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Showing 441 to 460 of 1642 Records
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2024 (7) TMI 1202
Reversal of Input Tax Credit in respect of credit notes issued by the supplier - HELD THAT:- Sub-section (3) of Section 15 of applicable GST statutes provides for a reduction in the value of supply, on account of a discount, if such discount has been duly recorded in the invoice issued in respect of such supply or if such discount is established in terms of an agreement entered into either before or at the time of supply although the supply may be subsequent to such agreement. In this case, the petitioner has prima facie established that neither of the requirements under sub-section (3) were satisfied. In such event, the supplier would be liable to pay tax on the full value of supply.
The exercise of jurisdiction under Article 226 is discretionary and subject to self imposed fetters. One such fetter is when an efficacious alternative remedy is available. It should be borne in mind that the existence of an alternative remedy is a material consideration but not a bar to the exercise of jurisdiction. In the case at hand, on the basis that the other issues require reappraisal of evidence, the petitioner has approached the appellate authority in respect thereof. As regards this issue, since it is a pure legal issue, the petitioner has chosen to approach this Court. As recorded earlier, the conclusion is ex facie erroneous on this issue, and the appellate authority under applicable GST statutes does not have the power to remand.
The impugned order dated 26.02.2024 is set aside only insofar relating to reversal of Input Tax Credit for the value of credit notes issued by the supplier is concerned. As a corollary, defect no.3 is remanded for reconsideration by the original authority. After providing a reasonable opportunity to the petitioner, including a personal hearing, the assessing officer is directed to issue a fresh order within three months from the date of receipt of a copy of this order.
Petition disposed off by way of remand.
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2024 (7) TMI 1201
Challenge to impugned order - whether the Show Cause Notice in Form GST DRC-01 dated 12.01.2024 does not contain any ingredients to invoke the period of limitation under Section 74(10) of the respective GST Enactments? - HELD THAT:- It is noticed that there is allegation in the Show Cause Notice that the petitioner has reported the turnover as detailed in the Show Cause Notice and has willfully failed to pay the corresponding tax with intention to evade the tax lability. Therefore, it cannot be said that the Show Cause Notice does not contain any ingredients to invoke Section 74 of the respective GST Enactments.
The petitioner may have a case on merits. However, that would be subject matter of appeal - this Writ Petition is disposed of with liberty to the petitioner to file statutory appeal under Section 107 of the respective GST Enactments before the Appellate Authority namely, Appellate Deputy Commissioner (ST) (GST Appeal), C.T.Building, Dr.Thangarajsalai, Madurai 625020, the first respondent herein, within a period of 30 days from today subject to the petitioner depositing 10% of the disputed tax.
Petition disposed off.
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2024 (7) TMI 1200
Cancellation of petitioner’s registration, on the ground of delay in filing the return - HELD THAT:- Considering the facts and circumstances of the case, this writ petition is disposed of by directing the respondent GST authority concerned to intimate the petitioner the revenue due, if any, which is required to be paid by the petitioner within 7 working days from date and petitioner shall make such payment within 7 days from date of receipt of such intimation. If petitioner makes such payment of revenue due, petitioner’s registration shall be restored. If it is found by the department that there is no revenue due, it shall restore the petitioner’s registration at once.
Petition disposed off.
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2024 (7) TMI 1199
Challenege to assessment order - petitioner was not provided a reasonable opportunity to contest the tax demand on merits - petitioner asserts that he was unaware of proceedings since the notices and the impugned order were uploaded in the "view additional notices and orders" tab on the GST portal - HELD THAT:- On perusal of the impugned order, it is evident that ITC was reversed for violation of sub-section(4) of Section 16 of applicable GST enactments. It is also evident that the tax proposal was confirmed for the reason that the petitioner did not reply to the notice. In these circumstances, albeit by putting the petitioner on terms, it is just and appropriate that the petitioner be provided an opportunity to contest the tax demand on merits.
