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Showing 61 to 80 of 1410 Records
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2020 (12) TMI 1355
Money Laundering - proceeds of crime - staff members accountable for procedural lapses - genuinty of purchase transactions under LC and corresponding sales transactions performed by the company - diversion of funds - abnormal delay in lodging the complaints by both the banks - alleged forensic audit alleged to have been conducted by M/s. S.P. Rungta and Associates is behind back of the petitioners and they have not given any opportunity to the petitioners - loan transaction can be converted into a criminal prosecution or not - Utilization of loan amount for a purpose other than for which it is sanctioned.
HELD THAT:- In all the OTS, it has been found that all the banks were put to a total loss to a tune of Rs.182.99 Crores approximately. The Enforcement Directorate has initiated investigation/enquiry under the provisions of PMLA since the offences alleged against the petitioners are scheduled offences under the said Act. There are serious allegations against the petitioners. Bank loan frauds are a scourge on our economy and therefore it is the duty of the Enforcement Directorate to investigate all bank frauds in which there is loss of more than Rs.25.00 Crores to the banks. The present case is not falling in any of the exceptions mentioned by the Apex Court in State of Haryana v. Bhajan Lal [1990 (11) TMI 386 - SUPREME COURT].
The Apex Court in Parbatbhai Aahir alias Parbatbhai Bhimsinhbhai Karmur [2017 (10) TMI 1194 - SUPREME COURT] categorically held that economic offences involving the financial and economic well-being of the State have implications which lie beyond the domain of mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanor. The consequences of the act complained of upon the financial or economic system will weigh in the balance.
Similar principle was laid down by the Apex Court in GOPAKUMAR B. NAIR VERSUS C.B.I. AND ORS. [2014 (4) TMI 1291 - SUPREME COURT]. In the said judgment, it was further held that the offences are certainly more serious. They are not private in nature. The charge of conspiracy is to commit offence under the Prevention of Corruption Act. The accused has also been charged for commission of substantive offence under Section - 471 of IPC. Though the amounts due have been paid, the same is under private settlement between the parties. There is no acknowledgement on the part of the Bank of the exoneration of the criminal liability of the accused unlike the terms of compromise decree.
There are serious allegations against the petitioners. M/s. S.P. Rungta and Associates has mentioned in its report about the lapses of the petitioners. The said lapses were specifically mentioned in the complaints dated 30.06.2018 and 29.02.2020. The account of petitioner No.4 in Central Bank of India was declared as fraud on 30.11.2016 and at paragraph No.14 of the complaint dated 30.06.2018, the Central Bank of India specifically mentioned the details of the same. There are serious allegations that the funds of petitioner No.4 were diverted by petitioner Nos.1 to 3 for their personal needs. Petitioner No.4 has not filed financial statements for the years 2013-14 and 2014-15. Petitioner Nos.1 to 3, being the Managing Director and Directors of petitioner No.4 respectively have not co-operated with the auditors in carrying the financial audit and also have not made available the books and records to assess the inventory position - It is a loan fraud which is a serious fraud and there are serious allegations against the petitioners.
The Enforcement Directorate has initiated investigation under the provisions of the PMLA considering the fact that the offences alleged against the petitioners in both the FIRs registered by Central Bureau of Investigation are scheduled offences. The modus operandi adopted by the petitioners in availing the loans and getting the accounts NPA/fraud and availing OTS by paying meager amounts is specifically mentioned in the complaints dated 30.06.2018 and 29.02.2020.
There are specific allegations against the petitioners herein. The modus operandi adopted by the petitioners is also specifically mentioned in the complaints - Petition dismissed.
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2020 (12) TMI 1354
Interim stay - HELD THAT:- As is represented by Mrs. S. Srimathy, learned Special Government Pleader that this Court, in similar issue in has granted an interim stay.
Since this Court in similar issue has granted interim stay, there shall be an order of interim stay as prayed. Notice.
