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Showing 441 to 460 of 1529 Records
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2022 (6) TMI 1089
Classification of imported goods - Controller Assembly - Bolt - Nut - Screw - Rivet - goods declared as Components for Suzuki Vehicles, correct or not - whether the Controlled Assembly CVT imported by the appellant is classifiable under CTH 9032 and other items imported are classifiable under CTH 7318 as declared by the appellant or under CTH 8708 as parts and accessories of motor vehicles of heading 8701 to 8705 as assessed by the Customs? - HELD THAT:- The Commissioner (Appeals) while deciding the classification of the disputed goods, in question, under heading 8708, has not given any finding as to whether all the above conditions which are very important for deciding the classification of goods, satisfy / comply in respect of the disputed goods. The Commissioner (Appeals) findings are silent on this vital aspect of the relevant provisions - It is also found that Learned Commissioner (Appeals) in impugned order not given his finding related to classification of goods individually item wise. Whereas Appellant produced the list of 14 items imported vide above Bills of Entry.
The lower authorities have not examined the legal aspects properly to come to conclusion for correct classification of the goods in question. Hence in our considered view the matter needs to be remitted back to the Commissioner (Appeals) - Appeal allowed by way of remand.
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2022 (6) TMI 1088
Revocation of Customs Broker License - forfeiture of security deposit - levy of penalty - requirement to pass Final Order after considering the Inquiry Report and representation of the CB, within a period of ninety days from the date of submission of the report by the Inquiry Officer - period of fifty nine days from the date of issuance of copy of Inquiry Report to the Appellant/CB has already expired - HELD THAT:- It is found that after the impugned order dated 02.11.2021 confirming the suspension of CB Licence under Regulation 16(2) of CBLR, 2018, the department has duly issued Show Cause Notice under Regulation 17(1) of CBLR, 2018 appointing the Inquiry Officer who has also culminated his inquiry into the Inquiry Report as submitted before the Respondent Principal Commissioner and copy thereof has also been duly provided to the Appellant/CB under letter dated 29.01.2022 - In terms of Regulation 17(7) of CBLR, 2018, the Principal Commissioner is required to pass his Final Order after considering the Inquiry Report and representation of the CB, within a period of 90(ninety) days from the date of submission of the report by the Inquiry Officer. A period of 59 (fifty nine) days from the date of issuance of copy of Inquiry Report to the Appellant/CB has already expired and as such, at all probability, the respondent Principal Commissioner is in process of passing the Final Order under Regulation 17(7) ibid in accordance with law and hence at this stage, no fruitful purpose shall serve in deciding the present Appeal on merit by this Tribunal.
It is found that substantial justice shall be done by directing the respondent Principal Commissioner of Customs (A & A), Customs House, Kolkata to pass the order under Regulation 17(7) of CBLR, 2018 in connection to Show Cause Notice No.08/2021 Commr.(A&A) dated 02.11.2021 within a period of 30(thirty) days from today positively after granting reasonable opportunity of representation and hearing to the Appellant/CB in accordance with law.
Appeal disposed off.
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2022 (6) TMI 1087
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - HELD THAT:- The Corporate Debtor has raised issue that the Financial Creditor is itself undergoing resolution process. In this regard, it is submitted by the Financial Creditor that at the time of initiation of the present case, the Corporate Debtor was not under CIRP and hence the Corporate Debtor does not fall within the purview of the provisions of Section 11 of the IBC. In any event, explanation II of Section 11 of the IBC categorically clarifies that nothing in this Section shall prevent the Corporate Debtor, referred to in Clauses (a) to (d) of the said Section from initiating CIRP against another Corporate Debtor. Therefore, it is clear from the statute itself that the fact that the Financial Creditor herein is undergoing resolution process itself, is not a bar to maintain the instant application against the Corporate Debtor.
In the present case, the Corporate Debtor was and is unable to show that there was no default and on the contrary, the Corporate Debtor has admitted the default in repayment of loan on its part. It is apparent that the Corporate Debtor is unable to repay the loan amount and has committed default and the present petition is, therefore, deserves to be admitted for CIRP.
