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Showing 441 to 460 of 1557 Records
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2025 (1) TMI 1118
Validity of Assessment order passed by the ITO-4(1), Raipur as non-jurisdictional A.O - no order u/s.127 was passed for transfer of case from ITO-3(1), Raipur to ITO-4(1), Raipur - HELD THAT:- As on a perusal of the aforesaid order of transfer u/s. 127 of the Act that it is stated at Sr. No.20 that the case of the present assessee had been transferred from ITO-3(1), Raipur to ITO-4(1), Raipur. Additional grounds of appeal raised by the assessee are dismissed.
Addition u/s 68 - unexplained "source" of the cash deposit made in her bank account during the demonetization period - The assessee had failed to come forth with an irrefutable explanation as regards the source of the cash deposits of Rs. 11 lacs (supra) made in her bank account during the year under consideration. Left with no other alternative but to draw support from the CBDT Instruction No.3/2017, dated 21.02.2017 for estimating the amount of cash in hand that would have been available with her to source the subject cash deposits in her bank account.
As availability of cash with the assessee as on the date of cash deposits which would have sourced the cash deposits of Rs. 11 lacs (supra) in her bank account with Allahabad Bank, Raipur is restricted to the extent of Rs. 3,50,000/-. Hence, sustain the addition partly.
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2025 (1) TMI 1117
Assessment u/s 153A - Addition of unexplained cash credit u/s 68 - HELD THAT:- In the case of Smt. Shashi Agarwal [2024 (10) TMI 533 - ITAT LUCKNOW] coordinate bench of ITAT Lucknow has decided the matter in favour of the assessee, relying on Abhisar Buildwell (P.) Ltd. [2023 (4) TMI 1056 - SUPREME COURT] on the issue whether additions can be made in a search assessment in the absence of any incriminating material found during search. Thus addition cannot be made in a search assessment in the absence of any incriminating material - Decided in favour of assessee.
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2025 (1) TMI 1116
Addition u/s 69/69A - treating all the credit found in bank as unexplained money - AO charging special tax rate 60 percent u/s 11BBE - HELD THAT:- Out of a credit amount Rs. 44,01,180/- is on account of a home loan, copy of home loan disbursal is placed on record, otherwise it is evident from the credit entry, if such amount is reduced from whole of the addition, the addition will reduce to Rs. 28,80,494/-.
Further, if the assessee is allowed deduction under section 80TTA of Rs. 2,042/-, the addition will reduce to Rs. 28,78,452/-. Further, there is mistake on figure of Rs. 19,870/- by considering as correct amount will reduce to Rs. 28,58,582/-.
From the copy of ITR for AY 2016-17, we find that the assessee was having cash-in-hand of Rs. 9,92,080/- the return of income for AY 2016-17 filed on 14.09.2016, copy of which placed on record pages 39 to 41 of the paper book.
Thus, if such credit is allowed, the additions is left only to Rs. 18,66,502/-. We find that the assessee was engaged in business income is estimated @ 10% the taxable income would be Rs. 1,86,650/-, which we rounded off to Rs. 2.00 lakhs. Thus, the additions made by AO is restricted to Rs. 2.00 lakhs. In the result, the grounds of appeal raised by the assessee are partly allowed.
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2025 (1) TMI 1115
Disallowance u/s. 40A(3) r.w. clause (f) of Rule 6DD - cash purchases exceeding Rs. 20,000 - Auditor has identified 61 transactions attracting mischief of section 40A(3) - HELD THAT:- Claim of assessee is that assessee has given cash to her employee who is the supervisor or the agent who in turn made payment to the sellers of the gold and therefore the same would not fall within the scope of section 40A(3).
It was also the claim of assessee that part of jewellery and bullion is purchased by assessee was shown as stock in trade and the provisions of section 40A(3) were not applicable and assessee relied on the decision of Prosperous Buildcon Pvt. Ltd. [2023 (11) TMI 706 - DELHI HIGH COURT]
The assessee has further relied on the decision of Rajesh Kumar [2023 (10) TMI 1285 - DELHI HIGH COURT] stating that if the assessee proves the genuineness of the transaction, disallowance could not have been made u/s. 40A(3) of the Act.
As all these issues have not been considered by the ld. lower authorities, therefore, we restore the whole issue back to the file of ld. AO with a direction to the assessee to substantiate that the payment made to 61 parties on bank holiday, the payment was made by the agent and further the business exigency also demanded payment of cash - Appeal of the assessee is allowed for statistical purposes.