Therefore, impugned order dated 02.06.2023 is set aside subject to the condition that the petitioner remits 10% of the disputed tax demand within a period of two weeks from the date of receipt of a copy of this order. Within the aforesaid period, the petitioner is permitted to submit a reply to the show cause notice - Petition disposed off.
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2024 (7) TMI 1198
Violation of principles of natural justice - petitioner was not provided a reasonable opportunity - inadvertent error was made while filling up the GSTR 3B returns, whereby the available ITC was mentioned in row 4(A)(3) pertaining to inward supply liable to reverse charge - HELD THAT:- On perusal of the impugned order, it is evident that the tax liability pertains to alleged discrepancy in availment of ITC. Such conclusion has been reached on the basis of the petitioner's GSTR 3B return. In view of the explanation provided by the petitioner in the affidavit, it is just and appropriate that the petitioner be provided an opportunity to contest the tax demand by putting the petitioner on terms.
The impugned order dated 23.11.2023 is set aside subject to the condition that the petitioner remits 10% of the disputed tax demand within a period of two weeks from the date of receipt of a copy of this order. Within the aforesaid period, the petitioner is permitted to submit a reply to the show cause notice - petition disposed off.
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2024 (7) TMI 1197
Challenge to assessment order - breach of principles of natural justice - Since the notices were uploaded on the GST portal, the petitioner asserts that she was unaware of the initiation of proceedings - HELD THAT:- On perusal of the impugned order, it is evident that the tax demand pertains to the alleged disparity between the GSTR 3B returns filed by the petitioner and the auto populated GSTR 2A returns. In recognition of difficulties encounted by taxpayers in this regard, Circular no.183 was issued. On account of the petitioner not being heard before the impugned order was issued, the petitioner was unable to contest the tax demand. However, it should be noticed that the petitioner did not fulfil the obligation of monitoring the GST portal continually in spite of being a registered person.
Solely with a view to provide an opportunity to the petitioner to contest the tax demand on merits, the impugned order is quashed subject to the petitioner remitting 10% of the disputed tax demand as agreed to within fifteen days from the date of receipt of a copy of this order and the matter is remanded for re-consideration. The petitioner is permitted to submit a reply to the show cause notice within fifteen days from the date of receipt of a copy of this order.
Petition disposed off.
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2024 (7) TMI 1196
Violation of principles of natural justice - Challenge to assessment order - personal hearing was not offered - petitioner's reply was disregarded - disparity between the turnover reported in returns filed under the GST enactments and the turnover reflected in the profit and loss account - HELD THAT:- Upon examining the petitioner's reply dated 12.12.2023, it follows that the explanation of the petitioner is that the turnover of Rs.6,73,26,009/- is attributable to the pre-GST period running from 01.04.2017 to 30.06.2017. It also appears that the petitioner did not place on record documents to establish that this turnover is attributable to the pre-GST period. In the impugned order, the respondent has taken note of the fact that the VAT returns for the said period indicated 'Nil' turnover. The conclusion of the respondent on this count cannot be completely disregarded as devoid of merit.
The petitioner's explanation is that an inadvertent mistake was committed while filing the GSTR 9C return. In support of this contention, the certificate dated 02.12.2023 of the Chartered Accountant was submitted. On this issue, it appears that the profit and loss account corroborates the assertion in the Chartered Accountant's certificate. These aspects were disregarded while confirming the demand.
Significantly, it is noticeable that no personal hearing was offered after the petitioner submitted a reply dated 12.12.2023. When all these facts and circumstances are considered cumulatively, the impugned order calls for interference so as to provide another opportunity to the petitioner.
The petitioner is permitted to submit all relevant documents before the respondent within a period of 15 days from the date of receipt of a copy of this order. Upon receipt thereof, the respondent is directed to reconsider the matter - petition disposed off by way of remand.