Petition admitted - moratorium declared.
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2022 (6) TMI 1086
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Financial Creditors - existence of debt and dispute or not - time limitation - HELD THAT:- It is seen that the present application has been filed on 17.05.2021 and the account of corporate debtor was declared NPA on 29.09.2017. However, a recovery certificate of Hon'ble DRT was issued in favour of the financial creditor vide order 04.02.2020, which has given rise to a fresh cause of action to the financial creditor to initiate proceeding under Section 7 of IBC within 3 years from the date of the order. Accordingly, the present application is not barred by limitation.
Establishment of 'default' on part of the Corporate Debtor - HELD THAT:- It is clearly established that the corporate debtor had approached the applicant for taking loan facility, which was sanctioned by the financial creditor and relevant documents were executed. However, the corporate debtor failed to adhere to terms of the sanction letter and defaulted in repayment of the outstanding financial debt. Therefore their account was declared NPA and from the documentary evidence it is proved that the financial creditor is entitled to recover the outstanding dues from the corporate debtor. It is added that in terms of Section 4 of IBC the corporate debtor has defaulted in payment of more than One Lakh and Hence CIRP must be initiated. The claim of the financial creditor has also been confirmed by the Hon'ble Debt Recovery Tribunal vide order dated 04.02.2020. It is pertinent to mention that the corporate debtor has failed to appear and present its defence; accordingly the present matter has been proceeded ex-parte.
On perusal of Form-I filed under Section 7 of the Code read with Rule 4 of the Rules shows that the form is complete and there is no infirmity in the same. It is also seen that there is no disciplinary proceeding pending against the proposed Interim Resolution Professional - the present application is complete in all respect. The financial creditor is entitled to move the application against the corporate debtor in view of admitted outstanding financial debt and default of the same by the corporate debtor and the financial debt has also not been refuted by the Corporate Debtor.
Application admitted - moratorium declared.
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2022 (6) TMI 1085
Levy of service tax - Ocean Freight - Department was of the view that the appellant is liable to pay Service Tax on the ocean freight charges collected by them as these fall under Business Support Services - eligibility for benefit of Notification No. 04/2004 - input services / approved services have not been consumed within the SEZ unit itself.
Whether the charges collected by the appellant from its customers in the nature of ocean freight are subject to levy of Service Tax under Business Support Services? - HELD THAT:- This issue has been considered in various decisions of the Tribunal wherein the Tribunal has held that ocean freight charges are not subject to levy of Service Tax under Business Support Services or Business Auxiliary Services. The relevant discussion in the case of GREENWICH MERIDIAN LOGISTICS (INDIA) PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX MUMBAI [2016 (4) TMI 547 - CESTAT MUMBAI] has held that The notional surplus earned thereby arises from purchases and sale of space and not by acting for a client who has space or slot on a vessel. Section 65(19) ibid will not address these independent principal-to-principal transactions of the appellant and, with the space so purchased being allocable only by the appellant, the shipping line fails in description as client whose services are promoted or marketed. Therefore, the demands, with interest thereon, and penalties are set aside - Following the same, there are no hesitation to hold that the demand of Service Tax on ocean freight charges cannot sustain and requires to be set aside.
Demand of Service Tax - benefit of exemption as per Notification No. 04/2004 dated 31.03.2004 denied on the ground that the input services / approved services have not been consumed within the SEZ unit itself - HELD THAT:- The very same issue was considered by the Tribunal in the case of M/S. VISION PRO EVENT MANAGEMENT VERSUS CCE & ST, CHENNAI [2018 (7) TMI 334 - CESTAT CHENNAI] where it was held that Even if the event is held outside, since the services were for advertisement of product of SEZ, the services provided is to be considered as consumed within SEZ. It also needs to be mentioned that for availing the services, the SEZ has to get these services approved by the Development Commissioner - thus, it can be safely concluded that the demand of Service Tax alleging that the appellant has wrongly availed the benefit of Notification No. 04/2004 cannot sustain and requires to be set aside.
