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Showing 441 to 460 of 1486 Records
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2020 (3) TMI 1046
Maintainability of the arbitration proceeding - Joint Venture - strict compliance of sub-clause 67.1(d) of the COPA - HELD THAT:- In the present case, the appellant joint venture was awarded the contract by the respondent. The arbitration agreement is between the appellant joint venture and the respondent is the claimant in the arbitral proceeding. It is the appellant joint venture who was entitled to and invoked the arbitration clause. Further, the respondent has also invoked the arbitration agreement against the appellant joint venture who has executed the contract. The appellant joint venture is the claimant in the arbitral proceeding. Accordingly, the joint venture is entitled to maintain this appeal.
The present appeal filed by the appellant is maintainable.
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2020 (3) TMI 1045
Attachment of property - CIRP proceedings - first charge over all the properties and assets in view of Section 48 of the Gujarat VAT Act, 2003 - lifting of attachment sought so that they can be put to sale by the liquidator and thereupon the sale proceedings be distributed under Section 53 of the I&B Code in order of priority prescribed - Section 48 of the Gujarat Value Added Tax Act, 2003 - HELD THAT:- Issue Notice to the respondents returnable on 16.01.2020.
In the meantime, pending the hearing and final disposal of the petition, the operation, implementation and execution of the impugned order dated 18.11.2019 passed in Misc. Application No. 2357 of 2019 in Company Petition (IB) No. 1514 (MB)/2017 is stayed.
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2020 (3) TMI 1044
CENVAT Credit of IGST - import of goods through the port situated in different state - Place of supply - issuance of tax invoice with IGST to the customer - need to obtain registration in the state where the port of clearance is located.
Whether the applicant can take credit of IGST paid on import of goods? - HELD THAT:- The applicant being the importer of storage solutions and vertical storage solutions (machines) from Germany is liable to pay the integrated tax on goods imported into India in accordance with the provisions of section 3 of the Customs Tariff Act, 1975, on the value as determined under the aforesaid Act at the point when duties of customs are levied on the said goods under section 12 of the Customs Act, 1962, in terms of proviso to the subsection (1) of section 5 of the IGST Act, 2017 - In view of the said provisions applicant is liable to pay IGST on the value of the goods imported into India on reverse charge basis.
Whether applicant can issue tax invoice with IGST to the customer? - HELD THAT:- The place of supply in case of import of goods, is the location of the importer in terms of section 11(a) of the IGST Act 2017 and in the case of applicant the location of the importer is the state of Karnataka where the applicant has obtain the GST registration. Therefore, the applicant though import the goods to the port nearest to the location of the recipient, said imported goods are deemed to have been supplied to the location of the importer i.e., Karnataka and then further supplied to customer. Hence imported goods supplied directly from the port of import to the customer located in other states or Union territories other than state of Karnataka, such transaction shall be treated as a supply of goods in the course of inter-State trade or commerce in terms of section 7(1) of the IGST Act, 2017 and is liable to issue IGST tax invoice in terms of section 20 of the IGST Act 2017 read with section 31 of the CGST Act 2017.
Whether applicant needs to obtain registration in the state where the port of clearance is located? - HELD THAT:- Since the applicant already registered under GST Act, no provisions under the CGST or SGST or IGST Act 2017 mandates any person to obtain the registration again in the place of port where applicant obtain the custom clearance for further supply of goods. Hence, there is no need for the applicant to obtain the separate registration in the state where port of clearance located, if he does not have an establishment in that State and effecting supplies from that location.
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2020 (3) TMI 1043
Exemption from GST - supply of purified water to public in empty unsealed cans - Entry No.99 of the Notification No. 2/2017 - Central Tax (Rate) dated 28th June, 2017 - HELD THAT:- On perusal of the aforesaid Circular No. 52/ 26/2018 dated 09th August 2018, and entry No. 99 of notification No. 2/2017-Central Tax (Rate) dated 28.06.2017 and the nature of the activity carried out by the applicant, it was observed that applicant supplying purified drinking water to the general public at reasonable price after removing all the physical, chemical and biological impurities in unsealed containers which are brought by the public themselves. In the above said circular it is clearly mentioned that other than those excluded from the SI. No. 99 of notification No. 2/2017-Central Tax (Rate) dated 28.06-2017, would attract GST at “NIL” rate.