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2024 (7) TMI 1195
Maintainability of petition - availability of alternative remedy - appealable order or not - non-constitution of Tribunal - HELD THAT:- The petitioner is desirous of availing the statutory remedy of Appeal under the said provisions. Apparently, acknowledging the absence of constitution of Appellate Tribunal, in exercise of the power conferred under section 172 of the CGST Act, 2017, the Government of India based on the recommendation made by the G.S.T. Council, has issued Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 on 03.12.2019 - In tune with the said Removal of Difficulties Order dated 03.12.2019, the Central Board of Indirect Taxes and Customs, GST Policy Wing vide Circular No.132/2/2020-GST Dated 18th March, 2020 has come out with the clarification in respect of appeal having regard to non-constitution of the Appellate Tribunal.
Taking into account the aforesaid Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 dated 03.12.2019 issued by the Government of India and subsequent clarification issued by the Central Board of Indirect Taxes and Customs (GST Policy Wing) vide Circular No.132/2/2020 dated 18th March, 2020, it is deemed proper in the interest of justice to dispose of this writ petition.
The writ petition is disposed off.
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2024 (7) TMI 1194
Scope of Advance Ruling - Status of Kerala State Transport Project (KSTP) in GST - Government Authority or Government Entity or Government Department - GST rate on the works contract services provided by a Government Contractor to KSTP i.e., construction of Roads and bridges for public use
Scope of Advance Ruling - What is the status of KSTP in GST viz, Government Authority or Government Entity or Government Department? - HELD THAT:- This question is not covered in any of the matters enumerated under sub-section (2) of Section 97 of the CGST Act. Hence, there is no need to pronounce ruling on the same.
What is the GST rate on the works contract services provided by a Government contractor to KSTP, ie., construction of roads and bridges for public use? - HELD THAT:- In the instant case, the recipient of the applicant i.e, Kerala State Transport Project (KSTP) is a wing constituted under the Kerala Public Works Department to execute externally aided projects and specialized projects. The main aim of this wing is the upgradation of the State highway roads. The strategic option study made for the upgradation of State highways and major district roads conducted by M/s. Rail India Technical and Economic Service Limited led to the formation of KSTP under the Kerala Public Works Department - the works contract services provided by the applicant to KSTP by way of construction of roads and bridges is for the use of the general public. As such, the rate of tax for works contract services provided by the applicant to KSTP by way of construction of roads and bridges for public use will be taxable @ 12% - till 17.07.2022 the rate of tax for works contract services by way of construction of roads and bridges for public use was 12% (CGST @ 6% and SGST @ 6%) and thereafter, i.e, w.e.f 18.07.2022 it is 18%.
The services provided by the applicant by way of construction of roads and bridges for public use will be taxable @ 12% (CGST @ 6% and SGST @ 6%) if the time of supply as determined in accordance with section 14 of the CGST Act falls any date prior to 18.07.2022, otherwise it will be taxable @ 18%.
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2024 (7) TMI 1193
Rate of GST - works executed by the company for the period from 01/01/2022 to 17/07/202 - GST rate as per notification from State Goods and Services Tax Department, Government of Kerala vide Circular No. 01/2022, No CT/3/2021-C1 dated 19/01/2022 - Government entity or not - HELD THAT:- The applicant M/s. Kerala Land Development Corporation Ltd. (M/s. KLDC) was incorporated in 1972 under the Companies Act, 1956 as a fully owned Government Undertaking with 4.77% of the shares of the company are in possession with the Central Government and 95.23% of the shares are with the Government of Kerala. M/s. KLDC is established with more than 90% or more participation of the Govt, and falls under the definition of "Governmental Entity" as the same is established and controlled by the State Government.
The applicant has sought clarification on the matter that whether GST @12% is applicable for the works executed by them for the period 01.01.2022 to 17.07.2022 as per SGST Cir. No. 01/2022 dated 19.01.2022. As per Clause 4 of the said circular, it is clarified that w.e.f 01.01.2022, the benefit of the reduced tax rate, i.e., 12% instead of 18% on works contract supplied to a Governmental Authority or a Government Entity regarding the works contract services mentioned in the corresponding entry, stands discontinued.