Both the issues are found to be in favour of the assessee-appellant and against the Revenue - Appeal allowed - decided in favor of appellant.
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2022 (6) TMI 1084
Levy of service tax - drilling machine - contention of petitioner is that the provisions of Finance Act, 1994 excluded their area of operations as per the jurisdictional reach of Finance Act, 1994 - Demand of interest and penalty as well - HELD THAT:- In view of the settled finding of the Hon’ble High Court of Bombay in M/S. GREATSHIP (INDIA) LTD. VERSUS COMMISSIONER OF SERVICE TAX, OIL AND NATURAL GAS COMPANY LTD. [2015 (4) TMI 1006 - BOMBAY HIGH COURT], of non-taxability between July 2009 and February 2010, insofar as the drilling undertaken by the appellant herein for oil exploration, the impugned order is set aside.
Demand of Interest - HELD THAT:- It is on record that the appellant had voluntarily reversed CENVAT credit alleged to have been taken without authority of law. Insofar as the leviability of interest arise, the decision of the Hon’ble High Court of Karnataka in COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX LARGE TAXPAYER UNIT, BANGALORE VERSUS M/S BILL FORGE PVT LTD, BANGALORE [2011 (4) TMI 969 - KARNATAKA HIGH COURT] has held that Without the liability to pay duty, the liability to pay interest would not arise. The liability to pay interest would arise only when the duty is not paid on the due date. If duty is not payable, the liability to pay interest would not arise.
Penalty - HELD THAT:- The liability for interest does not merit approval and, consequently, the penalty too is unwarranted.
Appeal allowed - decided in favor of appellant.
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2022 (6) TMI 1083
Clandestine removal - shortage of stock - removal of inputs without payment of duty - appellant have strongly submitted that since they are maintaining the stock of inputs in respect of trading as well as manufacturing, the stock taking was not properly done and therefore, the alleged removal of inputs and the shortage found in the factory was considered one sided as manufacturing stock - HELD THAT:- From the reconciliation chart given by the appellant, it appears that after reconciliation of trading and manufacturing stock the difference is not such which was alleged by the department therefore this fact needs to be reconsidered after proper verification. Accordingly, the appeal in case of M/s. CITIZEN UMBRELLA MANUFACTURES LTD. is disposed by way of remand to the adjudicating authority to decide afresh considering the above reconciliation of their stock.
Confiscation, redemption fine and penalty imposed by the lower authorities on M/s. S.L. Banthia Textile Industries Pvt. Ltd. and its Director - HELD THAT:- Since unit is exempted under SSI and it is not registered, no Central Excise provision is applicable such as maintaining the stock, etc therefore, it cannot be alleged that the appellant have violated any provision of Central Excise Act. Accordingly, the confiscation, redemption fine and penalty imposed by the lower authorities on M/s. S.L. Banthia Textile Industries Pvt. Ltd. and its Director are not sustainable accordingly the same is set aside.
The appeal of M/s. CITIZEN UMBRELLA MANUFACTURES LTD. is remanded to the adjudicating authority - Appeals filed by M/s. S.L. Banthia Textile Industries Pvt. Ltd. and its Director Shri Naresh Banthia are allowed - appeal allowed in part and part matter on remand.
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2022 (6) TMI 1082
Maintainability of petition - availability of alternative remedy of appeal - petitioner submits that there is remedy of filing of an appeal under Section 112 of the UPGST Act before the GST Appellate Tribunal but since GST Appellate Tribunal has still not been constituted, as such, the petitioner has filed instant writ petition before this Court - HELD THAT:- It is prima facie evident from the Annexure No. 8 that M/s Shree Trading Company is registered on the portal of the GST. It is also evident therefrom that SGST and CGST has been paid by the petitioner. Further the petitioner has also not been afforded proper opportunity to rebut/respond to the demand notice as he was bed ridden at that time.