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2025 (1) TMI 1114
LTCG - Deduction u/s 54 - share of the assessee in the Joint Development Agreement (JDA) - entire sale consideration received are invested in the construction of the new property - DR contended that the Katha stood in the name of the assessee as well as his brother and therefore the assessee is entitled for 50% share in the land given to the builder.
HELD THAT:- We are in agreement with the argument that the title of the property cannot be decided on the basis of Khatha as held by the various Courts, when the assessee was able to establish the ownership of the lands by way of JDA and Partition Deed. Mere reliance on the Khatha issued by the authorities is not legally correct.
AO has also not produced any documents to show that the assessee and his brother are the owners except the Khatha. The ownership of the immovable property could not be transferred without executing any registered document. There is no such documents were available to show that the assessee as well as his brother are the owners.
We do not accept the reasoning given by the AO for arriving the share of the assessee at 50%. Assessee was also not able to explain why he has adopted a lesser area of land while computing the long term capital gains. If the assessee’s contention that his share is 25% and therefore long term capital gains should be computed on his share alone, some more enquiry is to be conducted by the authorities.
One such enquiry may be carried out with the sister of the assessee as well as his father and if they are able to show that they have sold their respective shares to various buyers, the dispute arose in this appeal would be solved. We therefore restore this matter to the file of the AO to call for the details from the assessee as well as his father and sister to prove that they sold their respective shares separately in favour of the buyers which they got based on the partition deed.
Whether entire money received by him were utilised in the construction of the building and therefore he is eligible for deduction u/s. 54? - The assessee is entitled to claim deduction u/s. 54 of the Act if the assessee is able to establish the fact that the construction was commenced within the period prescribed under the Act. If the assessee is able to establish the said fact, then as per section 54 assessee is entitled for said deduction.
Based on the records filed by the assessee, we are not able to ascertain the said facts. In order to ascertain the said facts, we are remitting this issue also to the AO to decide the issue afresh based on the documents produced by the assessee and if the AO is found that the construction was commenced within the period of 3 years, but the same was completed after the period of 3 years, then the assessee is entitled for deduction irrespective of the completion of the construction.
With the above directions, we are remitting both the issues to the AO for deciding the issues in accordance with law and also based on the findings given above. Appeal filed by the assessee is allowed for statistical purposes.
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2025 (1) TMI 1113
Classification of income - treatment of interest income on loans and advances provided to employees - "business income" or "income from other sources" - HELD THAT:- Interest income earned from loans and advances provided to employees is incidental to the business of power generation and qualifies as “business income.” The AO’s classification of the income under “other sources” is erroneous and contrary to binding judicial precedents.
CIT(A) has correctly relied on the judgments of Odisha Power Generation Corporation Ltd. [2022 (3) TMI 539 - ORISSA HIGH COURT] and provided a well-reasoned conclusion to delete the additions made by the AO. Now in the case of Gujarat Urja Vikas Nigam Ltd. [2020 (3) TMI 232 - GUJARAT HIGH COURT] also upheld that interest income earned on loans and advances provided to its employees is directly related to the business operations of Power Companies. Decided against revenue.
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2025 (1) TMI 1112
Validity of Reopening of assessment u/s 147 without issuing a valid notice u/s. 143(2) - assessee’s claim of having purchased the subject land i.e. land situated at Talapara, Bilaspur as stock-in-trade of his business could not be accepted and treating the same as the income of the assessee u/s. 56(2)(vii)(b) - HELD THAT:- As is discernible from the “Screen shot” of the e-portal account of the assessee,, the return of income filed by the assessee on 11.06.2018 (supra) had thereafter been e-verified though after the due date i.e. on 24.10.2019. Accordingly, as the assessee had filed the return of income in compliance to notice u/s. 148 of the Act (wherein the provisions of the Act shall so far as may be apply accordingly as if such return were a return required to be furnished u/s. 139 of the Act), therefore, the A.O had validly issued the notice u/s. 143(2) of the Act, dated 05.11.2019. Our aforesaid conviction is fortified on a perusal of Section 143(2) of the Act, as per which, where a return of income has been furnished u/s. 139 of the Act, then the A.O, if considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under-paid the tax in any manner shall serve upon him a notice requiring him, on a date to be specified therein, either to attend the office of the A.O or to produce, or cause to be produced before him any evidence on which, he may rely in support of the return. Accordingly, after the return of income was e-verified by the assessee on 24.10.2019, the notice u/s. 143(2) of the Act which was thereafter issued by the A.O could not be held to be invalid. Against assessee.