It is evident that the works contract services supplied to the applicant being a Govt, entity are liable for the taxable rate of 18% w.e.f 01.01.2022. Further, the services rendered by the applicant do not fall under SI. Nos. 3 in column (3) - (iii), (vi) & (ix) above, the rate of tax 12% is not applicable in this case and the proper entry to the services provided may be the entry at column (3) (xii), i.e, @ 18 % w.e.f 01.01.2022.
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2024 (7) TMI 1192
Validity of Faceless assessment of income escaping assessment - Challenge to notice u/s 148 as non-compliance with Section 151A of the Act - notices issued by JAO instead of FAO - HELD THAT:- JAO would not have jurisdiction to issue the impugned notices more particularly in view of the clear provisions of Section 151A read with notification dated 29 March, 2022 issued by the Central Government.
As fairly conceded on behalf of the revenue, the challenge in the proceedings would stand covered by the decision of this Court in Hexaware Technologies Ltd. (2024 (5) TMI 302 - BOMBAY HIGH COURT]. The impugned notices would be required to be held to be illegal and invalid as and there is no dispute that the JAO had no jurisdiction to issue the impugned notice. We, accordingly, allow this petition in favour of assessee.
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2024 (7) TMI 1191
Validity of Faceless assessment of income escaping assessment - Challenge to notice u/s 148 as non-compliance with Section 151A of the Act - notices issued by JAO instead of FAO - HELD THAT:- Similar issue came up for consideration before a Division Bench of Bombay High Court in Hexaware Technology Ltd.(2024 (5) TMI 302 - BOMBAY HIGH COURT]which vide judgment dated 03.05.2024 discussed the issue at length and held that notice under Section 148 after introduction of Finance Act, 2021, cannot be issued by Jurisdictional Assessing Officer.
Scheme of faceless assessment is applicable from the stage of show cause notice u/s 148 as well as 148A. Clause 3 (b) of notification dated 29.03.2022 issued u/s 151A clearly provides that scheme would be applicable to notice u/s 148. Even otherwise, it is a settled proposition of law that assessment proceedings commence from the stage of issuance of show cause notice.
The object of introduction of faceless assessment would be defeated if show cause notice u/s 148 is issued by Jurisdictional AO. The respondents are heavily placing reliance upon office memorandum and letter issued by departmental authorities. It is axiomatic in tax jurisprudence that circulars, instructions and letters issued by Board or any other authority cannot override statutory provisions. The circulars are binding upon authorities and Courts are not bound by circulars. The mandate of Section 144B, 151A readwith notification dated 29.03.2022 issued thereunder is quite lucid. There is no ambiguity in the language of statutory provisions, thus, office memorandum or any other instruction issued by Board or any other authority cannot be relied upon. Instructions/circulars can supplement but cannot supplant statutory provisions.
The notices issued by Jurisdictional Assessing Officer under Section 148 are hereby quashed with liberty to respondent to proceed in accordance with procedure prescribed by law.
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2024 (7) TMI 1190
Validity of assessment order passed u/s 143(3) r.w.s. 144B - no opportunity of hearing was provided to the petitioner - allegation of lack of opportunity for personal hearing and violation of principles of natural justice - shorter period to respond - DR submits that the petitioner was given an option to request for personal hearing. The request can only be made by clicking the “Seek Video Conferencing” button available against the show cause notice in the e-proceeding tab on e-filing portal, but petitioner did not click such button
HELD THAT:- The time provided to the petitioner was adequate enough, at least, for the purpose of clicking Seek Video Conferencing button, if the petitioner was at all interested to seek personal hearing.
The request made by the petitioner for personal hearing in the response dated 14th November, 2023, could not have mandated the respondent no.2 to give personal hearing to the petitioner without the petitioner applying for personal hearing in the manner prescribed on the portal.
As correctly pointed out by respondent no.2 had duly afforded an opportunity of hearing to the petitioner. If the petitioner has failed to take such opportunity, the respondent no. 2 cannot be made responsible therefor. The same conclusion may not be drawn while considering whether appropriate opportunity of hearing was given to the petitioner to respond to the show cause notice dated 15th March, 2024, which proposed the variations.
