|
Advanced Search Options
Case Laws
Showing 401 to 420 of 1396 Records
-
2021 (4) TMI 996
Detention of goods alongwith the conveyance - E-way Bill was not tendered for all the Invoices/Goods in movement which are the one of the documents for transportation of goods - scope of appeal - Demand of IGST alongwith the penalty u/s 129(1)(a) of CGST Act, 2017.
Whether submissions made by respondent through cross objections are beyond the purview of appeal filed by the Appellant/Department? - HELD THAT:- The appeal have been filed by the appellant being aggrieved with the penalty imposed under Section 109 (1) (a) of the CGST Act, 2017. Therefore, the respondent was required to file their cross objections upto the extent of the issue raised by the appellant in their appeal memo. But on the contrary to this, it is found that the respondent has raised the fresh plea in their cross objections which I do not find proper as per provisions of Section 107(1) of the CGST Act and Rules made thereunder. If the respondent was aggrieved with the said Order in Original he should have file separate appeal within the prescribed time limits - the cross objections filed by the respondent is beyond the purview of appeal. Therefore, it would not be proper to discuss the issues in the instant matter which are out of scope of the appeal.
Whether penalty imposed under Section 129(1)(a) of CGST Act,2017 by the Adjudicating Authority is proper or not? - HELD THAT:- In the instant case, penalty should have been imposed by the adjudicating authority equal to the fifty per cent of the value of the goods reduced by the tax amount paid thereon, whereas it is found that adjudicating authority has imposed penalty equal to 100% per cent of the tax payable on the detained goods which is not proper and correct - In the instant case value of seized goods is ₹ 12,83,589/- therefore, penalty is stands modified to ₹ 6,41,795/- (rounded up) under clause (b) of sub section (1) of Section 129 of CGST Act, 2017 and the penalty already deposited by the respondent may be considered for appropriation accordingly.
Appeal allowed in part.
-
2021 (4) TMI 995
Seeking stay of Certificate Case proceedings initiated under section 33(c) of the Industrial Disputes Act, 1947 - moratorium ongoing - compliance with the workmen's demand - HELD THAT:- It is trite law that the Moratorium under section 14(1) will apply to all proceedings of whatsoever nature pending before any Court, Tribunal or Authority. The only exception to the Moratorium is the writ jurisdiction of the Hon'ble High Courts and Hon'ble Supreme Court - It is also apposite to mention here that in terms of section 238 of the Insolvency and Bankruptcy Code, 2016 the provisions of the Code shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being enforced.
This is a fit case to restrain the Respondent No. 2 from proceeding any further with the Certificate Case, until the moratorium in terms of section 14(1) of the Insolvency and Bankruptcy Code, 2016 ends - this order shall be brought to the notice of the Respondent No. 2 by the applicant/RP on the next date of hearing, i.e. 13.04.2021 - List this matter on 20/05/2021.
-
2021 (4) TMI 994
Maintainability of application - Direction to investigate the issue of fake four (4) no. of TDRs - seeking refund of money along with interest - HELD THAT:- While the Respondent has denied receiving any instruction with respect to opening TDR accounts, it has not been denied that no such cheque had been issued to the Bank. We are, however, not convinced as to how a cheque issued in the name of "Allahabad Bank" can be deposited in the account of a third party - Prima facie, there seems to be an element of fraud in this case. An investigation with respect to the said purported fraud is already underway. This is clear from the letter of Assistant Commission of Police (I), Economic Offence Wing, Detective Department; Kolkata Police dated 05.02.2021, addressed to the Applicant herein that apprises the Applicant of the progress made in the FIR filed by the Applicant.
Since, the investigation is already under progress and has reached the advanced stage where arrests have also been made; it would not be appropriate to issue direction upon the CBI to investigate the matter - This Tribunal can exercise its powers only as envisaged under the Companies Act, 2013. The said Act does not confer the power upon this Tribunal to direct the CBI to investigate a case. This Tribunal, therefore, cannot direct the CBI to investigate the case.
The present application has been filed under section 290(n) of the Companies Act, 2013. That section empowers the company liquidator to apply to the Tribunal for such orders or directions as may be necessary for the winding up of the Company. The present application is not for winding up of the company and therefore, is also not maintainable under section 290(n) of the Companies Act, 2013.
Direction upon the Respondent to refund the money - HELD THAT:- We are not inclined towards granting the same since the same is the subject matter of the aforementioned investigation.
The present application is not maintainable on any ground - Application dismissed as not maintainable.
