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Case Laws
Showing 401 to 420 of 2028 Records
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2019 (5) TMI 1628
CENVAT Credit - fake documents - credit availed without accompanied goods - Rule 4(1) of Cenvat Credit Rules, 2004 - cross-examination of witnesses denied - HELD THAT:- Department has made out a case of irregular availment of cenvat credit mainly based on the statement of Shri Amit Gupta and transporters, but no cross examination of the witnesses was provided to the appellants. One of the witnesses has retracted his earlier statement. Surprisingly, in the instant case, no inquiry was made from the customers of the appellant company. All the transactions related to inputs purchased was duly recorded in the book of accounts and inventory records. The appellant have purchased the goods from the registered dealer. When it is so, then it is expected by the department to make a inquiry about the genuineness of the supplier.
Ultimately, the issue in each case is whether, within the meaning of Rule 9 (3) of the Rules of 2004, the assessee has taken reasonable steps to ensure that the inputs in respect of which he has taken CENVAT credit were goods on which appropriate duty of excise was paid. Once it is demonstrated that reasonable steps had been taken, which is a question of fact in each case, it would be contrary to the Rules to cast an impossible or impractical burden on the assessee.
Appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1627
Recovery of excess tax paid which was not liable to be paid - cheques issued under coercion - higher rate of tax demanded on capital goods - Vertical Band saw machines, Horizontal Sawing (Trolly) Machines, Log Saw Mill and all kinds of wood working Machines - HELD THAT:- Even though, the petitioner has issued four cheques valued at ₹ 9,28,317/- to the Enforcement Wing Officers towards alleged tax amount payable by the petitioner, the said tax according the petitioner is not payable by them. According to the petitioner, the aforesaid four cheques were obtained by the Enforcement Wing Officers from the petitioner, only under the threat of coercion and undue influence. After issuing the cheques, the petitioner has also issued stop payment instructions to their Bankers for the cheques handed over to the Enforcement Wing Officers.
In the instant case, even without affording an opportunity to the petitioner, the respondent has issued the impugned notice under Section 45 of the Tamil Nadu Value Added Tax Act 2006 on the presumption that the petitioner has admitted his liability whereas as seen from the available records excepting for the issuance of cheques, there is no conclusive evidence to prove that the petitioner had admitted his liability.
The impugned notice dated 27.01.2016 is hereby quashed and the matter is remanded back to the respondent for fresh consideration and the respondent is granted liberty to initiate fresh legal action after affording sufficient opportunity to the petitioner to raise all objections available to them under law - petition allowed by way of remand.
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2019 (5) TMI 1626
Requirement to deposit 25% of the amount of compensation - section 148 of Negotiable Instruments Act - Statement of Objects and Reasons of the amendment in Section 148 of the N.I. Act - whether the first appellate court is justified in directing the appellants–original accused who have been convicted for the offence under Section 138 of the N.I. Act to deposit 25% of the amount of compensation/fine imposed by the learned trial Court, pending appeals challenging the order of conviction and sentence and while suspending the sentence under Section 389 of the Cr.P.C., considering Section 148 of the N.I. Act as amended?
HELD THAT:- Having observed and found that because of the delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings, the object and purpose of the enactment of Section 138 of the N.I. Act was being frustrated, the Parliament has thought it fit to amend Section 148 of the N.I. Act, by which the first appellate Court, in an appeal challenging the order of conviction under Section 138 of the N.I. Act, is conferred with the power to direct the convicted accused – appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial Court. By the amendment in Section 148 of the N.I. Act, it cannot be said that any vested right of appeal of the accused – appellant has been taken away and/or affected. Therefore, submission on behalf of the appellants that amendment in Section 148 of the N.I. Act shall not be made applicable retrospectively and more particularly with respect to cases/complaints filed prior to 1.9.2018 shall not be applicable has no substance and cannot be accepted, as by amendment in Section 148 of the N.I. Act, no substantive right of appeal has been taken away and/or affected.
Section 148 of the N.I. Act as amended, shall be applicable in respect of the appeals against the order of conviction and sentence for the offence under Section 138 of the N.I. Act, even in a case where the criminal complaints for the offence under Section 138 of the N.I. Act were filed prior to amendment Act No. 20/2018 i.e., prior to 01.09.2018. If such a purposive interpretation is not adopted, in that case, the object and purpose of amendment in Section 148 of the N.I. Act would be frustrated. Therefore, as such, no error has been committed by the learned first appellate court directing the appellants to deposit 25% of the amount of fine/compensation as imposed by the learned trial Court considering Section 148 of the N.I. Act, as amended.