The show-cause notice is dated 15th March, 2024 and from the stamp on it and the digital signature it would appear that the same was signed on 15th March, 2024 at 16.46.43 hrs., which was a Friday. The petitioner was required to respond to the said show cause notice within 11 a.m. of 19th March, 2024. Therefore, the petitioner had hardly one working day’s time to respond to the same.
From the Standard Operating Procedure (SOP) circulated by the Commissioner of Income Tax vide letter dated 3rd August, 2022, it would transpire that in terms of paragraph N.1.3, Faceless Assessment Unit is required to afford response time of 7 days from the date of issuance of show cause notice. It would also appear from the aforesaid SOP that 7 days time may be curtailed keeping in view the limitation date for completing the assessment.
In this case, it may be noticed that the limitation period would end on 31st March, 2025. As such, there being no urgency find that the respondent no.2 had acted in derogation of the SOP. The opportunity to respond also does not appear to be adequate. The aforesaid, in my view, constitutes violation of principles of natural justice, inasmuch as, the petitioner was prevented from appropriately responding to the show cause.
It is true that the respondent no.2 had passed the order beyond the period of 7 days from the date of issuance of such notice, but there was nothing on record to demonstrate that any notice was given to the petitioner intimating that the order shall not be passed prior to the expiry of 7 days from the date of issuance of show-cause, for the petitioner to respond to the same. The order passed by the respondent no.2 dated 26th March, 2024 for the assessment year 2022-23 stands vitiated by reasons of violation of principles of natural justice. For reasons indicated morefully hereinabove, I set aside the order dated 26th March, 2024 and remand the matter back to the respondent no.2.
Since, the petitioner has already received the show cause notice, the petitioner shall be at liberty to file her response to the said show cause notice within a period of 15 days from the date of receipt of the server copy of this order.
The respondent no.2 is directed to forthwith activate the portal for the petitioner to submit her response and to express her option of personal hearing, if she so chooses
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2024 (7) TMI 1189
Validity of reopening of assessment - notice issued u/s 148 challenged on the ground that the same has been issued by JAO although the same was required to be issued in a faceless manner in terms of the provisions contained u/s 151A - HELD THAT:- Petitioner had sought for an opportunity of personal hearing and despite making such request, the respondents had not afforded the same and having regard to the fact that a lesser period was given to the petitioner to respond to the show cause notice, the mater should be remanded back to the jurisdictional assessing officer for a decision afresh.
We, set aside the order passed by the jurisdictional assessing officer dated 30th March 2024 passed u/s 148A(d), for the assessment year 2017-18. The petitioner shall be at liberty to file its additional response to the aforesaid show cause, within a period of 10 days from date. If the petitioner files its additional response or in absence thereto, the jurisdictional assessing officer upon affording opportunity of hearing to the petitioner, shall dispose of such proceeding in accordance with law by passing a reasoned order, within 8 weeks from the date of communication of this order.
Notice issued u/s 148 of the said Act dated 30th March 2024 for the assessment year 2017-18 stands set aside. Having regard to the above, it is not necessary at this stage to go into the issue of competence of the jurisdictional assessing officer to issue a notice u/s 148 of the said Act.
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2024 (7) TMI 1188
Allowable business expenditure - expenses incurred in respect of municipal taxes, maintenance and repair of rest / guest house - HELD THAT:- Issue answered against the assessee in assessee’s own case for the assessment year 1993-94 [2008 (8) TMI 1029 - BOMABY HIGH COURT], wherein, this Court following the decision of Britannia Industries Ltd. [2005 (10) TMI 30 - SUPREME COURT] held that the expenses incurred by the assessee towards municipal taxes, maintenance and repairs of guest-house could not be allowed as a deduction.
In Britannia Industries Ltd. [2005 (10) TMI 30 - SUPREME COURT] the question which fell for consideration of the Supreme Court was whether the expression ‘premises’ and ‘buildings’ referred to in Sections 30 and 32 and used for the purposes of the business or profession would include within its scope and ambit the expression ‘residential accommodation including any accommodation in the nature of guest house’ used in Sub-sections (3), (4) and (5) of Section 37 of the Act.
