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Showing 421 to 440 of 1396 Records
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2021 (4) TMI 976
Validity of assessment order - reminder notice not received and no opportunity was provided for the petitioner for a personal hearing - HELD THAT:- There are dissatisfaction with the manner in which the Commissioner of Commercial Taxes and the Officials working under him/her are discharging their duties to the detriment of all the Assessees and compelling several assessees to run to the High Court to set right the injustice caused to them on account of non-compliance with the principles of natural justice by the respective Assessing Officers.
The impugned Assessment Order is set aside - matter is remitted to the 1st respondent for fresh consideration - petition allowed by way of remand.
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2021 (4) TMI 975
Search and seizure proceedings - revenue seized original title deeds concerning 10 immovable properties - HELD THAT:- As revenue says that the title deeds will be released to the authorized representative of the petitioner within the next two weeks. The date of release will be intimated by Mr. Anand to the counsel for the petitioner.
It is made clear that before releasing the title deeds, the concerned Assessing Officer will satisfy herself as to whether the statement made before us by Mr. Gulati that the transactions, which are subject matter of the title deeds, stand disclosed in the ITRs filed for the relevant assessment years, as indicated in Annexure-R of the instant petition.
Issue notice.
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2021 (4) TMI 974
Validity of adjudication order - Commissioner (Adjudication), CGST, Delhi (East) is the competent officer - the grievance raised by Mr. Mittal with regard to the competency need not detain us, as, in effect, the contesting respondents have taken the position that, the demand made against the assessee, no longer subsists - HELD THAT:- It is only when, the contesting respondents were to recall and/or review the order, this aspect may gain significance, and, at that point in time, the petitioner would be entitled to contest the matter and, perhaps, revive the writ petition. Liberty, in that behalf, is granted in the event such a situation arises.
Insofar as Mr. Mittal's grievance, as regards the typographical error, is concerned, he is right. Consequently, the order dated 05.04.2021 shall stand corrected to the extent that Mr. Hriday Singh’s rank would be shown as Assistant Commissioner, CGST - Application disposed off.
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2021 (4) TMI 973
Clandestine removal - cigarette sticks - perishable goods or not - prohibition in removal of 190 cartons comprising 22,26,000 cigarette sticks - HELD THAT:- Issue notice. Mr. Arunesh Sharma accepts service on behalf of Mr. Harpreet Singh, who appears on behalf of respondent nos. 1, 2, 4 and 5 while Mr. Aditya Singla accepts service on behalf of respondent no. 3. 4.1 Counter affidavits will be filed within four weeks. Rejoinders, thereto, if any, will be filed before the next date of hearing. 4.2 In the meanwhile, the petitioner is given liberty to approach the concerned officer for release of the goods qua which the prohibition order has been passed.
List the matter on 25.05.2021.
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2021 (4) TMI 972
Validity of Settlement Commission order - direction is sought for to reconsider the application and to pass a fresh order under Section 245(D)(4) of the Income Tax Act after affording opportunity to the petitioner - HELD THAT:- In the present case, the findings of the Settlement Commission are unambiguous and specific facts and circumstances were also relied on by the Settlement Commission to arrive a decision regarding true and full disclosure by the petitioner. Such a finding of fact need not be interfered with by the High Court under Article 226 of the Constitution of India, unless such facts are found to be error apparent. When there was an adjudication of facts and the Settlement Commission arrived a finding that factually the petitioner has not established that he filed an application under Section 245(C) with true and full disclosure, then the High Court is expected to exercise restraint in entertaining a writ proceedings under Article 226 of the Constitution of India.
In the present case, the petitioner could not able to establish that he approached the Settlement Commission with clean hands and the element of true and full disclosure as contemplated under Section 245(C) had not been established before the Settlement Commission and therefore, there is no perversity or infirmity as such in respect of the findings arrived.
As brought to the notice of this Court that the Settlement Commission has already been abolished with effect from 01.02.2021. This being the factum established, the writ petition fails and accordingly, stands dismissed.