Interpretation of statute - the language used in Section 148 of the N.I. Act as amended - case of appellant is that the appellate Court “may” order the appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial Court and the word used is not “shall” and therefore the discretion is vested with the first appellate court to direct the appellant–accused to deposit such sum and the appellate court has construed it as mandatory - HELD THAT:- Amended Section 148 of the N.I. Act confers power upon the Appellate Court to pass an order pending appeal to direct the Appellant Accused to deposit the sum which shall not be less than 20% of the fine or compensation either on an application filed by the original complainant or even on the application filed by the AppellantAccused under Section 389 of the Cr.P.C. to suspend the sentence. The aforesaid is required to be construed considering the fact that as per the amended Section 148 of the N.I. Act, a minimum of 20% of the fine or compensation awarded by the trial court is directed to be deposited and that such amount is to be deposited within a period of 60 days from the date of the order, or within such further period not exceeding 30 days as may be directed by the appellate court for sufficient cause shown by the appellant. Therefore, if amended Section 148 of the N.I. Act is purposively interpreted in such a manner it would serve the Objects and Reasons of not only amendment in Section 148 of the N.I. Act, but also Section 138 of the N.I. Act. Negotiable Instruments Act has been amended from time to time so as to provide, inter alia, speedy disposal of cases relating to the offence of the dishonoured of cheques. So as to see that due to delay tactics by the unscrupulous drawers of the dishonoured cheques due to easy filing of the appeals and obtaining stay in the proceedings, an injustice was caused to the payee of a dishonoured cheque who has to spend considerable time and resources in the court proceedings to realise the value of the cheque and having observed that such delay has compromised the sanctity of the cheque transactions, the Parliament has thought it fit to amend Section 148 of the N.I. Act. Therefore, such a purposive interpretation would be in furtherance of the Objects and Reasons of the amendment in Section 148 of the N.I. Act and also Sec 138 of the N.I. Act.
Section 357(2) of the Cr.P.C. - case of appellant is that once the appeal against the order of conviction is preferred, fine is not recoverable pending appeal and therefore such an order of deposit of 25% of the fine ought not to have been passed - HELD THAT:- The opening word of amended Section 148 of the N.I. Act is that “notwithstanding anything contained in the Code of Criminal Procedure..” - Therefore irrespective of the provisions of Section 357(2) of the Cr.P.C., pending appeal before the first appellate court, challenging the order of conviction and sentence under Section 138 of the N.I. Act, the appellate court is conferred with the power to direct the appellant to deposit such sum pending appeal which shall be a minimum of 20% of the fine or compensation awarded by the trial Court.
There are no reason to interfere with the impugned common judgment and order passed by the High Court dismissing the revision application/s, confirming the order passed by the first appellate court directing the appellants to deposit 25% of the amount of fine/compensation pending appeals - appeal dismissed.
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2019 (5) TMI 1625
Benefit of reduced mandatory pre-deposit of Penalty amount - HELD THAT:- The conduct of the appellant in not depositing the amount, and approaching the court, deserves to be frowned upon; at the same time, this court notices that according to the averments, the appellant was facing severe financial constrains as it has been subjected to some search and seizure process and its assets were also attached. It is stated, however, that the appellant is willing to deposit the entire mandatory amount (20% of the penalty) - Given the fact that, its appeal has not been adjudicated on merits but dismissed on the ground of failure to comply with the statutory requirement of mandatorily pre-depositing the amount, this court is of the opinion that the interest of justice requires that the request of the appellant be granted.
The appeal would stand restored - application disposed off.
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2019 (5) TMI 1624
Refund claim - Benefit of Concessional rate of CVD - Sl. No 263A of Notification no. 12/2012-CE dated 17.03.2012 as amended by N/N. 04/2014-CE dated 17.02.2014 - import of mobile phone parts, components and accessories - whether re-assessed bills of entry are required in respect of the refund claim filed under Section 27 of the Customs Act, 1962?
HELD THAT:- The requirement to furnish re-assessed bills of entry existed in the erstwhile Section 27 as it existed prior to 08.04.2011 before the introduction of self assessment - A perusal of the erstwhile Section 27 of the Customs Act would provide that refund was admissible in respect of duty which was paid in pursuance of the order of assessment. Thus, if there was an order of assessment by an officer, the same was subject to challenge by way of an appeal subsequent to which refund would accrue to an assessee in light of a favourable appellate order.