Whether concluded assessment in his case had been reopened based on a mere “change of opinion"? - As the concluded assessment of the present assessee that was originally framed by the A.O vide his order passed u/s. 143(3) of the Act, dated 23.08.2016 had been reopened by successor A.O based on the same set of facts as were there before his predecessor and were looked into and deliberated upon by him in the course of the original assessment proceedings, and not on the basis of any fresh material coming to his notice after framing of the original assessment, therefore, the same is based on a mere “change of opinion”, which as pointed out by the Ld. AR and, rightly so, as per the ratio of Kelvinator of India [2010 (1) TMI 11 - SUPREME COURT] is not permissible, thus, cannot be sustained and is liable to be quashed. Decided in favour of assessee.
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2025 (1) TMI 1111
Denial of deduction u/s 10A - defective Form 56F - there is no certification by Chartered Accountant as required under law - CIT(A) allowed deduction - HELD THAT:- We find the Tribunal in the case of Mahendra Kumar Damani [2023 (2) TMI 386 - ITAT CHENNAI] held that the provisions of sub-section (5) of section 10A of the Act shall apply in relation to deduction specified in section 10AA of the Act.
Whether report signed as “Deloitte Haskins and Sells” is not a valid verification of report in Form 56F and treated as defective? - We find the Act envisages an “Accountant”, as referred in sub-section (5) to section 10A of the Act and the definition of which as provided in Explanation below to sub-section (2) of section 288 of the Act, should sign Form 56F, which was not done in this case as observed by the AO.
We find in order to certify the correct claim under the provisions of section 10A of the Act, an “Accountant” as referred in sub-section (5) to section 10A of the Act and the definition of which as provided in Explanation below to sub-section (2) of section 288 of the Act is required. It is amply clear that a Chartered Accountant falling under the definition to clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949 is required to certify the correct claim under the provisions of section 10A of the Act.
Assessee could not provide any material supporting the order of the ld. CIT(A) showing that “Deloitte Haskins and Sells” is an “Accountant” as referred in sub-section 5 of section 10A of the Act. Thus, we hold the view of the AO is correct in holding the Form 56F is defective and the assessee is not entitled for deduction under section 10A - Decided against assessee.
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2025 (1) TMI 1110
Higher tax rate un/s 115BBE for Addition u/s 68 - unexplained cash deposits - AO levied tax at 60% under Section 115BBE - HELD THAT:- The rate of taxes as applied by the Assessing Officer is in accordance with the tax provisions of the Act, and therefore, we do not find any error in the orders passed by the AO or the LD.CIT(A).
Even in the absence of decision of Hon'ble High Court of Kerala in the case of Maruthi Babu Rao Jadav [2021 (1) TMI 481 - KERALA HIGH COURT] the bare provision of the Act - 2(37A) read with other provisions of the Act i.e., Section 68 and Section 115BBE make it clear that the rate of taxes at which the deemed income of the assessee is required to be taxed, would be taxed, as notified by the Parliament in the Schedule of Income Tax Act for A.Y. 2017-18. In view of the above, the objection of the ld.AR is devoid of any merit.
It is also settled proposition that the charging provision cannot be applied retrospectively, whereas the machinery / applicability of the rate of tax is charged in accordance with the Schedule of Income Taxes as declared by the Parliament on a year- to-year basis.
Respectfully, following the decision of Chandan Garments Private Limited [2023 (7) TMI 973 - ITAT INDORE] no merit in the appeal of the assessee and we are inclined to hold that the higher rate of tax prescribed in Section 115BBE of the Act is applicable to the whole previous year 2016-17 relevant to A.Y. 2017-18 - Decided against assessee.
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2025 (1) TMI 1109
Addition u/s 69A - unexplained money - unexplained receipts towards unsecured loan received from Smt. K. Subbaratnamma, on the ground that the assessee has received loan in cash and hence the same is not reflected in the regular accounts of the assessee - HELD THAT:- From the details filed by the assessee, we find that the loan given to the appellant has been disclosed in the financial statement of the creditor. Therefore, we are of the considered view that the appellant has filed relevant evidences to prove the amount of loan received from the creditor.