-
2021 (4) TMI 993
Assets forming part of Block No. 2 of the Schedule of Assets of the Corporate Debtor - Inclusion of moveable assets and/or aluminium scrap materials lying in the factory premises - moveable assets and/or scrap materials including the aluminium scrap materials lying in the factory premises of the Corporate Debtor (in liquidation) forming part of Block No. 1 of the Schedule of Assets of the Corporate Debtor (in liquidation) - HELD THAT:- From the materials available on record, the ownership of the aluminium scrap in question cannot be conclusively established one way or the other. Therefore, neither the successful auction purchaser nor the Rishabraj Logistics Limited can actually be said to be entitled to take away the aluminium scrap in question - In the absence of any documents to conclusively establish the ownership of the aluminium scrap, the Liquidator is entitled to presume that the same belongs to the corporate debtor until proved otherwise, if nothing else merely on the basis that the scrap in question was found on the premises of the Corporate Debtor and there is no dispute to this. The documents in the form of the alleged rental agreement and the subsequent addendum do not really establish anything. No rentals are envisaged to be paid under these documents. What is actually envisaged is payment of miscellaneous expenditure in regard to this scrap. From this it cannot be established that the goods in question belongs to Rishabraj Logistics Limited. Therefore, at this point of time we refrain from commenting on the ownership aspect.
The successful auction purchaser i.e. Rekha Halder, Proprietor of Sayan Enterprises does not really have the right to take away the aluminium scrap lying inside the various shops, which did not ever form part of the auction process - Application dismissed.
-
2021 (4) TMI 992
Deduction u/s. 80P(2)(a)(i) - AO denied the deduction on the ground that income of a co-op. society, including the profits and gains of banking or providing credit facility carried on by such co-op. society is not eligible for deduction if it is a co-op. bank within the meaning of section 80P(4) - HELD THAT:- As decided in M/s. The Karnataka Alpsankyatar Pattin Sahakari Sangh Niyamit [2019 (12) TMI 1481 - ITAT BANGALORE] restore this aspect of the matter back to his file for fresh decision with the direction that he should examine the facts of the present case in the light of these two judgments of Hon'ble apex court rendered in the case of Totgars Co - Operative Sale Society Limited vs. ITO [2010 (2) TMI 3 - SUPREME COURT] and in the case of Tumkur Merchants Souhadra Credit Cooperative Ltd. Vs. ITO [2015 (2) TMI 995 - KARNATAKA HIGH COURT] to find out which judgment is applicable in the facts of the present case. If it is found that the judgment of Hon'ble apex court rendered in the case of Totgars Co-Operative Sale Society Limited vs. ITO (Supra) is applicable in the facts of the present case then it should be held that the assessee is not entitled to deduction u/s. 80P in respect of interest from bank but if it is found that the judgment of Hon'ble Karnataka High Court rendered in the case of Tumkur Merchants Souhadra Credit Cooperative Ltd. Vs. ITO (Supra) is applicable then it should be held that the assessee is entitled to deduction u/s. 80P in respect of interest from bank
Disallowance of pigmy commission paid to pigmy agents u/s. 40(a)(ia) - HELD THAT:- As before the lower authorities the assessee has not furnished details of payment and whether it is liable for TDS. Hence this issue is remitted to the AO for fresh consideration with a direction to the assessee to furnish the details of TDS.
-
2021 (4) TMI 991
Condonation of delay - delay has made out a "sufficient cause or not" - Delay of 52 days in filing of the appeal - HELD THAT:- As the Assessee is not in India, he had to depend upon the services of his tax consultant at Vijayawada. He coordinated with the tax consultant at Hyderabad to file the appeal before ITAT.
Assessee was regularly pursuing with his tax consultant at Vijayawada about the filing of appeal. He was advised that a fee of ₹ 10,000 needs to be paid as appeal fee to file the appeal, which was paid by the Assessee on 10th December, 2019. It was informed to the Assessee that the due date of filing the appeal expired on 02nd December, 2019. Then it was informed the Assessee that, the tax consultant at Hyderabad was busy in tax scrutiny assessments of other clients till the end of December, 2019. Then the appeal had been drafted and soft copies were sent to the Assessee through email. It was also informed to the Assessee that, only physically signed documents are permitted while filing the appeal before the ITAT.