Matter requires consideration - List/put up this matter in the week commencing 8th of August 2022.
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2022 (6) TMI 1081
Undisclosed business income/profit - Unmatched gross profit figures as per tally software - as in survey proceedings hard disk of the computer containing Tally software details, was taken by the Income Tax Department - assessment proceedings have to be completed through e-proceeding - petitioner submits that the petitioner has clearly explained that the details that were obtained at the time of survey on 06.03.2018 were not audited and they are incomplete records - non providing personal hearing to assessee - HELD THAT:- The undisclosed business profit have been arrived from the net profit in the books of accounts as on the date of survey and the amounts declared in the income tax. This would have definitely required a proper assessment by calling the petitioner for a personal hearing. Therefore, the impugned order seems to indicate that there is a procedural infraction. It has not complied with the requirements of instructions of the board in its clarification dated 11.07.2016 bearing reference F.No.225/162/2016/ITA.II.
Though the petitioner has not specifically requested for a personal hearing, the fact remains that where the books of accounts have to be examined for arriving at a proper conclusion, a personal hearing is mandatory.
We are inclined to quash the impugned orders and the case is remit back to the respondent to pass an appropriate order preferably within a period of three months from the date of receipt of copy of this order. The impugned order which stands quashed shall now be treated as a show cause notice for the purpose of completing the assessment. WP allowed.
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2022 (6) TMI 1080
Assessment of trust - Application of maximum marginal rate of tax on the income which was below the taxable limit - as per AR assessee should be made subject to tax at the rate applicable to an individual after allowing the basic exemption limit and that too at slab rate of tax - HELD THAT:- We have heard the rival contention of both the parties and perused the materials available on record. At the outset we note that this tribunal in the case of Jain Sangh parabdi Khayu Trustee [2022 (6) TMI 1027 - ITAT AHMEDABAD] held that the members of the trustees are not entitled to any share in the income of the Association of persons and rate applicable as to an individual for charging the income tax after a lowing the basic exemption limit, shall be applicable to the assessee on hand. Hence the ground of appeal of the assessee is allowed. thus involving the identical facts and circumstances have decided the issue in favour of the assessee.
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2022 (6) TMI 1079
Exemption u/s 11 denied - disallowances being made under section 143(1) - Scope of debatable issue - HELD THAT:- Respectfully following the Co-ordinate Bench decision in the assessee’s own case for the Asst.Year 2015- 16 [2019 (8) TMI 1822 - ITAT AHMEDABAD] wherein the disallowances were being made under section 143(1) of the Act, and similar disallowance is also made for the present year viz. Asst.Year 2016-17, we hold that debatable issue should not be done in an intimation under section 143(1)(a) of the Act. Therefore, we allow the appeal of the assessee and delete both the disallowances. Assessee appeal allowed.
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2022 (6) TMI 1078
Seeking grant of bail - wrongful availment of Input Tax Credit - by procuring invoices from fake and fictitious firm - supply of goods without payment of tax and without issuing invoices - bailable offence or not - non-cognizable offence or not - HELD THAT:- Considering the fact that the allegation against the present applicant is of wrongfully utilizing Input Tax Credit of Rs.6,95,32,472/- and supplied taxable goods without payment of taxes and without issuing invoices to the tune of Rs.27,70,559/-, totalling Rs.7,23,03,031/-, and that offence under the Act are bailable and non-cognizable except for the offence under Section 132 (5) of the Act, further considering that the applicant can be punished with maximum sentence of 5 years with fine, he is in jail since 27.10.2021, further considering that Proprietor of the firm namely, Rohan Tanna and Abhishek Pandey have already been enlarged on bail by the co-ordinate Bench and also considering that the applicant in the bail application raised a ground that the offence is compoundable in nature and, therefore, this Court after considering all the aspects of the matter, particularly the period of detention and the amount involved finds appropriate that if the applicant deposits Rs.70 lakhs under protest or admission of the disputed amount, which would be adjusted in accordance with law, the applicant can be enlarged on bail with the conditions imposed.