In the instant case, applicant supplying purified drinking water to urban under-served people across various metro cities by installing the community water system. In the process applicant removes suspended solids, organic matter, chlorine, obnoxious taste and smell from raw water and then sent to Reverse Osmosis membranes to remove total dissolved solids, bacteria and pathogens. During this process raw water converted into purified drinking water and this purified drinking water is supplied to the public - the word ‘and’ used before the ‘water sold in sealed container’ in the Sl. No. 99 of notification No. 2/2017-Central Tax (Rate) dated 28.06.2017 is disjunctive nature and lays down that Water sold in a sealed container’ is the another type of water excluded from the said entry along with the aerated water, mineral water, purified water, distilled water, medicinal water, ionic water, battery water, de-mineralized water. Therefore, supply of purified water whether in sealed container or unsealed container not entitled for GST exemption as the purified water excluded from the Sl. No. 99 of notification No. 2/2017-Central Tax (Rate) dated 28.06.2017.
Thus, supplying of purified drinking water to the general public in an unsealed container is not entitled for exempt from GST.
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2020 (3) TMI 1042
Supply or not - levy of GST - sub-leasing of land - collection of LAD Fund alongwith rent - amount collected towards Local Area Development Fund, which is kept separately and used for development of the affected area as per the guidelines of MNRE - Classification of supply - rate of tax - benefit of exemption as per SI.No.3 or 3A of Notfn.12/2017-CT (R).
HELD THAT:- It is clearly evident from section 15(2)(a) of the CGST Act 2017 that any amount of any taxes, duties, cesses, fees and charges levied under any law for the time being in force other than the GST related Acts are includible in the value of supply. In the instant case the amount is collected by the applicant from the SPDs under guidelines, issued by Ministry of New & Renewable Energy’, Government of India. Further, there is no doubt that the amounts payable, by the SPDs, towards LAD fund are on account of supply made by the applicant & are directly linked to the rent/lease payable and thus are includable in the value of the rental/lease service, being provided by the applicant - t is an admitted fact that in case of non-payment of amount towards LAD fund, under clause 8 of the agreement, the applicant has right of termination of lease agreement. The amounts towards the LAD fund are paid by the SPDs to the applicant, though the usage of the same is decided by the Committee formed by the Government of Karnataka for local area development. The service of lease/rent, being provided by the applicant, is a single service and the consideration is payable under two different heads and if any one of these payments is not made, the applicant has the right of termination of the said lease agreement. Hence the amount collected by the applicant, from the SPDs, towards LAD fund forms the value of supply under Section 15 of the CGST Act 2017 and the usage of the said amount would only amount to application of the said amount and still would form the value of taxable services. Therefore, the said amount, so collected, is taxable along with rental income, under forward charge mechanism.
Classification of the service under which the collection of amounts towards LAD funds would fall, if said activity is treated as supply - HELD THAT:- The amounts collected by the applicant towards LAD fund form part of value of the rent/lease service, as discussed in the foregoing paras. The classification of the said activity is nothing but the classification of rent/lease service having SAC 997212.
Eligibility of the activity of collection of amounts towards LAD funds, if treated as supply of service, for exemption under SI.No.3 or 3A of Notification 12/2017-Central Tax (Rate) - HELD THAT:- It is pertinent to mention here that the collection of amount towards LAD fund by the applicant is not a separate transaction but linked to the supply of rental/lease service, as discussed in the foregoing paras. Further the exemption under Sl.No.3 or 3A of the notification supra are applicable to only pure services provided to the Central Government, State Government or Union Territory or Local Authority or a Government Entity by way of any activity in relation to any function under article 243 G or 243 W of the Constitution of India - In the instant case the impugned amounts are part of the value of rental/ leasing service and are not provided to any Central Government, State Government or Union Territory or Local Authority or a Government Entity, but by the applicant to the SPDs. Therefore the exemption supra is not applicable to the instant case.
