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Showing 421 to 440 of 1393 Records
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2021 (2) TMI 975
Review petition - Eligibility to get the benefit of subsidy in terms of the Chhattisgarh Naye Cinemagharon Ya Multiplex Cinemagharon Ke Nirman Ko Protsahan Yojna Ke Sahayta Anudan Niyam, 1982 - eligibility not being the ‘Swamis’ (Proprietor) which was not properly considered - scope of Rule 3 of the 1982 Rules with reference to the date of commencement of operation of Cinema Hall/Multiplex was never adjudicated by the Bench while finalizing the matter - HELD THAT:- The provision contained herein is not with regard to imposition to any additional burden but is with regard to the "relaxation" given, by deleting the rider under Rule 3 of the 1982 Rules. The Rules of 1982 clearly provide for subsidy in respect of the Cinema Hall/Multiplex, construction of which was started after 01.07.1991. Of course, there was a rider that the benefit will be available, subject to the condition that no other Cinema Hall/Multiplex was existing within a radius of 10 KMs. This rider came to be deleted as per the amendment dated 04.03.2010, whereby the benefit of granting subsidy was widened to bring the then non-eligible lot also within the eligibility net. Since the benefit of the subsidy was intended to be paid for a total period of '8 years', the persons who were invited to set up the Cinema Halls/Multiplexes to augment the revenue of the State and who answered the call in the 'positive', despite the hard situations prevailing prior to 04.03.2010, cannot be pushed down for ever, when the barrier was lifted from 04.03.2010 onwards, at least in respect of the remaining period which alone has been ordered by the learned Single Judge.
The amendment involved herein, bringing about relaxation for deciding the question of eligibility by deleting the rider which existed earlier under Rule 3 of the 1982 Rules, with effect from 04.03.2010, is different from a rider bringing in some new burden or liability, to be declared as only prospective. This being the position, the intention of the law makers to provide the benefit of subsidy, by way of refund of entertainment tax in respect of all constructions of Cinema Halls/Multiplexes after 01.07.1991 should also take in the parties who have started the operation prior to the cutoff date of 04.03.2010, for the remaining period after 04.03.2010, if the benefit under the Rules is a still continuing one. As it stands so, there is no merit in the contention with reference to the alleged prospectivity of deletion of the rider w.e.f. 04.03.2010. In the said circumstance, we do not find any error apparent on the face of record under this head as well.
There is no error apparent on the face of record to invoke the power of review and to grant the relief - Review petition dismissed.
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2021 (2) TMI 974
Refund claim - Period of limitation - Relevant Date - Finalization of provisional assessment - It is contended that, the time limit of one year to claim refund will apply from the date of finalization of order of assessment by the Assistant Commissioner of Central Excise. Therefore, the Tribunal erred in considering the finalization of prices between the appellant and the oil companies as the relevant date for claiming refund as per Section 11B of the Act - Whether CESTAT having considered the assessment as provisional, has erred in equating the date of finalization of price by customers to finalization of assessment? - HELD THAT:- Admittedly, the application for refund made by the appellant on 24.08.2006 was rejected by the Assistant Commissioner by an order dated 24.05.2007. Being aggrieved by the order of the Assistant Commissioner, the appellant filed an appeal before the Commissioner of Central Excise (Appeals). It is not in dispute that the Commissioner of Central Excise (Appeals), by an order dated 24.12.2007, set aside the order passed by the Assistant Commissioner and allowed the appeal preferred by the appellant. Therefore, under the order dated 24.12.2007 passed by the Commissioner of Central Excise (Appeals), the appellant became entitled to the amount of refund. Thereafter, a fresh application was filed by the appellant on 11.02.2008.
It is evident that where a duty becomes refundable as a consequence of judgment, decree, order or direction of Appellate Authority, Appellate Tribunal or any court, the date of such judgment, decree, order or direction would be relevant date for the purposes of Section 11B of the Act. Thus, the appellant was required to make an application for refund within a period of one year from the date of the order directing refund in favour of the appellant i.e. 24.12.2007 - The appellant admittedly has made an application on 11.02.2008. Thus, the application filed by the appellant was made within the period of limitation i.e. within a period of one year. However, the aforesaid aspect of the matter has not been considered by the Tribunal and the Tribunal has proceeded to examine the validity of the order in relation to the first application which has been made by the appellant.
The Tribunal erred in considering the date of finalization of price between the appellant and their customers as relevant date in the light of Explanation B (ec) of Section 11 of the Act - question answered in the negative and in favour of the appellant - appeal allowed - decided in favor of appellant.
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2021 (2) TMI 973
Seeking grant of Anticipatory Bail - Compliance with the condition imposed by the learned Appellate Court to deposit 20% of the compensation amount in the form of bank draft within 60 days - HELD THAT:- This Court is of the considered opinion that once bail was granted to the petitioner on the condition of deposit of 20% within a period fo 60 days and thereafter a period of about 1½ years has elapsed and the petitioner has not deposited 20% of the compensation amount, the learned Appellate Court was justified in cancelling the bail because express condition of bail has been violated by the petitioner.
The reliance made by the petitioner on Vivek Sahni's [2019 (7) TMI 1561 - PUNJAB AND HARYANA HIGH COURT], is also of no avail in view of the fact that now the law has been laid down by the Hon’ble Supreme Court Surinder Singh Deswal and Ors. [2020 (1) TMI 263 - SUPREME COURT]. Learned counsel for the respondent has brought to the notice of this Court that against the judgment passed by this Court in Vivek Sahni's case, an SLP was also preferred which has been dismissed by the Hon’ble Supreme Court on 2.12.2019. However, a perusal of the same would show that the said SLP has been dismissed in limine and special leave was not granted and therefore, it does not lay down any law. However, on the other hand, the Hon’ble Supreme Court in Surinder Singh Deswal and Ors. laid down the law in this regard by observing that if a condition of bail which was granted under Section 148 of the Act is violated and the amount is not deposited, then the bail is liable to be vacated.
Petition dismissed.
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2021 (2) TMI 972
Maintainability of refund claim - Realization of the amount without authority of law - rejection of claim holding that in absence of any statutory provision under JVAT Act the learned JCCT had no jurisdiction to allow the refund application of the petitioner - HELD THAT:- It is the case of the petitioner, undisputed by the respondent that petitioner is not a registered dealer under JVAT Act, 2005 nor has been assessed to tax under the Act. No demand notices were raised against the petitioner as such to the effect that any tax is due against him. Petitioner claims to have made deposit of ₹ 61,74, 899/- in order to ensure continuity of business and to avoid coercive action without any demand of tax since the goods transported by the petitioner were already excisable to Central Sales Tax to the tune of ₹ 58,05,157/- which were paid in the State of Origin. No sale took place in the State of Jharkhand within that period - The principles regarding maintainability of writ petition seeking refund in case the levy is unauthorized or without jurisdiction or is unconstitutional is well settled by the decisions of the Apex Court. In the case of HMM LTD. VERSUS ADMINISTRATOR, BANGALORE CITY CORPORATION [1989 (10) TMI 180 - SUPREME COURT], the Apex Court has held that realization of tax or money without the authority of law is bad under Article 265 of the Constitution of India.