The Assessee sent such documents, duly signed by him, to his tax consultant at Vijayawada. He sent the same to Hyderabad tax consultant, who ultimately got them filed before the ITAT on 23rd January, 2020. The explanation of the Assessee is supported by his affidavit and the department did not express refute the stand taken by the Assessee. The delay in filing the appeal is occurred due to Assessee is staying in abroad, therefore there seems to be no mala fide intention for causing delay but the same prima facie appears to be bona fide and reasonable, hence in our considered opinion the Assessee has shown the sufficient cause for delay and therefore the delay of 52 days in filing of the appeal deserves to be condoned.
Even the Assessee intends to get settled the dispute through 'the VSV Scheme' and has already initiated the process and willing to pay the relevant taxes. It is the public policy of nation that litigations must come to an end. Thus we are inclined to admit the appeal by condoning the delay of 52 days in filing of the appeal, consequently the delay stands condoned.
-
2021 (4) TMI 990
Denying u/s. 11 exemption for want of Section 12AA registration - HELD THAT:- We notice from a perusal of the Revenue's paper book that the CIT(E), Hyderabad has filed his clarification that the assessee's returns/acknowledgments upto A.Y. 2005-06 bear registration number u/s. 12A 2B-ACCTS-718-10A-VOL-AI-0665 which could not be traced despite the best of the efforts made from the departmental authorities' side. The fact also remains that this is not the Revenue's case that there has been any change in assessee's activity undertaken all along.
We therefore reverse the DCIT's order under challenge in the instant 12AA registration process for want of jurisdiction and restore Section 12AA issue back to the CIT(Exemptions) for his appropriate adjudication as per law within three effective opportunities of hearing. It is made clear that assessee shall be at liberty to file all the relevant evidence not only qua to its activities carried out throughout but also that pertaining to the exemption relief granted in the preceding assessment years. This assessee's appeal is accepted for statistical purpose in above terms.
-
2021 (4) TMI 989
Addition of unexplained cash credit u/s 68 of the Act in respect of loans received by the assessee - second round of proceedings before this tribunal - In the first round, this tribunal had remanded the issue to the file of ld CIT-A for the reason that the loan confirmations that were filed by the assessee before the ld CITA in the paper book were not considered by the ld CIT-A - HELD THAT:- We find that the ledger extracts given by the assessee before the ld CITA itself contains the counter signature of the creditors duly confirming all the transactions together with their PAN. From the perusal of the ledger extracts, we find that there is a running account maintained by the assessee with these creditors and all the transactions are routed through regular banking channels in account payee cheques. One more excruciating fact to be noted here is that the assessee had paid interest on these loans after subjecting the same to due deduction of tax at source. We find that the lower authorities had duly granted deduction for the interest expenditure claimed on these loans by the assessee. Once the interest is accepted to be genuine , then how the principal component thereon could be disbelieved by the lower authorities. We are unable to comprehend and unable to persuade ourselves to accept to this act of the lower authorities.
We find that the assessee had requested the ld AO to issue summons u/s 131 of the Act to those loan creditors to find out the truth, which was not acted upon by the ld AO - assessee had duly disclosed the identity of the creditors and genuineness of the transactions are very much evident from the ledger extracts itself as all the transactions are routed through regular banking channels and assessee had even paid interest on these loans. Due to existing disputes with the parties by the sister concerns of the assessee, the assessee could not procure the financial statements and income tax returns from the loan creditors to prove their creditworthiness. But there is no dispute that the assessee had indeed furnished the PAN of all the loan creditors.
AO / ld CITA could have cross verified from the PAN of the creditors with the assessing officers of the creditors and ascertain the creditworthiness. In any case, all these 5 loan creditors had duly confirmed the transactions carried out with the assessee by way of counter signature in the ledger extracts. We find that no adverse inference was drawn on the said ledger extracts by the lower authorities.
Loan borrowed from 20th Century Finance Corporation Ltd had been duly repaid during the assessment year under consideration itself by the assessee with interest. With regard to loans received from Sharda Castings Ltd, Mittal Ispat Ltd and Pondy Metal & Rolling Mill (P) Ltd, the assessee had repaid the loans in Asst Year 2000-2001 (i.e the immediately succeeding asst year) together with interest.