Whether the payments made at the direction of the Committee, formed for Local Area Development, be considered as service rendered by Government to Applicant and subject to payment of GST, under Reverse Charge Mechanism (RCM), under Entry No.5 of Notification No. 13/2017-CentraI Tax (Rate) dated 28.06.2017, if the activity of collection of amounts towards LAD fund, by the applicant, is treated as supply or otherwise? - HELD THAT:- In the instant case, the applicant, collects and accounts the amounts collected towards Local Area Development, which form part of value of lease/rental services provided by the applicant to the SPDs. The said Committee merely decides the usage of said fund for the specific intended purpose and the applicant makes the payments accordingly - It is observed in the instant case that the Committee merely gives direction to the applicant which is not a transaction involving a supply of goods or services or both, such as sale, transfer, barter, exchange, licence, rental, lease or disposal made or agreed to be made. Further the committee is not in receipt of any consideration for the said directions and is not in the course or furtherance of business. Therefore the activity of giving direction by the Committee does not amount to in terms of Section 7 (I)(a) of the CGST Act 2017.
Therefore utilization of the LAD fund amount under the direction of Committee, for the intended purposes does not involve in supply of any service by the Committee. Further, the Committee is formed under the orders of Government of Karnataka, only for utilization of the LAD fund for local area development. The Committee is not involved in any activity but only decides the utilization of the said fund and hence there is no service involved. Therefore the entry number 5 of the notification is not applicable to the instant case.
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2020 (3) TMI 1041
Classification of supply - pure supply of goods or pure supply of services? - street lighting activity under the Energy Performance Contract dated 05.12.2016 - works contract - Composite Supply of goods and services or not - rate of tax - benefit of exemption under entry 3 or 3A of Notification No.12/2017-Central Tax (Rate) dated 28.06.2017 - time of supply.
Whether the activity of the applicant herein amounts to supply of goods or supply of services and then the time of supply of the said supply?
HELD THAT:- The terms of the contract that the contract involve more than two taxable supplies such as supply of LED lights, fixtures & other equipment, their installation, commissioning, operation & maintenance etc., We also find that the impugned supplies of goods and services are in conjunction with each other in the ordinary course of business and hence the impugned transaction satisfies the ingredient of composite supply, as defined under Section 2(30) of the CGST Act 2017.
In the instant case, the tender is for “Implementation of ESCO project” which includes Supply, Installation, Operation and Maintenance of LED Street Lights”. Hence the predominant and principal factor is to supply and install LED street lights, on the existing street light poles and then to perform the activity of day to day management of the said LED street lights by operating & maintaining such equipment to achieve energy savings. Thus the day to day operation & maintenance of the LED Street lights can only take effect after the supply and installation of the said LED street lights.
Without installation, there can be no day to day management in the form of operation & maintenance of LED street lights. In view of the above, the principal supply in the impugned transaction is that of supply of goods i.e. LED street lights.
The impugned transaction consists of supply of goods and services, made in conjunction with each other in the ordinary course of business; supply of goods / services are naturally bundled; the contract becomes a composite supply where the principal supply is that of goods and the supply of service is incidental / ancillary to such supply of goods.
It is an undisputed fact that the Notification No. 12/2017-CentraI Tax (Rate) dated 28.06.2017 is related to the exemptions of the intra-state supply of services. The Notification is applicable to the composite supplies of goods & services, where the principal supply is that of services. In the instant case, it is already concluded, in the preceding paras, that the impugned supply is a composite supply, principal supply being that of the goods.
The consideration, in the instant case, is being received by the Applicant on monthly basis, in terms of energy savings fee, as agreed upon by both the parties. The said consideration is for the composite contract comprising supply of LED street lights, installation & commissioning of the same and also maintenance of the said installed LED Street Lights, the principal supply being the supply of LED street lights i.e. goods.