The claim of refund has been denied on the plea that there is no provision under the JVAT Act since the petitioner is not a registered dealer and no assessment proceedings have been held. Under the Scheme of JVAT Act, assessment proceedings can be held against dealers, who have failed to get themselves registered. However, no assessment can be made under Sections 37 or 38 after expiry of 5 years from the end of the tax period, to which the assessment relates. On the face of the pleadings on record and the stand of the respondents brought through their counter affidavit, the rejection of claim for refund only on the ground that there is no provisions under the JVAT Act, 2005 for entertaining such a claim is not sustainable in law. Whether the contention of the petitioner that the entire sale transaction originated in a different State after payment of central sales tax to the tune of ₹ 58,05,157/- and there was no sale transaction originating within the State of Jharkhand for the respondent to retain the amount so deposited is a matter of verification upon assessment.
The order of rejection of claim of refund by respondent no. 3 dated 1st September, 2016 (Annexure-4) and the order of learned Commercial Taxes Tribunal dated 31st October, 2017 (Annexure-8) upholding the same cannot be sustained in the eye of law Accordingly, they are set aside. The matter is remitted to the respondent no. 3, Joint Commissioner of Commercial Taxes (Admin), Ranchi to consider the claim of refund of the petitioner in accordance with law within a period of six weeks from today. Petitioner should appear before the respondent no. 3 on 15th February, 2021 with the relevant records.
Petition allowed - decided in favor of petitioner.
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2021 (2) TMI 971
Rejection of extension of time for payment of the last installment of Tax under Income Disclosure Scheme, 2016 (IDS) - Seeking to allow extension of time, for payment of the last installment of Tax under Income Disclosure Scheme, 2016 - seeking to direct to refund the tax amount paid in the first and second installment of IDS, 2016 - whether the writ applicant is entitled to get the amount already deposited by him under the scheme adjusted in any manner so far as his tax liability is concerned?
HELD THAT:- It is settled law that an application under Art. 226 of the Constitution would lie for enforcing the obligation of the State to refund and/or return the money-collected towards an illegal tax or duty. Ever since the decision in the case of THE SALES TAX OFFICER, BANARAS AND OTHERS VERSUS KANHAIYA LAL MAKUND LAL SARAF AND OTHERS [1958 (9) TMI 57 - SUPREME COURT], it has been consistently held that the payment towards tax or duty which is without authority of law is a payment made under mistake within the meaning of S. 72 of the Indian Contract Act. Section 72 is based on equitable principles. Therefore, by claiming to retain the tax which has been collected without the authority of law, the Government cannot enrich itself and it is liable to make restitution to the person who had made payment under any mistake or under coercion.
In the case on hand, the payment with respect to the first two installments were made in accordance with the scheme of 2016. It is the failure on the part of the writ applicant to deposit the amount of the third installment in time that created the trouble for him. The scheme, more particularly, the Clause 191 thereof specifically provides that any amount of tax paid under clause 184 in pursuance of a declaration made under clause 183 shall not be refundable. The case on hand is not one of illegal recovery of tax by the Revenue, or in other words, any tax paid by the assessee under mistake of law. This is a case of default on the part of the writ applicant as an assessee, and the consequences of the default are itself provided under the scheme in the form of Clause 191.
Thus, no case is made out by the writ applicant for interference - application dismissed.
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2021 (2) TMI 970
Smuggling - Smuggling - ganja - Whether the conviction of the appellant by the trial court for the offence under Section 8(c) which is punishable under Section 20(b)(ii)(C) of the NDPS Act is just and proper, having regard to the oral and documentary evidence available on record? - HELD THAT:- From the appreciation of the evidence of the witnesses examined by the prosecution, it is found that statements of all these witnesses under Section 161(3) of the Code do not bear any date. Further, statement under Section 161(3) of the Code of PW-1, who is the star witness of the prosecution around whom the entire case of the prosecution revolves, has not at all been recorded. Statements of the witnesses under Section 161 of the Code recorded by the Police during the course of investigation plays a major role during the course of trial. After lodging of the FIR and registering the case, investigation commences with the Investigating Officer visiting the scene of crime, drawing panchanama, seizing any incriminating articles found at the spot, recording the statements of the witnesses, arrest of accused, recovery, etc., and this part of investigation is covered under Sections 161 and 162 of the Code and the credibility of the witnesses, who are examined before the court, depends largely on this part of investigation - Statement under Section 161 of the Code forms a part of the charge sheet and this statement can be used by the accused for the purpose of contradicting thewitnesses in the manner as provided under Section 145 of the Evidence Act and the right of accused to cross-examine the witness, who has made a statement underSection 161(3) of the Code is a right guaranteed to the accused under Section 162 of the Code. Even without recording the statement of a witness under Section 161(3) of the Code, the said witness can be examined before the court, but the evidence of such a witness has to beappreciated very carefully and evidence of such witness shall carry less value and credibility.
It is a settled principle of law that non-recording of statement under Section 161(3) of the Code or delayed recording of statement under Section 161(3) of the Code or improper recording of statement under Section 161(3) of the Code is a serious irregularity which is incurable. This irregularity gives rise to infer that prosecution has procured such statement to suit their case and therefore, such statement loses its credibility. When delay in recording statement under Section 161 of the Code itself casts cloud of suspicion on the case of the prosecution, non-recording of such statement or recording of such statement without mentioning the date, totally discredits the evidence of these witnesses - A witness, who contradicts his earlier statement and makes improvement in his subsequent statement or when there are omissions in his statement, such witness loses credibility.
In the case on hand, non-recording of statement of PW-1 under Section 161(3) of the Code and non-mentioning of the date of recording of statement under Section 161(3) of the Code of all other witnesses is fatal to the case of the prosecution. For an offence punishable under the provisions of the NDPS Act, compliance of the requirement of law has to be scrutinized in a higher pedestal because the penalties imposed under this statute are very severe. The manner in which the investigation has been conducted in this case vitiates the entire investigation and resultantly it also affects the trial of the case. The order of conviction, therefore, cannot berecorded on the basis of evidence adduced by these witnesses. The investigation in the case appears to be totally tainted and unreliable.
