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Case Laws
Showing 401 to 420 of 1183 Records
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2021 (6) TMI 783
CENVAT Credit - inputs - Bars and Rods which were used in annealing process - process amounting to manufacture or not - credit availed on the inputs received from sister concern, in case the supplier has paid duty - HELD THAT:- In terms of Rule 3 of Cenvat Credit Rules, 2004, that a manufacturer or producer of final products or a provider of taxable services shall be allowed to take credit of (various taxes mentioned there in suffered on the inputs) 3(i) any input or capital goods received in the factory of manufacture of final products; in terms of Rule 9 of CCR, 2004 the inputs must be accompanied by proper documents evidencing duty payment and that the same should be utilized for manufacture of final products cleared on payment of duty. It is not the case of the department that the respondents did not receive the said inputs; the same were not duty paid and the same were not utilized for manufacture of final dutiable products. Going by the facts of the case it is found that none of the essential conditions have been violated to deny the credit to the appellant.
The department has not taken any steps to dishonor the duty payment made by the supplier of respondents. A show cause was issued alleging that their availment of Cenvat Credit was incorrect as the process undertaken by them did not amount to manufacture.
The availment of Cenvat Credit by the respondents cannot be held to be illegal as it was found to be otherwise in order - Appeal dismissed - decided against Revenue.
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2021 (6) TMI 782
Seeking restoration of revoked license - customs broker licence - forfeiture of security deposit - levy of penalty - emplacement of ‘offence report’ within the scheme of revocation - Regulation 18 of Customs Brokers Licencing Regulations, 2018 - HELD THAT:- It is seen that the show cause notices of 2009 and 2010, being the earliest documentation of any allegation that the appellant may have been involved in misuse of authorizations, was the proximate cause of action for recourse to Customs Brokers Licencing Regulations, 2018. In the absence of any other document that claims to be the ‘offence report’, these notices must be taken to be the said reports for triggering proceedings thereafter.
Leaving aside the issue of the elapse of time between the said show cause notices under Customs Act, 1962 and the notice under regulation no. 17 of Customs Brokers Licencing Regulations, 2018, the erasure of the proposals against the customs broker contained in those very show cause notices as early as September 2019 had wiped the ‘offence reports’ out of existence well before the notice for revocation was issued. In other words, the proceedings were commenced without the metaphorical ‘starter pistol’ and thus renders the subsequent inquiry and impugned order to be stillborn.
The emplacement of ‘offence report’ within the scheme of revocation is not intended to be stultified under any circumstance and permitting of any dilution can only be at the cost of perverting the legislative intent of section 146 of Customs Act, 1962. Strict adherence to legislated empowerment cannot but be insisted upon even before merit of the detriment can be interfered with.
In the light of the discussion, which takes note of the manifest lack of ‘offence report’ when notice under regulation no. 17 of Customs Broker Licencing Regulations, 2018 was issued, we are constrained to negate the very proceedings that followed along with the consequences thereon in the form of revocation of licence, forfeiture of security deposit and imposition of penalty - appeal allowed - decided in favor of appellant.
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2021 (6) TMI 781
Interest on delayed refund - adjudicating authority failed to record any finding on the issue of admissibility of interest - HELD THAT:- Since the adjudicating authority has not recorded any finding on the issue of admissibility of interest, accordingly, the matter needs to be reconsidered by the adjudicating authority. Consequently, the matter was remanded with direction to decide the issue within two months from the date of communication of the order. Aggrieved by the said observation, the appellant raised the issue before this Tribunal. During the pendency of the appeal before this Tribunal, the adjudicating authority implemented the order of the learned Commissioner (Appeals) sand sanctioned the total interest amount of ₹ 7,98,663/-.
The grievance of the appellant assailing the impugned order of the learned Commissioner (Appeals) has now been addressed by the adjudication order dated 28.04.2020 - Appeal dismissed.
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2021 (6) TMI 780
Revocation of Customs Broker license - forfeiture of security deposit - levy of penalty - evasion of duty by undervaluation and misdeclaration of quantity - HELD THAT:- Instead of rendering a finding on each of the four articles of charge, on the basis of evidence furnished and response of the customs broker, the enquiry authority has rendered a finding on a charge that was, apparently, not levelled against the appellant. The licensing authority, while sustaining the proposal in the show cause notice on the basis of the report of the enquiry officer, failed to take note of this aberration. That colourable exercise of jurisdiction, thereby, stands transferred to the impugned order.