The Supreme Court rejected the assessee’s contention to hold that the intention of the legislature appeared to be clear and unambiguous, so as to exclude the expenses towards rents, repairs and also maintenance of premises/ accommodation used for the purposes of a guest house of the nature indicated in sub-section (4) of Section 37. It was observed that if the Legislature had intended that deduction would be allowable in respect of all types of buildings / accommodations used for the purposes of business or profession, then it would not have felt the need to amend the provisions of Section 37 so as to make a definite distinction with regard to buildings used as guest houses as defined in sub-section (5) of Section 37 and the provisions of Section 31 and 32 would have been sufficient for the said purpose. Hence this question of law stands concluded against the appellant and in favour of the Revenue.
Expenses incurred in respect of provisions of food and beverages and employee’s salary for providing food and beverages at rest / guest house - deduction u/s 37(2) - CIT (A) was of a contrary view from the one taken by the AO, when he reached to a conclusion that such expenditure was the normal expenses on routine courtesy and hospitality. He accordingly, allowed the claim of the assessee for deduction of the amount. The proceedings in such circumstances reached the High Court.
The High Court considering the provisions of Section 37 (2A) and the enlargement of the meaning of “entertainment expenditure” by insertion of Explanation 2 to sub-section (2A) of section 37 of the Act by Finance Act, 1983 with the retrospective effect from 1 April 1976, held that by such “explanation”, the meaning of the words “entertainment expenditure” in sub-section (2A) of Section 37 had stood enlarged to include expenditure on provision of hospitality of every kind, by the assessee to any person whether by way of provision of food and beverages or in any other manner. The Court accordingly upheld the view taken by the AO and held it to be in consonance with Section 37 (2A) read with Explanation 2 to hold that the deduction could not be allowed in respect of such expenses as “entertainment expenditure” u/s 37 (1) and accordingly, set aside the orders passed by the tribunal which had held that the assessee was entitled to deduction of such expenses. In these circumstances, question No. 2 would stand covered by the decision in the case of Indian Plastics Ltd. [1999 (8) TMI 49 - BOMBAY HIGH COURT] and would be required to be answered in the negative and against the appellant-assessee and in favour of the revenue.
Expenses being 50% of the expenses incurred in organising conference of dealers is allowable as deduction - HELD THAT:- Since the assessee’s guest house was small, accommodation was arranged in hotels and clubs. The assessee had claimed that the expenditure incurred in arranging the seminar should be allowed as business expenditure. The Court held that the seminar was arranged in connection with the assessee’s business and therefore, the expenditure incurred for travel, boarding, lodging of the assessees distributors, attending the seminar and the expenditure involved in giving presentation articles to the assessee’s foreign distributors was expenditure incurred in connection with the assessee’s business and was allowable as deduction. The Court held that such items of expenditure could be considered as entertainment expenditure. It was held that such question thus needs to be answered in favour of the assessee and against the Revenue. The position is not different in the facts and circumstances of the present case accordingly, we answer this question in the affirmative in favour of the appellant-assessee and against the Revenue.
Expenses incurred in buying presentation articles - HELD THAT:- In West Coast Paper Mills Ltd. [2000 (2) TMI 30 - BOMBAY HIGH COURT] wherein the Court answered such question in the affirmative in favour of the appellant and against the Revenue, when it was held that the amounts which were expended to buy presentation articles was allowable as a deduction. We may also refer to another decision of West Coast Papers Mills Ltd. [2000 (2) TMI 30 - BOMBAY HIGH COURT] wherein expenses incurred by the assessee in buying presentation articles was allowed as advertisement expenses by the Tribunal which in the nature of articles like sarees, dress materials, dry fruits, silver glass etc. The view of the Tribunal was upheld by this Court in such decision. This question would stand answered in favour of the appellant and against Revenue.