In the case on hand, the prosecution has failed to show that the materials were kept in safe custody as required under Section 55 of the NDPS Act and they have also failed to explain the inordinate delay of nearly two months in sending the sample articles to the FSL. Having regard to the manner in which investigation is conducted in the case, foul play cannot be completely ruled out - the investigation in the case is vitiated for improper recording and non-recording of statement of the witnesses under Section 161(3) of the Code, who have been examined in the court. The Investigation Officer has admittedly not maintained a case diary, wherein such statements are required to be recorded which is a mandatory requirement of law under Section 161(3) of the Code. Such an irregularity seriously prejudices the case of the accused and if the order of conviction is required to be based on the evidence of these witnesses, it will result in miscarriage of justice. There is also total non-compliance of mandatory requirements of Section 42 of the NDPS Act and there is an unexplained delay in forwarding the samples to the FSL.
The prosecution has failed to establish that the car and the house from where the contraband articles were seized either belonged to the accused or his wife. It has come on record that the car belonged to accused No.2 and the prosecution has admitted that they have no record to prove that the house stands in the name of wife of the accused. The contraband articles were seized in the absence of the accused. A presumption under Section 54 of the NDPS Act can only be raised after the prosecution has established that the accused was found in possession of the contraband articles in a search conducted in accordance with the mandate of law and illegal search does not entitle the prosecution to raise such a presumption under Section 54 of the NDPS Act - this Court is of the considered opinion that the trial court was not justified in convicting the appellant for the offence under Section 8(c) which is punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Appeal allowed - decided in favor of appellant.
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2021 (2) TMI 969
Proportionate deduction u/s 80IB(10) - profits derived from the sale of residential units where in built up area is below 1500 Sq. Ft - whether no such apportionment is prescribed under the scheme of Section 801B(10)(C) of the Income- Tax Act? - HELD THAT:- Issue decided in favour of assessee as relying on M/S. BRIGADE ENTERPRISES LTD [2021 (1) TMI 789 - KARNATAKA HIGH COURT] held that the assessee is eligible for deduction under Section 80IB(10) of the Act proportionately. - Decided in favour of assessee.
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2021 (2) TMI 968
Seeking directions to the respondents to disburse the refund amount alongwith interest - reduction of admissible ITC on purchase of coke - Section 38 of the Gujarat Value Added Tax Act, 2003 - HELD THAT:- It is not in dispute that the writ applicant-Company was given an incentive on tax for the relevant period as mentioned in the petition by the authority, as sanctioned for the respective years - In view of the determination order passed under Section 80 of the GVAT Act, the full amount of refund has not been disbursed by the respondents. It is an admitted fact that the respondents-authorities have not invoked the Section 39 of the GVAT Act, which provides the powers to withhold the refund in certain cases.
The time limit to initiate proceedings under GVAT Act is lapsed. It is required to be noted that Section 35 gives power to the authority to determine the amount of tax in respect of input tax credit etc after following the mandatory procedure as provided under the GVAT Act. However, the powers conferred under Section 35 cannot exercise after the expiry of 5 years from the end of the year in respect of which tax is assessable. Therefore, in view of the Section 35, the time limit is over and the authority now cannot initiate any proceedings in respect of refund.
The writ applicants are entitled to get the refund amount and the authorities have no legal justification to withholding the same, which is otherwise refundable to the writ applicants – Company, as the action of the respondents – authorities is contrary to the provisions of GVAT Act - respondents are directed to disburse the refund amount along with 6% interest within a period of 6 weeks from the date of receipt of this order - application allowed - decided in favor of assessee.
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2021 (2) TMI 967
Refund - Seeking return the amount of tax collected from the different parties during the said period of assessment - non-communication of the cancellation of registration at the end of the respondents - It is the case of the writ applicant that after some business transactions, later on he came to know about his cancellation of registration with effect from 12.04.2010 and accordingly, he was duty bound to return the amount of tax collected from the different parties during the said period of assessment - HELD THAT:- It appears that at the time of search, it was informed by the writ applicant that he had made the payment to different parties to the tune of ₹ 8,14,250/- by way of cheque. Despite of this, the authorities had collected the tax to the tune of ₹ 9,05,318/-. Also, since 2014, the respondent authorities have not issued any assessment order after serving notice of provisional assessment in the prescribed form. Even no notice has been issued by the respondent authorities invoking provisions of Section 8A(a) of Section 34 of the GVAT Act, 2003.
The writ applicant is entitled to get the refund of amount. The authorities have no legal justification for withholding the amount, which is otherwise refundable to the writ applicant and the action of the respondent authorities could be said that such withholding of refund is contrary to the provisions of Section 36 of the GVAT Act, 2003.
Reliance can be placed in the case of SHILPA INDUSTRIES VERSUS STATE OF GUJARAT [2020 (2) TMI 297 - GUJARAT HIGH COURT] where it was held that In the facts of the case, no notice has been issued till date by the respondent authority invoking provisions of Section 8(A)(a) of Section 34 of the VAT Act, 2003. Therefore, in contemplation of invoking such provision for assessment without there being any satisfaction of the prescribed authority that the tax has been evaded etc. by the petitioner, the refund cannot be withheld.
The respondents are directed to pay to the writ applicant a sum of ₹ 9,05,318/- together with statutory interest at the rate of 6% p.a. within a period of six weeks from the date of communication of this order - application allowed.
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2021 (2) TMI 966
Dishonor of Cheque - time limitation - grounds raised in the petition is that the alleged date of advancement of loan was barred by limitation - complaint averments disclose that the alleged loan transaction is more than four years and the same is barred by limitation - cheque was presented without an endorsement and it is not in dispute that it is a self-cheque - offence is made out under Sections 138 and 139 of the NI Act constituting an offence or not.
Whether this Court can quash the proceedings in coming to the conclusion that the issuance of self cheque in respect of the time barred debt? - HELD THAT:- The very contention of the petitioner is that it is a time barred transaction; the same has to be decided only after recording the evidence not at the preliminary stage of taking the cognizance. It is settled law that whether it is time barred or not involves disputed facts and the same cannot be determined in a proceeding under Section 482 of Cr.P.C. since it involves mixed question of law and fact. Hence, the very contention that the transaction is time barred cannot be decided while taking the cognizance - The Apex Court also in MMTC LTD. VERSUS MEDCHL CHEMICALS & PHARMA (P.) LTD. [2001 (11) TMI 837 - SUPREME COURT], has categorically held that complaint need not allege existing of a subsisting debt or liability against which cheque issued. Burden of proving non-existence of any debt or liability is on the accused, to be discharged at the trial. Prior to that complaint cannot be quashed by High Court under Section 482 of Cr.P.C. In the case on hand also, the Court has only after considering the evidence has to decide whether the liability is in existence or not and the same cannot be decided without recording the evidence. Hence, Section 482 of Cr.P.C. cannot be invoked to quash the proceedings.