The license of the appellant having been revoked by the first of the impugned orders, the subsequent revocation, and forfeiture of security deposit, should, in normal circumstances, be held as infructuous. However, as the procedure laid down in law, under Customs Broker Licensing Regulations, 2018, have been departed from in the stages leading to the first order of revocation rendering the original revocation to be lacking in legality and propriety, it would be appropriate to set aside both the impugned orders and remand them to the original authority for deciding afresh after instituting a fresh enquiry, as prescribed under Customs Broker Licensing Regulations, 2018, for ascertaining the correctness, or otherwise, of each of the articles of charge appended to the two show cause notices.
Appeal allowed by way of remand.
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2021 (6) TMI 779
Revocation of Customs Broker License - forfeiture of security deposit - imposition of penalty - export of Pseudo Ephedrine concealed in the declared cargo, namely ‘Chow Chow’ - violation of Regulations 11(a), 11(d) and 11(n) of CBLR, 2013 - HELD THAT:- The employees of the appellant Customs Broker at the time of investigation of attempt to export illegally white crystalline powder suspected to be Pseudo Ephedrine by the ACIU, in their respective statements voluntarily disclosed that they had not obtained proper authorization from the exporter and the export documents were handed over by the elder brother of Shri M. Amrithalingam. The said statements were not retracted nor assailed by requesting cross-examination particularly when charge of contravention of Regulation 11(a) of non-receipt of authorization from the exporter was framed against the appellant. The authorities below have also observed that not only in connection with the present consignment but also in the past five export consignments the appellant had not obtained proper authorization from the exporter - much importance cannot be placed on the said authorization letter at this stage when the statements furnished remained unchallenged. In these circumstances, it is to be accepted that the appellant contravened the provisions of Regulation 11(a) of CBLR, 2013.
Contravention of Regulation 11(d) - HELD THAT:- The learned Commissioner reasoned that since the appellant could not produce the valid authorization for whom they were transacting the business or whom he has represented, the question of advising the said client to comply with the provisions of the CBLR, 2013 is out of question, therefore, the violation of Regulation 11(d) on the part of the Customs Broker has been established. Also, in support of the said finding, the learned Commissioner observed that the appellant had not only filed the shipping bill in question without obtaining authorization but also had filed five such shipping bills in the past of the said exporter without any authorization or verification of the antecedents of the exporter - as per Regulation 11(d), the Customs Broker is required to advise his client to comply with the provisions of the Customs Act, whereas in the present case, since Customs Broker has not interacted with the exporter advising him to comply with the provisions of Customs Act, 1962 does not arise. Consequently, the learned Commissioner has correctly concluded that there is violation of Regulation 11(d) of CBLR, 2013 also.
Violation of Regulation 11(n) - HELD THAT:- There are merit in the observation of the learned Commissioner as verification of antecedents, identity etc. be required to be done using the reliable independent authentic documents, data or information by the CB. Mere claim in this regard cannot suffice the requirement of production of authentic documents, data, information etc. in support of their claim of verification as required under the said Regulation particularly when the export documents were not directly handed over to the appellant and the same was received through a third party i.e. the elder brother of Shri M. Amrithalingam. Therefore, violation of Regulation 11(n) of the CBLR, 2013 as concluded by the learned Commissioner also does not call for interference.
There are contravention of the Regulations by the appellant Customs Broker, but no evidence is brought on record establishing the involvement of or in the knowledge of the Appellant Custom Broker the attempt to export the crystalline white powder suspected to be ‘Pseudo Ephedrine’ by the exporter concealing the same in the declared export cargo namely, Chow-Chow (vegetables). In these circumstances imposition of harsh penalty by revoking the license of the appellant is not warranted and hence deserves to be set aside.
The impugned order is modified to the extent of setting aside the direction of revocation of license under Regulation 18 of the CBLR, 2013; the imposition of penalty and forfeiture of security deposit and imposition of penalty of ₹ 50,000/-as directed is upheld - Appeal allowed in part.