The impugned contract, in the instant case, is a composite supply where the principal supply is supply of goods. It is an accepted fact that the consideration is received on monthly basis; invoice is raised on energy savings; value of such invoice is equal to 90% of the energy savings. It is pertinent to mention here that the energy savings are directly related to the functioning and quality of the LED Street lights etc., i.e. the goods supplied by the applicant - Therefore, the applicant receives the consideration, through the contract period i.e. 7 years, on a monthly basis, on the energy’ savings.
Applicable rate of tax - HELD THAT:- The rate of tax applicable on this transaction is 12% (CGST-6% & SGST-6%), in terms of Sl. No. 226 of Schedule II to the Notification No. 1/2017-CentraI Tax (Rate) dated 28.06.2017, as amended. Further, the applicant is not entitled to the benefit of exemption under entry 3 or 3A of Notification No.12/2017-Central Tax (Rate) dated 28.06.2017, as amended, as the impugned supply is not that of pure services.
The instant transaction amounts to a composite supply, with supply of goods being principal supply and hence the impugned question is redundant - The time of supply is the date of invoice and the consideration is equal to the value of the invoice, the GST rate being 12%.
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2020 (3) TMI 1040
Filing of Form GST TRAN-1 - carry forward of CENVAT Credit - Section 140(1) of the Act, 2017 read with Rule 117 of the Rules 2017 - HELD THAT:- It appears that if the petitioner could not upload the form GST TRAN-1 due to technical glitches and in spite of various representations made by the petitioner, he was not allowed to upload the form GST TRAN-1.
The petitioner is entitled to claim credit of CENVAT as well as service tax as on 30th June 2017 as per the provisions under Section 140(1) of the Act, 2017 read with Rule 117 of the Rules 2017 - respondent No.4, who is the jurisdictional officer, is directed to verify the claim of credit of CENVAT and service tax of the petitioner so as to enable the petitioner to carry forward by filing / uploading form GST TRAN-1 on GST portal.
The respondent No.4 shall complete the exercise of verification and permit the petitioner to upload the form GST TRAN-1 within a period of two seeks from the date of receipt of the writ of this order so that the petitioner can upload the form GST TRAN-1 on or before 31st March 2020 - petition disposed off.
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2020 (3) TMI 1039
Filing of Form GST TRAN-1 - transitional credit - HELD THAT:- The petitioner is entitled to claim credit of CENVAT as well as service tax as on 30th June 2017 as per the provisions under Section 140(1) of the Act, 2017 read with Rule 117 of the Rules 2017.
Respondent No.4, who is the jurisdictional officer, is directed to verify the claim of credit of CENVAT and service tax of the petitioner so as to enable the petitioner to carry forward by filing / uploading form GST TRAN-1 on GST portal - respondent No.4 shall complete the exercise of verification and permit the petitioner to upload the form GST TRAN-1 within a period of two seeks from the date of receipt of the writ of this order so that the petitioner can upload the form GST TRAN-1 on or before 31st March 2020.
Petition disposed off.
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2020 (3) TMI 1038
Filing of form GST TRAN-1 - transitional credit - It is the case of the petitioner that the Redressal Grievance Committee did not consider the problem faced by the petitioner to upload the revised Form GST TRAN-1 - HELD THAT:- It is not in dispute that the petitioner is entitled to carry forward CENVAT/Input Tax Credit to the tune of ₹ 14,55,770/- as per Form E.R.-1 under the provisions of the Act, 1944 as well as the Act, 2017. It is also not in dispute that the petitioner uploaded Form GST TRAN-1 erroneously showing “ZERO” balance for CENVAT Credit admissible as Input Tax Credit - Therefore, as per the provisions of Section 140 of the Act, 2017 read with rule 117 of Rules, 2017, the petitioner is entitled to carry forward the CENVAT Credit.
In the opinion of this Court, the respondents have failed to consider the aspect of the technical glitch to reject the claim of the petitioner on the ground that there was no technical error when the petitioner uploaded the Form GST TRAN-1 without considering the fact that the petitioner could not upload revised Form GST TRAN-1 within the prescribed date of 27.12.2017.