The Apex Court also in the case of HMT Watches Limited's case, categorically held that Section 482 of Cr.P.C, can be exercised only to prevent abuse of process and further observed that sometimes on same set of facts, civil and criminal proceedings are also maintainable and further held that the sitting under Section 482 of Cr.P.C, while exercising the powers disputed question of fact cannot be disabled. Only the Trial Court can determine the disputed questions of fact - though the petitioner's counsel referred several judgments of different High Courts, it is settled law that whether the transaction is time barred or not has to be considered only after the trial not at the preliminary stage or at the time of taking cognizance - the question is answered in negative.
Whether the self cheque issued by the petitioner attracts Section 138 of the Negotiable Instruments Act, 1881? - HELD THAT:- The Kerala High Court in Sarafudheen's case, discussing the same in paragraph No.11 and in paragraph No.12 held that the cheque is styled as a self cheque and over and above it, the term "or bearer" has not been scored off. The holder of the cheque could be a 'holder in due course', who could maintain a complainant under Section 142 of the NI Act - Having perused the principles laid down in the Judgment, the very contention that there is no endorsement and the self cheque does not attract Section 138 of the NI Act, cannot be accepted at this juncture. The respondent made out the prima facie case - question raised by this Court is answered as 'affirmative'.
Whether both the Courts have committed an error in taking the cognizance and confirming the cognizance by the Revisional Court and it requires an interference of this court exercising the powers under Section 482 of Cr.P.C.? - HELD THAT:- The petitioner herein himself admitted in his reply to the demand notice dated 03.05.2019 that the petitioner handed over two self cheques each for ₹ 5 Lakhs. It is also clear that the word "bearer" has not been struck off. It is further observed that the scope of revision is very limited and the merits of the case cannot be decided in a revision petition. Further observed that the truth or falsity cannot be entered into by the Revisional Court, that too, in the initial stage of the case. There are no error committed by the Revisional Court also in confirming the taking of cognizance. The matter needs a full- fledged trial to decide the issue involved between the parties and the grounds which have been urged before this Court by the petitioner can be raised before the Trial Court during the course of the trial and the sitting under Section 482 of Cr.P.C, the Court cannot quash the same. Hence, there is no merit in the petition.
Petition dismissed.
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2021 (2) TMI 965
Concessional benefit of tax - purchase of High Speed Diesel from suppliers in other States - difficulty in obtaining C-Form - HELD THAT:- Petitioner fairly submits that the issue involved in this Writ Petition is squarely covered by a decision of this Court in, M/S. DHANDAPANI CEMENT PRIVATE LTD., M/S. TERU MURUGAN BLUE METAL VERSUS THE STATE OF TAMIL NADU, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) TERRITORIAL, THE DEPUTY COMMISSIONER (ST) [2019 (2) TMI 1850 - MADRAS HIGH COURT] wherein it was held that till such time the order of this court in the case of M/S. THE RAMCO CEMENTS LTD. VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE ADDITIONAL COMMISSIONER (CT) [2018 (10) TMI 1529 - MADRAS HIGH COURT] is either stayed or reversed it is incumbent upon all Assessing Authorities within the State of Tamil Nadu to apply the rationale of the decision to all pending assessments. The Petitioner in these Writ Petitions has stated on affidavit that it is unable to download the ‘C’ forms from the websites as the same stand blocked from use.
The State has, after the date of the above order, filed a Writ Appeal in THE COMMISSIONER OF COMMERCIAL TAXES, CHEPAUK, CHENNAI, THE ADDITIONAL COMMISSIONER (CT) VERSUS THE RAMCO CEMENTS LTD. AND THE STATE TAX OFFICER, THE JOINT COMMISSIONER (CS) (SYSTEMS) VERSUS SUNDARAM FASTENERS LIMITED [2020 (3) TMI 450 - MADRAS HIGH COURT] challenging the decision in the case of Ramco Cements that has been considered and dismissed by a Division Bench of this Court holding that Appellant State and the Revenue Authorities are directed not to restrict the use of 'C' Forms for the inter-State purchases of six commodities by the Respondent/Assessees and other registered Dealers at concessional rate of tax and they are further directed to permit Online downloading of such Declaration in 'C' Forms to such Dealers. The Circular letter of the Commissioner dated 31.5.2018 stands quashed and set aside along with the consequential Notices and Proceedings initiated against all the Assessees throughout the State of Tamil Nadu.
Mr.Jaya Pratap submits that the State intends to challenge the order in Writ Appeal by way of a Special Leave Petition - As on date, however the order in Writ Appeal is final, and following the rationale thereof, this Writ Petition is allowed.
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2021 (2) TMI 964
Concessional benefit of tax - purchase of High Speed Diesel from suppliers in other States - difficulty in obtaining C-Form - HELD THAT:- Petitioner fairly submits that the issue involved in this Writ Petition is squarely covered by a decision of this Court in, M/S. DHANDAPANI CEMENT PRIVATE LTD., M/S. TERU MURUGAN BLUE METAL VERSUS THE STATE OF TAMIL NADU, THE PRINCIPAL COMMISSIONER & COMMISSIONER OF COMMERCIAL TAXES, THE ASSISTANT COMMISSIONER (ST) , THE JOINT COMMISSIONER (ST) TERRITORIAL, THE DEPUTY COMMISSIONER (ST) [2019 (2) TMI 1850 - MADRAS HIGH COURT] wherein it was held that till such time the order of this court in the case of M/S. THE RAMCO CEMENTS LTD. VERSUS THE COMMISSIONER OF COMMERCIAL TAXES, THE ADDITIONAL COMMISSIONER (CT) [2018 (10) TMI 1529 - MADRAS HIGH COURT] is either stayed or reversed it is incumbent upon all Assessing Authorities within the State of Tamil Nadu to apply the rationale of the decision to all pending assessments. The Petitioner in these Writ Petitions has stated on affidavit that it is unable to download the ‘C’ forms from the websites as the same stand blocked from use.
The State has, after the date of the above order, filed a Writ Appeal in THE COMMISSIONER OF COMMERCIAL TAXES, CHEPAUK, CHENNAI, THE ADDITIONAL COMMISSIONER (CT) VERSUS THE RAMCO CEMENTS LTD. AND THE STATE TAX OFFICER, THE JOINT COMMISSIONER (CS) (SYSTEMS) VERSUS SUNDARAM FASTENERS LIMITED [2020 (3) TMI 450 - MADRAS HIGH COURT] challenging the decision in the case of Ramco Cements that has been considered and dismissed by a Division Bench of this Court holding that Appellant State and the Revenue Authorities are directed not to restrict the use of 'C' Forms for the inter-State purchases of six commodities by the Respondent/Assessees and other registered Dealers at concessional rate of tax and they are further directed to permit Online downloading of such Declaration in 'C' Forms to such Dealers. The Circular letter of the Commissioner dated 31.5.2018 stands quashed and set aside along with the consequential Notices and Proceedings initiated against all the Assessees throughout the State of Tamil Nadu.