Reason for difference in the rough balance sheet and the final balance sheet is explained and as per the rough balance sheet, the appellant has recorded loan received from Smt.K.Subbaratnamma, whereas, after considering the details of repayment of loan, the account was squared up in the final balance sheet.
Assessee has explained the difference in unsecured loan from two balance sheets by filing reconciliation. AO and the CIT(A) without appreciating relevant facts, simply sustained the additions made by the AO. Thus direct to delete addition - Decided in favour of assessee.
Assessment u/s 153A - Addition u/s 68 - introduction of fresh capital in cash by partners - identity, genuineness and creditworthiness of the partners who introduced capital not established - HELD THAT:- As in respect of completed assessments / unabated assessments, no additions can be made in the absence of any incriminating material found during the course of search u/s 132 of the Act.
In the present case, going by the assessment order, we find that the additions made by the AO towards capital account of partners u/s 68 of the Act is not based on any incriminating material found as a result of search. Therefore, additions made by the AO towards capital account of partners u/s 68 in the assessment order passed u/s 153A of the Act, without any reference to incriminating material found during the course of search us 132 of the Act cannot be sustained.
Capital contributions from partners - The appellant is able to establish identity, genuineness of transactions and creditworthiness of the partners. The Ld.CIT(A) after considering relevant facts has rightly held that the Assessing Officer has made addition only on the basis of suspicion and surmises, without any clinching evidence to suggest that the amount of capital introduced by the partners is unexplained credit or income of the appellant firm. The findings of facts recorded by the Ld.CIT(A) is uncontroverted by the Revenue. Therefore, we are inclined to uphold the findings of the Ld.CIT(A) and dismiss the appeal filed by the Revenue.
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2025 (1) TMI 1108
TP Adjustment - adjustments in respect of international transactions made with M/s. Northstar Health Care - TPO had treated the said entity as a deemed AE - HELD THAT:- As in respectful compliance to the decisions of the Hon’ble Coordinate Bench, in assessee’s own case [2016 (12) TMI 236 - ITAT CHENNAI], we direct the Ld. AO to delete the addition made on account of adjustment made by the Ld. TPO in respect of M/s.Northstar Health Care
TP Upward adjustments made by the Ld. TPO on account of sale of cephalexin and Levetiracetam Drugs - HELD THAT:- .Accordingly, in the line of decision in assessee’s own case qua AY-2017- 18 & 2018-19 supra the Ld. TPO is directed to recompute the ALP following the ratio laid down in [2024 (9) TMI 1688 - ITAT CHENNAI]. TPO would be required to give all opportunities of being heard to the assessee who shall comply with all the notices issued to him in this regard.
Addition qua provisions u/s 36(1)(vii) - provision for rebates and discounts written back - HELD THAT:- A benefit accruing to a tax payer on account of a statutory stipulations cannot be taken away by the assessing authority on account of mere adverse presumption. In support of its contentions assessee has placed reliance upon the decision of Banyan and Berry [1995 (12) TMI 12 - GUJARAT HIGH COURT] and Walfort share and stock broker private limited [2010 (7) TMI 15 - SUPREME COURT] We have also noted that the Ld. DRP has also not confirmed the order of the Ld. AO with any detailed findings and has only confirmed Ld. AO’s findings in a summary manner. Accordingly, we are of the view that the addition made by the Ld. AO is not correct. We therefore set aside the order of the lower authorities and direct the Ld. AO to delete the addition
Adding back the impugned provisions the assessee had calculated tax at 20% whereas while reversing the same it has claimed the benefit at 30% - Addition of provision pertaining to AY-2010-11 and the assessee has reversed the transaction in AY-2012-13 - HELD THAT:- At any take over / restructuring of business a contractual condition exists that the new party will take over all the assets and liabilities of the old party. Thus the new entity namely Hospira Health Care India Private Limited which had taken over assessee’s generic injectable finished dosage business also become entitled to all the assets and liabilities of the of the assessee. To this extent we find force in the arguments of the Ld. AO that the said amount cannot be claimed by the assessee. We have also noted the concerns of the Ld. AO that assessee had calculated tax at 20% whereas while reversing the same it has claimed the benefit at 30%. We are therefore of the view that there is no merit in the case of the claim of the assessee when viewed in the light of peculiar facts of the present case. The Judicial Pronouncements also cited by the assessee would not come to his rescue given the existence of peculiar facts of the present case. Accordingly, the addition made by the Ld. AO is confirmed
Addition by invoking provisions of section 37(1) - provisions were created at the end of the year and no party account was credited. - HELD THAT:- The genuineness of the impugned job work charges is not in dispute. It is also not in dispute that the assessee has offered the corresponding sales attributable to the job work during the said year. We have also found that there is no dispute qua regarding any benefit accruing to the tax payer on account of differential tax rates. It is also not a case of a provision being created qua an unascertained liability. This being the case we do not find any infirmity in the demand of the assessee regarding the allowance of the impugned expenses. Accordingly, we direct the Ld. AO to delete the impugned addition
Disallowing claim of deduction u/s. 35(2AB) - According to AO, the assessee had not filed supporting evidence as well as the required Form 3CL and therefore he proceeded to add the impugned addition - HELD THAT:- Form 3CL is a mandatory requirement for claiming deduction u/s 35(2AB). Non-availability thereof would preclude the assessee from rightfully claiming the statutory deduction. where law is unambiguously candid, there is no scope for any different interpretation by the courts than the one specified therein. We have however found sufficient force in the alternate argument of the appellant that in the event of denial of weighted deduction u/s 35(2AB), for want of prescribed Form 3CL, the assessee would be eligible to at least the deduction u/s 37 / section 32 of the act.
