|
Advanced Search Options
Case Laws
Showing 41 to 60 of 1466 Records
-
2023 (1) TMI 1428
Addition of lease rental accrued - addition of lease rental accrued did not book - AR submitted that the assessee has stopped business during the year under consideration - HELD THAT:- We noticed the auditor has given very same note in his report given for the year ending 2000 & 2001. Accordingly, there may be merit in the submission of AR that the note given by auditor during the year under consideration may be a case of inadvertent error committed in inclusion of the note relating to earlier years.
This view is further reinforced for the fact that the agreement with M/s. Datar Switchgear Ltd. has expired in August, 2000 itself and the other agreement has expired in April, 2001. When the agreement expires, the assessee may not getting right to receive the income.
It is the submission of the assessee that both the assets have been classified as non-performing assets. It is the submission of the assessee that these assets have been classified as non-performing assets due to default in receiving installments and as per accounting standard-7, income can be recognised only when its realisation is certain. In our view, there is merit in this legal contention also. This addition could not have been made by the AO. Decided in favour of assessee.
Disallowance of expenses - We noticed that the assessee does not have explanation for the expenses other than interest expenditure. Hence, disallowance of other expenses made by the AO is required to be confirmed.
With regard to interest expenditure we noticed that a sum is the interest payable to Scheduled banks. Admittedly the assessee has not made payment and hence the same is required to be disallowed under section 43B of the I.T. Act. On this count, the interest expenditure payable to the bank is the liable to be disallowed. With regard to the remaining amount of interest of Rs. 10.05 lakhs, the assessee does not have any detail. CIT (A) was justified in confirming disallowance of entire expenses and his decision does not call for any interference. Accordingly we confirm the order passed by the learned CIT (A) on this issue.
Disallowance of depreciation - addition it related to sale and leased back transaction - HELD THAT:- The proposition expounded by the Coordinate Bench in assessee’s own case [2018 (10) TMI 130 - ITAT MUMBAI] relating to A.Y. 1997-98 is that the disallowance of depreciation on assets, where seller of the assets and lessee are different is not required to be made. It is not discernible from the record that the assets on which depreciation was disallowed fall under the above said category. Accordingly, we set aside this issue to the file of the AO with the direction to examine the nature of asset. If he finds that the seller of the asset and lessee are two different persons, then no disallowance of the depreciation is called for.
Addition of liability made u/s 68 - We noticed that the increase in secured loan and the increase in outstanding expenses are on account of the above said expenses only. Since we have confirmed the disallowance of expenses, in our view, making addition of increase in liability would result in double disallowance, since there was no fresh flow of funds. Accordingly, we direct deletion relating to interest and expenses respectively.
Fresh loan taken from M/s. Akash Farms Pvt. Ltd. and Akash Enterprises, we noticed that the assessee has only furnished confirmation letters. In our view, mere filing of confirmation letters would not discharge the assessee from the burden placed on its shoulder u/s 68. Accordingly, we confirm the addition made under section 68 of the Act in respect of the above said two loans.
Non-granting of set off of brought forward losses - It is the duty of the AO to grant set off of brought forward losses while computing total income of the assessee. Without allowing set off of brought forward losses, the total income could not have been computed correctly. Hence the direction sought by the assessee is for implementation of provisions of the Act only. In any case the CIT(A), has already directed the AO to allow set off of brought forward losses after verifying the record. We do not find any reason for not implementing the said order of the learned CIT(A). Accordingly, we direct the AO to implement the order of the learned CIT (A) granting set off of brought forward losses after verifying record.
-
2023 (1) TMI 1427
Ex-parte order passed due to non appearance of the assessee - Addition being cash deposit in the bank account and taxing the same u/s 115BBE at the rate of 60% - HELD THAT:- As assessee submitted that the assessee has not received any notice. Even if the assessee is assumed to have been served the Ld. CIT (A) was required to dispose of the appeal on merits but he has merely dismissed the appeal for want of non-appearance of the assessee.
Now assessee given undertaking that she will appear before the Revenue Authorities on each and every date of hearing in order to explain the cash deposit in her bank account. To impart the justice and to decide the issue once for all and in order to comply with the principle of natural justice adequate opportunity of being heard is required to be given to the assessee. So impugned order passed by the Ld. CIT (A) is hereby set aside and since the facts are required to be thrashed/verified by the AO first, the case is remitted back to the AO to decide afresh after providing opportunity of being heard to the assessee.
Appeal filed by the assessee is allowed for statistical purposes.