Mr.Jaya Pratap submits that the State intends to challenge the order in Writ Appeal by way of a Special Leave Petition - As on date, however the order in Writ Appeal is final, and following the rationale thereof, this Writ Petition is allowed.
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2021 (2) TMI 963
Dishonor of Cheque - acquittal of accused - Rebuttal of presumption - Whether the learned trial court has appreciated the evidence before the court in the light of the sound principles regarding appreciation of evidence in cases arising out of 'Cheque Bounce" under Negotiable Instrument Act 1881? - HELD THAT:- Both the documentary and oral evidence adduced by the complainant coupled with the presumption arising under section 118 and 139 of the Negotiable Instrument Act 1881 clearly indicates that, the complainant has discharged the initial burden on him to show that, the accused has issued the cheque by for ₹ 52,000/- and the said cheque was issued for existence of legally enforceable recoverable debt and liability.
The accused can rebut the presumption by two ways one by cross-examining the complainant and the other is by leading his defense evidence - The object of bringing Section 138 on statute appears to be to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. Despite civil remedy, Section 138 intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a bank and induces the payee or holder in due course to act upon it. Section 138 draws presumption that one commits the offence if he issues the cheque dishonestly.
On reading of the entire evidence of complainant and accused it is evident that, the accused has miserably failed to rebut statutory presumption.
In view of section 20 of Negotiable Instrument Act, when once a person signs and delivers an negotiable instrument, the person signing shall be liable upon such instrument. So the contention that the cheque was issued blank cheque does not hold good in view of section 20 of Negotiable Instrument Act. The Hon'ble Suprme Court recently in BIR SINGH VERSUS MUKESH KUMAR [2019 (2) TMI 547 - SUPREME COURT] held that "the cheque duly signed and voluntarily made over to payee, was in discharge of debt or liability arises irrespective of whether the cheque was post dated or blank cheque for filling by payer or any other person in the absence of evidence of undue influence or coercion" - Therefore it is evident that the complainant has proved beyond all reasonable doubt that, the accused has borrowed ₹ 52,000/- as a hand loan and executed Ex.P.1 cheque for discharge of that debt or liability. He has further proved that, the said debt was legally recoverable/enforceable debt or liability. Inspite of issuance of demand notice by the complainant after dishonor of the cheque, the accused failed to repay the said amount, thereby committed offence punishable under section 138 of Negotiable Instrument Act. The accused has failed to rebut the said evidence and statutory presumption arising in favour of complainant by any legally admissible evidence.
It is crystal clear that, the accused has committed an offence punishable under section 138 of Negotiable Instrument Act and he needs to be sentenced accordingly - Section 138 Negotiable Instrument Act, 1881 provides punishment both imprisonment which may extend two years or with fine which may extend to twice the amount of cheque, or with both.
The offences under negotiable instrument Act are regulatory offences intend to give sanctity to the negotiable instruments. Keeping in mind the settled principles regarding imposition of sentence in cheque bounce case, in my considered view the accused needs to be imposed the fine double the cheque amount. In this case the cheque amount is ₹ 52,000/-. The case of the year 2003. Now we are in the end of the year 2020. So nearly seventeen years the case is pending. Therefore, in my considered view the imposition of double the cheque amount as a fine is a proper sentence - Appeal allowed.
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2021 (2) TMI 962
Dishonor of Cheque - rebuttal of presumption arising under Section 139 of the N.I.Act - burden to prove - legally recoverable debt or other liability - HELD THAT:- In perusing the oral evidence of PW.1 with reference to his written complaint and his evidence in examination-in-chief, it is evident that nowhere he has stated the date when he has given loan amount. Only for the first time in the cross-examination he states on 18.08.2009 he has given loan amount in cash and he himself went to the house of the accused and paid that amount which is not a natural course of conduct of a person in such situation. The two witnesses Mohd.Mukthar and Mohd.Rafi who were stated to be present at the time of giving loan amount, were not examined. Admittedly, the said amount was not withdrawn from any Bank or from his account. PW.1 states that the amount was received by him in respect of the plot sold by him at Solapur. But no records were produced in this regard. Complainant- PW.1 simply states that as himself and accused were doing business, he know accused. There is no separate close relationship or friendship between them. Complainant-PW.1 also admits about giving of ₹ 5.00 lakh loan to one Sagir Ahmed, who is son of sister of accused, and it is Sagir Ahamed was looks after business of the accused. Complainant-PW.1 also admits that accused has paid a sum of ₹ 1,20,000/- through cheque and against he paid a sum of ₹ 1,92,000/- in March 2008 and April 2008 to his wife. If at all the accused had barrowed the amount in August 2009, then what was the necessity for the accused to give the cheques in the name of wife of the complainant? for what purpose he has given the said cheques?.
The initial burden is on the complainant to prove that there is existence of legally recoverable debt or other liability for which said Ex.P1-cheuqe was issued. Simply because a cheque is issued, the accused cannot be automatically held guilt of offence under Section 138 of the N.I.Act. The presumption arises under Section 139 of the Act regarding issue of cheque, is only in respect of holder of cheque that same has been issued for recovery of debt or other liability. There is no dispute about it. But initial burden is on the complainant to prove it. Accused can rebut such presumption by preponderance of probabilities either by cross-examination of PW.1 and also by leading his defence evidence.
The complainant has stated that he has got other six cheques belonging to accused with him, that aspect assumes importance as to why he has kept still six cheques belonging to accused. Why the accused gave money through cheque on different dates to the wife of the complainant. All these circumstances, which are not explained creates doubt about genuiness of the contents of the complaint. PW.1 also admits that sister's son of accused was barrowing of loan amount and he has repaid the said amount. But PW.1 denies that he has misused the cheque given as security for the said loan, though the loan amount was already repaid. It is not that both the appellant and accused were very close friends or relatives or very much acquainted each other. Both are business men. Then how complainant could have advanced such huge amount without any interest to the person who is not acquainted with him is also one of the circumstance goes against the complainant's case.
It is to be remembered that the burden to prove the consideration for the cheque lies on the accused. If not rebutted, the presumption is that the cheque was issued for consideration. It is for the accused to prove that the cheque was not issued towards a debt or liability. Accused has to lead credible evidence for rebuttal of this presumption. The presumption that the cheque was issued for valid consideration under Section 118 can be raised only when the proceedings are initiated after complying with the statutory requirement of service of notice on the drawer. The presumption under Section 139 of the Act is a presumption of law, it is not a presumption of fact. This presumption has to be raised by the Court in all the cases once the factum of dishonour of cheque is established, the onus of proof to rebut this presumption lies on the accused. The standard of such rebuttal evidence depends on the facts and circumstances of each of case.