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2021 (4) TMI 971
Issuance of summons - matter already pending before AAR - taxability of Tunnel Boring Machines used for executing infrastructure products - HELD THAT:- Representation dated 11.03.2021 filed by the petitioner before the authorities, only requests that the proceedings be deferred till a decision is rendered by AAR and does not make a mention of any threat put forth by the officials in regard to the remittance of the duty, in advance. The petitioner has, in its submission dated 03.04.2021, made an incidental reference to 'pressure' being exerted by the revenue to make payment.
However, since the matter is pending at the stage of summons, it is for the parties to take things forward in a proper manner and in accordance with law, bearing in mind that proper procedure and protocol should be followed in matters of conduct of enquiry, investigation and adjudication - Petition dismissed.
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2021 (4) TMI 970
Provisional attachment of bank account of the petitioner - HELD THAT:- The petitioner has made certain adhoc payments pending investigation as a consequence of which the attachment of the bank account of the petitioner i.e. Mutharamman Iron and Steels has been lifted.
The challenge to the provisional attachment does not survive any longer and recording the aforesaid, this writ petition is closed.
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2021 (4) TMI 969
Bail application - Smuggling - Gold Bars - prohibited item - involved in commission of serious offence - HELD THAT:- Even from the facts of the case, it is evident that the accused applicants are the carriers of the smuggled gold from Bangladesh. They are not the main persons who were involved in smuggling the gold. They had committed offence in greed of some money which was to be paid or might have been paid to them for transporting the smuggled gold from West Bengal to Delhi. However, they have been apprehended at Kanpur Central Railway Station on inputs of the Revenue Intelligence Department. The accused applicants are languishing in jail since 12.10.2020. The case is triable by the Magistrate. There is no criminal history of the accused applicants.
Let accused-applicants Dhruv Maheshwari and Laxman Ram be released on bail on their furnishing a personal bond of ₹ 2 lakhs each and two sureties in the like amount to the satisfaction of the Trial Court on being summoned with the conditions imposed - application allowed.
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2021 (4) TMI 968
Principles of Natural Justice - input tax credit - whether the term “other civil structure” used in the definition of ‘Plant and Machinery’ restricts the Landfilling pit from considering it as Plant and Machinery and thereby restricts the Input Tax Credit (ITC) under Section 17(5)(d) of the GST Act? - HELD THAT:- In the present case principles of natural justice and fair play have certainly been violated as the report of the Principal Commissioner of Central Tax was never given to the petitioner at any point of time. The petitioner has now obtained a detailed report submitted by the Principal Commissioner of Central Tax from the Right to Information Act and he is having the aforesaid report.
Keeping in view the fact that the principles of natural justice and fair play has been violated, alternative remedy will not be a bar in the present case, the matter is remitted back to the Authority for Advance Ruling - The petitioner shall appear before the Authority for Advance Ruling on 26.04.2021 - Petition allowed by way of remand.
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2021 (4) TMI 967
Stay application - HELD THAT:- Despite a specific direction on 13.10.2020 to ascertain whether the stay application filed by the petitioner is pending, no confirmation is given in this regard today. Since a copy of the stay application is available at page No.67 of the typed-set filed in support of the writ petition, there is a direction to R2 to consider the same, hear the petitioner and pass orders within a period of four (4) weeks from today.
Since the stay application has been filed pending appeal and in light of Circulars issued by the Central Board of Direct Taxes (CBDT) directing the Assessing/Appellate Authorities to hear and dispose stay applications in a time bound fashion, there shall be a stay of recovery of the disputed demand arising from order of assessment dated 25.12.2019 for a period of four (4) weeks from today or till disposal of stay application, whichever is earlier.
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2021 (4) TMI 966
Reopening of assessment u/s 147 - invalid service of notice under Section 148(1) - HELD THAT:- The entire proceedings ought not to have been brought to naught, even if, the conclusion reached was that notice under Section 148(1) had not been served. According to Mr. Hossain, the matter could have been remanded to the AO, so as to give opportunity to the respondent/assessee to defend the proceedings. This is an aspect that we will consider once service is effected on the respondent/assessee.