We find that the ld AR before us had tried to produce certain documents connected with DSQ Software and 20th Century Finance Corporation Ltd (which was demerged later as TCFC Finance Ltd) to prove their creditworthiness. In our considered opinion, these documents are not required to be looked into at this stage as we have already held that the assessee had reasonable cause from not proving the creditworthiness of the creditors by producing the necessary documents due to ongoing legal suits and disputes pending with those creditors vis a vis the sister concern of the assessee. Moreover those disputes are money suits and obviously the loan creditors would not come forward to cooperate with the assessee by furnishing their financials
In view of the aforesaid detailed observations, we are inclined to accept to the contentions of the assessee that the loans received from aforesaid 5 parties are genuine and not to be treated as unexplained cash credit u/s 68 of the Act in the peculiar facts and circumstances of the instant case. Accordingly, the grounds raised by the assessee are allowed
-
2021 (4) TMI 988
Revision u/s 263 - Order of the Ld.CIT(A) annulling the assessment order passed u/sec143(3) - HELD THAT:- As decided in RELIANCE MONEY INFRASTRUCTURE LTD. VERSUS PRINCIPAL COMMISSIONER OF INCOME TAX, MUMBAI [2017 (10) TMI 630 - ITAT MUMBAI] it is not permissible for the Pr CIT to disturb a concluded assessment on the ground that the AO has not dealt with or discussed in the assessment order the issues examined by him during the assessment proceedings. It is enough if the AO has elicited information/explanations from the assessee and the assessee has filed the same before the AO so long as there is no incorrect appreciation of facts or the assessment is not contrary to or not in accordance with law.The amendment to section 263 is also prospective. Thus, the reversionary proceedings u/s 263 of the Act are not validly initiated in view of the facts that the issues raked up by the Pr.CIT stand examined by the AO in the assessment proceedings and the ld Pr CIT has failed to state as to how the order of AO is erroneous and not in accordance with law or settled legal position. Even on merit, the assessee is entitled to all the deductions/claims as per the provisions of the Act.
When the revision order u/s 263 of the Act was set-aside being invalid and any subsequent proceedings shall become infructuous. The Ld.DR could not controvert the findings of the Ld.CIT(A) with any new cogent material or information but relied on the Assessing officer order. Accordingly, we do not find any infirmity in the order of Ld.CIT(A) who has relied on the Hon’ble tribunal decision and passed a reasoned order and we upheld the same and dismiss the grounds of appeal of the Revenue.
-
2021 (4) TMI 987
Reopening of assessment u/s 147 - original assessment was completed u/s 143 (3) - HELD THAT:- We find the AO has issued notice u/s 148 of the Act dated 22.03.2013 for reopening of assessment, whereas the original assessment was completed u/s 143 (3) of the Act determining the total income on 26.08.2008. We observe that the AO has recorded the reasons without intangible information except retreating that the assessee has not disclosed the rental income from the property, but TDS credit is claimed and also higher rebate u/s 88E has been availed. Whereas the Ld. AR submitted that the said information was filed in the original assessment and referred to page 48 to 56 of the paper book.
Further, the AO on verifying the facts and the explanations filed has passed the assessment order u/sec143(3) of the Act. Therefore, the reopening of assessment on the same set of facts is only a mere change of opinion and relied on the judicial decisions. We prima facie considering the facts circumstances and the evidences filed are of the view that the notice issued by the A.O. falls beyond the period of time limit.
Accordingly, we treat the notice issued as bad in law and quash the assessment u/s 143(3) r.w.s 147 of the Act and allow the ground of appeal of the assessee.
-
2021 (4) TMI 986
Validity of assessment order us 153A - Approval by the JCIT as required under section 153D - Prior approval necessary for assessment in cases of search or requisition - As per assessee, no assessment order shall be passed unless it is approved by the JCIT - HELD THAT:- From the correspondence between the A.O. on one hand and the JCIT on the other hand and the letter addressed by the JCIT to the Commissioner clearly shows that it was at the stage of discussion and the JCIT could not able to make his mind. Ultimately he simply says that due to shortage of time as he was holding charges for six ranges, it is not possible for him to go into the material deep, therefore, he approved the proposal technically as required u/s 153D of the Act, immediately, after the AO brings to his notice that the assessment is getting time barred.
From the above communications, it is obvious that the JCIT has not applied his mind even though there was a discussion between the A.O. and JCIT, the JCIT could not make his mind. Hence, this kind of casual approval/technical approval without going to the matter and without applying his mind to the material available on record is not an approval at all. Therefore, A.O. has no jurisdiction to pass the assessment order. In other words, the assessment order passed by A.O. as confirmed by C.I.T.(A) is void, nullity, non-est, hence, cannot be stand in the eye of law.