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2021 (6) TMI 778
Validity of notification for restricting the import of certain beans, peas and pulses - different interim orders were passed by the different High Courts and the importers effected various imports on the strength of such interim orders. - Notifications issued by the Central Government under the Foreign Trade (Development and Regulation) Act, 1992 - Absolute confiscation or redemption to be allowed on payment of redemption fine - HELD THAT:- it is at once clear that when the matter was left for decision by the Commissioner (Appeals), there was neither any occasion nor any justification for the High Court to pass the order for release of the goods for the simple reason that any order for release of goods was to render the material part of the matter a fait accompli. This, simply, could not have been done. Putting it differently, a little pause after paragraph 36 of the impugned order 15.10.2020 and before the directions in the next paragraph would make it clear that for what had been observed in the said paragraph 36 of the impugned order (as regards leaving of the matter for decision by the Appellate Authority), any direction for release of goods pursuant to the order-in-original could not have been issued - It gets, perforce, reiterated that if the orders-in-original dated 28.08.2020 were to be executed under the mandate of the High Court, the appeals were going to be practically redundant after release of the goods and nothing material was to remain for decision by the Appellate Authority on the main subject matter of the appeal.
The High Court has taken into account a few factors standing in favour of the importers like the orders-in-original holding the field; the importers having made the necessary payments; and the importers incurring expenditure because of warehousing. An additional factor had been the High Court's dissatisfaction that the orders dated 01.10.2020 were passed in an improper manner and grounds given therein were not justifying the withholding of the goods. While proceeding on these reasons and considerations, it appears that the other overriding factors like the interest of domestic agriculture market economy totally escaped the attention of the High Court. Thus, the impugned order dated 15.10.2020, having been passed while ignoring the relevant considerations, cannot be approved - the impugned orders dated 15.10.2020 (read with the modification order dated 09.12.2020) and 05.01.2021 remain unsustainable and are required to be set aside.
Prohibited goods or not - HELD THAT:- The learned ASG has rightly pointed out with reference to the decision in PTR Exports (supra) that an Applicant has no vested right to have export or import licence; and granting of licence depends upon the policy prevalent on the date. The learned ASG has further rightly submitted, with reference to the decision in S.B. International (supra), that granting a licence to import is not a matter of formality; and the authorities have to satisfy themselves that the application satisfies all the requirements of the scheme and the applicable laws.
As noticed, only the particular restricted quantity of the commodities covered by the said notifications could have been imported and that too, under a licence. Therefore, any import within the cap (like that of 1.5 lakh MTs) under a licence is the import of restricted goods but, every import of goods in excess of the cap so provided by the notifications, is not that of restricted goods but is clearly an import of prohibited goods.
The present case is of an entirely different restriction where import of the referred peas/pulses has been restricted to a particular quantity and could be made only against a licence. The letter and spirit of this restriction, as expounded by this Court earlier, is that, any import beyond the specified quantity is clearly impermissible and is prohibited. This Court has highlighted the adverse impact of excessive quantity of imports of these commodities on the agricultural market economy in the case of Agricas [2020 (8) TMI 705 - SUPREME COURT] whereas, it had not been the case in Atul Automations [2019 (1) TMI 1324 - SUPREME COURT] that the import was otherwise likely to affect the domestic market economy. In contrast to the case of Atul Automations, where the goods were permitted to be imported (albeit with authorisation) for the reason that they were not manufactured in the country, in the present case, the underlying feature for restricting the imports by quantum has been the availability of excessive stocks and adverse impact on the price obtainable by the farmers of the country.
The unnecessary and baseless arguments raised on behalf of the importers that the goods in question are of 'restricted' category, with reference to the expression 'restricted' having been used for the purpose of the notifications in question or with reference to the general answers given by DGFT or other provisions of FTDR Act are, therefore, rejected. The goods in question fall in the category of 'prohibited goods'.
Whether the goods in question are liable to absolute confiscation? - HELD THAT:- Once it is clear that the goods in question are improperly imported and fall in the category of 'prohibited goods', the provisions contained in Chapter XIV of the Customs Act, 1962 come into operation and the subject goods are liable to confiscation apart from other consequences - A bare reading of the provision of Section 125(1) of the Customs Act, 1962 makes it evident that a clear distinction is made between 'prohibited goods' and 'other goods'. As has rightly been pointed out, the latter part of Section 125 obligates the release of confiscated goods (i.e., other than prohibited goods) against redemption fine but, the earlier part of this provision makes no such compulsion as regards the prohibited goods; and it is left to the discretion of the Adjudicating Authority that it may give an option for payment of fine in lieu of confiscation. It is innate in this provision that if the Adjudicating Authority does not choose to give such an option, the result would be of absolute confiscation.