-
2023 (1) TMI 1426
Non-Imposition of anti-dumping duty u/s 9A of the Customs Tariff Act 1975 - Central Government did not issue the Notification for imposition of anti-dumping duty within three months from the date the final findings were notified by the designated authority
Whether Central Government has taken a decision not to impose anti-dumping duty? - HELD THAT:- It has to be presumed that the Central Government has taken a decision not to impose antidumping duty despite a recommendation having been made by the designated authority for imposition of anti-dumping duty. This presumption also finds support from the fact that the Central Government issued a notification dated 06.01.2022, after the final findings were submitted by the designated authority on 08.10.2021, rescinding the notification dated 11.07.2016 earlier issued by the Central Government imposing anti-dumping duty for a period of five years and then extending it upto and inclusive of 10.01.2022 by a notification dated 24.01.2021. The matter has, therefore, to be remitted to the Central Government for taking a decision on the recommendation made by the designated authority.
Maintainability of appeal u/s 9C - The maintainability of the appeal under section 9C of the Tariff Act was examined at length by this very Bench in M/s. Apcotex Industries Limited vs. Union of India and 38 Others [2022 (11) TMI 1096 - CESTAT NEW DELHI] and it was held that the appeal would be maintainable against the decision of the Central Government contained in the office memorandum not to impose anti-dumping duty.
In Balaji Amines Ltd. vs. The Union of India [2022 (12) TMI 985 - CESTAT NEW DELHI] Bench also held that an appeal under section 9C of the Tariff Act would be maintainable even if the Central Government does not issue a notification for imposition of anti-dumping duty for a long period of time after the designated authority has made a recommendation for imposition of anti-dumping duty.
Whether the Central Government exercises legislative power? - The Bench in Apcotex Industries [2022 (11) TMI 1096 - CESTAT NEW DELHI] also examined whether the determination by the Central Government was legislative in character or quasi-judicial in nature and after examining the relevant provisions of the Tariff Act, the 1995 Anti-Dumping Rules and the decisions of the Supreme Court and the High Courts observed that the function performed by the Central Government would be quasi-judicial in nature. The Bench also, in the alternative, held that even if the function performed by the Central Government was legislative, then too the principles of natural justice and the requirement of a reasoned order have to be compiled with since the Central Government would be performing the third category of conditional legislation contemplated in the judgment of State of Tamil Nadu vs. K. Sabanayagam and another [1997 (11) TMI 520 - SUPREME COURT] held that reasons have to be recorded by the Central Government when it proceeds to form an opinion not to impose any anti-dumping duty despite a positive recommendation made by the designated authority in the final findings for imposition of anti-dumping duty.
Principles of natural justice and reasoned order - Reasons have to be recorded by the Central Government when it proceeds to form an opinion not to impose any anti-dumping duty despite a positive recommendation made by the designated authority in the final findings for imposition of anti-dumping duty. The matter, therefore, would have to be remitted to the Central Government for taking a decision on the recommendation made by the designated authority for imposition of anti-dumping duty on the import of the subject goods from the subject countries.
Provisional Assessment - Though the present appeal is being disposed of but a decision has yet to be taken by the Central Government in the light of the observations made in the order. It is, therefore, considered appropriate to pass a similar order, as was passed by the High Court, which will remain operative till a decision is taken by the Central Government on the recommendation made by the designated authority for imposition of anti-dumping duty.
The directions are as follows:
(i) The provisional assessment of imports concerning the subject goods from the subject countries will be made for the time being;
(ii) It is, however, made clear that the aforesaid direction will not create any equities in favour of the domestic industry; and
(iii) This direction will not have any impact on the decision to be taken by the Central Government pursuant to the directions issued for reconsideration of the recommendation made by the designated authority.
Conclusion - The matter is remitted to the Central Government to consider the recommendation made by the designated authority in the final findings dated 08.10.2022 in the light of the observations made above. The directions contained in paragraph 42 of this order shall continue to operate till such time as a decision is taken by the Central Government. The appeal is allowed to the extent indicated above.
-
2023 (1) TMI 1425
Non-Imposition of anti-dumping duty u/s 9A of the Customs Tariff Act 1975 - Central Government did not issue the Notification for imposition of anti-dumping duty within three months from the date the final findings were notified by the designated authority - Whether Central Government has taken a decision not to impose anti-dumping duty? - HELD THAT:- It is under rule 17 of the 1995, Anti-Dumping Rules that the designated authority is required to, within one year from the date of initiation of an investigation, determine as to whether or not the article under investigation is being dumped in India and submit its final findings to the Central Government.
Under rule 18, the Central Government may, within three months of the date of publication of the final findings by the designated authority under rule 17, impose by a notification in the Official Gazette, upon importation into India of the article covered by the final findings, anti-dumping duty not exceeding the margin of dumping as determined under rule 17.
In the present case, it is not in dispute that the final findings of the designed authority were published on 11.01.2021. In the appeal, the appellant has stated that an office memorandum was not issued by the Central Government. Central Government has also not stated or placed such an office memorandum.
