 2010-11 and for the rest of the impugned period i.e., for 2011-12 to 2013-14, the liabilities were reflected in note 7 under the head statutory liabilities. Further, the amount withheld as "retention money" has been reflected in note ‘g’ under the head ‘Security deposits & EMD’ of the Balance sheets for the respective periods. The unpaid bill amounts were reflected in the sub-head ‘Sundry debtors/Trade receivables’ of the head "current assets" of the respective Balance sheets of the impugned period. Thus, the appellant has not suppressed any information from the department.
It is observed that the entire Show Cause Notice has been issued on the basis of the documents submitted by the Appellant. The gross value of taxable services provided during the material period viz. 2009-10 to 2013-14 has been taken from the Bill statement furnished by the Appellant, which tallies with the figures reflected under the account head ‘Income from Operation’ in their balance sheet - the calculation of Service Tax liability has been done the basis of the Profit & Loss Account and balance sheet figures reflected in their account. Thus, the Appellant has not suppressed any information from the Department. When the demand of Service Tax has been raised from the details available in the Books of Account of the Appellant, the extended period cannot be invoked to demand Service Tax.
There is no suppression with intent to evade payment of tax established in this case. Accordingly, the demand of Service Tax confirmed by invoking the extended period of limitation is not sustainable and hence, the same is set aside.
The matter remanded to the adjudicating authority for the purpose of calculation of the demand, if any, for the normal period of limitation i.e., 18 months, from October 2012 to March 2014 - appeal disposed off by way of remand.
-
2024 (10) TMI 1260
Levy of service tax - Whether the activity rendered by the appellant amounts to rendering Online Information and Data Based Access or Retrivial Services (OIDAR) services? - HELD THAT:- As per circular no. 11/1/2001-TRO-dated 09.07.2001, annexure IV thereof, it has been clarified that the online data base access/retrival is firstly available through Internet Service Providers (ISP). Secondly it includes data base services, provision of information on websites, provision of online data retrieval services from data bases and other information to all or to limited number of users and provision of online information by content provider. The services as quoted above do not require any of these two elements.
The activity rendered by appellant is not merely of accessing or retrieving online data. It is rather a service of developing softwares/websites or consultancy on internet which require too much of human intervention - the appellant’s activity is wrongly hold as OIDAR.
The confirmation of demand is held to be based on wrong presumption (as elaborated above) is denied to be called as OIDAR. Rule 6(A) of Service Tax Rules is also held to have been wrongly invoked - the appeal is hereby allowed.
-
2024 (10) TMI 1259
Valuation - Recovery of Short paid service tax with interest and penalty - determination of the taxable value for payment of service tax on reverse charge basis by the service recipient in respect of GTA Services - what shall be the value of the services received? - HELD THAT:- The value of taxable service for the purpose of determination service tax payable, is the consideration received by the service recipient towards the provision of service. The word consideration has not been defined with reference to the invoice value but is defined in a inclusive manner by referring to the money value of the gross amount in any form paid by the service recipient to service provider for provision of service.
Appellant takes the value of taxable service as equivalent to the actual amount paid to the service recipient after adjusting for the rewards and penalties, a fact not in dispute. There are nothing in section 67 as per which the manner of determination of the taxable value can be questioned. As the value of taxable service has been determined on the basis of Section 67 of the Finance Act, 1994 there are no merits in enhancement of the value of the taxable service in manner as suggested by the impugned order.
It is the submission of the appellant that where so ever any additional incentive was paid to the service provider the same was added while determining the value of taxable service. However in case of penalties deducted from the invoice value the taxable value is determined on the basis of the gross amount paid towards the provision of service. We do not find that Rule 6 (1) (x) provides for enhancement of the value of the taxable service in such cases. Said Rule will have no applicability to the present case. In any case Rule 6 (1) (x) cannot be read to be over-riding the provisions of Section 67 of the Finance Act, 1994.
In case of Intercontinental Consultants and Technocrats Pvt. Ltd. [2018 (3) TMI 357 - SUPREME COURT] Hon’ble Supreme Court observed 'High Court was right in interpreting Sections 66 and 67 to say that in the valuation of taxable service, the value of taxable service shall be the gross amount charged by the service provider ‘for such service’ and the valuation of tax service cannot be anything more or less than the consideration paid as quid pro qua for rendering such a service.'
There are no merits in the impugned order - Appeal allowed.
............
|
9911796707