An irregularity in the assessment order may be rectified by remitting back the matter to the assessment. In the case on hand it is not an irregularity in the assessment order, it is a jurisdictional error. The A.O. has no jurisdiction to pass the assessment order unless the JCIT granted approval. This Tribunal is of the considered opinion that this is not a rectifiable error since it is a jurisdictional error and not an irregularity in the assessment proceeding. Moreover, even if the matter is remitted back, the AO cannot do anything better, since time limit provided under the Act has already expired. Therefore, this Tribunal is unable to uphold the orders of the lower authorities. Accordingly, the orders of both the authorities below were set-aside and the entire assessment order as confirmed by C.I.T.(A) are quashed.
Appeals of the assessee stand allowed.
-
2021 (4) TMI 985
Lower tax rate of 10% provided in India-Cyprus DTAA - whether the assessee is entitled to the beneficial provisions of Article 11(2) of the India Cyprus Double Tax Avoidance Agreement (DTAA), which provides, lower tax rate of 10% on interest income arising in India? - HELD THAT:- For requirement of eligibility of lower tax rate of 10%, the recipient should be beneficial owner of the interest. The Tribunal in the case of Golden Bella Holdings Ltd Vs. DCIT (International taxation) [2019 (9) TMI 302 - ITAT MUMBAI] for assessment year 2013-14 in identical circumstances has allowed the benefit of lower rate of tax of 10%
It is evident from the order of lower authorities that they have decided the issue of beneficial ownership of interest only on the basis of information of assets and liabilities provided in the return of income, which mistakenly reported by the assessee as Nil and the financial statements including, balance-sheet and Profit and Loss Accounts have not been considered. In such circumstance, we feel it appropriate to set aside the order of Ld. CIT(A) and restore the matter back to the file of the Assessing Officer to decide the issue of beneficial ownership of interest afresh in the light of financial statement of the assessee and documents. The Assessing Officer may examine all the tests laid down in the decision in case of Golden Bella Holdings Ltd. (supra). Ground of the assessee is accordingly allowed for statistical purposes.
-
2021 (4) TMI 984
Penalty order under section 271(1)(c) - wrong claim of deductions u/s.54EC and 54F of the Act against the Long Term Capital Gain (LTCG) earned on sale of land situated at Vesu, Surat - deduction u/s.54EC allowed to the assessee on the amount invested within the specified period and not on the amount invested after the specified period - HELD THAT:- In CIT Vs Reliance Petroproducts Limited [2010 (3) TMI 80 - SUPREME COURT] holds that quantum and penalty are parallel proceedings wherein each and every disallowance/addition made in former does not ipso facto attract latter penal provision.
As the assessee has furnished all the particulars regarding claim of deduction u/s.54EC and 54F of the Act in the Return of Income, and during the course of assessment proceedings, all the material facts relating to investment in Bonds u/s.54EC and specified account 54F of the Act were disclosed to the assessing officer. The assessee also explained that he had received the amount of sale consideration in piecemeal manner and invested the said amount of ₹ 1,50,00,000/- u/s.54EC of the Act, in three different financial years, that is, F.Y. 2009-10, 2010-11 and 2011-12. Therefore, we noticed that no fault has been found by the ld. CIT(A) with the particulars submitted by the assessee in its Return of income. Besides, as we noted above that the charge against which the penalty is to be levied is not specific and when the charge itself is not specific and is vague, the penalty should not be levied. Hence, we are not inclined to accept the contention of the ld. CIT(A) in confirming the penalty imposed by assessing officer under section 271(1) (c ) of the Act, therefore we delete the penalty - Decided in favour of assessee.
-
2021 (4) TMI 983
Exemption u/s 10(37) - qualify definition of “Compulsory acquisition” - Whether acquisition of impugned agricultural land by Surat Municipal Corporation (SMC) eligible for exemption? - AO has disallowed the claim u/s 10(37) on the ground that the assessee has sold the land voluntarily, and it is not case of compulsory acquisition of land by SMC - HELD THAT- As relying on Satishbhai M Patel [2019 (12) TMI 1291 - ITAT SURAT] the assessee is eligible for exemption under section 10(37) of the Act. Consequently, the AO is directed to allow exemption under section 10(37) of the Act. In view of this, ground of appeal of the assessee is allowed
-
2021 (4) TMI 982
Fabricating false deed of agreement for sale for the purpose of being shielded from legal action in the disproportionate assets case - seizure of currency in addition to jewellery and property papers - assets disproportionate to the Appellant’s known sources of income - Section 195(1)(b) of the Code of Criminal Procedure, 1973 - HELD THAT:- In the present case, the allegation against Accused Nos. 2 and 3 is that they colluded with Appellant/Accused No. 1 to create a false sale deed, and gave false explanation of escrow arrangement amongst the three parties, to justify how the seized currency came to be in the Appellant’s possession. This was done to exonerate the Appellant/Accused No. 1 and recover the seized currency at the stage of investigation itself, which is deemed to be “a stage of a judicial proceeding” under Explanation 2 of Section 193. Had the genuineness of the sale deed been accepted, the Respondent may have erroneously opined that the seized currency belonged to Accused No. 2, and consequently abandoned proceedings under Section 13(1)(e), PC Act against the Appellant. Therefore Section 193, IPC is squarely applicable to the allegations at hand.