The issue that arises for consideration is whether a presumption can be drawn that the Central Government has taken a decision not to impose anti-dumping duty as a decision was not taken within three months by the Central Government from the date of publication of the final findings by the designated authority. On a consideration of the provisions of the Tariff Act and the 1995 Anti-Dumping Rules, it is clear that a presumption can safely to be drawn that the Central Government, by keeping silent for a long period of time, shall be deemed to have taken a decision not to impose anti-dumping duty and such a case would also fall in the category of cases where an office memorandum has actually been issued conveying the decision of the Central Government not to impose anti-dumping duty. This is what was held by the Tribunal in Apcotex Industries [2022 (11) TMI 1096 - CESTAT NEW DELHI] The same view has been taken by this Bench in Chemical and Petrochemicals Manufactures Association vs. Union of India [2022 (12) TMI 830 - CESTAT NEW DELHI]
The inevitable conclusion, therefore, that follows from the aforesaid discussion is that it has to be presumed that the Central Government has taken a decision not to impose anti-dumping duty despite a recommendation having been made by the designated authority for imposition of anti-dumping duty. The matter has, therefore, to be remitted to the Central Government for taking a decision on the recommendation made by the designated authority.
Maintainability of the appeal u/s 9C of the Tariff Act - The appeal would be maintainable against the decision of the Central Government contained in the office memorandum not to impose anti-dumping duty. See M/s. Apcotex Industries Limited vs. Union of India [2022 (11) TMI 1096 - CESTAT NEW DELHI]
In Balaji Amines Ltd. vs. The Union of India [2022 (12) TMI 985 - CESTAT NEW DELHI] [Anti-dumping Appeal No. 51151 of 2022 decided on 20.12.2022], the Bench also held that an appeal under section 9C of the Tariff Act would be maintainable even if the Central Government does not issue a notification for imposition of anti-dumping duty for a long period of time after the designated authority has made a recommendation for imposition of anti-dumping duty.
Whether the Government exercises legislative power? - Reasons have to be recorded by the Central Government when it proceeds to form an opinion not to impose any anti-dumping duty despite a positive recommendation made by the designated authority in the final findings for imposition of anti-dumping duty. The matter, therefore, would have to be remitted to the Central Government for taking a decision on the recommendation made by the designated authority for imposition of anti-dumping duty on the import of the subject goods from the subject countries.
Provisional Assessment - Though the present appeal is being disposed of but a decision has yet to be taken by the Central Government in the light of the observations made in the order. It is, therefore, considered appropriate to pass a similar order, as was passed by the High Court, which will remain operative till a decision is taken by the Central Government on the recommendation made by the designated authority for imposition of anti-dumping duty.
The directions are as follows:
(i) The provisional assessment of imports concerning the subject goods from the subject countries will be made for the time being;
(ii) It is, however, made clear that the aforesaid direction will not create any equities in favour of the domestic industry;
(iii) This direction will not have any impact on the decision to be taken by the Central Government pursuant to the directions issued for reconsideration of the recommendation made by the designated authority.
Conclusion - Thus, the matter is remitted to the Central Government to consider the recommendation made by the designated authority in the final findings dated 23.09.2021 in the light of the observations made above.
The directions contained in paragraph 42 of this order shall continue to operate till such time as a decision is taken by the Central Government. The appeal is allowed to the extent indicated above. The learned authorized representative appearing for the Department shall send a copy of this order to all the concerned zones where the imports of the subject goods are likely to be made and also ensure that necessary and effective steps are taken by all concerned for due compliance of this order.
-
2023 (1) TMI 1424
Non-Imposition of anti-dumping duty u/s 9A of the Customs Tariff Act 1975 - Central Government did not issue the Notification for imposition of anti-dumping duty within three months from the date the final findings were notified by the designated authority - Whether Central Government has taken a decision not to impose anti-dumping duty? - maintainability of the appeal under section 9C of the Customs Tariff Act - HELD THAT:- The maintainability of the appeal under section 9C of the Tariff Act was examined at length by this very Bench in M/s. Apcotex Industries Limited vs. Union of India and 38 others [2022 (11) TMI 1096 - CESTAT NEW DELHI] and it was held that the appeal would be maintainable against the decision of the Central Government contained in the office memorandum not to impose anti-dumping duty.
Decision taken by the Central Government not to impose anti-dumping duty despite a recommendation having been made by the designated authority for imposition of anti-dumping duty, cannot be sustained as it does not contain reasons nor the principles of natural justice have been compiled with and the matter would have to be remitted to the Central Government for taking a fresh decision on the recommendation made by the designated authority.
Though the present appeal is being disposed of but a decision has yet to be taken by the Central Government in the light of the observations made in the order. It is, therefore, considered appropriate to pass a similar order, as was passed by the High Court, which will remain operative till a decision is taken by the Central Government on the recommendation made by the designated authority for imposition of anti-dumping duty. The directions are as follows:
(i) The provisional assessment of imports concerning the subject goods from the subject countries will be made for the time being;
(ii) It is, however, made clear that the aforesaid direction will not create any equities in favour of the domestic industry;
and
(iii) This direction will not have any impact on the decision to be taken by the Central Government pursuant to the directions issued for reconsideration of the recommendation made by the designated authority.