The sum and substance of the matter is that as regards the imports in question, the personal interests of the importers who made improper imports are pitted against the interests of national economy and more particularly, the interests of farmers. This factor alone is sufficient to find the direction in which discretion ought to be exercised in these matters - The imports in question suffer from the vices of breach of law as also lack of bona fide and the only proper exercise of discretion would be of absolute confiscation and ensuring that these tainted goods do not enter Indian markets. Imposition of penalty on such importers; and rather heavier penalty on those who have been able to get some part of goods released is, obviously, warranted.
Thus, the goods in question are to be held liable to absolute confiscation but with a relaxation of allowing re-export, on payment of the necessary redemption fine and subject to the importer discharging other statutory obligations. The Respondent-importers being responsible for the improper imports as also for the present litigation, apart from other consequences, also deserve to be saddled with heavier costs - appeal allowed.
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2021 (6) TMI 777
Grant of Anticipatory Bail - applicant is willing to produce all documents required and is also willing to get his statement recorded on the date fixed by the proper authority - Section 70 of the Central Goods and Services Tax Act, 2017 - HELD THAT:- The applicant states that he is willing to cooperate with the enquiry and comply with the summons. However, in view of Sections 193 and 228 IPC, he apprehends arrest which, in the present circumstances, is stated to be not required as no custodial investigation would be necessary as the applicant is willing to produce all documents required and is also willing to get his statement recorded on the date fixed by the proper authority - Matter requires consideration.
The applicant is entitled to interim anticipatory bail in this case, at this stage - the applicant shall be released on interim anticipatory bail during the investigation, till the next date fixed, on his furnishing a personal bond of ₹ 50,000/- with two sureties of the like amount to the satisfaction of the Station House Officer of the police station concerned on the conditions imposed.
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2021 (6) TMI 776
Dishonor of Cheque - photocopy of the cheque can be taken as secondary evidence as provided under Section 65 of the Evidence Act or not - Whether, writ petition (criminal) assailing legality and propriety of the order passed by the Revisional Court is maintainable? - HELD THAT:- Learned counsel while refuting the said contention would submit that the power exercised by this Court under Article 226 of the Constitution of India and under Section 482 Cr.P.C. are one and the same as both the powers have to be exercised rarely and sparingly to prevent abuse of process of any court or to secure the ends of justice, therefore, the writ petition (criminal) assailing the orders passed by the learned Session Judge as well as learned Magistrate First Class is maintainable - the writ petition (criminal) is maintainable assailing the order passed by the learned Sessions Judge in the criminal revision. Therefore, issue number 1 raised by the respondent goes against him and this Court finds that the writ petition (criminal) is maintainable.
Whether, the photocopy of the document can be taken as secondary evidence as provided under Section 65 of the Evidence Act? - HELD THAT:- From perusal of Clause 2 and 3 of the Section 63 of the Indian Evidence Act it can be said that by some mechanical process copy of the document may be obtained but the petitioner shall ensure its correctness and accuracy by sufficient placing materials on record. It is pertinent to mention here that there is no whisper in the application filed by petitioner before Trial Court which shall indicate that it has been obtained by mechanical process to ensure its accuracy - In the present application since there is no averment under Section 65 of the Indian Evidence Act that photocopy was compared with the original and it was accurate photocopy of the original and further have not filed with affidavit with regard to person who has obtained the said photocopy. From record it is difficult to hold the hallmark, authenticity and accuracy of the photocopy.
The petitioner failed to explain as to what were the circumstances under which photocopy was prepared and who was in possession of the original document at the time of photocopy being prepared. In view of these circumstances, this Court comes to conclusion that no foundation has been laid for leading secondary evidence in the shape of photocopy. Thus, it can be established that photocopy is neither primary evidence nor secondary evidence because the parties are required to prove whether the photocopy taken is the exact copy of the original., therefore, in view of Section 65 of the Indian Evidence Act the Revisional Court as well as the Judicial Magistrate First Class have not committed any error while rejecting the application.