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2024 (7) TMI 1187
Revision u/s 263 - validity of Assessment Order passed by the AO by holding that it suffered from lack of territorial jurisdiction - HELD THAT:- From perusal of the provisions of Section 124(3) it is clear that it has no application with respect to the proceedings u/s 263. The power of CBDT to confer jurisdiction under the Act, 1961 is undisputed.
Neither the appellant has disputed the issuance of Notification dated 22.10.2014 by the CBDT nor it has been disputed for the appellant that the Jurisdictional Commissioner of Income Tax with respect to the assessee was the CIT– 11, Kolkata when the order u/s 263 was passed.
Thus, as on the date when the order u/s 263 was passed by the Commissioner of Income Tax – IV, Kolkata, he was not the jurisdictional Commissioner and, thus, he inherently lacked jurisdiction to pass the order u/s 263.
So far as Section 292BB is concerned, as reflected in substantial question of law no.(ii) aforequoted; we find that Section 292BB has no application on facts and circumstances of the present case. It relates to deemed service of notice and not to the territorial jurisdiction of an authority under the Act.
Where an authority or court lacks inherent jurisdiction in passing a decree or order, the decree or order passed by such authority or court would be without jurisdiction, non est and void abinitio. Lack of territorial jurisdiction of the Commissioner of Income Tax – IV who passed the order u/s 263 to exercise supervisory jurisdiction goes to the root of the matter and strikes at his very authority to pass the said order.
Such defect is basic and fundamental and, therefore, the order passed by the aforesaid C.I.T having no territorial jurisdiction over the assessee, is nullity. Order or decree passed by a court having no jurisdiction, has been held to be nullity by Hon’ble Supreme Court in Kiran Singh Vs. Chaman Paswan [1954 (4) TMI 48 - SUPREME COURT] Hira Patari Vs. Kali Nath [1961 (5) TMI 58 - SUPREME COURT] Balwant N Vishwamitra and Others Vs. Yadav Sada Shiv Mull [2004 (8) TMI 689 - SUPREME COURT]
The question of territorial jurisdiction as raised by the assessee has gone to the very root of the case. Such a question could be raised at any stage of the proceedings, to contend that the order passed by the CIT u/s 263 was without jurisdiction. In appeal the ground of territorial jurisdiction on the undisputed facts of the present case, as afore-noted, was rightly entertained by the ITAT. Substantial questions of law are answered in favour of the assessee.
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2024 (7) TMI 1186
Validity of notice issued u/s 148 - period of limitation - dispatch and service of notices issued on or after 01.04.2021 - HELD THAT:- Though there were some discrepancies reflected in the screen-shots taken from the portal pages, but on actual verification of the records which has come before us and which clearly indicate that the notices have been issued in all these writ petitions (not served) itself on 01.04.2021 or on a later date. The question of service of these notices and the date of service of notices upon the petitioners is of no relevance or consequence in all these writ petitions, as the notices itself have been dispatched from the office of the I.T. Department on or before 01.04.2021 which itself is beyond the period of limitation.
It is relevant at this juncture to note that upon coming into force of the Finance Act, 2021, certain amendments were brought to the Income Tax Act, 1961 wherein Section 148 stood substituted with Section 148A by the Finance Act, 2021 w.e.f. 01.04.2021. In the landmark decision of the Hon’ble Apex Court in the case of Ashish Agarwal [2022 (5) TMI 240 - SUPREME COURT] which has also been followed by practically every High Court in the country, held that for any notice of re-assessment on or after 01.04.2021 it would be the new amended law which would be governing the field, as the un-amended provisions were valid only till 31.03.2021.
We also are fully in agreement and endorse the views laid down by the Division Bench of the Delhi High Court in the case of Suman Jeet Agarwal [2022 (9) TMI 1384 - DELHI HIGH COURT] and hold that the impugned notices in all these batch of writ petitions are barred by limitation under Sections 148 and 149 of the Act, since the said notices have left the I.T.B.A. portal on or after 01.04.2021. WP allowed.