Thus, for all the reasons stated above, the office memorandum dated 23.06.2022 is set aside and the matter is remitted to the Central Government to reconsider the recommendation made by the designated authority in the final findings in the light of the observations made above. The directions contained in paragraph 37 of this order shall continue to operate till such time as a decision is taken by the Central Government. The appeal is allowed to the extent indicated above. The learned authorized representative appearing for the Central Government shall send a copy of this order to all the zones where the imports of the subject goods are likely to be made and also ensure that necessary and effective steps are taken by all concerned for due compliance of this order.
-
2023 (1) TMI 1423
Maintainability of the writ petition under the SARFAESI Act - Non-consideration of viability plan by the respondent Bank - Compliance with the RBI Circular R.F. 2.0 for restructuring MSME loans - HELD THAT:- The allegations of the respondent Bank that the rejection of disbursement of further credit facilities to the petitioner no. 1 on 9.11.2021 was on the ground of non-perfection of security interest is sufficiently belied by the facts before the Court. The petitioner's wife passed away on 11.10.2020 during the Pandemic and the petitioner no. 1 applied for the loan in July 2021. The petitioner no. 2 thereafter filed appropriate proceedings before the Court in New Delhi under the Guardian and Wards Act, 1890 which was allowed on 11.7.2022. This was done at the direction of the respondent Bank and for the purpose of perfecting the security interest since the Flat in Delhi, which was given as security for the restructuring, was in the name of the petitioner no. 2 and his wife. In any event, the petitioner no. 2's son attained majority on 8.8.2022 and the petitioners can therefore take appropriate steps in respect of the Delhi Flat to clear the loans. The stand of the respondent Bank is patently unreasonable.
The conclusions of the Court are strengthened by a broader view of both the parties being benefited if the respondent Bank permits the petitioners to service their loans which the petitioners are admittedly in a position to do in the changed circumstances. This Court is unable to comprehend as to why the respondent Bank would invoke proceedings where the respondent Bank would not only have to engage in adversarial proceedings but also wait for a considerable time before the loan accounts of the petitioners are clear or settled or closed. The facts and the materials placed before the Court persuade the Court to hold that the respondent no. 1 Bank precipitated the events culminating in the issue of the impugned Notice under the SARFAESI Act without proper application of mind and due exercise of discretion.
Appeal allowed by a declaration that the impugned Notice dated 27.4.2022 is liable to be quashed restraining the respondents from proceeding in accordance with the said impugned Notice as also the letter dated 30.11.2021.
-
2023 (1) TMI 1422
Dishonour of Cheque - complainant has failed to show any legally enforceable debt or liability - - rebuttal of presumption - offence is made out under Section 138 of the N.I. Act or not - acquittal under Section 251(1) of the Code of Criminal Procedure - HELD THAT:- The evidence in this case reflects that no probable defence has been created by the accused nor the accused has been able to dislodge or rebut the prosecution evidence. As such there is no scope for interference with the order of appeal so passed.
Accordingly, the judgment and order in Criminal Appeal 195 of 2019 is hereby affirmed - Appeal dismissed.
-
2023 (1) TMI 1421
Revival of Section 7 application - Admission of Section 7 application filed by the Financial Creditor - default in settlement agreement - HELD THAT:- Present is a case where application under Section 7 was filed by the Financial Creditor claiming its financial debt. On said application, Corporate Debtor entered into settlement due to which the application was withdrawn with liberty to revive if any default is committed. The revival of the application under Section 7 was consequent to the liberty granted by the Court.
When application was revived, the application which was filed initially by the Financial Creditor was restored and treated to be the original Section 7 application. It cannot be said that what is to be considered was only the default under the settlement agreement. Default in settlement agreement is only a by-product which has permitted revival of Section 7 application but in no manner affect the claim in the original application which is financial debt under Section 7 application.
In the present case Application under Section 7 was filed claiming financial debt and it was not initiated on the basis of any settlement agreement. Settlement agreement which was entered during the pendency of the insolvency proceedings was breached, hence, what is revived is original application.
The Adjudicating Authority has considered in detail the facts and circumstances before coming to conclusion that there is debt and default on part of the Corporate Debtor - there is no ground to interfere with the impugned order - Appeal dismissed.
-
2023 (1) TMI 1420
Money Laundering - Provisional Attachment Order - validity of statements relied upon - denial of opportunity of cross-examination ignoring the fact that same is part of principle of natural justice - HELD THAT:- In the opinion of the Tribunal, the Appellant has failed to give cogent reasons for cross examination of the witnesses who were not even examined before the Adjudicating Authority. In those circumstances, it cannot be persuaded to accept the argument of the learned Counsel on the fact of this case.