The learned Judicial Magistrate First Class and learned Revisional Court have not committed any illegality or irregularities while rejecting the application for permission to lead secondary evidence which warrants interference by this Court exercising power under Article 226 of the Constitution of India - Petition dismissed.
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2021 (6) TMI 775
Seeking release of seized goods - silver biscuits - kacha silver articles - cash - typographical errors were made with regard to the particulars of the order of detention - HELD THAT:- The subsequent development in the form of passing of the final order of confiscation as well as imposition of tax, penalty and fine upon the petitioners has rendered their initial challenge to the show cause notice infructuous. The petitioners are at liberty to assail the final order before the appellate Forum in accordance with law, if they are so advised.
The 1st respondent is directed to upload the order in electronic form in its official website forthwith, if not already done so as to enable to the asseessees to seek appropriate appellate remedy in accordance with law - petition disposed off.
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2021 (6) TMI 774
Levy of penalty u/s 271 (1) (c) - interest payable to the PSUs to assessed as an income of the Respondent depends - HELD THAT:- As decided in [2018 (4) TMI 1473 - SUPREME COURT] the conduct of the parties, as is recorded in the criminal proceedings showing the receipt of amount by the broker, the purpose of receipt and the demand drafts taken by the broker at the instance of the bank are sufficient to prove the fact that the Respondent acted as a broker to the Bank and, hence, the additional interest payable to the PSUs could not be held to be his property or income.
The income that has actually accrued to the Respondent is taxable. What income has really occurred to be decided, not by reference to physical receipt of income, but by the receipt of income in reality. Given the fact that the Respondent had acted only as a broker and could not claim any ownership on the sum and that the receipt of money was only for the purpose of taking demand drafts for the payment of the differential interest payable by Indian Bank and that the Respondent had actually handed over the said money to the Bank itself, we have no hesitation in holding that the Respondent held the said amount in trust to be paid to the public sector units on behalf of the Indian Bank based on prior understanding reached with the bank at the time of sale of securities and, hence, the said sum cannot be termed as the income of the Respondent.
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2021 (6) TMI 773
Validity of original assessment order or the First Appellate order - Section 47 of the Puducherry Value Added Tax Act, 2007 - benefit of Input Tax Credit - zero rated transactions - HELD THAT:- The Appellate remedies are vital for the purpose of fact findings regarding the disputed facts. The High Court based on the affidavits filed by the parties cannot make any finding in respect of the disputed facts as the documents and evidences cannot be examined in a writ proceedings and therefore, this Court is of the opinion that the appellate remedy is to be exhausted by the petitioner in all these Writ Petitions. Some Writ Petitions are filed challenging the original assessment order and the other Writ Petitions are filed challenging the orders passed by the First Appellate Authority. In all such cases, the petitioners are entitled to file an appeal under Section 47 and thereafter, under Section 49 and finally, before the High Court under Section 51 of the PVAT Act. This being the scheme of legislation, dispensing with the provisions contemplated under the statute is not preferable.
The practice of filing Writ Petitions without exhausting the statutory appellate remedy is in ascending mode and most of such Writ Petitions are filed with an idea to evade payment of pre-deposit for filing an appeal which is contemplated under the procedures. However, the High Court need not encourage such practise. Respecting the institutions created under the legislations is of paramount importance. The High Court cannot undermine the importance of the appellate forum created under the statute, unless there are compelling reasons.
The petitioner in all the Writ Petitions are at liberty to file respective appeals before the appellate forum concerned under Sections 47, 49 and 51, as the case may be, by following the procedures contemplated and in a prescribed format - Petition disposed off.
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2021 (6) TMI 772
Principles of natural justice - Validity of assessment order - no opportunity of hearing provided upon a revised SCN - Section 75(4) of the CGST Act - HELD THAT:- A plain reading of Section 75(4) of the CGST Act would leave no doubt in one’s mind that it is incumbent upon the assessing authority to give an opportunity of personal hearing to the assessee when a request in that regard is received in writing from it or where any adverse decision is contemplated against the assessee. In the present case, a clear and unequivocal prayer for personal hearing had been made by the petitioner-assessee which remained unheeded to and the impugned assessment order came to be passed.