The petitioner is also entitled to get one more chance to submit the declaration in Form GST TRAN-1 as the petitioner could not submit the revised Form GST TRAN-1 as the petitioner could not upload the same before the due date of 27.12.2017 on account of technical difficulties on the common portal - the respondents are hereby directed to consider the claim of the petitioner for carry forward of Input Tax Credit of ₹ 14,55,770/- so as to enable the petitioner to take advantage of the order dated 07.02.2020 to upload the revised Form GST TRAN-1 on or before 31.03.2020.
Petition disposed off.
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2020 (3) TMI 1037
Reopening of portal for Carry forward in-transit credit - Section 140(3) of the Central Goods and Services Tax Act, 2017 read with Rule 117 of CGST Rules, 2017 - HELD THAT:- Pursuant to the decision of this Court rendered in the case of FILCO TRADE CENTRE PVT. LTD. VERSUS UNION OF INDIA [2018 (9) TMI 885 - GUJARAT HIGH COURT], the writ applicant was entitled to the credit pertaining to the stock held beyond 12 months from the effective date of 01.07.2017.
The respondents are hereby directed to consider the representation of the writ applicants at the earliest keeping in mind the ratio laid down by this Court in the case of Filco Trade Center Pvt. Ltd. - Such exercise shall be completed within a period of four weeks from the date of the receipt of the writ of this order.
Application disposed off.
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2020 (3) TMI 1036
Filing of Form GST TRAN-1 - transitional credit - HELD THAT:- In view of the Order No.01/2020 of the GST, the grievance of the petitioner can be redressed, if the respondents are directed to allow the petitioner to upload the Form GST TRAN-1 on or before 31st March, 2020.
The petitioner is entitled to claim credit of Cenvat as per the decision of the Coordinate Bench of this Court in the case of M/S SIDDHARTH ENTERPRISES THROUGH PARTNER MAHESH LILADHAR TIBDEWAL VERSUS THE NODAL OFFICER [2019 (9) TMI 319 - GUJARAT HIGH COURT] wherein, it is held that the petitioner is entitled to avail the benefit of Cenvat Credit under Section 140(3) of the Act irrespective of time limit prescribed under Rule 117 of the Rules.
The respondents are directed to permit the petitioner to upload the Form GST TRAN-1, which is saved by the petitioner as per the Order No.1/2020-GST, dated 7th February, 2020 passed by the Central Board of Indirect Taxes and Customs. Such exercise shall be completed within a period of two weeks from the date of the receipt of the order.
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2020 (3) TMI 1035
Service rendered by the applicant, a registered housing society/resident welfare association to its members - exemption under SI.No.77(c) of Notification No.12/2017-C.T.(Rate) dated 28.06.2017 as amended for CGST and SI.No.77(c) of Notification No.II(2)/CTR/532(d-15)/2017 vide G.O.(Ms)No.73 dated 29.06.2017 as amended for SGST.
The question is whether the petitioner is liable to pay GST if the amount collected exceeds ₹ 7,500/-, for the whole amount or only towards the exceeded amount. The term "upto" employed in the Notification is heavily relied on by the learned counsel for the petitioner to contend that only exceeded amount is liable for the tax and not the whole amount collected.
The issue raised needs detailed consideration of this Court. Hence, the respondents are directed to file counter - Post the matter after four weeks.
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2020 (3) TMI 1034
Unaccounted income - Deemed income - Advance money received or determining income earned from transaction - assessee had failed to bring on record any agreement/contract essential to ascertain the genuineness of transaction or adduce evidence in support that no surplus was generated - HELD THAT:- From the table reproduced, it is evident that unsecured loan was given to Sh. Sudhir Chadha and investment of ₹ 1,00,00,000/- was made in the project of M/s Gulmohar Landcon Pvt. Ltd. It was claimed that ₹ 79,00,000/- was invested with Sh. Darshan Singh who declined the said investment. There was one entry of advance made to Smt. Sumti Devi for purchase of land, it is worth noting that ₹ 55,00,000/- was paid in cash.