As per the existing provisions of Section 27 of the Customs Act, it is not mandatory that a claim for refund of duty be made only against an order of assessment. This is because where there is self assessment, the question of any assessment order does not arise. So long as the assessee is able to show that the duty is paid by him or borne by him, he is entitled to file a claim for refund. Thus, if duty has been paid under self assessment basis, a claim for refund can be made without filing any appeal against the bill of entry.
The Hon’ble Delhi High Court in the case of AMAN MEDICAL PRODUCTS LTD. VERSUS COMMISSIONER OF CUSTOMS, DELHI [2009 (9) TMI 41 - DELHI HIGH COURT] held that a claim for refund would be maintainable in absence of an Appeal against bills of entry where the duty was paid inadvertently.
The Apex Court in the case of M/S SRF LTD., M/S ITC LTD VERSUS COMMISSIONER OF CUSTOMS, CHENNAI, COMMISSIONER OF CUSTOMS (IMPORT AND GENERAL) , NEW DELHI [2015 (4) TMI 561 - SUPREME COURT] has held that the exemption from payment of CVD shall be available even in respect of imported goods for the reason that no question of availing cenvat credit under the Cenvat Credit Rules, 2002 arises where inputs are produced in a country other than India. Thus, the condition must be considered to be fulfilled.
Appeal dismissed - decided against Revenue.
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2019 (5) TMI 1623
Recovery of Service tax alongwith interest and the penalties - suppression of taxable value - evasion of service tax - service of order - Law of Limitation - HELD THAT:- There is no dispute about fact that the SCN was received by the appellant and he also received the notices to join the investigation. Though it is the case of the appellant that the SCN and the subsequent letters were served on the correct address of the appellant i.e. 28/10 Talawali Chanda, Dewas Naka, Indore (M.P.), once the SCN which triggered the adjudication and the Order-in-Original was the outcome for the same, it was incumbent duty of the appellant to follow the outcome of the said SCN. There is no apparent effort on the part of the appellant.
Service of Order - defect in the address - HELD THAT:- The present is not the case of the wrong address. It is merely a typographical error that too of merely one slash being substituted by numeral one. Rest of the address apparently and admittedly is same. It cannot be presumed from any stretch of imagination that the postal services of the particular area will not be in a position to make out the said error.
Letter of the appellant vide which they requested for the Order-in-Original - HELD THAT:- It is observed that no such reason of wrong address is mentioned in the said letter. Rather the letter is specifically mentioning the details of the Order-in-Original. There is nothing on record as to when and how the appellant acquired those details which again is sufficient to hold that the Order-in-Original was very much in the knowledge and notice of the appellant. It is due to the earlier noticed dilatory tactics and the negligent attitude of the appellant that the same was not pursued in time.
Law of Limitation - HELD THAT:- Law of limitation intends to fix a time limit to a ‘lis’ which has to be mandatorily followed. Though there has been a catena of judgments that the merits of the case have always to be preferred instead of dismissing the ‘lis’ merely on technical grounds but those decisions are ample clear to hold that whenever there is an apparent malafide/negligence on the part of the appellant that the mandate of the procedural law of limitation must be given the full effect.
Appeal dismissed - decided against appellant.
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2019 (5) TMI 1622
Classification of services - Site Formation and Clearance, Excavation & Earth Moving and Demolition or not? - agreement for providing work of de-silting of iron ore slimes including loading and transportation of the same at Kadampal Tailing Dam to the fine ore dump at M.V. Siding, Kirandul of Bailadila Iron Ore Project - HELD THAT:- A perusal of the agreement indicates that the work that has to be performed by the appellant is “de-silting of slimes at Kadampal Tailing Dam and transportation of the slimes to fine ore dump at M.V. Siding, Kirandul”. It is, therefore, apparent that the Dam is in existence and only the work of de-silting of slimes has to be carried out by the appellant. Thus, any activity prior to the construction of Dam, would fall under the category of “Site Formation”, as has been clarified in the Budget Letter dated 27 July, 2005.
Any activity of de-silting of slimes after the construction of the Dam would, therefore, not fall in the category of “Site Formation”. The Commissioner (Appeals) failed to appreciate this aspect of the matter and committed an error in holding that the activity carried out by the appellant would fall under the category of “Site Formation”.
Appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1621
Construction of Commercial Complex - construction of driveway for the petrol pump, for which admittedly separate contract was issued - taxability - HELD THAT:- The said issue is settled in favour of the appellant- assessee by the coordinate Bench of this Tribunal in SHILPA CONSTRUCTIONS PVT. LTD. VERSUS COMMR. OF SERVICE TAX, AHMEDABAD [2010 (6) TMI 175 - CESTAT, AHMEDABAD] where it was held that the construction of road does not require payment of service tax - demand set aside.
Valuation - Construction of Commercial Complex’ - material supplied by principle to contract, free of charge, which was admittedly not adjusted in the bill of the appellant contractor - HELD THAT:- This issue is also settled in favour of the appellant-assessee by ruling of Hon’ble Supreme Court in COMMISSIONER OF SERVICE TAX ETC. VERSUS M/S. BHAYANA BUILDERS (P) LTD. ETC. [2018 (2) TMI 1325 - SUPREME COURT] where it was held that The value of the goods/materials cannot be added for the purpose of aforesaid notification dated September 10, 2004, as amended by notification dated March 01, 2005 - demand set aside.
Appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1620
CENVAT Credit - input services - services used for setting up of the factory or the business premises - Appellant has acquired the land and paid compensation and also constructed rehabilitation and resettlement colony for displaced person - Time Limitation - period involved is April, 2012 to March, 2016 - SCN issued on 12.4.2017 - HELD THAT:- The input services is required for setting up of the Aluminium Smelter plant by the Appellant in the process the Appellant has acquired the land and paid compensation and also constructed rehabilitation and resettlement colony for displaced person. This was required for setting up of the plant which would be required for manufacturing of the final products by the Appellant in their manufacturing plant. Accordingly, the Cenvat credit on the input services have been used in or in relation to setting up of the plant, which is covered under the main clause of definition of input service.
Invocation of extended period of limitation - suppression of facts or not - HELD THAT:- The issue has been detected by the audit conducted in the Appellant’s factory by the Department. It is admitted fact that the Appellant has taken Central Excise registration in the year 2009 and also started filing ER-1 returns with the Department. In such a circumstances, the extended period for raising demand is not available to the Appellant.
The similar issue has been decided by this Tribunal in their own case HINDALCO INDUSTRIES LTD VERSUS C.C.E & ST, JABALPUR [2018 (10) TMI 392 - CESTAT NEW DELHI] where it was held that There is no allegation of fraud, suppression, or falsification of records. The issue is simply of interpretation. The invocation of the extended period of limitation is bad and the Show Cause Notice is not maintainable on this ground.
The demand is barred by limitation, without going into the merits of the case - appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1619
Requirement with the pre-deposit - Section 35 F (i) of the Central Excise Act, 1944 - pre-condition of payment of mandatory pre-deposit under Section 35 F (i) of the Central Excise Act, 1944 not fulfilled - HELD THAT:- The amount which need to be deposited as per the requirement of Section 35 F (i) comes to ₹ 19,569/- which admittedly have already been deposited by the appellant - A proper compliance of Section 35 F (i) regarding pre-deposit have already been complied with by the appellant.
Matter remanded back to the Commissioner (Appeals) to consider the appeal on merits in this case - appeal allowed by way of remand.
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2019 (5) TMI 1618
CENVAT Credit - input services - outward freight incurred on finished goods dispatched by them to their buyers / consignment agents on FOR basis - Place of removal - Rule 2(l)(ii) of Cenvat Credit Rules, 2004 - HELD THAT:- It is admitted fact that the appellant has sold the goods on FOR basis and such price includes the cost of freight upto the customers’ premises. Further, in the facts and circumstances, till the time the customer has accepted the goods at his doorstep, the appellant was liable for risk in transit - the place of removal was the doorstep of the customer and accordingly as provided in Rule 2(l) of the Cenvat Credit Rules, 2004, the appellant is entitled to cenvat credit on outward freight, till the place of removal.
Credit allowed - appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1617
Valuation - remission in the nature of subsidy - additional consideration or not? - inclusion of 75% VAT refunded by the State Government to the noticee under the Madhya Pradesh Industrial Investment Promotion Assistance Scheme, 2004/2010 in the assessable value - HELD THAT:- The transaction value includes all the payments made by the buyer to the assessee. However, in the instant case, the subsidy has been underpaid to assessee by the State Government as a financial assistance Industrial Promotion Scheme of MP State Government. Only the mode of payment is by way of crediting the sales tax head under VAT challan in favour of the appellant. Thus, it could not be said that the amount is in the nature of additional consideration.