Bail application allowed.
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2022 (6) TMI 1077
Maintainability of petition - availability of alternative remedy - Demand of an amount being the difference in the ITC availed in Form GSTR-3B which was auto populated in Form GSTR-2A - HELD THAT:- The GST enactments and the rules made thereunder are a complete code by themselves. The provisions in the GST Rules have been well thought of and have been drafted using the vast experience gained under the erstwhile MODVAT Rules under the erstwhile Central Excise Rules, 1944 and its subsequent avatars under the Cenvat Credit Rules, 2001, 2002 and later under 2004 and under the various VAT enactments and the VAT Rules made thereunder - Most of the difficulties faced in the implementation of GST law was are on account of the technical glitches as returns and forms are system driven and returns are filed electronically. The information contained therein are supposed to get captured and auto populated at the end customer/recipient of goods or services.
As far as the supplier of Goods and Services is concerned, the supplier is required to file a monthly return Form GSTR-1 under Rule 59(1) of the State CGST Rule, 2017. This form is to be uploaded electronically by the due date on the common portal by the supplier either directly or through Facilitation Centre notified by the Commissioner - If there is any variance between the information furnished in Form GSTR-2A, Form GSTR-4A or Form GSTR-6A furnished by the supplier and the credit tax availed in Form GSTR-2, the recipient is required to furnish details of inward supplies added, corrected, deleted by the recipient in Form GSTR-2, Form GSTR-4 and Form GSTR-6, in Form GSTR-1A through the common portal.
In case, corrections and amendments in Form GSTR-1A of the recipient is not accepted by the supplier in its Form GSTR-1, the question of availing input tax credit on the strength of invoices alone is not enough. In case, the information is not corrected by the supplier in GSTR-1, the input tax credit availed by the recipient is liable to be paid back - Though some of the circulars and clarifications issued in the context of exports have been cited by the learned counsel for the petitioner, they are not relevant in the context of availing input tax credit at the threshold stage.
Further, the Court have recognized few exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice. None of these exceptions are attracted in the facts of the present case.
Admittedly, the petitioner has an alternate remedy by way of an appeal before the Appellate Commissioner under Section 107 of the CGST Act, 2007. Therefore, this writ petition cannot be entertained ignoring the statutory dispensation - Petition dismissed.
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2022 (6) TMI 1076
Profiteering - supply of Services by way of admission to exhibition of cinematography films - allegation is that the benefit of reduction in the GST rate on which was reduced w.e.f. 1.1.2019, vide Notification No. 27/2018- Central Tax (Rate) dated 31.12.2018 by way of commensurate reduction in prices, were not passed on - contravention of Section 171 of the CGST Act, 2017 - penalty - HELD THAT:- The rates of GST on “Services by way of admission to exhibition of cinematograph films where the price of admission ticket was above one hundred rupees' was reduced from 28% to 18% and “Services by way of admission to exhibition of cinematograph films where the price of admission ticket was one hundred rupees or less” was reduced from 18% to 12% w.e.f. 01.01.2019, vide Notification No. 27/2018- Central Tax (Rate) dated 31.12.2018. The benefit of reduction in GST rates was required to be passed on to the recipients by the Respondent as per the provisions of Section 171 of the Act.
There is no dispute relating to the fact that the Respondent has increased the base prices of the admission tickets in respect of the regular category and continues to charge the cine-goers at the prevailing rates despite a reduction in the GST w.e.f. 1.1.2019 vide Notification No. 27/2018-Central Tax (Rate) dated 31.12.2018. The Respondent in the written submissions as well as during the personal hearing has admitted the above-said liability of excess collection during the period 1.1.2019 to 30.4.2020.