The cross examination is part of principle of natural justice but not in all the circumstances therefore it is not required to elaborately discuss the judgment referred by the learned Counsel for the Appellant.
In the instant case, no witness has been examined before the Adjudicating Authority. If any witness would have been examined before the Adjudicating Authority, the prayer for cross examination of that witness could have been sought. Appellant is seeking cross examination of the witnesses who did not appear before the Adjudicating Authority for examination pursuant to the Regulation 21 of the Adjudicating Authority (Procedure) Regulation 2013 - In the instant case, the Appellant has failed to state that if cross examination is not permitted, it will cause serious prejudice to him. The case in hand does not show violation of principle of natural justice when Appellant failed to make statement on the contents of the statement of three persons despite supply of copies of the documents before passing Provisional Attachment Order.
The Appellant did not avail the opportunity to submit explanation to the documents provided to him before passing Provisional Attachment Order and now wants to cross examine the witnesses. The default and failure of the Appellant therein is now sought to be corrected by seeking cross examination of three co-accused. Reference to the Regulation 21 of the Adjudicating Authority (Procedure) Regulation 2013 has been given to indicate powers of the Adjudicating Authority for summoning of the witnesses for examination. It can be exercised when appropriate case is made out - The cross examination can be sought when the witnesses is examined by the Adjudicating Authority and not in reference to statement made before other Authority.
There are no case to cause interference in the order passed by the Adjudicating Authority and accordingly the appeal fails and is dismissed.
-
2023 (1) TMI 1419
Rectification u/s 254 - disallowance u/s. 14A - scope of amendment made vide Finance Act, 2022 - HELD THAT:- The issues raised by the Ld. Counsel for the assessee, in our view, do not constitute mistake apparent on record. This Tribunal has limited jurisdiction u/s. 254 of the Act only to rectify the mistake apparent on record. This Tribunal has no power of review of its own orders.
The application u/s 254(2) of the Act lies in case where, there is a mistake apparent on record in the order of the Tribunal. The order of the Tribunal cannot be assailed on merits in the garb of Miscellaneous Application u/s 254(2) of the Act.
Reliance in this respect can be placed on the decision of the Hon'ble Bombay High Court in the case of 'Commissioner Of Income-Tax vs Ramesh Electric And Trading Co.' [1992 (11) TMI 32 - BOMBAY HIGH COURT] wherein while relying upon the decision of T. S. Balaram, ITO v. Volkart Brothers' [1971 (8) TMI 3 - SUPREME COURT] and further relying upon the decisions of the various High Courts has categorically held that the power of rectification under section 254(2) of the Income-tax Act can be exercised only when the mistake which is sought to be rectified is an obvious and patent; mistake which is apparent from the record, and not a mistake which requires to be established by arguments and a long drawn process of reasoning on points on which there may conceivably be two opinions.
-
2023 (1) TMI 1418
AO jurisdiction to issue notice u/s 143[2] on the relevant date - ITAT quashing the assessment order passed u/s 143(3) by the Income Tax Officer, Ward-9(2), Kolkata on the ground of lack of jurisdiction - lack of jurisdiction without considering Sub-section (2) of Section 124 of the Act, 1961 and Sub-Section (3) of 127
HELD THAT:- Following the decision of Hotel Blue Moon [2010 (2) TMI 1 - SUPREME COURT] thus we find that the legal position had been rightly taken note of by the learned tribunal and the assessee cannot be prevented from raising the question of jurisdiction which is an issue which goes to the root of the matter and the learned tribunal had rightly permitted the assessee to canvas the issue and also rightly concluded that the assessment was bad in law. Thus, we find there is no substantial question of law arising for consideration in this appeal.
With the above we note that the revenue could not factually controvert the submissions of the assessee that notice u/s 143[2] and section 142[1] of the Act was issued by an officer, who did not have jurisdiction over the assessee.
-
2023 (1) TMI 1417
TP Adjustment - comparable selection - applicability of turnover filter - AR submitted that the authorities have excluded companies having turnover of less than Rs. 1 crore however, the upper limit to turnover for exclusion of comparable companies has not been applied - HELD THAT:- Companies that has turnover exceeding Rs. 200 crores deserves to be excluded from the final set of comparables.
TPO modified the application of persistent loss filter by rejecting the companies which incurred loss in two out of three previous years instead of incurring losses in all the three previous AYs - Following the ratio laid down in Affinity Express India Pvt. Ltd. [2016 (3) TMI 1121 - ITAT PUNE] we hold that companies should not be excluded for the purpose of comparability and computation of ALP, merely because there is loss in two out of three preceding A.Ys. AO should verify whether such companies were consistent loss making companies. AO is therefore directed to reconsider the comparable afresh that were rejected by applying the “persistent loss making” filter in the light of these above referred decision by Hon’ble Pune Tribunal. Accordingly, this ground raised by the assessee stands allowed for statistical purposes.