Whether an offence under Section 193, IPC committed at the stage of investigation, prior to production of the false evidence before the Trial Court by a person who is not yet party to proceedings before the Trial Court, is an offence“in relation to” a proceeding in any court under Section 195(1)(b)(i), CrPC? - HELD THAT:- The presence of “in relation to” under Section 195(1)(b)(i) means that Iqbal Singh Marwah would not have blanket application to every case where a complaint is lodged in respect of an offence specified under that Section. However, on the facts of Bandekar Brothers, this was not a situation in which the offence complained of did not have a “reasonably close nexus” with the court proceedings. The offence of giving false evidence was committed by the respondents, who were party to the court proceedings, for the purpose of leading the Court to form an erroneous opinion on a point material to the result of the proceedings. Hence it could be said that though the offence was not committed during the course of the court proceedings, it was certainly committed “in relation to” such proceedings.
The construction of the words “in relation to” must be controlled by the overarching principle applicable to Section 195(1)(b), CrPC as stated in PATEL LALJIBHAI SOMABHAI VERSUS THE STATE OF GUJARAT [1971 (5) TMI 75 - SUPREME COURT] and SACHIDA NAND SINGH AND ANR. VERSUS. STATE OF BIHAR AND ANR. [1998 (2) TMI 583 - SUPREME COURT], which was affirmed by the Constitution Bench in IQBAL SINGH MARWAH & ANR. VERSUS MEENAKSHI MARWAH & ANR. [2005 (3) TMI 750 - SUPREME COURT]. That is, even if the offence is committed prior to giving of the fabricated evidence in court, it must have a direct or reasonably close nexus with the court proceedings.
In case the bar under Section 195(1)(b)(i) is applied to offences committed during the course of investigation, the Court may think it fit to wait till the completion of trial to evaluate whether a complaint should be made or not. Subsequently, the Court may be of the opinion that in the larger scheme of things the alleged fabrication of evidence during investigation has not had any material impact on the trial, and decline to initiate prosecution for the same. The investigation agency cannot be compelled to take a chance and wait for the trial court to form its opinion in each and every case
Whether the words “stage of a judicial proceeding” under Explanation 2 to Section 193, IPC can be equated with “proceeding in any court” under Section 195(1)(b)(i), CrPC? - HELD THAT:- This Court has, in some instances, opined that where the law deems proceedings before a certain authority to be “judicial proceedings”, the same would be considered as “proceedings in any court” under Section 195(1)(b)(i), CrPC. Therefore, if the offence under Section 193, IPC is committed before such an authority, the written complaint of that authority is mandatorily required for trial of the offence - in the present case, it is not the Trial Court but the Respondent authority/agency which has been directly impacted due to fabrication of evidence by the Appellants/accused. The Appellants’ intention was not to mislead the Trial Court, at least not at the first instance. Rather, their goal was to ensure that the Appellant/Accused No. 1 was cleared of wrongdoing at the stage of investigation itself. It was after being charged under Section 193, IPC, that the Appellants/accused reiterated the fictitious escrow arrangement story before the Trial Court so as to prove their innocence. Hence it cannot be said that the offence under Sections 120B read with 193, IPC was committed by the Appellants “in relation to” a proceeding in a court under Section 195(1)(b)(i), CrPC.
The questions of law stated in paragraph 6 (supra)stand answered against the Appellants/accused. Even on merits, we do not find any valid reason to interfere with the concurrent findings of the Trial Court and the High Court. The High Court has rightly observed that the Appellant/Accused No. 1 had not raised the defence of holding the money in escrow for Accused Nos. 2 and 3 at the time of search conducted at his house on 24.01.2001. The supposed agreement of sale was also not produced - The stamp paper on which the sale deed was made was also proved to be illegal. Hence it is apparent that the Appellants/accused entered into an elaborate conspiracy and attempted to create a false circumstance of escrow transaction for the purpose of shielding Appellant/Accused No. 1 from prosecution. In fact, the High Court has shown great lenity by reducing the sentences awarded to the Appellants/accused in view of their advanced age and delay in completion of the trial. In view of the gravity of the offence, no further benefit can be granted to them in this regard.