The Authority finds that the Respondent has been profiteering by way of increasing the base prices of the tickets (Services) by not reducing the selling price of the tickets (Services) commensurately in the regular category, despite the rate reduction in GST rate on “Services by way of admission to exhibition of cinematograph films” where the price of admission ticket was one hundred rupees or above, from 28% to 180/0 w.e.f. 01.01.2019. From the Table 'B' above, it is evident that the base prices of the admission tickets were indeed increased, as a result of which the benefit of reduction in GST rate from 28% to 18% and 18% to 12% (w.e.f. 01.01.2019), was not passed on to the recipients by way of commensurate reduction in prices charged (including lower GST @ 18%). The total amount of profiteering covering the period of 01.01.2019 to 30.04.2020 for the 'Regular Category' was 12,83,999/-.
This Authority based on the facts discussed above has found that the Respondent has clearly resorted to profiteering in respect of 'Regular Category' by way of either increasing the base prices of the service while maintaining the same selling prices or by way of not reducing the selling prices of the service commensurately, despite a reduction in GST rate on “Services by way of admission to an exhibition of cinematograph films where the price of admission ticket is above one hundred rupees” from 28% to 18%” w.e.f. 01.01.2019 to 30.04.2020. On this account, the Respondent has realized an additional amount to the tune of Rs. 12,83,999/-from the recipients of 'Regular Category' which included both the profiteered amount and GST on the said profiteered amount. Thus the profiteering amount is determined as Rs. 12,83,999/-as per the provisions of Rule 133 (1) of the CGST Rules, 2017 in respect of 'Regular Category' only.
The Respondent is therefore directed to reduce the prices of his tickets of regular category as per the provisions of Rule 133 (3) (a) of the CGST Rules, 2017, keeping in view the reduction in the rate of tax so that the benefit is passed on to the recipients. The Respondent is also directed to deposit the profiteered amount of 12,83,999/- along with the interest to be calculated @ 18% from the date when the above amount was collected by him from the recipients till the above amount is deposited.
Penalty - HELD THAT:- The Authority finds that the Respondent has denied the benefit of rate reduction to his customers/recipients in contravention of the provisions of Section 171 (1) of the CGST Act, 2017 and resorted to profiteering and hence, committed an offence under section 171 (3A) of the CGST Act, 2017. Therefore, he is liable for the imposition of a penalty under the provisions of the above Section. Accordingly, notice be issued to him directing him to explain why the penalty under Section 171 (3A) of the above Act read with Rule 133 (3) (d) of the CGST Rules, 2017 should not be imposed on him for the profiteered amount collected from 01.01.2020 to 30.04.2020.
Application disposed off.
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2022 (6) TMI 1075
Profiteering - Project Suncity Avenue-102 - allegation is that the benefit of reduction in the GST rate by way of commensurate reduction in prices, were not passed on - contravention of Section 171 of CGST Act - penalty - HELD THAT:- This Authority observes that the benefit of additional Input Tax Credit of 3.07% of the turnover has accrued to the Respondent for the project “Suncity Avenue 102”. This benefit was required to be passed on to the recipients, however, the same was not done commensurately by the Respondent. Section 171 of the CGST, 2017 has been contravened by the Respondent, in as much as the additional benefit of ITC @3.07% of the base price has not been passed on by the Respondent to 736 recipients. These recipients were identifiable as per the documents provided by the Respondent, giving the names and addresses along with Unit no. allotted to such recipients. Therefore, the total additional amount of Rs. 2,62,56,652/- was required to be returned to the such homebuyers.
The Authority determines that the Respondent has profiteered an amount of Rs. 2,62,56,652/-. Therefore, given the above facts, the Authority under Rule 133 (3) (a) of the CGST Rules orders that the Respondent shall reduce the price to be realized from the buyers of the flats commensurate with the benefit of ITC received by him. The details of the recipients and benefit which is required to passed on to each recipient/homebuyer (including Applicant No. 1) alongwith the details of the unit are contained in the Annexure' A' to this order. The Authority directs that such profiteered amount as determined shall be passed on/returned by the Respondent to the recipients of supply alongwith interest @18% from the date such amount was profiteered by the Respondent uptil the date such amount is passed on/returned to the respective recipient of supply.