TPO committed arithmetic error in computing the operating margin of the assessee while passing the order u/s. 92C - In our view this needs to be verified by the Ld.AO/TPO. In the event, the forex loss has already been considered while computing the total expenses, the same deserves to be excluded.
-
2023 (1) TMI 1416
Accrual of income in India - Taxable income attributed to the Permanent Establishment in India if the overseas entity has incurred a loss in the relevant assessment years - as argued application of Article 7 of DTAA entered into between the Government of United Arab Emirates and the Republic of India applies only in cases where the assessee earns profit - whether any taxable income could be attributed to PE, would not arise in the event, the assessee incurs a loss?
HELD THAT:- As noted that although the observations made in the said decision appear to be squarely in favour of the appellant, it is also apparent that various other contentions relevant for addressing the said question have not been considered. This is also perhaps because the Court had not framed any question regarding the applicability of Article 7 of the DTAA.
Prima facie, this Court is of the view that if Article 7(1) of the DTAA – which concerns with the attribution of profits of the assessee – is not applicable in case the assessee incurs a loss, the other provisions of the Income Tax Act, 1961, would be applicable and any income arises or accrues within the territories of India would be chargeable to tax.
Prima facie, if the establishment in India is generating profits, but the other entities of the assessee overseas are incurring a loss, the profits generated by the establishment, if otherwise chargeable under the Income Tax Act, would be required to be assessed and taxed.
In this view, we are inclined to observe that the aforesaid issue be referred to a larger Bench.
Learned counsel for the respondent states that he is not prepared to argue on the questions as framed earlier and requests for an adjournment. At his request, list on 13.02.2023.
The hearing fixed on 31.01.2023 stands cancelled.
-
2023 (1) TMI 1415
Validity of reopening of assessment - AO has not disposed off the objections filed by the assessee against the re-opening of assessment - HELD THAT- It is trite law that the assessment framed without disposing of objections filed by the assessee against the re-opening of assessment is not a valid assessment and cannot not be sustained.
The case of the assessee finds support from the decision of the GKN Driveshafts (India) Ltd. [2002 (11) TMI 7 - SUPREME COURT] wherein the Hon’ble Apex Court has held that when a notice u/s 148 is issued and the assessee has filed its return of income and sought the reasons for issuance of notice u/s 148 of the Act, the AO is bound to furnish the copy of reasons within the reasonable time and assessee on receipt of the reasons is entitled to file objections to issuance of notice. The Hon’ble Apex Court held that the AO is bound to dispose of the objections filed by the assessee by passing a speaking order. However in the instant case before us, the AO has not disposed off the objections filed by the assessee.
Thus, we uphold the order of ld CIT(A) by dismissing the appeal of the revenue. The legal ground raised by the revenue is dismissed.
-
2023 (1) TMI 1414
Computation of long term capital gain on sale of land which was converted from ‘capital asset’ into ‘stock in trade’ - HELD THAT:- As before us, the assessee is seeking only application of part of the ratio of the decision for indexation of the cost of acquisition only and not for the purpose of sale consideration of the capital asset. In our opinion, the assessee cannot choose part of the decision which is in its favour ignoring the other part of the decision of the Hon’ble High Court.
Though the provisions of section 45(2) prescribe for taking fair market value of the asset as on the date of such conversion for the purpose of full value of the consideration received or acquiring as a result of transfer of the capital asset and also cost of acquisition to be indexed till the date of such conversion, however, in view of the decision of the Hon’ble Karnataka High Court in the case of CIT vs Rudra Industrial Corporation [2011 (1) TMI 1172 - KARNATAKA HIGH COURT] we feel it appropriate to restore this issue to the file of the Ld.AO for computing the long term capital gain on conversion of capital asset into stock in trade in accordance with law. The ground No.1 of the appeal of the assessee is accordingly allowed for statistical purpose.
Addition u/s 14A read with rule 8D to the book profit u/s 115JB in respect of expenditure incurred in relation to exempt income - HELD THAT:- Identical issue has been adjudicated in the assessee’s own case for A.Y. 2012-13 wherein Tribunal has followed the decision of Vireet Investments (P) Ltd [2017 (6) TMI 1124 - ITAT DELHI] clearly held that no disallowance under section 14A of the Act r.w.r 8D of the Rules can be made while computing book profit under section 115JB - Respectfully following the finding of the Tribunal, we restore this issue to the file of the AO with the direction to follow the finding of the Tribunal in earlier and in accorence of law. The ground No.2 of the appeal of the assessee is accordingly allowed for statistical purpose.
Short credit of TDS - HELD THAT:- As this claim of TDS is a matter of verification, therefore, we feel it appropriate to restore this issue to the file of the AO for deciding in accordance to law . The ground No.3 is allowed for statistical purpose.