The appellate authority while deleting the addition has taken a tubular vision of the issue involved. The only basis was that advance received cannot be treated as income, the aspects mentioned in the above para were not considered. It was not merely that the advance received was treated as income, the addition was made as the said money was used for purpose other than procuring the land for TATA Housing Development Company's project and no document/ evidence was produced to support the claim that there was no surplus being generated from the said advance. The aspect that the assessee was getting the sale deeds executed as G.P.A. of the land owners was totally ignored.
The assessee successfully by with-holding the information which was in his possession, avoided the scrutiny. The agreement of authorisation was not produced during the assessment proceedings or in the appellate proceedings thereby avoiding further investigation, the same has now been produced before this Court.
Deletion of addition cannot be sustained. However, as now the agreement has been produced, the matter is remitted back to the assessing officer to decide the issue afresh after providing opportunity to the assessee. It is clarified that anything recorded hereinabove shall not be construed by the assessing officer as expression on merits of the issue while deciding the remand.
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2020 (3) TMI 1033
Exemption u/s 11 - Use of accumulated income for different purpose - Treating the amount given to PSWHMMS as the income of the appellant-society in terms of section 11(3)(d) - appellant is a Society working under the Government of Punjab, same being principal donor also - HELD THAT:- In the present case, it was not the claim of the appellant that the amount was being accumulated for the payment to PSWHMMS. At this stage, we are not dilating as to whether for such purpose there could be accumulation or not. In such circumstances, there is a clear violation of the conditions referred in sub-section (2) and sub-section (3) of section 11. The amount has been spent for the purpose other than for what it was accumulated, it comes within the mischief of section 11(3)(c).
The second limb of the argument raised is that by adding explanation to sub- section (2) and adding clause (d) to sub-section (3) of section 11 it is rather clarified that the assessees like appellant can pay or credit the accumulated sum to an unregistered or funds or Trust or institution not specified therein. The argument is not well founded.
From the changes made by Finance Act, 2002 in section 11, it is clear that restrictions have been imposed on transfer of accumulated or set apart amount but the utilization of income received during the year has not been touched. It is settled that income received during the year can be transferred to other Trust or institution for charitable or religious purpose and same shall be held to be application for such purpose.
The argument raised that since there is a restriction only for payment or credit of accumulated amount to a registered Trust or institution recognized under the Act and it would mean that payment can be made to un-registered Trust, institution or to institutions or Trusts not even recognized by the Act as charitable is far-fetched. This would lead to adding words to the provisions of the Statute which is not permissible.
There is another aspect of the matter, it has not been even the case of the appellant that the donee is indulged in charitable or religious purpose what has been stated is that the aims and objects of the donor and donee are similar.
Circular No.8 of 2002 ar nowhere supports the argument raised by the appellant rather clause 21.1 clarifies that payment to other Trust or institution out of the receipt of the year will continue to be treated as application, however no payment can be made from the accumulated income and the same shall be taxed; clause 21.2 reproduces Section 11(3)(d) stating that transfer shall be deemed to be income or person making such payment or credit.
The addition of amount transferred to PSWHMMS is upheld. The question is answered against the appellant. The appeal is dismissed.
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2020 (3) TMI 1032
Stay petition - Recovery proceedings - Grievance of the petitioner is that without taking any decision on the stay application of the petitioner, respondent No.1 has attached the above three bank accounts of the petitioner by issuing garnishee notices under Section 226(3) - HELD THAT:- We feel that it would meet the ends of justice if respondent No.1 takes a decision on the stay application of the petitioner in accordance with law within a period of 10 days from the date of receipt of an authenticated copy of this order.
Ordered accordingly. Till the stay application is decided, there shall be no further withdrawal of money from the above three bank accounts of the petitioner and whatever withdrawals have been made, the same shall be subject to such order that may be passed by respondent No.1 in terms of the present order. Attachment of the bank accounts would also be subject to outcome of such order that may be passed by respondent No.1.