As stated that within the meanings of provisions of 37 a part of the same would be classified as capital expenditure and the balance as revenue expenditure. As also urged that on the component of capital expenditure the assessee would be entitled for depreciation u/s 32. Accordingly, the order of lower authorities on this issue is set aside. AO is directed to read judicate the matter de novo and consider allowing assessee’s claim of deduction u/s 37 / 32 in accordance with law after giving opportunity of being heard to the assessee.
Assessee shall provide the AO bifurcation of the capital and revenue expenditure as available in its records. AO would then allow the assessee the impugned expenses u/s 37 and 32 in accordance with law. Accordingly ground of appeal no.11 is dismissed and 12 is allowed for statistical purposes.
Non deduction of TDS u/s 40(a)(i) - Disallowing of deduction in respect of FCCB issued which was redeemed during the previous year under consideration at a premium - HELD THAT:- It is an undisputed fact of the case that the assessee has issued FCCB during 2006-07 and which have been redeemed by incurring a premium expenditure during the year under consideration. As undisputed and rather admitted fact on records that no TDS deduction u/s 40(a)(i) was done by the assessee. To this extent the disallowance made by the Ld. AO has been found to be in order.
We have also noted that no adverse findings have been given by the Ld. AO as regards to commercial expediency of the impugned expenditure on premium or regarding the genuineness of the said expenditure. The argument of the Ld. AO about amortization also does not find favour with us since even though he argued for amortization he has himself chosen not to allow the assessee 1/5th of Rs. 246.87 Crs and proceeded to add the entire figure.
In the absence of any adverse findings qua commercial expediency of the impugned expenditure on premium or regarding the genuineness of the said expenditure brought on records we are unable to concur with the findings of the lower authorities. The order of Ld. Lower authorities is therefore set aside. The impugned expenditure cannot be allowed as deduction in the year under consideration on account of the same not being exposed to any TDS deduction u/s 40(a)(i). Accordingly, we direct the AO to allow the impugned expenses in the year when TDS deduction u/s 40(a)(i) is made by the assessee.
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2025 (1) TMI 1107
Valuation of imported goods - allegation of Fabricated invoices/ original invoices - transaction value of the imported goods - Jurisdiction Of Ld. Adjudicating Authority to appreciate the evidences on record in sustaining the allegations/ the issues raised in the SCN - it was held be CESTAT that 'The transaction values of other importers could not be considered for re-determination of the subject goods' value under Rule 5 of the Customs Valuation Rules, 2007.'
HELD THAT:- It is not required to issue notice in the present appeal; hence, the same is dismissed.
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2025 (1) TMI 1106
Challenge to assessment order - seeking release of the bank guarantee - import of consignment of gold jewellery from Indonesia - benefit of exemption N/N. 46/2011-CU dated 01st June, 2011 and N/N. 12/2012-CE dated 7th March, 2012 - HELD THAT:- There can be no doubt about two facts, firstly that the Division Bench judgment [2023 (12) TMI 697 - DELHI HIGH COURT] had to be complied with and the Customs Department could not hold back compliance thereof by directing adjustment in the final order. Such a course of action would not be permissible. Secondly, insofar as the impugned order is concerned, the same is an appealable order. Delay in passing the impugned assessment order is a ground on which the Petitioner seeks to challenge the same. The ground of delay can also be raised in the appeal. The appellate forum would then consider the reliefs sought in the first writ petition also while deciding whether there was delay.