List the matter on 20.05.2021.
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2021 (4) TMI 965
Suo moto revision - Eligibility for deduction of the entire sub-contractors' payments made - payments made to the sub-contractors - assessment years 2008-09 to 2011-12 - the contention of the appellant’s counsel is that it was wholly unnecessary to have initiated the suo moto revisional proceedings - HELD THAT:- There must be two circumstances which co-exist to enable the respondent to exercise power of revision under Section 64 of the KVAT Act, which is a suo moto revisional power. Firstly, the order passed by the first appellate authority or any other inferior authority not above the rank of the Joint Commissioner is erroneous. Secondly, the erroneous order must prejudice the interest of the Revenue. Therefore, the revisional authority has to first determine what is the erroneous order and thereafter determine as to whether the erroneous order has adversely affected the interest of the Revenue. Both the circumstances must co-exist before the revisional authority can initiate suo moto revisional proceedings. That, it is not sufficient to vest power in the respondent/authority to exercise suo moto revision merely because an order is erroneous - there must be some prima facie material on record to show that tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation a lesser tax than what was just has been imposed.
While discussing the aspects regarding the payments made to the sub contractors, there is no categorical finding given as to whether the assessee was, indeed, entitled to claim such benefit or not entitled to the same. In the absence of such finding being given by the respondent/revisional authority, the matter has been simply remanded to the Prescribed Authority under the KVAT Act to verify the issue based on certain observations made - the respondent/Authority was not right in remanding the matter to the Prescribed Authority to verify the issues with regard to certain observations made during the course of the order of purchases and sub contractors and to make a fresh re-assessment under Section 39(1) of the KVAT Act without giving a finding as such and in categorical terms as to whether the appellant/assessee was, indeed, entitled to make a claim regarding the deductions vis-a-vis the payments made to various sub-contractors in the respective assessment years.
Matters remanded to the respondent/Authority to reconsider the same afresh - Appeal allowed by way of remand.
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2021 (4) TMI 964
Disallowance u/s 14A r.w.r. 8D - HELD THAT:- As for the assessment year 2013-14, the assessee has not earned any exempted income. The aforesaid fact has not been disputed by the revenue, and therefore, the ITAT was justified in allowing the appeal preferred by the assessee. - Decided in favour of assessee.
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2021 (4) TMI 963
Refund of ITC versus claim of duty draw back - option to select one scheme - Circular No.37/18-Customs dated 09.10.2018 - HELD THAT:- It is clear from a reading of Section 54(3) that the petitioner is entitled to one or the other of two benefits, i) duty draw back or ii) Input Tax Credit. Thus, an option has been extended to an assessee engaged in zero rated sale to either claim the benefit of duty drawback or the benefit of refund of ITC. That is why, in the present case, the petitioner, for the month of July, 2017 has opted to stick with the claim of duty draw back seeing as the amount of drawback is higher than the ITC for the months of August and September, 2017 - On a plain reading of Section 54 (3) it is found that the claim of refund to be in order. The orders of the appellate authority are set aside and the authority is directed to refund the sanctioned amounts within a period of six (6) weeks from today. In doing so, the contents of paragraph 2.5 of the Circular will not stand in the way since a circular cannot stand in the way of a benefit offered under a statutory scheme.
Paragraph 2.5 of the circular, insofar as it is contrary to the statutory provisions of Section 54(3) is bad in law.
Petition allowed.
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2021 (4) TMI 962
Settlement Commission order 245D - HELD THAT:- As the facts stated by the petitioners can only be verified by the Settlement Commission, it may be left at the discretion of the Settlement Commission to take a decision whether such facts are correct or not and accordingly, the Settlement Commission may proceed with the matter. We have also been taken to the contents of the Finance Bill 2020-21 and the relevant provisions therein but as the said Bill has still not been enacted, the position which stands is to be taken as in the absence of the contents of the said Bill.