It is settled principles of law that the accused can rebut the presumption by two modes: First is by cross examining the complainant or his witnesses and elicit in their evidence such evidence to show that presumption in favour of PW.1-complainant is not tenable and his defence is probable; The second mode is accused entering the witness box and giving his own defence evidence so as to rebut the presumption ofcourse by preponderance of probabilities. The proof by accused is not beyond reasonable doubt - to rebut the evidence of complainant the accused entered the witness box and has given his own evidence as DW.1. The accused in his evidence states that he is not acquainted with the complainant nor he has given any cheque to complainant. But when his nephew Sagir Ahmed was looking after his transport business, at that time, he had made certain transactions and whenever he came to Gulbarga, the complainant used to visit Sagir Ahmed house. The said cheque was given to Sagir Ahmed by accused as security for the loan borrowed from the complainant. The said amount of ₹ 4.00 lakh was returned, but inspite of that the complainant did not return the cheque.
The preponderance of probabilities is tilting in favour of the accused. The accused has also brought on record such facts, material and circumstances in the cross-examination of PW.1 which could be reasonably said as accused proved a probable defence. Therefore, the burden to rebut the evidence of complainant and presumption in favour of complainant had been discharged by the accused to prove that the cheque was not issued in discharge of any legally recoverable debt or other liability or there exist any debt or liability by the accused to pay the said amount mentioned in the cheque to the complainant.
The trial Court is justified in acquitting the accused. The trial Court has raised proper points for consideration by considering the relevant provisions under the N.I.Act and also decisions stated thereon and also discussed oral and documentary evidence in detail and came to conclusion that the accused has rebutted presumption and there is no legally recoverable debt or liability in existence. It is settled principles of law, that while considering the judgment of acquittal, the First Appellate Court or High Court normally should not set aside the judgment of acquittal or interfere, unless the judgment of the trial Court is perverse and not based sound principles regarding appreciation of evidence in N.I.Act cases - the well reasoned finding of the trial Court need not be interfered - appeal dismissed - decided against appellant.
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2021 (2) TMI 961
Dishonor of Cheque - offence punishable under section 138 of Negotiable Instrument Act 1881 - the complainant-Bank issued demand notice on 30-07- 2007, the accused did not reply the aforesaid notice, nor repaid the amount - HELD THAT:- This complaint was filed as if the accused has borrowed the loan and in discharge of the said loan accused issued the Ex.P.1-cheque. Loan borrowed by the father of the accused had admittedly become time barred long back. Without mentioning the true and correct facts and suppressing the true facts this complaint was filed making a false allegation against the accused. Even the contents of the notice are false. Therefore no statutory presumption under N.I Act can be raised in favour of the complainant-Bank when a false contention is taken and true facts are suppressed before the Court.
On perusal of the evidence of the complainant and defense evidence of accused it is evident that, the complainant has lodged this complaint by pleading false contention that the accused has borrowed the loan. The statutory legal notice was also issued stating that, accused has borrowed the loan and Ex.P.1-cheque issued in discharge of the said loan was dishonoured. The complainant has also contended in written complaint that, the accused issued the cheque in discharge of his liability of borrowing the loan from complainant-Bank. In fact the evidence of the Manager of the Bank /PW.1 is also to that effect which is admittedly not true. Now complainant Bank has totally given 'U' turn to the contents of the complaint and legal notice, in cross-examination of PW.1 stating that the accused being a Karta of the family has admitted the loan borrowed by his father and for discharge of that loan he has issued the cheque which is not their case at all. The party cannot be permitted to plead one case in complaint evidence and document and try to take shelter in cross-examination taking totally new stand which is not pleaded - The father of the accused died in the year 2004. If at all there was any such loan it has become time barred during his life time only. Defense evidence of accused totally falsify the case of the complainant. The slightest presumption even if any for issuance of cheque, stood clearly rebutted by accused defense evidence apart from rebutting the same though cross-examination of PW.1 and PW.2.
The penal provision of Section 138 of the N.I.Act is applicable only to the cheques which are issued for the discharge in whole or in part, of any debt or other liability, which according to Explanation must be a legally enforceable debt or other liability. A cheque given in discharge of a time barred debt will not constitute an unconditional undertaking or promise in writing either expressly or impliedly so as to attract the criminal offence under section 138 of N.I Act.
It is settled principle of law that this court being appellate court and as the Judgment under challenge is against the judgment of the acquittal by the trial court, unless there is perversity in the findings and judgment of the trial court, the Appellate court shall not interfere. The Judgment of the trial court clearly indicates that the learned trial court Judge has raised proper points for consideration and discussed the evidence in detail.
The trial court has rightly held that mere issuance of cheque without corresponding legally recoverable debt is not an offence. The trial court has rightly come to conclusion that the complainant has not established his case and no presumption arise in his favour. The trial court rightly acquitted the accused - absolutely there is no ground to interfere with the judgment of acquittal passed by the trial court - Appeal dismissed - decided against appellant.
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2021 (2) TMI 960
Dishonor of Cheque - allegation is that having issued the Cheque towards discharge of his debt due to him, the petitioner has issued stop payment instructions to the banker to defraud him - Section 138 of the Negotiable Instruments Act - HELD THAT:- The respondent in his cross examination stated that apart from 3 acres of horticultural land and wet land, he owns 8 acres of dry land and he cultivates pineapple, ginger and groundnuts. The fact that of respondent owning the horticultural and agricultural lands and cultivation of the same was not disputed in his cross examination - Taking into consideration the aforesaid aspects, the contentions of the petitioner regarding the lending capacity of the respondent is untenable. Therefore, this Court does not find any perversity in the finding of the Courts below about lending capacity of the respondent.
Reg. issuance of cheque and liability - HELD THAT:- The cheque was not dishonoured for any variations in the signature. DW.1 in his cross examination did not assert that the signature on Ex.P1 was forged one. He only said he cannot say if that is forged one or genuine one. If at all there was any doubt about his signature, the best option was to seek reference of Ex.P1 to the opinion of the hand writing expert which he did not resort to for the reasons best known to him - Once it was held that the cheque pertains to the account of the petitioner and that was issued by him, the presumptions under Section 118 of NI Act to the effect that cheque was issued for consideration and the presumption under Section 139 of the NI Act that the cheque was issued for discharge of liability arise. The petitioner failed to rebut the said presumption by adducing cogent, consistent and acceptable evidence. Therefore, the Courts below were justified in holding that the cheque Ex.P1 was issued by petitioner towards discharge of his liability.
Acceptance of affidavit evidence of the petitioner - HELD THAT:- The original proceedings were of the year 2002. The petitioner having submitted his evidence by way of affidavit voluntarily, now in this revision petition, for the first time after more than a decade is trying to claim that in accepting his affidavit, the trial Court has committed jurisdictional error. The said contention runs contrary to the judgment of the Supreme Court in Srinath's case referred supra. For the aforesaid reasons this Court does not find any illegality, impropriety and incorrectness in the order of conviction.