Petitioner would also be at liberty to move respondent No.4 for early hearing of the appeal as well as for stay of the outstanding demand and if such prayer is made, the same shall be considered in accordance with law by respondent No. 4.
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2020 (3) TMI 1031
Additions rate of Depreciation on wind mill - claiming depreciation in the ITR can be treated as exercising of option before the due date as prescribed in the second proviso to Rule 5(1A) of the Income Tax Rules - HELD THAT:- CIT (A) had rightly decided the issue because in the case of the assessee the claim was made in the return of income as well as reflected in the audit report filed along with the return of income, therefore it would amount to exercise of the option as required under Second proviso to Rule-5(1A) and accordingly depreciation @ 80% on the windmill of the assessee has to be allowed. Further the Hon'ble Jurisdictional High Court in the case of CIT Vs. ABT Ltd. [2014 (10) TMI 788 - MADRAS HIGH COURT] has held as under:- "If the assessee exercised the option in terms of the second proviso to rule 5(1A) of the Income-tax Rules, 1962, at the time of furnishing of return of income, it will suffice and no separate letter or request or intimation with regard to exercise of option is required. Since the returns were filed in accordance with section 139(1) of the Income-tax Act, 1961, and the form prescribed therein makes a provision for exercising an option in respect of the claim of depreciation, no separate procedure is required." In these circumstances we do not find any reason to interfere with the order of the Ld. CIT (A)
Since the returns are filed in accordance with Section 139(1) of the Income Tax Act and the form prescribed therein make a provision for exercising an option in respect of the claim of depreciation, no separate procedure is required, as contended by the Department. See M/S. KIKANI EXPORTS P. LTD. [2015 (2) TMI 680 - MADRAS HIGH COURT] - Decided in favour of the assessee and against the Revenue."
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2020 (3) TMI 1030
Stay petition - recovery proceedings - grievance expressed by the petitioner is that no opportunity of hearing has been granted prior to passing of the impugned order and the same is cryptic that has not taken into account the prima facie case or the submission of financial stringency that has been made in the detailed stay application filed - HELD THAT:- It is incumbent upon the authority who has jurisdiction to consider the application for stay in proper perspective. Be it an Administrative or Appellate Authority, it is necessary that while considering the stay application, the tri-fold aspects of prima facie case, financial stringency and balance of convenience are taken into account, both to protect the interests of the Department as well as to take into account the submissions of the assessee in proper perspective.
It is of the considered view that has not been done in the present case. Hence, the impugned order is set aside. The petitioner will appear before the Principal Commissioner of Income Tax/R1 on Tuesday, the 24th of March, 2020 at 10.30 a.m. without expecting any further notice in this regard along with relevant materials in support of his submission. After taking into account the submissions made by the petitioner, a speaking order shall be passed within a period of four (4) weeks from 24.03.2020, i..e, on or before 21.04.2020. Till such time, no recovery proceedings shall be initiated.
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2020 (3) TMI 1029
Offences u/s 276 (c) (2) - belated filing of return - willful failure on the part of the petitioner for non payment of huge tax liability - respondent issued show cause notice even then, the accused has not paid the huge tax liability at the time of filing the return of income - HELD THAT:- On perusal of the documents, it is seen that the last date for filing the returns for the financial year 2012-2013 was on or before 05.08.2013. The respondent did not hand over the book of accounts seized from the petitioner ill 05.08.2013. Therefore, there is delay in payment of income tax and the petitioner filed return of income on 31.01.2014. Thereafter, it was returned on 31.03.2015 directing the petitioner to pay a sum of ₹ 4,30,20,260/-. Thereafter, the petitioner paid tax as demanded by the respondent on 18.03.2018, for which the respondent also issued a letter on 24.03.2018 acknowledging the receipt of tax.