Appeal dismissed.
-
2021 (4) TMI 981
Concessional rate of duty - Works contract - tender agreement for wet leasing of Robotic spot-welding machine and laser cutting and welding machine - activities under tender agreement for comprehensive Annual Maintenance Contract - benefit under Schedule VI(a) and VI(b) are eligible for serial no. 3 (v)(a) or 3 (vi) of Notification No.11/2017-CT(Rate) dated 20.06.2017 as amended and corresponding entry under state notification.
HELD THAT:- In the case at hand, all the Supplies in the tender are not supply made by the appellant to ICF in as much as in respect of the disposal of the obsolete M&Ps, the supply is by the ICF and the appellant is the recipient. Further, the supplies are not made in conjunction with each other in as much as the Wet-leasing of M&Ps is for a period of 10 years; Construction, supply, installation, commissioning, etc is to be completed within 20 months of LOA and Comprehensive AMC is to be supplied for 5 years after the warranty period. Therefore, the supplies under the Tender in Schedule-I to Schedule-VI are not supplies made to a recipient nor done in conjunction with each other and hence the entire supplies based on the Tender is not a Composite Supply - there is no merit in the claim of the appellant that the supplies based on the entire tender is a Composite supply of Works Contract and the benefit of entry S.No.3(v) of notification No.11/2017-C.T.(Rate) dated 28.06.2017 is not available for the entire tender.
As per the contract agreement for wet-leasing, it is an activity consisting of leasing of M&Ps in working condition, providing skilled and unskilled manpower, spares, consumables for the entire period of leasing during which the leased goods are reflected in the books of the lessor. The lease charges are paid on a quarterly basis to the appellant based on the productivity. The M&Ps are transferred to ICF at the, end of the lease period. Just because, there is a transfer of property in goods after the lease period, the activity is not a works contract. The activity of wet-Leasing is squarely classifiable under SAC 9973 Leasing or rental services with or without operator as held by the LA. Therefore the benefit of entry at 3(v)(a) of Notification No.11/2017-C.T.(Rate) dated 28.06.2017 is not applicable in respect of Wet-Leasing of the M&Ps.
CAMC, the activity being Maintenance - HELD THAT:- The same is not covered under entry 3(v) of Notification No. 11/2017-C.T.(Rate) dated 28.06.2017 as amended, which is applicable only to works contract by way of construction, erection, commissioning or installation of original works pertaining to railways.
Benefit of entry Sl.No. 3 (vi)(a) of the Notification No. 11/2017-C.T.(Rate) dated 28.06.2017 as amended - HELD THAT:- The above entry is applicable in the case of composite supply of works contract of maintenance of a civil structure or any other original works meant predominantly for use other than for commerce, industry or any other business or profession to the class of receivers specified. ICF is a ‘Production unit’ of Railways and belongs to ‘Central Government’ and manufacturing steel coaches is not an activity where the Government is engaged as public authorities. As per the Explanation to the said entry, it is evident that when the activity is not in the capacity of ‘Public authority’, then the activity is for ‘business’ only. ICF is putting up the said Plant to manufacture Stainless Steel coaches, which is not an activity undertaken as a ‘Public Authority’ and therefore, the benefit of the above entry is not applicable to the appellant in respect of CAMC.
There are no reason to interfere with the Order of the Advance Ruling Authority in this matter. The subject appeal is disposed of accordingly.
-
2021 (4) TMI 980
Grant of Interim Bail - learned Senior Advocate further submits that his client shall file an Undertaking within five days to the effect that she shall not create any encumbrance with respect to the properties of the business as well as her personal properties till further orders and that his client will deposit the amount representing the admitted duty element - HELD THAT:- Issue notice, returnable on 10.05.2021 subject to conditions imposed.