Considering we dispose of this petition with the direction to the respondent No.1 Settlement Commission to consider the facts as stated by the petitioner and as recorded in the above order and if they are found to be correct, it may proceed to pass/issue appropriate formal orders on or before 31.03.2021 and if such facts are not found to be correct, the Commission would be free to proceed in accordance with law in its own wisdom and discretion.
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2021 (4) TMI 961
Constitutional validity and clauses (d) and (e) of Section 174(1) of the Karnataka Goods and Service Tax Act, 2017 - petroleum products and liquor for human consumption as per the amended Entry 54 - HELD THAT:- The Hon’ble Supreme Court in R.S. REKCHAND MOHOTA SPINNING & WEAVING MILLS LTD. VERSUS STATE OF MAHARASHTRA [1997 (5) TMI 441 - SUPREME COURT] has held that it is a settled principle of interpretation that legislative entries are required to be interpreted broadly and widely so as to give powers to legislature to enact the laws with respect to the matters enumerated in the legislative entries. Therefore, in the light of the aforesaid judgment, by no stretch of imagination it can be held that clauses (d) and (e) of Section 174(1) of the Karnataka Goods and Service Tax Act, 2017 is ultra vires.
The appellant’s basic contention is that the State is denuded of its power to re-assess a dealer’s tax liability under the provisions of the KVAT Act after amendment to Entry 54 of the State List vide the Constitution (101st Amendment) Act, 2016, (the Amendment Act), which was notified to be brought into force w.e.f., 16.9.2016 and the subsequent repeal of the KVAT Act w.e.f., 1.7.2017, vide Section 173 of the KGST Act. The appellant’s contention is totally untenable in view of the insertion of saving clause, namely Section 174 of the KGST Act in order to ensure that the repeal of the KVAT Act shall not affect liabilities accrued or tax payable under the KVAT Act. Therefore, in view of the savings clause under Section 174, the appellant’s contention that the State cannot reassess the liability incurred prior to repeal of the KVAT Act is totally baseless.
Constitutional validity and the assertion that the State’s legislative power have been taken away - HELD THAT:- It is pertinent to note that the power to enact Section 174 of the KGST Act can be traced to Article 246A, which, when read with Article 366(12-A), confers power on the States to make laws with respect to any tax on supply of goods. Accordingly, Section 174 is a validly enacted piece of legislation and cannot be said to be without legislative competence. Hence, the contention of the appellant that Section 174 is a still born provision and unconstitutional is devoid of merits and substance.
Appeal dismissed.
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2021 (4) TMI 960
Computation of capital gain - appellant entitlement to adjust the indexed cost of acquisition under the second proviso to Section 48 while computing capital gains on the sale of shade trees during the assessment year 2007-08 - Whether the findings of the Tribunal “that it was incumbent on the appellant to allege during the assessment proceedings that the trees which were now sold were in existence prior to 01.04.1981” and “no such material / evidence was brought on record before the Tribunal or the lower authorities” is perverse, contrary to the record and illegal?" - assessee submitted that the finding recorded by the Tribunal in this regard is perverse, as the same is based on surmises and conjectures - HELD THAT:- After perusal of the record, in our considered opinion, the factual controversy between the parties requires adjudication afresh, in the light of the material available on record. The impugned orders passed by the Tribunal / Commissioner of Income Tax (Appeals) as well as by the Assessing Officer are hereby quashed.
The matter is remitted to the Assessing Officer to make a fresh assessment again.