This Court is also not to go into computation in terms of the impugned order. That would be a factual determination. Since the impugned order is appealable, this Court does not wish to go into merits of the order or the aspect of delay.
The Petitioner is permitted to file an appeal challenging the impugned order dated 23rd February, 2024 within a period of 30 days from today along with requisite pre-deposit in terms of the Act - Petition disposed off.
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2025 (1) TMI 1105
Challenge to SCN - time limitation - seeking declaration that proceedings initiated under the SCN by Respondent No. 2 Principal Commissioner of Customs, ICD Tughlakabad, New Delhi, to be barred by limitation under Section 28 (9) of the Customs Act, 1962 - HELD THAT:- The issue raised in the petition is no longer res-integra. Section 28 (9) of the Act, unamended and amended, have been considered in detail by the Coordinate Benches of this Court in Swatch Group India Pvt. Ltd. [2023 (8) TMI 864 - DELHI HIGH COURT] as also M/s Vos Technologies India Pvt. Ltd. v. The Principle Additional Director General & Anr. [2024 (12) TMI 624 - DELHI HIGH COURT]. All the issues which have been raised by the Respondents now stand adjudicated.
It was held in Swatch Group India Pvt. Ltd. that 'In the absence of any ground that it was not possible for the officer to determine the amount of duty within the prescribed period, the impugned SCN has lapsed and cannot be adjudicated.'
The impugned SCN, which was issued way back in 2008, due to repeated placing in the call book has not been adjudicated for so long. Repeated placing and removing from the call book is not a valid justification for non-adjudication of the impugned SCN for about 15 years. Moreover, the gaps between the said periods is also inexplicable. Hearing notices have been given to the Petitioners but there is no reason for non-adjudication of the impugned SCN for long period.
Conclusion - The SCN was quashed due to being barred by limitation, and the justification of delay due to call book placement was rejected.
Petition allowed.
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2025 (1) TMI 1104
Levy of penalty u/s 112(a) and 112(b) of the Customs Act, 1962 - abetting the smuggling of gold and his indulgence in dealing with smuggled gold - HELD THAT:- From the findings of the ld. adjudicating authority, it is observed that except the statements of Shri Pawan Prasad and Smt. Monika Yadav, there is no other corroborative evidence to establish the role of the Appellant in the alleged offence.
From the Section 112 of the Customs Act, 1962, it is observed that penalty can be imposed under this section only when a person commits an act which renders the goods liable for confiscation. In the present case, it is observed that the gold recovered from Shri Pawan Prasad and Smt. Monika Yadav has been ordered to be confiscated under Section 111 of the Customs Act vide the impugned order dated 31.03.2017 and penalty has been imposed on them for the role played by them in the offence. There is no other evidence available on record to implicate the appellant in the alleged offence.
The penalty imposed on the Appellant by invoking the provisions of Section 112(a) and (b) of the Act is not sustainable - Appeal allowed.
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2025 (1) TMI 1103
Smuggling of bike - Jurisdiction of DRI officers to issue SCN in view of the amendments made by the Finance Act, 2022 - power of customs authorities at Hyderabad to adjudicate the case when the bike was said to have been smuggled through Kolkata port and got registered with RTA, Raigad - challenge to SCN on the ground that Shri Sunil Lawrence has not been made a noticee at all - confiscation - redemption fine - penalty.
Jurisidiction of Customs authorities in Hyderabad - HELD THAT:- The appellant had produced a copy of Bill of Entry purported to have been filed in Kolkata Air Cargo complex, which was found to be fake. There are no other legal documents to show how the bike was imported into India. Therefore, it is inconceivable that Kolkata Customs will have any jurisdiction over this case. In fact, in this case, there is no proposal for assessment or demand of duty. The question of jurisdiction of the port will arise when goods are imported through a port and the duty has been assessed and the duty so assessed has to be modified.
The property was registered in the name of the appellant by RTA, Hyderabad. Therefore, there are no reason to hold that any officer other than the officers of Hyderabad Customs will have any jurisdiction over to decide the matter. The only question is whether the bike was liable to be confiscated and whether the appellant was liable to pay penalty under section 112(b) or not. Here it is found in favour of the Revenue and against the appellant on the question of jurisdiction.