The procedure established by law, particularly, the opportunity of personal hearing was unfairly denied to the petitioner-assessee. It is trite law when a thing is prescribed to be done in a particular manner, it must be done in that manner or not at all. When the procedural breach relates to infraction of a facet of natural justice, that is, an opportunity of hearing and denial thereof prejudices the assessee to effectively respond to intricate issues of fact and law as in the present case, the impugned order is liable to be set aside on that score alone - matter remanded to the assessing authority for fresh consideration after giving an opportunity of hearing to the petitioner.
Petition allowed by way of remand.
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2021 (6) TMI 771
Reopening of assessment u/s 147 - Exemption granted u/s 10B - whether approval granted by the STPI under the delegated powers of the Directors of STPI by IMSC is a valid approval for the purpose of claiming exemption under Section 10B? - HELD THAT:- The dispute arises in view of the fact that the assessee is of an opinion that the approval granted by the STPI under the delegated powers of the Directors of STPI by IMSC is a valid approval for the purpose of claiming exemption under Section 10B of the Act. Therefore, the presumption cannot be construed as suppression on the part of the assessee. It is not a mere presumption in the present case by the assessee.
The presumption has got a valid reason because the assessee is holding a valid approval obtained from the STPI and the power to grant approval was delegated to the Directors of STPI by IMSC. It is not as if the assessee claimed exemption under Section 10B without any such approval. It is a case where the order of approval, which was validly granted, was produced before the Assessing Officer at the time of scrutiny and the Assessing Officer also accepted the approval order and granted exemption. Thus, the reason stated in the impugned proceedings that the assessee committed a mistake cannot be accepted.
Assessee was possessing a valid approval which was produced before the Assessing Officer and if a ratification is to be obtained, then the AO at the time of scrutiny, ought to have directed the assessee to get any such ratification certificate for the purpose of grant of exemption under Section 10B which the Department had not done. Thus, it was a mistake or omission committed by the AO at the time of passing of the original assessment order. Even in such cases, if the reopening of assessment is made within a period of four years, then there is a ground for the Department to reopen the same.
In the present case, the reopening of assessment is made beyond the period of four years and therefore, the statutory requirement contemplated under Section 147 is to be complied with scrupulously. Thus, the ground taken for reopening of assessment that the assessee has not disclosed fully and truly all material facts is not established in the present case and the assessee, in fact, submitted all the particulars regarding the approval granted by the authority and further ratification, if required, must be instructed by the Department which was not done and therefore, there was no suppression or nondisclosure of material facts by the assessee. - Decided in favour of assessee.
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2021 (6) TMI 770
Entitlement u/s 10B - Valid approval from eligible authority granted or not - HELD THAT:- This Court is of the considered opinion that admittedly, the petitioner obtained an approval from the Software Technology Parks of India and it is an autonomous society under Government of India, Ministry of Communications & Information Technology, Department of Information Technology. The petitioner has obtained the said approval in proceedings dated 17.04.2008. The approval states that the application submitted by the petitioner for setting up of 100% Export Oriented Unit under the Electronic Hardware Technology Park scheme of Government of India has been approved by this office under the delegated powers to the Directors of STPI by IMSC vide MIT letter No.5(100)/93-Export dated 24.06.1993.
The approval granted further clarified that the petitioner has to maintain a separate bank account for EHTP operations. Separate annual balance sheet will have to be made for the unit. A legal agreement by Demand Draft in favour of the Director, Software Technology Parks of India, Chennai, is to be furnished and other terms and conditions are also stated in the order of approval itself.
As contended in the approval order that the petitioner has to submit a list of capital goods to be imported for attestation, which is required to obtain the bonded warehouse license from Custom's authorities. It was intimated that separate proforma invoice from the supplier has to be submitted to the office of the Software Technology Parks of India for attestation as and when the petitioner intend to import duty free capital goods. The list of capital goods to be imported for attestation, which is required to obtain the bonded warehouse license from Custom's authorities. Separate proforma invoice from the supplier has to be submitted for attestation as and when the petitioner intend to import duty free capital goods.
Perusal of the approval order issued in favour of the writ petitioner in proceedings dated 17.04.2008 reveals that the approval has been granted for setting up of 100% Export Oriented Unit under the Electronic Hardware Technology Park Scheme of Government of India has been approved by the fifth respondent under the delegated powers to the Directors of STPI by IMSC.