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2021 (4) TMI 959
Allowability of provisions for warranty by ITAT - whether the provision made by the assessee has been done in a scientific manner and whether it has followed the conditions stipulated by the Hon'ble Supreme Court in the case of Rotork Controls India Pvt. Ltd. [2009 (5) TMI 16 - SUPREME COURT] - Standing Counsel for the appellant would contend that the decision of this Court in the case of Renowned Auto Products [2013 (7) TMI 392 - MADRAS HIGH COURT] would bind this Court and the decision of the High Court of Karnataka will not be a binding precedent of this Court - HELD THAT:- The thin but marked difference is that the decision of the High Court of Karnataka is in the assessee's own case [2020 (8) TMI 768 - KARNATAKA HIGH COURT] in respect of the correctness of the provision made by the assessee for warranty.
These transactions are identical and the assessee has been consistently following the said method for several assessment years, which has been noted by the High Court of Karnataka as well as by the Tribunal in the impugned order.
Therefore, we are of the considered view that the Tribunal and the CIT(A) rightly held that the assessee had followed the scientific method and complied with the directions issued by the Hon'ble Supreme Court in Rotork Controls India Pvt. Ltd.
The above reasons, we find no good grounds to interfere with the order passed by the Tribunal. - Decided against revenue.
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2021 (4) TMI 958
Reopening of assessment u/s 147 - Non speaking order dated 29.01.2016 had been communicated pursuant to which the impugned assessment has been passed.- HELD THAT:- A perusal of the communication dated 29.01.2016 the relevant portion shows this is a non speaking order and merely conveys the decision over ruling the objection of the petitioner. The exercise carried out by the respondent was contrary to the decision of the Hon'ble Supreme Court in G.K.N Drive Shafts India Ltd. Vs Income Tax Officer, [2002 (11) TMI 7 - SUPREME COURT]
Therefore the impugned assessment order passed by the respondent is liable to be quashed. Under these circumstances, the impugned assessment order dated 30.03.2016 is quashed by directing the respondent to pass a speaking order in terms of the decision of the supreme Court in G.K.N Drive Shafts India Ltd. Vs Income Tax Officer within a period of three months from the date of receipt of a copy of this order. Thereafter, the assessment proceedings can be completed in accordance with law.
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2021 (4) TMI 957
Offence under Section 276 C (2) - failure to pay the income tax based on the self assessment - HELD THAT:- In the instant case, admittedly there is no concealment of any source of income or taxable item, inclusion of a circumstance aimed to evade tax or furnishing of inaccurate particulars regarding any assessment or payment of tax. What is involved is only a failure on the part of the petitioner to pay the tax in time, which was later on paid after availing installment facility with interest. The penalty imposed is now pending consideration before the appellate authority. So it would not fall under the mischief of Section 276 C of the Income Tax Act.
Argument advanced based on the deeming provision – Section 278 E of the Income Tax Act regarding the presumption as to existence of culpable mental state on a prosecution for any offence under the Act - A 'culpable mental state' which can be presumed under Section 278E of the Act would come into play only in a prosecution for any offence under the Act, when the said offence requires a 'culpable mental state' on the part of the accused. Section 278 E of the Act is really a Rule of Evidence regarding existence of mens rea by drawing a presumption though rebuttable. That does not mean that the presumption would stand applied even in a case wherein the basic requirements constituting the offence are not disclosed. The presumption can be applied only when the basic ingredient which would constitute any offence under the Act is disclosed. Then only the rule of evidence under Section 278 E of the Act regarding rebuttable presumption as to existence of culpable mental state on the part of accused would come into play. As such there is no scope for applying the rebuttable presumption under Section 278E of the Act in the instant case.
What is dealt with in Prakash Nath Khanna's [2004 (2) TMI 3 - SUPREME COURT] case is the criminal liability that can be fastened under Section 276CC of the Act when there is wilful failure to furnish return. The expression “failure” used in Section 276 CC of the Act is with respect to submission of assessment and return and the same cannot be equated with any failure to pay the tax in time and the liability under Section 276 C of the Act. A mere failure to pay the amount due (tax, interest or penalty) will not satisfy the requirement which would constitute the offence under Section 276C(2) of the Income Tax Act. Hence the crime registered and the further proceedings thereof will not serve any purpose, if it is proceeded further. The same is quashed.
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9911796707