Sentence - HELD THAT:- The trial Court has sentenced the petitioner to imprisonment of one year but has not imposed any fine. The cheque amount was ₹ 4 lakhs. The compensation awarded is ₹ 4 lakhs. The offence under Section 138 of NI Act is punishable with imprisonment upto 2 years or with fine extending to twice the amount of the cheque or both. The respondent has fought this litigation for about 18 years. In adjudication of this matter the state resources are also diverted. Therefore, non imposition of any fine was not just and appropriate - Having regard to the age of the petitioner the sentence of imprisonment can be modified to sentence of fine with default sentence. Therefore, the petition is partly allowed.
The impugned order of conviction for the offence under Section 138 of NI Act is hereby confirmed - The order of sentence is modified as follows: The petitioner is sentenced to fine of ₹ 8 lakhs. In default to pay fine, the petitioner shall undergo simple imprisonment of 30 days. Out of the fine amount sum of ₹ 7,90,000/- shall be paid to the respondent as compensation and ₹ 10,000/- shall be remitted to the State - Petition allowed in part.
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2021 (2) TMI 959
Doctrine of Promissory Estoppel - Withdrawal of subsidy granted on account of change of opinion - whether the benefits already granted to the petitioner as promised under the Industrial Policy 2004-09 can be withdrawn later on only in the light of change of opinion of the respondents? - definition of captive power plant - benefit of exemption of capital investment made in the captive power plant.
Whether the petitioners would be entitled for the benefit of promised subsidy as per the industrial policy of 2004-09 is concerned? - HELD THAT:- In order to attract more and more Business Enterprises establishing industrial units in the State of Chhattisgarh, the State Government had given certain incentives in the industrial policy. One such policy was that of granting State Infrastructure Cost Fixed Capital Investment Subsidy. Granting of the subsidy is a sort of financial assistance provided to the new establishment which is to be setup and the financial assistance is in the from of subsidy. Initially the Government decided to grant 25% of total capital investment made in the establishment of a Captive Power Plant as subsidy. Finding the industrial policy and the incentives provided therein, the petitioners sought of setting of a plant in the State of Chhattisgarh and which they did foreseeing the incentives so provided in the policy - The petitioners thereafter having made the investment in a Captive Power Plant approached the authorities claiming for the benefit of subsidy. The State Level Committee in its meeting on 18.02.2009 took a decision to grant eligibility certificate entitling the petitioners the benefit of subsidy to the extent of ₹ 12,81,44,310/- as subsidy. Though the State Level Committee took a decision and the authorities in the State Government issued eligibility certificate, but the petitioners were never provided with the refund of subsidy or adjustment of the same against the subsequent liability. The petitioners had been repeatedly approaching the authorities claiming for adjustment of the tax liability against the incentives that the petitioners are entitled for, which the respondents did not respond and meanwhile the respondents raised the demand notice against the assessment order dated 27.02.2009 and later on the authorities also were able to get a revenue recovery certificate issued against the petitioners against the assessment order dated 27.02.2009 and similar demand notices have raised by the respondents in the subsequent years also.
The provisions regarding grant of subsidy subsequently stood amended on 10-08-11, to the extent of the State Government introducing an upper cap of ₹ 300 Lacs (i.e. ₹ 3 Crores) as subsidy to the companies. Later on the State Level Committee in its 23rd meeting held on 31.05.2013 reviewed its earlier decision dated 18.02.2009 and recalled the order and held that the petitioners would not be entitled for the benefit of subsidy at all.
Whether the decision of the State Level Committee concluding that subsidy to a captive power plant would be paid only to those captive power plants where the generated electricity is only for its own use and not as defined under Central Legislation i.e. Electricity Act 2003 and Electricity Rules framed thereunder of 2005? - HELD THAT:- What has to be visualized at this juncture is that the power that is generated cannot be stored. Whatever power that is generated has to be consumed or else the power would get wasted. What is also to be visualized is the fact that the requirement of power may fluctuate from one month to another depending upon various factors primarily the climatic conditions and also the production, that is to be made in a particular period of time and therefore it would not be possible for any establishment to decide the fixed amount of power that has to be generated and in a given month in case, if the demand falls, the only option available to the petitioner would be to give it to some third agency, which could also be the State Government and in that circumstances if the arguments advanced by the respondents are to apply then this Court has no hesitation in presuming that the benefit of subsidy would not be reaped by any person or any establishment. The policy thus framed would be a redundant or a policy only for name sake, the benefit of which cannot be availed by any establishment as such - in the opinion of the Court was never the intention and the object, firstly while framing the industrial policy, 2004-2009 and secondly while also framing the aforementioned Vidyut Aapurti Nivesh Rules, 2004.
There being no specific definition of captive power plant in the industrial policy under which the petitioner’s claims were being processed, the safest recourse that could be resorted to was to rely upon the definition of captive power plant as is provided under the Electricity Act as also the Rules framed therein.
It is always a legitimate expectation of an investor of getting certain extra benefit in the course of making huge investment in a particular State. At the same time, the benefit so extended is for giving the booster to the investors by the State Government and while framing the policy, the respondents have not felt that the definition of captive power plant would not be what it is under the Electricity Act or it would be a different interpretation that would be given. Therefore it was assumed by the petitioner that the meaning would be the same as that is reflected in the Electricity Act and to add with it applying the same interpretation the State authorities at the first instance had issued the eligibility certificate.
Another aspect which needs consideration is that it is not a case of the respondents of the petitioner playing fraud of any manner while seeking the benefit or while obtaining the eligibility certificate. Having granted the eligibility certificate once, it could not have been lightly recalled without a fair and reasonable opportunity of explanation to the petitioner. From the proceedings drawn by the authorities it clearly reflects that though there is a reference of notice having been issued, there is no evidence of the notice being duly served and further it would also reflect that even on the admitted factual dates that are reflected when the notice was issued and the date of the impugned order would again give a clear indication that the authorities had not granted reasonable time to the petitioner to explain - Yet another ground which needs consideration is the fact that there cannot be a definition given to a captive power plant contrary and violative to the definition as provided under the Electricity Act and the Rules framed therein.
The withdrawal of the benefit granted to the petitioner by the State level committee through its decision dated 31.5.2013 (Annexure P-7) and the order of the State Appellate Forum dated 9.10.2015 (Annexure P-21) is illegal and unjustified and is liable to be and is accordingly set aside/quashed with consequences to flow - Petitioner would be entitled for the benefit of subsidy in terms of the policy prevalent on the date of issuance of the eligibility certificate, that is, to the extent of ₹ 12,81,44,310/- - Petition allowed.