-
2021 (4) TMI 979
Grant of anticipatory bail - alleged non payment of GST - non -filing of GSTR 3B returns for the period from October onwards - Sections 18 and 18A of the SC/ST( Prevention of Atrocities) Act, 1989 - HELD THAT:- The applicant has not yet been made an accused. On the basis of the alleged statement given by Abdul Saleem, the applicant has allegedly dealt with the filing of returns of the Agency. He had allegedly made false invoices. But as of now, no concrete evidence sufficient either to implicate him as an accused or proceed against him has been collected. Admittedly, A.R Agencies is a proprietorship belonging to Rajoob. He alone is to answer for anything done by the agency. Applicant has nothing to do with the Agency and has not gained any income from that business. His Bank accounts are available for scrutiny, and the applicant is willing to cooperate by producing those documents. His custodial interrogation may not be necessary under the circumstances. The CGST officials had sufficient power to implicate the applicant in case they had the required materials with them. The fact that they have not arraigned him as an accused indicates lack of material. The applicant's apprehension of arrest is reasonable, because Abdul Saleem, who is also not a proprietor, has been arrested.
It is settled position that the applicant apprehending arrest need not be made an accused in a crime to seek the relief of anticipatory bail. Its is sufficient in case he succeeds in establishing that his apprehension of arrest is reasonable - the applicant is entitled to the relief of anticipatory bail.
The bail application is allowed and the applicant is directed to appear before the investigating officer within three weeks.
-
2021 (4) TMI 978
Refund claim rejected in view of the provisions contained in section 239(2)(c) - assessee seeks refund of withholding tax concerning the assessment year - petitioner is involved in charitable activities as defined under Section 2(15) - whether Section 239 of the Act, as it obtained prior to its amendment, would apply in this case? - HELD THAT:- We are, presently, of the view that even if the stand taken by Mr. Sharma is presumed to be correct, the petitioner could, perhaps, seek condonation of delay in failing to move for refund, within time, in the manner prescribed by law by triggering the provisions of Rule 41 of the Income Tax Rules, 1962 (“Rules”).
Therefore, for the moment, we are inclined to grant liberty to the petitioner to file an application under the aforesaid Rule, before the concerned officer of the Income Tax Department, to seek condonation of delay.
The concerned officer will deliberate on the said application, and dispose of the same, as per law, after giving an opportunity of personal hearing to the authorized representative of the petitioner.
Mr. Krishnan says that he will move such an application, for the said purpose, within 10 days from today.
The concerned officer will be at liberty to hear the authorized representative of the petitioner, via the videoconferencing mechanism, given the fact that the Union Territory of Delhi is reeling under the pressure of the coronavirus cases.
Thereafter, the concerned officer will pass a speaking order qua the application moved by the petitioner. The decision rendered in the petitioner’s application will be transmitted to the petitioner.
-
2021 (4) TMI 977
Bail application - Seizure of articles along with vehicle in question as well as accused petitioner also arrested - trading of exotic animals and birds - restricted items or not - notified under Section 123 of the Act or not - HELD THAT:- Although no specific notification under Section 11-B of the Customs Act is brought on record about the species of exotic birds/animals under the Customs Act, but such criminals and birds of foreign origin enlisted in the Customs Tariff Act and in view of the fact the petitioners did not produce any sort of document, whatsoever, in support of possession of such valuable animals and birds, which is more than 4 crores and any other supportive evidence, it is difficult to accept that the same has been transported for domestic purpose. Having regard to the submissions of the Customs Department that the area from which it was purchased is nearer to the international border of Myanmar, the matter of smuggling and/or illegal import to India cannot be ruled out - as per the Schedule I of the Import Policy, 2017, import of live animals, other than wild animals and as defined under Wildlife Protection Act, 1972 (as amended) is permitted against a licence to Zoos and Zoological Park, Circus Companies, Private individuals on the recommendation of the Chief Wildlife Warden of a State Government, subject to provision of CITES.
As in the present case, the petitioners have no sort of any documents in their possession in support of the seized animals. The Customs Officer, under Section 110 the Customs Act, is empowered to seize such articles, which are liable to confiscation under Section 111 of the Act - burden lies upon the accused to justify that those are not smuggled goods. The accused could not justify possession of such valuable animals and birds of foreign origin.
In absence of any legitimate document in support of purchase of seized articles, allegation of prosecution cannot be denuded. Market value of the exotic animals and birds assessed by DFO (annexed with the report) is another aspect, which has raised the occasion to believe that the petitioners may be involved in smuggling activities. As per Section 104 (4) of the Customs Act, any offence relating to prohibited goods is cognizable offence and in view of the high value of the articles, in-depth investigation is required to unearth the entire gamut.
Bail application rejected.
............
|
9911796707