Thus, such an approval cannot be validated for the purpose of claiming exemption under Section 10-B.
Entitlement and to verify the other transactions, such a ratification is contemplated by the Ministry of Finance through the impugned clarification letter and therefore, this Court is of an opinion that there is no infirmity or perversity as such and further, there is no inconsistency as such contended by the petitioner. Thus, the petitioner has to get an approval from the competent Board as contemplated for claiming exemption under Section 10-B of the Income Tax Act. Even in case, there is a change of authorities / Board by the Ministry, it is for the petitioner to approach the Ministry or the Department concerned for the purpose of the procedures, which all are in force for claiming exemption under Section 10-B of the Income Tax Act.
This Court is of an opinion that the petitioner has not established any acceptable ground for the purpose of granting the relief as such sought for in the present writ petition and thus, the writ petition stands dismissed.
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2021 (6) TMI 769
Validity of notice under Section 87 (b) of the Finance Act, 1994 - HELD THAT:- Pursuant to the interim order, the respondents have considered the grounds raised by the writ petitioner and passed an order on 18.08.2017 - the petitioner is at liberty to redress his grievances if any exist with reference to the subsequent order passed by the respondents in the manner known to law.
Petition disposed off.
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2021 (6) TMI 768
Grant of Statutory Bail - availment of illegal Input Tax Credit - fake invoices - charge sheet not filed within the statutory period of 90 days - Section 132 (1) (i) of the CGST Act, 2017 - HELD THAT:- It is to be noted that admittedly, the learned Principal District and Sessions Judge, Coimbatore, granted bail to the petitioner on 14.12.2020 itself with certain conditions. Since the petitioner could not comply with the conditions imposed by the learned Principal District and Sessions Judge, filed a modification petition before this Court and this Court, by an order dated 22.02.2021, refused to modify the conditions and however, granted six week times to comply the conditions imposed by the learned Principal District and Sessions Judge, Coimbatore. However, without complying the conditions, the petitioner has taken the next available opportunity of filing a petition under Section 167 (2) of Cr.P.C., seeking mandatory bail, as the charge sheet was not filed within the statutory period of 90 days.
The learned Chief Judicial Magistrate, on consideration of facts, held that once a person already granted bail, he cannot file a petition under Section 167 (2) of Cr.P.C. and therefore, the learned Chief Judicial Magistrate, dismissed the petition. Admittedly, in the case on hand, the petitioner was remanded to judicial custody from 29.10.2020 and charge sheet has not been filed so far - Though it is the contention of the learned counsel for the petitioner that the petitioner could not comply with the condition Nos. (i) or (ii) as the petitioner is not financially strong enough to comply with the above conditions, it is to be noted that the petitioner is a registered dealer and he facilitated the recipient of invoices to avail ineligible input tax credit and pay their GST liability through the fraudulently acquired credit, causing loss of revenue to the Government exchequer, that too, to the tune of R.9.7 Crores.
This Court is inclined to give one more opportunity and grant bail to the petitioner subject to conditions imposed - application allowed.
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2021 (6) TMI 767
Maintainability of petition - availability of equally alternative efficacious remedy - opportunity of hearing not provided - ex-parte order of assessment passed - principles of natural justice - HELD THAT:- This Court, notwithstanding the statutory remedy, is not precluded from interfering where, ex facie, it is opined that the order is bad in law.
The ground of fair opportunity and ex-parte order does not assign any sufficient reasons even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences.
Petitioner undertakes to appear before the Assessing Officer on 26th of July, 2021 at 10:30 A.M., if possible through digital mode - Opportunity of hearing shall be afforded to the parties to place on record all essential documents and materials, if so required and desired - petition disposed off.
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2021 (6) TMI 766
Dishonor of Cheque - insufficiency of funds - non- performance of his promise under the agreement to sell - HELD THAT:- In the instant case, the accused as DW-1 in his examination-in-chief has taken a contention that, the date column in the cheque at Exhibit P-1 was left blank by him and the same was filled by the complainant. Except this, he has not at all stated as to, whether he did not have his consent for the complainant filling up the date or whether he had precluded the complainant from filling the date in the instrument without his knowledge or consent. Therefore, even assuming that, it is the complainant who has filled the date, still, the drawer of the instrument, by giving such an un-dated cheque to the complainant, has impliedly permitted the complainant to fill the date in the Negotiable Instrument (cheque) by himself.