Penalty - HELD THAT:- The Respondent has committed an offence by violating the provisions of Section 171 (1) during the period from 01.07.2017 to 08.08.2019, and therefore, he is liable for imposition of penalty under the provisions of Section 171 (3A) of the above Act. However, perusal of the provisions of the said Section 171 (3A) shows that it has been inserted in the CGST Act, 2017 w.e.f. 01.01.2020 vide Section 112 of the Finance Act, 2019 and it was not in operation during the period from 01.07.2017 to 08.08.2019 when the Respondent had committed the above violation. Hence, the said penalty under Section 171 (3A) cannot be imposed on the Respondent retrospectively. Accordingly, notice for the imposition of penalty is not required to be issued to the Respondents.
This Order having been passed today falls within the limitation prescribed under Rule 133 (1) of the CGST Rules, 2017.
Application disposed off.
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2022 (6) TMI 1074
Validity of reopening of assessment u/s 147 - petitioners had voluntarily filed Corporate Insolvency Resolution Process (CIRP) under the provisions of the Insolvency and Bankruptcy Code before the "National Company Law Tribunal, Mumbai ("NCLT”) and were admitted on 12.03.2018/19.3.2018 and later ordered - HELD THAT:- Since the proceedings under the Code were initiated by the petitioners few days prior to the initiation of the proceedings under Section 148 it was incumbent for the petitioners to have ensured proper notice to the Income Tax Department and obtained appropriate concession in Corporate Insolvency Resolution Plan.
That apart, claims of the Income Tax Department were not considered by the NCLT, Mumbai, while approving the Resolution Plan and therefore the question of abetment of such rights of the Income Tax Department cannot be countenanced.The provisions of Insolvency and Bankruptcy Code, 2016 (IBC) cannot be interpreted in a manner which is inconsistent with any other law in the time being in force.
Therefore, Corporate Insolvency Resolution Plan sanctioned and approved cannot impinge on the rights of the Income Tax Department to pass any fresh Assessment Order under Section 148 read with Sections 143(3) and 147 of the Income Tax Act, 1961.
The proceedings under the Insolvency and Bankruptcy Code, 2016 (IBC) cannot be pressed into service to dilute the rights of the Income Tax Department under the Income Tax Act, 1961 to re-open the assessment under Section 148 of the Income Tax Act, 1961.
Income Tax Department was not precluded from reopening the assessment completed under Section 143(3) of the Income Tax Act,1961.
Therefore, these Writ Petitions filed by these petitioners have to be dismissed. The Assessment Orders which have been passed pursuant to the interim order dated 27.12.2018 are directed to be given to the respective petitioners by the respondent, within a period of thirty days from the date of receipt of a copy of this order - If the petitioners are so aggrieved by such of those Assessment Orders, the petitioners have to work out their Appellate remedy before the Commissioner of Income Tax (Appeals) under Section 246A of the Income Tax Act, 1961.
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2022 (6) TMI 1073
Demand against company merged - scope of Proceedings under provisions of Insolvency and Bankruptcy Code, 2016 - HELD THAT:- In the instant case, the assessee-company was merged with M/s.Agaral Mittal Concast P.Ltd., vide NCLT order dated 13.2.2019. Thereafter, Resolution plan submitted by the Mangalam Worldwide Pvt. Ltd. was approved by the Committee of Creditors, and final order to this effect was passed by the NCLT on 13.12.2021. In the present appeal of the assessee, the assessment year involved is 2014-15 and the demand had arisen on 9.12.2016 pursuant to the framing of assessment i.e. prior to the order of the NCLT dated 13.12.2021, and therefore, in view of overriding effect of the IBC proceedings, tax demand shall stand extinguished.
As position of law in this regard is that, the proceeding under provisions of Insolvency and Bankruptcy Code, 2016 overrides the proceedings under the Income Tax Act, 1961. In other words, all the proceedings initiated or pending before different authorities shall stand abated in terms of approval of resolution plan by the NCLT.