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2021 (2) TMI 958
Classification of goods - rate of tax - Brass fittings i.e., Elbow, Tee, Socket, Union, Hex Nipples, Hose Colour, Pillar tap Inner fittings, etc. - Bib Cocks Brass or C.P., Brass Ball cock, brass Long body Bib cock C.P., Brass Short Body Bib Cock C.P., Brass Sink Cock C.P., Brass Angle Cock C.P., Brass Wall Mixers C.P., Brass Showers C.P., Brass shower Arm C.P., Brass Foot valve, etc - taxable at the rate of 12.5% or to be treated as items coming under Entry 3(2) of Third Schedule of the KVAT (Amendment) Act, 2005 and taxable at the rate of 4%? - Validity of Clarification under Section 94 of the KVAT Act, 2003 -
HELD THAT:- Chapter 74 deals with “Copper and articles thereof”. The Note at the beginning of the Chapter says that it would take in alloys of copper also. Several items of copper are dealt with under different four digit HSN Codes bearing Nos. 7401 to 7419. HSN 7418 specifically deals with sanitaryware and parts thereof of copper. The four digit code HSN 7419 says other articles of copper. From the use of the word ‘other’ in the heading of HSN 7419, it is amply clear that it refers to articles which are not mentioned elsewhere. When it comes to HSN 7419.99, again it is shown as ‘other’, so as to mean that the items mentioned subsequently are not items specified earlier. Therefore, HSN 7419.99.30 with which Entry 3(2) of the Third Schedule of the Act is aligned, cannot be deemed to include the specific products of the assessee being taps, valves and other fittings made of brass which also are used as sanitary-wares, especially for reason of the items mentioned under HSN Codes 7412.20 and 8481, 8481.80 and 8481.80.20 - Chapter 74 of the Explanatory Notes that specific items of copper and its alloys have been identified in eight digit HSN Codes. For example, HSN 7418.10.21 refers to utensils of brass. So also HSN 7418.20.10 refers to sanitaryware of copper. It can be seen that though sanitaryware of brass is not specifically mentioned the products dealt with by the assessee comes under the above extracted entries of 7412 and 8481. When we look at Entry 3(2) in Third Schedule, it can be seen that it does not take in all articles of brass. Entry 3 going by the heading takes in only such articles and other utensils of aluminium, brass, bronze, copper, etc. other than those specified in any other Schedule of the Act. HSN Code 7419.99.30 to which Entry 3(2) of the Third Schedule is aligned, speaks of “Articles of brass” under HSN 7419.99 with heading “Other” which takes in only those Articles not mentioned elsewhere - Thus this part answered against the assessee and in favour of the Revenue.
HSN Codes - HELD THAT:- The products of the assessee though can be used as sanitarywares, also are used in general water supply and are covered under the various HSN codes as tubes or pipe fittings, taps, cocks, valves and similar appliances for pipes respectively coming in HSN Codes 7412 & 8481 - The products dealt with by the assessee cannot be covered as sanitaryware under 7418.20.10. The answer however does not interfere with the tax effect of the products which we have held to be covered, otherwise, under the SRO itself. The inclusion of the products under Entry 101 does not fall foul of Annexure-D judgment, since we found that it does not declare specifically as to under which entry the brass products of the assessee fall.
Appeal dismissed - decided against appellant.
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2021 (2) TMI 957
Disallowance of professional expenses - disallowance @ 5% of total claim, was made by AO on the ground that the assessee had not given even the addresses and PAN of certain/ concerned parties because of which the verification regarding genuineness of the same could not be carried out; and further, that the assessee could not explain and substantiate the justification for such huge expenses for business need
Disallowance of contract payments - assessee had not given the addresses and PANs of certain/ concerned parties because of which the verification regarding genuineness of the same could not be carried out; and, secondly that the assessee had applied lower rate for deducting tax at source as reported in the Audit Report
HELD THAT:- It is settled law that onus is on the assessee to prove the genuineness of expenses claimed by the assessee as deduction. It is also settled law that the AO has statutory authority to make inquiries before completing assessment; and to gather all relevant material. Such statutory authority of the AO has also been specifically mentioned in relevant provisions of law including in sections 142, 142A 143(3), 131, 133, 133A of IT Act, for example.
It is an assessee’s duty to comply with lawful requirements prescribed by Revenue authorities. When an assessee does not comply with lawful requirements prescribed by Revenue authorities, the assessee cannot claim a lenient view as a matter of right, and the assessee must face the consequences in accordance with law; more so, when the onus is on the assessee to prove the genuineness of a claim. For this view, we take support from order of Co-ordinate Bench of ITAT, Delhi in the case of Aradhana Foods & Juices Pvt. Ltd. v/s. ITO. [2017 (6) TMI 1263 - ITAT DELHI], in which similar view was taken in respect of disallowance of unverified purchases which was affirmed by Hon’ble Delhi High Court in the case of Aradhana Foods & Juices Pvt. Ltd. [2018 (9) TMI 795 - DELHI HIGH COURT]. In the fitness of things, therefore, in view of the foregoing, and in the facts and circumstances of the present case; we set aside the impugned order dated 07/09/2017 of Ld. CIT(A); and restore the issues in dispute in the present appeal before us to the file of the Assessing Officer for fresh order as per law after providing reasonable opportunity to the assessee.
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2021 (2) TMI 956
Disallowance u/s 35(1)((ii) - claim of donation made to one School of Human Genetics & Population Health (SHG&PH) Kolkata on the ground that the said institution is engaged in providing entry and indulged in laundering unaccounted money of the appellant - HELD THAT:-Appellant has made payment of ₹ 15,00,000/- as donation for the A.Y. 2014-15 to the institution i.e. School of Human Genetics & Population Health (SHG&PH) when the said institution has valid registration u/s 35(1)(ii) by and under Notification No. 35/2008/F. No. 203/135/2007/ITA II dated 14.03.2018.
The said donee School of Human Genetics & Population Health is also a registered institution under Section 12AA of the Act and certificate of exemption under Section 80G(5) of the Act by the Commissioner of Income Tax (Exemption) Kolkata under letter dated 03.02.2005. It is the case of the appellant that since the registration of that institution was cancelled by the Ministry of Finance on 06.09.2016 at the time of making donation by the appellant the said institution was holding the genuine registration under Section 35(1)(ii) of the Act. And, therefore, on that score alone the disallowance holding the said institution engaged in laundering of unaccounted money is not sustainable in the eye of law, taking into consideration the date of cancellation of registration of the said institution as on 06.09.2016.
Appeal filed by the assessee by deleting the disallowance made by revenue relating to the claim of donation made by the assessee to School of Human Genetics & Population Health(SHG&PH). We, therefore, delete such disallowance made by revenue - Assessee’s appeal is allowed.
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