In the instant case, the accused nowhere has stated that he had any objection for the complainant filling up the date in the cheque. It is on a similar point, the Division Bench of the Kerala High Court in Bhaskaran Chandrasekharan's case [1998 (4) TMI 569 - KERALA HIGH COURT] was pleased to observe that, when a cheque is issued for a valid consideration with no dispute regarding the signature, amount and name, it cannot be said that, putting a date on the cheque by the payee who is the holder of the cheque in-due-course would amount to material alteration rendering the instrument void.
In the instant case, if the pre-printed year of the cheque were to be used without effecting any change in the year, it should have been used on or before the year 2009 but not thereafter. However, the cheque is said to have been given in the year 2013, as such, the year on the cheque is also shown as '2003' by overwriting the digit '1' against '0' at tens' place. Thus, the cheque is shown to have been issued in the year 2013 - No doubt it is an alteration, but had it been a material alteration, the banker while dishonouring the cheque would have, apart from showing the reason of insufficiency of funds in the account of the drawer, would also have mentioned the reason of "alteration require drawer's authentication". It is for the reason that the cheque return memo which is at Exhibit P-2 in its Code No.'1', though mentions the reason for return as "funds insufficient", the Code No.'12' of the very same exhibit for return mentions "alterations require drawer's authentication".
Admittedly, the complainant is a real estate businessman and a hotelier. The accused in his deposition has shown his avocation as a coolie. He had agreed to sell his agricultural land to the complainant as per the agreement at Exhibit P-5 as could be made out from the said document. The said agreement does not quantify any damages, except stating that in case of any default the proposed purchaser had a right to take suitable legal action against the vendor and is entitled to recover the loss incurred by him - the quantum of fine imposed which is ₹ 1,05,000/- in addition to the cheque amount appears to be on a higher side.
Criminal Revision Petition is allowed-in-part.
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2021 (6) TMI 765
Maintainability of appeal - appeal was dismissed only on the ground that the appellant has not submitted the certified copy of the impugned order in time - validity of Section 16(4) of the Central / Bihar Goods and Service Act, 2017 - HELD THAT:- It is noticed that the impugned order dated 28/01/2021 passed by the respondent no. 4, the Additional Commissioner of State Taxes (Appeal), Saran Division, Chhapra, cryptic in nature, needs to be set aside only on the ground that it does not even contain the reasons necessarily required for making the order self-explainable and/or comprehensible. The Appellate Authority summarily dismissed the appeal without assigning any cogent reason, thus, seriously prejudicing the petitioner’s cause and case - It is stated before this Court that the petitioner has already deposited 100 per cent of the amount making the appeal mature to be heard on merits.
Impugned order passed by the respondent no. 4, the Additional Commissioner of State Taxes (Appeal), Saran Division, Chhapra stands set aside - Petitioner shall appear before the appropriate authority on 16th of June, 2021 at 10:30 A.M., if possible through digital mode - petition disposed off.
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2021 (6) TMI 764
Levy of penalty u/s Section 20(1) (a) of the Bihar Finance Act, 1981 - bar of limitation stipulated under Section 24 of the said Act - HELD THAT:- Taking note of Section 24 of the Act and applying the principles of interpretation it can be said that the period of limitation applicable would not be four but two years, commencing from the date of communication to the assessing authority of the order passed by the revisional authority - It is clarified that the Statute, i.e. Proviso to Section 24 itself, is very clear. It includes an order passed in a revision, in addition to an order passed in any appeal, reference or review.
Reliance on the decision of Hon’ble the Apex Court in STATE OF JHARKHAND VERSUS VOLTAS LTD. [2007 (5) TMI 18 - SUPREME COURT] is misconceived, and in any event distinguishable on facts, for the Apex Court was dealing with a case as is evident from paragraph 16 of the report where under the order of remand, the authority did not take any step for completing the proceedings. No proceedings assailing the very same order of remand were pending before any Higher Authority.
The order passed under Section 20(1) (a) of the Act imposing a levy of penalty cannot be illegal and invalid given the bar of limitation stipulated under Section 24 of the Act - petition disposed off.
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