Nature of receipt - income added on account of subsidy under Package Scheme of Incentives (PSI), 2007 as capital receipt not chargeable to tax - HELD THAT:- As relying in assessee’s own case for A.Y. 2012-13 [2017 (11) TMI 376 - ITAT MUMBAI] the finding of the Ld. CIT(A) on the issue in dispute in deleting addition on account of subsidy under Package Scheme of Incentives (PSI), 2007 is upheld. Ground No.1 of the appeal is accordingly dismissed.
Exclusion of subsidy received under Package Scheme of Incentives (PSI), 2007 while computing book profit u/s 115JB - HELD THAT:- Assessee correctly relied on case of PCIT vs Ankit Metal & Power Ltd [2019 (7) TMI 878 - CALCUTTA HIGH COURT] wherein it is held that interest and power subsidy would have to be excluded while computing book profit under section 115JB.
Addition towards revaluation reserve on account of conversion of the amount being ‘fixed asst’ into stock in trade - CIT(A) deleted addition - HELD THAT:- Since the Ld. CIT(A) has followed binding precedent on the issue in dispute, we do not find any error in the order of the Ld.CIT(A) and accordingly, we uphold the same. Ground No.4 of the appeal of the Revenue is accordingly dismissed.
-
2023 (1) TMI 1413
Money Laundering - Declination to grant bail having regard to the nature and gravity of the alleged offence - HELD THAT:- Having perused the material which has been placed on the record in the counter affidavit filed by the respondents, it is not inclined to entertain the Special Leave Petition, at this stage. However, it is directed that the ED shall take all necessary steps to ensure that it cooperates with the trial Judge in the expedition and early conclusion of the trial.
If no substantial progress is made in the trial by 31 May 2023, the petitioner would be at liberty to apply for bail afresh and such an application, if filed, shall be considered by the trial Judge having due regard to the delay which has taken place in making progress in the trial and the period of custody which has already been undergone.
SLP disposed off.
-
2023 (1) TMI 1412
Grant of bail - Illegal smuggle of cattle to Bangladesh - conspiracy with BSF and customs officials - Gravity of seriousness of the accusation - Materials collected in support of the accusation - Influencing witnesses and derailing investigation - Bail on parity – circumstances peculiar to the petitioner.
Gravity of seriousness of the accusation - HELD THAT:- Petitioner as a powerful political personality illegally aided and abetted the cattle smuggler Md. Enamul Haque in the venture. He used his influence to ensure smooth passage of cattle through the Districts of Birbhum and Murshidabad to reach the international border in lieu of wrongful gains and amassed enormous illegitimate wealth. It is contended he is not the principal offender. As per prosecution case, power and influence of the petitioner was essential for the smooth operation of the cattle smuggling syndicate in the Districts of Birbhum and Murshidabad. Without his patronage the organized crime could not have been perpetuated. His role in the crime is pivotal and cannot be discounted as a minor one - the arrest of the petitioner cannot be said to be unlawful or actuated with malice. On the other hand, it appears to be founded on the gravity and the seriousness of the accusation levelled against him.
Materials collected in support of the accusation - HELD THAT:- The materials on record are corroborated by regular telephonic communications between Md. Enamul Haque, Sehgal Hossain and the petitioner. Materials collected during investigation indicate that petitioner used to talk with other conspirators through the mobile phone of co-accused Sehgal. It is argued the contents of their conversations are unknown. It is relevant to note CDRs show meeting of minds between the conspirators. Nature of the deliberations can be inferred from the statement of Sk Abdul who endorses payments made to petitioner by the cattle smuggler Md. Enamul Haque through Sehgal and another co-accused. These circumstances give rise to a reasonable inference of conspiracy. Once existence of conspiracy is shown, acts of each conspirator in pursuance of the common intention would bind the others and establish their culpability - Hence, there are ample materials collected during investigation implicating the petitioner in the crime.
Influencing witnesses and derailing investigation - HELD THAT:- Though no medical papers in support of such assault were placed, the State Police Administration in post haste obtained police custody of the petitioner in the said case - To avoid pre-judging the issue we choose not to make any comment with regard to its legality save and except observing the arrest and police custody of the petitioner in the belated FIR registered against him appears to be an overzealous and unjustified exercise for reasons not far to seek.
Petitioner continues to hold political office and materials show he is involved in intimidation of witnesses - Further investigation with regard to the illegitimate wealth amassed by the petitioner through wrongful gain is continuing. To release of the petitioner on bail at this stage would adversely affect the morale and confidence of witnesses and seriously impact the collection of evidence during further investigation.