Challenge to SCN on the ground that Shri Sunil Lawrence has not been made a noticee at all - HELD THAT:- The identity of Shri Sunil Lawrence was also not known to the appellant and the person through whom the bike was purchased from Shri Sunil Lawrence is no more. So, there was no way to find who Shri Sunil Lawrence was and where he lived and if he had smuggled the bike into India - the proposal is only to deprive the appellant of his property and therefore, SCN was issued. The proposal was also issued to impose penalty on the appellant. The mere fact that some action has not been taken against any other person, such as Shri Sunil Lawrence, does not negate the validity of this SCN or the consequential orders.
Confiscation - HELD THAT:- It is clear from section 2(33) that prohibited goods under the Customs Act are only such goods whose import or export is prohibited and not those goods where the appropriate procedures have not been followed. The SCN refers to section 46 and 47 of the Customs Act. Section 46 requires the importer of any goods to file a bill of entry and section 47 provides for proper officer to issue “out of charge” on the bill of entry. Neither of these provisions deals with any prohibitions.
While it is irregular and contrary to law to import goods, i.e., bring goods into India from a place outside India without following the due processes, such violations would not make the goods “prohibited goods” under the Customs Act. In fact, if any goods are imported or attempted to be imported other than through the customs ports or airports or land customs station, such goods will be liable for confiscation under section 111(b) of the Customs Act. Therefore, in this case, confiscation under section 111(d) cannot be sustained - Section 111(i) deals with goods which are found concealed in any package either before or after unloading thereof. There is no allegation that the bike in dispute was concealed in any manner, let alone, any evidence to this effect. In fact, it was registered with the RTA, Hyderabad in the name of the appellant. Therefore, confiscation under Section 111(i) cannot be sustained - Section 111(j) deals with the goods, which are removed or attempted to be removed, from customs area or warehouse without permission of proper officer or contrary to the terms of such permission. In this case, there is no evidence or allegation that the bike was removed from customs area without any permission. Therefore, confiscation under Section 111(j) also cannot be sustained.
None of the three clauses of section 111 under which the bike was confiscated apply. For this reason alone, the confiscation of the bike needs to be set aside.
Penalty - HELD THAT:- Penalty under Section 112(b) which is dependent on goods being liable to confiscation under Section 111 also cannot be sustained - section 112(b) provides for penalty for knowingly carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing any goods. There is nothing in this case to show or establish that the appellant had any knowledge that the bike was liable for confiscation. At any rate, once the confiscation under section 111 is set aside, the penalty under section 112 also needs to be set aside.
Conclusion - i) The property was seized from the possession of the appellant in Hyderabad. Therefore, there are no reason to hold that any officer other than the officers of Hyderabad Customs will have any jurisdiction over to decide the matter. ii) None of the three clauses of section 111 under which the bike was confiscated apply. For this reason alone, the confiscation of the bike needs to be set aside. iii) Once the confiscation under section 111 is set aside, the penalty under section 112 also needs to be set aside.
The impugned order set aside - appeal allowed.
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2025 (1) TMI 1102
Approval of Resolution Plan - Applicant submits that RP has not issued clarification with regard to certain commercial spaces in the Corporate Debtor’s asset - It is submitted that the Applicant/ Appellant was not informed about the 4th to 9th floor also belong to the Corporate Debtor - it was held by NCLAT that 'There is no substance in the submission advanced by the Applicant in the present Application praying for setting aside the order of the Adjudicating Authority and to remand the Plan back to the CoC for fresh consideration.'
HELD THAT:- No case is made out for interference - Appeal dismissed.
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2025 (1) TMI 1101
Dismissal of application filed by the respondent-Bank under Section 7 of the Insolvency and Bankruptcy Code, 2016 on the ground of bar of limitation - HELD THAT:- It is found that the NCLAT has relied upon a letter dated 25th October, 2019 for coming to the conclusion that Section 25(3) of the Indian Contract Act, 1872 will apply and in view of the promise contained in the same letter, the petition under Section 7 of the IB Code was within the limitation - However, the admitted position is that the letter dated 25th October, 2019 was not produced by the respondent before the NCLT and it was produced for the first time in the appeal preferred by the respondent before the NCLAT.
The finding on the issue of bar of limitation has been upset by the NCLAT mainly relying upon the letter dated 25th October, 2019.
The appeal is partly allowed by leaving open all questions for consideration of the NCLT.