The present appeal pertains to Asst.Year 2014-15 and the demand had arisen on 9.12.2016 pursuant to framing of assessment i.e. prior to the order dated 13.12.2021 passed by the NCLT. Further, as per the Resolution Plan, there is no claim made by the Income Tax Department before the Insolvency Professional. In the Resolution Plan approved by the NLCLT, an exgratia amount of Rs.10 lakhs only approved to the operational creditors being statutory creditors viz. CGST Department made a claim of Rs.11.70 crores and Asstt.Comm. of Sales Tax claimed Rs.1.77 crores. Therefore, we hold that the present appeal pending before the Tribunal is not sustainable in law
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2022 (6) TMI 1072
Addition u/s 69A rws 115BBE - As on the basis of inquiry conducted u/s 131(1)(d) made addition being unexplained cash found from the possession of the assessee - Assessee argued that the learned CIT (A) has passed an ex-parte order and in the interest of justice, the assessee should be given one more opportunity to substantiate the cash so found - HELD THAT:- Considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore the issue to the file of the learned CIT (A) with a direction to grant one last more opportunity to the assessee to substantiate her case and decide the issue as per fact and law. The assessee is also hereby directed to appear before the learned CIT (A) and to substantiate her case without seeking any adjournment under any pretext failing which the learned CIT (A) is at liberty to pass appropriate order as per law. We hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes.
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2022 (6) TMI 1071
Credit of Dividend Distribution Tax (DDT) u/s. 115-O - assessee has been denied credit of DDT deposited within time only on account of a technical default committed at the time of filing of challan, wherein a wrong column was tick marked by the assessee inadvertently - HELD THAT:- The Delhi High Court in the case of Court On Its Own Motion [2013 (3) TMI 316 - DELHI HIGH COURT] issued seven mandamus in response to a Public Interest Litigation regarding difficulties faced by assessees after computerisation and central processing of income tax returns. One of the seven mandamus is in relation to credit of TDS to an assessee when tax deducted has been deposited with revenue but incorrect particulars have been uploaded by deductor.
As in the instant case, the assessee has deducted and deposited DDT within time, but due to an inadvertent mistake in filing the challan, the assessee has been denied credit of DDT. The assessee has filed several applications under section 154 of the Act with the CPC, but the same have been rejected citing technical reasons. The appeal of the assessee was also dismissed on the ground that the assessee did not take up necessary follow-up action.
In our view, the assessee has already approached the CPC thrice and also approached Ld. CIT(Appeals) for redressal of its grievance and there is no denial that the assessee has paid and deposited DDT within the due date. It is a fit case where the assessee should be granted necessary credit of DDT paid. Accordingly, the revenue is directed to grant credit of DDT to the assessee by giving necessary directions to the jurisdictional assessing Officer to correct the data uploaded to the OLTAS database and grant credit of DDT to the assessee. - Decided in favour of assessee.
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2022 (6) TMI 1070
Assessment order passed u/s 143(1) - Disallowance u/s 80P - return was filed beyond the date stipulated under section 139(1) of the Act, the assessee cannot be allowed the benefit of section 80P - HELD THAT:- We note that in the case of Chirakkal Service Co-Operative Bank Ltd. Kannur [2016 (4) TMI 826 - KERALA HIGH COURT] held that a return filed by assessee beyond period stipulated under section 139(1) or 139(4) or under section 142(1) or section 148 can also be accepted and acted upon for entertaining claim raised under section 80P provided further proceedings in relation to such assessments are pending in statutory hierarchy of adjudication in terms of provisions of Act.
We note that the instant case, there was approximately a two-month delay in filing the return of income by the assessee for the respective assessment years A.Y. 2018-19 & A.Y. 2019-20 and therefore looking into the totality of facts, in the interests of justice, we are restoring the case to the file of the Ld. CIT(Appeals) for fresh adjudication on merits of the case after giving due opportunity of hearing to the assessee for both the assessment years. Appeals of the assessee are allowed for statistical purposes.
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