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2024 (7) TMI 1185
Addition being the cash deposited during the demonetization period - HELD THAT:- AO has not considered the sales and nature of business of the assessee. Though, the AO has doubted the source of cash deposit, yet did not point out any error or infirmity in the books of accounts of the assessee. No defect was pointed out nor found by any of the lower authorities and since the entire deposits have gone through the books of accounts regularly maintained by the assessee duly audited, therefore, we are of the considered view that the entire addition has been made on the basis of surmises and conjectures which have no legs to stand. Moreover, though the AO has alleged unexplained cash deposit during demonetization period but has not brought on record anything to show that the said cash deposits were made in specified bank notes (SBN).
AO has referred to huge variation in the cash deposited during the demonetization period and has also referred to the huge surge of revenue from operations but has not pointed out any error or defect in the books of accounts. We find that at clause (iv) at page 5, the AO has mentioned that the assessee has produced the accounts at the fag end of the assessment proceedings.
Therefore, AO should examine the books of accounts thoroughly and decide the issue afresh after affording reasonable and adequate opportunity of being heard to the assessee. AO is also directed to examine the authenticity of the bills furnished by the assessee. Accordingly, this ground is allowed for statistical purposes.
Carry forward of the claim of business loss - HELD THAT:- We are of the concerned view that all that the AO is required is to inform the assessee about the amount of loss as computed by him. Whether the loss in any year may be carry forward to the following year and set off against the profits, has to be determined by the AO who deals with the assessment of the subsequent year. It is for the AO dealing with the assessment in the subsequent year to determine whether the loss of the previous year may be set off against the profits of that year. See MANMOHAN DAS (DECEASED) [1965 (11) TMI 33 - SUPREME COURT] as held decision recorded by the Income-tax Officer who computes the loss in the previous year that the loss cannot be set off against the income of the subsequent year is not binding on the assessee. Appeal of the assessee is allowed.
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2024 (7) TMI 1184
Estimation of Gross profit - undisclosed receipts - CIT(A) deleted the addition made on gross receipt as the assessee company never filed the Return of Income for the A.Y. 2012-13 - As per DR assessee herein has neither filed any return for the impugned assessment year nor had he disclosed the turnover in question which saw light of the day only as per verification of 26AS detail - Assessee drawn strong support from the CIT(A)-NFAC’s foregoing detailed discussion terming the impugned addition is as a case of double assessment, than estimating GP @ 20% only.
HELD THAT:- Neither there is any rebuttal from the department side that the AO had made double addition of the impugned alleged undisclosed receipts nor could it deny the involvement of the corresponding expenditure incurred at the assessee’s behest regarding the contractual services provided to the payee concerned.
Faced with this situation, we are of the considered view that the AO could not have simply brushed aside the assessee’s claim of corresponding expenditure which has been duly considered in the lower appellate discussion. We further wish to highlight the fact that even the Revenue’s grounds are fair enough in not disputing correctness of the said expenditure items in it’s instant “lead” appeal. Rejected accordingly.
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2024 (7) TMI 1183
LTCG - denial of exemption u/s 54F - appellant has utilized all the consideration received from the sale of Land for the construction of the residential house before the filling of the return u/s 139 - HELD THAT:- As on the basis of material available on record, we are of the considered view that the assessee has not been able to establish that it has satisfied any of the conditions stipulated in Section 54F of the Act for the claim of exemption with respect to capital gains made on sale of property.
Neither has the assessee deposited the unutilised/un-appropriated portion of capital gains made on sale of property in the specified capital gains account before the due date of filing of return u/s 139(1) of the Act and nor has the assessee been able to establish that the construction of the new property was completed by the assessee within the period of 3 years from the date of sale of property as mandated by Section 54F.
In addition to the above, CIT(Appeals) has also observed that the assessee has not been able to establish that the assessee did not own more than one property as on the date of the sale of such property, against which exemption u/s 54F of the Act has been sought to be claimed. Appeal of the assessee is dismissed.
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