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2025 (1) TMI 1100
Admissbility of petition u/s 9 of the IBC against the Corporate Debtor - asset value of the Corporate Debtor, M/s. Etco Denim Private Limited, was more than the norms prescribed for it to qualify as an MSME - HELD THAT:- An appeal is heard in terms of Section 62 of the IBC and within its limited confines, the question of the validity of the registration certificate dated 23.10.2020 not gone into. At the same time, the certificate having been placed on record, Section 29A read with Section 240A of the IBC would come into play and would affect the interests of the secured creditors, including the appellant, Central Bank of India. Keeping in view the peculiar facts of the present case, the appellant, Central Bank of India, is permitted to file a writ petition before the jurisdictional High Court challenging the issuance of the MSME Registration Certificate dated 23.10.2020. If any such writ petition is filed, the High Court is requested to take up the same for hearing expeditiously and preferably decide the same within a period of six months from the date of its filing. The parties and the authorities who have issued the said certificate shall also cooperate.
Re-list in the week commencing 18.08.2025.
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2025 (1) TMI 1099
Statutory interpretation of the provision of Section 101(1) of IBC - moratorium period prescribed under Section 101 of the Insolvency and Bankruptcy Code (IBC) is mandatory or directory - the period can be extended by the Adjudicating Authority or the Appellate Tribunal or not - error in not extending the moratorium period beyond 180 days during the Personal Insolvency Resolution Process (PIRP).
HELD THAT:- The principles for interpretation of statute are well settled. Reference made to the Constitution Bench Judgment of the Hon’ble Supreme Court in the matter of State of UP & Ors. Vs. Babu Ram Upadhyay [1960 (11) TMI 116 - SUPREME COURT] Constitution Bench held that for determining as to whether statute is mandatory or directory, the Court has to ascertain the real intention of the nature and the consequences which would follow from construing it from one way or other.
Another Judgment of the Hon’ble Supreme Court in the matter of Rajsekhar Gogoi Vs. State of Assam & Ors. [2001 (5) TMI 979 - SUPREME COURT], where Hon’ble Supreme Court had occasion to consider Rule 206 of Assam Excise Rules 1945, which provided that tender must be in such form and contained such particulars as may be prescribed by the State Government and tenders not containing all the particulars shall be liable to be rejected. Arguments was raised before the Hon’ble Supreme Court that the said provision is not mandatory, which argument was rejected.
Hon’ble Supreme Court in the matter of Newtech Promoters & Developers Private Limited Vs. State of Uttar Pradesh & Ors. [2021 (12) TMI 892 - SUPREME COURT] laid down that it is always advisable to interpret the legislative wisdom in the literary sense as being intended by the legislature and the Courts are not supposed to embark upon enquiry and find out the solution in substituting the legislative wisdom.
The language of Section 101(1) is plain and clear, outer limit of Moratorium is prescribed by providing that 180 days from date of commencement of admission of the Application or an Order is passed by the Adjudicating Authority on the Repayment Plan under Section 114 whichever is earlier thus on happening of the eventuality as prescribed as Section 101(1) Moratorium comes to an end. Conceding any power to the Adjudicating Authority or this Tribunal to extend the said period shall be plainly against the statutory scheme of Section 101(1). When the statutory scheme is clear and unambiguous, there is no role of any interpretive process to find out the jurisdiction of NCLT to extend the period of Moratorium when statute provides a date for cessation of the Moratorium it cannot be extended by the Adjudicating Authority or by this Tribunal against the statutory intendment under Section 101(1).
This Tribunal after noticing the provisions of Section 54D, Section 54N relying on the Judgment of the Hon’ble Supreme Court in Surendra Trading Company Vs. Jugilal Kamlapat Jute Mills Company Ltd. & Ors. [2017 (9) TMI 1566 - SUPREME COURT] and Judgment of the Hon’ble Supreme Court in the matter of Committee of Creditors of Essar Steel India Limited Vs. Satish Kumar Gupta & Ors. [2019 (11) TMI 731 - SUPREME COURT] came to the conclusion that the provisions of Section 54D does not contemplate any automatic termination of the PPIRP, hence the Court had discretion to extend the time in an appropriate case.
Conclusion - In view of the expressed provisions of Section 101(1) limiting the Moratorium period to 180 days on the date when the Order is passed by the Adjudicating Authority for Repayment Plan, whichever is earlier. 180 days from commencement of the Moratorium has come to an end on 28.10.2024. The Moratorium has statutorily come to an end and could not be extended.
Appeal dismissed.
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