Referring to provision to punish the accused, there must be wilful attempt to evade payment of tax, he must be in possession of the book with false entries, the person should have made false entries in the book of accounts and omitting any entry in the statement of accounts. The petitioner voluntarily disclosed the undisclosed income to the respondent on the inspection conducted under Section 132 of the Income tax Act, 1961 on 18.12.2012. Therefore, there is no intention from the petitioner for willful evading of payment of tax. Admittedly, the respondent on the inspection dated 18.12.2012, had seized the relevant book of accounts and as such the petitioner could not able to file the return of income on or before 05.08.2013. Therefore, the petitioner had no wilful intention to evade tax as alleged by the respondent.
Petitioner had paid the entire tax amount on 13.03.2018 and the respondent had also acknowledged the same by the acknowledgment dated 14.03.2018. Therefore, the offence under Section 276 (c ) (2) of the Income Tax Act is not at all attracted as against the petitioner herein, and the entire criminal proceedings pending against the petitioner is nothing but clear abuse of process of law. As such it cannot be sustained as against the petitioner and it is liable to be quashed.
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2020 (3) TMI 1028
Offences u/s 276 (c) (2) - belated filing of return - willful failure on the part of the petitioner for non payment of huge tax liability or not - surrender during survey / search proceedings - respondent issued show cause notice on 16.08.2015 even then, the accused has not paid the huge tax liability at the time of filing the return of income - HELD THAT:- On perusal of the documents, it is seen that the last date for filing the returns for the financial year 2012-2013 was on or before 05.08.2013. The respondent did not hand over the book of accounts seized from the petitioner ill 05.08.2013. Therefore, there is delay in payment of income tax and the petitioner filed return of income on 31.01.2014. Thereafter, it was returned on 31.03.2015 directing the petitioner to pay a sum of ₹ 4,30,20,260/-. Thereafter, the petitioner paid tax as demanded by the respondent on 18.03.2018, for which the respondent also issued a letter on 24.03.2018 acknowledging the receipt of tax.
Referring to provision to punish the accused, there must be wilful attempt to evade payment of tax, he must be in possession of the book with false entries, the person should have made false entries in the book of accounts and omitting any entry in the statement of accounts. The petitioner voluntarily disclosed the undisclosed income to the respondent on the inspection conducted under Section 132 of the Income tax Act, 1961 on 18.12.2012. Therefore, there is no intention from the petitioner for willful evading of payment of tax. Admittedly, the respondent on the inspection dated 18.12.2012, had seized the relevant book of accounts and as such the petitioner could not able to file the return of income on or before 05.08.2013. Therefore, the petitioner had no wilful intention to evade tax as alleged by the respondent.
Petitioner had paid the entire tax amount on 18.03.2018 and the respondent had also acknowledged the same by the acknowledgment dated 24.03.2018. Therefore, the offence under Section 276 (c ) (2) of the Income Tax Act is not at all attracted as against the petitioner herein, and the entire criminal proceedings pending against the petitioner is nothing but clear abuse of process of law. As such it cannot be sustained as against the petitioner and it is liable to be quashed. This criminal original petition is allowed.
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2020 (3) TMI 1027
Reopening of assessment us 147 - exemption u/s. 11 denied - receipt of corpus donations - HELD THAT:- During the course of regular assessment, the petitioner-assessee has furnished requisite details sought for by the Assessing Officer in the form of details of the donation received by the petitioner as corpus credited to the “Earmarked Funds” being part of the balance-sheet. It is also not in dispute that during the course of the scrutiny assessment, the Assessing Officer has inquired about the donation received by the petitioner, which was forming part of the corpus and thereafter, the assessment order under Section 143(3) of the Act, 1961 was passed.
In such circumstances, it cannot be said that there is any failure on the part of the petitioner to disclose truly and fully all material facts during the course of assessment.
In view of above dictum of law the issue of reopening in the facts of the present case is no more res-integra. Therefore, the impugned notice is required to be quashed and set aside, as none of the reasons assigned by the Assessing Officer for re- opening the assessment was tenable in the eye of law, the conditions precedent to invoke the powers for re-opening assessment as provided in Section 147 of the Act is absent, therefore we find that the Assessing Officer acted illegally and issued Notice of re-assessment on the self same material forming second opinion without having any tangible material to exercise jurisdiction. - Decided in favour of assessee.
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9911796707