Bail on parity – circumstances peculiar to the petitioner - HELD THAT:- The public servant, i.e., Satish Kumar has also been enlarged on bail. Hence, petitioner ought to be released on bail on parity. Md. Enamul Haque was released on bail by the Apex Court after one year. Petitioner is in custody for about 5 months. He cannot claim parity with Md. Enamul Haque. In addition thereto, petitioner continues to hold a powerful political post. He has overwhelming influence not only in society but upon the State administration - Paramount influence of the petitioner as a political heavy weight and materials collected showing misuse of such power to influence witnesses and derail the investigation places him in a unique position in comparison to others who are on bail. Enlargement of the petitioner on bail would have an ominous impact not only on the witnesses but on the smooth administration of criminal justice in the case.
The petitioner cannot be enlarged on bail at this stage - petition dismissed.
-
2023 (1) TMI 1411
Setting aside of penalty imposed by the disciplinary authority - direction to Appellant(s) to reinstate him in service with notional benefits without any back wages - HELD THAT:- The disciplinary authority imposed the penalty of dismissal after holding the departmental enquiry and after following the due procedure as required Under Rule 27 of the CRPF Rules, 1955 and after having held the charges and misconduct proved. The charges and misconduct held to be proved against the Respondent who was serving in CRPF, a disciplined force can be said to be a grave and serious misconduct - The misconduct committed by the Respondent is of insubordination also. The misconduct of misbehaving with the superior/senior officer and of insubordination can be said to be a very serious misconduct and cannot be tolerated in a disciplined force like CRPF and therefore, as such the Division Bench of the High Court is not justified in observing that on the proved charges and misconduct penalty of dismissal can be said to be disproportionate.
While holding that the penalty of dismissal can be said to be disproportionate to the gravity of the wrong, what is weighed with the Division Bench of the High Court is that as the Respondent was found to be in a state of intoxication when not on duty and considering Section 10, he is deemed to have committed a less heinous offence. Whether a member of the force has committed a heinous offence or a less heinous offence as per Sections 9 and 10 of the CRPF Act, 1949 would have bearing on inflicting the punishment as provided Under Sections 9 and 10 but has no relevance on the disciplinary proceedings/departmental enquiry for the act of indiscipline and/or insubordination.
In the case of Surinder Kumar [2011 (10) TMI 684 - SUPREME COURT], it is observed that even in a case when a CRPF personnel was awarded imprisonment Under Section 10(n) for an offence which though less heinous, he can be dismissed from service, if it is found to be prejudicial to good order and discipline of CRPF. Under the circumstances, the reasoning given by the High Court that as the Respondent is deemed to have committed a less heinous offence, the order of penalty of dismissal can be said to be disproportionate is not required to be accepted.
It is required to be observed that even while holding that the punishment/penalty of dismissal disproportionate to the gravity of the wrong, thereafter, no further punishment/penalty is imposed by the Division Bench of the High Court except denial of back wages. As per the settled position of law, even in a case where the punishment is found to be disproportionate to the misconduct committed and proved the matter is to be remitted to the disciplinary authority for imposing appropriate punishment/penalty which as such is the prerogative of the disciplinary authority. On this ground also, the impugned judgment and order passed by the Division Bench of the High Court is unsustainable.
As the order of penalty/punishment cannot be said to be disproportionate, there is no question of remanding the matter back to the disciplinary authority.
The impugned judgment and order passed by the High Court setting aside the order of penalty of dismissal and reinstating the Respondent is hereby quashed and set aside - Appeal allowed.
-
2023 (1) TMI 1410
Rejection of application filed u/s 190 read with Section 245(2) of the Code of Criminal Procedure, 1973 - scheduled offence or not - proceeds of crime - The learned counsel for the accused Nos. 1 and 2/ petitioners submitted that in view of the Judgment rendered by Hon'ble Apex Court in Vijay Madanlal Choudhary and others v. Union of India and others [2022 (7) TMI 1316 - SUPREME COURT], if the accused were acquitted in the scheduled offences, that should result in termination of the chargesheet filed for the predicate offences under the provisions of the PML Act. The learned counsel submitted that the petitioners / accused are already acquitted of the scheduled offences and therefore the proceedings under the PML Act cannot proceed.
HELD THAT:- This is not disputed by the learned Central Government Standing Counsel for the respondent.
This Revision Petition is allowed and the criminal proceedings initiated against the petitioners / accused Nos. 1 and 2 by the respondent under the provisions of the Prevention of Money Laundering Act, 2002 in Spl.C.C. No. 159/2015 are closed.
-
2023 (1) TMI 1409
Disallowance of deduction u/s 80P(2)(d) - assessee has earned as interest on fixed deposit in a Co-operative Bank - HELD THAT:- We note that this issue is no longer res-integra, since this issue has cropped up several times before this Tribunal wherein we have consistently allowed the same. Recently this Tribunal in the case of UTI Employees Sai Samrudhi Co-op Housing Society Ltd [2022 (12) TMI 1531 - ITAT MUMBAI] held that the assessee Co-operative Society’s claim for deduction (FD Interest) from Mumbai District Central Co-operative Bank. is allowable deduction u/s 80P(2)(d) - Assessee appeal allowed.
........
|
9911796707