In the present case, the remission is in the nature of subsidy which the appellant was receiving from the State Government in the form of VAT 37B Challans and not from the buyers of the appellant. The said remission was not only as good as cash but can also not be considered as an additional consideration.
Reliance placed in the case of SHREE CEMENT LTD. SHREE JAIPUR CEMENT LTD. VERSUS CCE, ALWAR [2018 (1) TMI 915 - CESTAT NEW DELHI] wherein it was held that where assesses are required to remit the VAT recovered by them at the time of sale of goods manufactured and a part of such VAT is given back to them in the form of subsidy in VAT 37b Challans, such Challans are as good as cash but for the limited purpose of being used for the payment of VAT in the subsequent period. The Tribunal has clarified that in terms of the scheme of Government of Rajasthan, payment of VAT using such Challans are the legal payments of tax.
Appeal dismissed - decided against Revenue.
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2019 (5) TMI 1616
CENVAT Credit - input service - cost of transportation, for clearance of their goods from the factory to the premises of their buyer - place of removal - period in question May/June 2010 to December, 2012 - Extended period of limitation - penalty - HELD THAT:- The appellant is entitled to Cenvat Credit - reliance placed in the case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX VERSUS ULTRA TECH CEMENT LTD. [2018 (2) TMI 117 - SUPREME COURT].
Extended period of Limitation - HELD THAT:- The present matter arising from the subsequent show cause notice on the same issue, the extended period of limitation is not available to Revenue, as there is no case of suppression etc made out - Admittedly show cause notice states that same arises pursuant to audit. We find that similar show cause notice was issued previously also.
CENVAT Credit - HELD THAT:-The appellant is liable to reverse cenvat credit only for the normal period of limitation which is July, 2012 to December, 2012 as the show cause notice is served on 18 July, 2013, and the appellant has filed return for the month of June 2012 on 9th July, 2012 - penalty imposed is also set aside.
The appellant is directed to file a calculation of the amount they are required to reverse by way of Cenvat Credit before the Original Adjudicating Authority and Commissioner shall verify the same and if any discrepancy is pointed out, and the appellant shall accordingly act - appeal allowed by way of remand.
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2019 (5) TMI 1615
Valuation - inclusion of VAT subsidy amounts received by the appellants from Rajasthan Government in assessable value - HELD THAT:- The appellant was availing the benefit of Rajasthan Investment Promotion Scheme, 2010 (RIPS) notified by State Government of Rajasthan with a view to promote investments thereby entitling the appellant to a subsidy up to certain percentage of the VAT paid by the appellant - It is an admitted fact that the said subsidy is credited to the sales tax account of the appellant which he receives by way of VAT 37B Challans. It is also an apparently admitted fact that the appellant was paying total VAT charged at applicable rates on sale of goods to the State Exchequer and was filing the VAT returns. The VAT 37B Challans, the appellant was utilising to discharge the output VAT liability for the subsequent period.
Department has given much emphasis upon COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II VERSUS M/S. SUPER SYNOTEX (INDIA) LTD. AND OTHERS [2014 (3) TMI 42 - SUPREME COURT] but we are of the opinion that the facts of present case are absolutely different from the said case in the terms that the Hon’ble Apex Court in the said case was dealing with sales tax incentive scheme. But in the present case, the issue is with respect to the grant of sales tax subsidy. In Super Synotex case, the assessee was retaining 75% of the sales tax collected from the customers whereas in the present case, the appellant had paid the entire amount of sales tax collected from the customers, with the Sales Tax Department without retaining even a meagre portion thereof. Hence, the benefit granted by RIPS to the appellant herein is not in the nature of exemption or incentive from payment of sales tax but is a remission where nothing was initially retained by the appellant. Thus, the facts of present case are absolutely different from the case decided by the Hon’ble Apex Court.
The discharge of liability by way of VAT 37B challans is a legally sustainable method of discharging tax liability of subsequent period - no question of intent to evade tax at all arises once it stands so discharged - the order confirming demand and imposing penalty is apparently erroneous.
Appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1614
CENVAT Credit - duty paying documents - supplementary invoices raised against the original invoices issued by the subsidiary companies of Coal India Ltd. i.e. M/s. South Eastern Coal Limited - suppression of facts - HELD THAT:- Tribunal in connected matter of ULTRA TECH CEMENT LTD UNIT ADITYA CEMENT WORKS VERSUS CE & ST-UDAIPUR [2018 (8) TMI 952 - CESTAT NEW DELHI] wherein the pendency of similar matter before the Hon’ble Supreme court in the case of South Eastern Coal Fields Ltd. and ors. and also of other cases, referred to in the above case, has been considered and it is held that it is an admitted position that demand raised by the department against M/s. SECL is under challenge before the Hon’ble Supreme Court and therefore the cenvat credit can be availed by the manufacturer on the strength of supplementary invoice as such amount of duty cannot be said to be paid on account of any non levy or short levy by reason of fraud, collusion or any wilful mis- statement or suppression of facts or contravention of any provision of the Central Excise Act/ Rules with intent to evade payment of duty.
The appellant is entitled to take CENVAT credit on the supplementary invoices in question - Appeal allowed - decided in favor of appellant.
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2019 (5) TMI 1613
CENVAT Credit - input services - excavation services by the respondent in respect of tailing dam constructed by the respondent and used for disposal of industrial waste and polluted water in compliance with the Environment Laws - demand from Feb. 2012 to March, 2015 - HELD THAT:- This issue is decided in their own case of CCE, UDAIPUR VERSUS M/S HINDUSTAN ZINC LIMITED [2018 (7) TMI 682 - CESTAT NEW DELHI] , wherein, such credit has been held to be admissible.
Credit allowed - Appeal dismissed - decided against Revenue.
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2019 (5) TMI 1612
Dishonor of Cheque - insufficiency of funds - section 138 of NI Act - whether the defence raised by the appellant is bonafide and probable; has the appellant been able to raise a triable issue or whether the defence of the appellant is moonshine, sham, bogus and malafide?
HELD THAT:- A reading of the leave to defend application, more particularly, paragraph 6, which has been extracted by the learned Single Judge in detail, would show that the appellant had consistently taken a stand that he would be taking action against the respondent for the illegal acts committed but no such action has been initiated. The signatures on the agreement are not disputed. Handing over of cheques and part payments made during this period are clearly indicative of the acknowledgement of debt and liability by the appellant. Another factor which cannot be ignored is that to clear the debt, the appellant had also sought permission of the respondent to involve overseas investors, which was obviously an act by the appellant to clear his debt.
In response to the stand taken by the respondent that no criminal complaint had been filed, counsel for the appellant submits that he had filed a petition under Section 482 Cr.P.C. for quashing of the proceedings under Section 138 of the Negotiable Instruments Act. He submits that he had agitated this question before the learned Single Judge of this Court and the Court granted liberty to raise the grounds before the concerned court.
The learned Single Judge has rightly dismissed the application of the appellant seeking leave to defend - appeal dismissed.
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2019 (5) TMI 1611
Issuance of necessary directions for clubbing the FIRs filed by some of the respondents together with the FIR - treatment of all FIR as single FIR - HELD THAT:- Liberty to approach the trial court for interim bail is granted.
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2019 (5) TMI 1610
The Bombay High Court issued notice to respondent Nos. 1 and 2 in a petition, with the returnable date set for 18.04.2019. The petitioner was granted ad interim relief, with a directive for no coercive action against them until the next hearing date, while also being instructed to cooperate with the investigation.
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2019 (5) TMI 1609
Levy of penalty u/s 271(1) (c) - non-recording of proper satisfaction by AO for initiating the penalty proceedings - no proper service of notice - HELD THAT:- The facts involved in this matter are very similar to the facts involved in the case of CIT vs Virgo Marketing (P) Ltd. [2008 (1) TMI 15 - HIGH COURT, DELHI] wherein while assessing the income of the assessee, at the end of the order, AO observed “Penalty proceedings u/s. 271(1)(c) have been initiated separately.” There was no proper satisfaction recorded by the learned Assessing Officer while concluding the assessment, and while respectfully following this decision of the Hon’ble jurisdictional High Court in this case, we conclude that there is no proper recording of satisfaction by the Ld. AO while initiating the penalty proceedings.
AO to assume jurisdiction u/s 271(1)(c) of the Act, proper notice is necessary and because of the defect in notice u/s 274 of the Act and on the facts of this case, it is difficult to hold that the learned AO rightly assumed jurisdiction to pass the order levying the penalty. Because of non-recording of proper satisfaction for initiating the penalty proceedings, the penalty cannot be sustained. We accordingly quash the penalty proceedings. - Decided in favour of assessee
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