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2020 (12) TMI 1353
Striking of name of the company by the ROC - time limitation - petition has been filed after a gap of three years from the date of striking of name of the company - HELD THAT:- The Company which was struck off on 30th June, 2017 is not engaged in any business right from the date of its incorporation and the Income tax Returns filed show losses as submitted by the Counsel for the Income tax Department.
In the facts and circumstances recorded herein, there does not appear any grounds for ordering the restoration of the name of the company in the Register of the Companies. The Company appears to be a shell Company. The application is devoid of merits and filed to misuse the judicial process.
Application dismissed.
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2020 (12) TMI 1352
Avalibility of “Vivad Se Vishwas” Scheme - HELD THAT:- As counsel fairly accepts that they have no objection to the appeal being dismissed as withdrawn as long as their right for revival of the appeal is protected, in the event of some unfortunate reason, the matter being not settled under the above Scheme.
DR has no objection to the above.
The Government of India enacted the Direct Tax Vivad Se Vishwas Act, 2020 (Act No. 3 of 2020) to provide for resolution of disputed tax and for matter connected therewith or incidental thereto. The Act of the Parliament received the assent of the President on 17.03.2020 and published in the Gazette of India on 17.03.2020. In terms of the said Act, the assessee has been given an option to put an end to the tax disputes, which may be pending at different levels either before the First Appellate Authority or before the Tribunal or before the High Court or before the Supreme Court of India.
We dismiss the appeal as withdrawn, subject to the rider that in the unlikely event of matter not being resolved under the above Scheme, the assessee shall have liberty to approach the Tribunal for restoration of its appeal.
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2020 (12) TMI 1351
Maintainability of writ petition - territorial Jurisdiction - Money Laundering - proceeds of crime - Validity and/or legality of the registration of Enforcement Case Information Report (ECIR) in proceedings in ECIR. No. KCZO/4/2014, dated 19.08.2014 - Validity of provisional attachment order - Whether the Writ Petitions are maintainable as against the PAO passed by the Deputy Director of the Enforcement Directorate, Cochin, when there is an alternative remedy before the statutory authority at Delhi? - Whether this Court has jurisdiction to entertain these Writ Petitions on the ground that the properties of the petitioners, which are subjected to attachment under the PAO, are situated within the State of Tamil Nadu?
HELD THAT:- On a perusal of the reasons assigned in the impugned PAO, it is seen that reason was recorded to the effect that huge money was earned by the petitioners predominantly through the business of Sikkim Lotteries in the year 2009-2010 and 2010-2011, which they have claimed as legitimate income in the Income Tax Returns. It was further recorded in the impugned PAO that on a comparison of the money earned by the petitioners and the remittance made to the Sikkim Government towards sale of Lottery, it was a pittance received by the Government of Sikkim and thereby Government Revenue have been misappropriated. It is also recorded that such an earnings was by way of a conspiracy with the officials of the Sikkim Government to cheat the Government of Sikkim, which is a glaring violation of the provisions of the Lotteries (Regulation) Act.
Admittedly, as against the PAO, there is an alternative remedy of appeal provided under Sections 8(1) and 8(2) of the PMLA Act, 2002, before the Adjudicating Authority (PMLA), New Delhi, but the petitioners have not availed of such a remedy before the Adjudicating Authority. Instead, the petitioners have approached this Court with these writ petitions - It is trite law that when an alternative and appellate remedy is inbuilt in the statute, resorting to invoke the inherent and discretionary jurisdiction conferred upon this Court under Article 226 of The Constitution of India, is not proper - thus, when alternative remedy is available, the present Writ Petitions are not maintainable. The hastiness with which the petitioners have filed the present writ petitions before this Court, is not proper, when there is an alternative remedy provided under Section 8 of PMLA.
Thus, first of all, the Writ Petitions are not maintainable before this Court, when there is an efficacious alternative remedy available for the petitioners to approach the concerned authority under the PMLA; secondly, only a small fraction of cause of action had arisen before this Court and the larger and substantial part of cause of action had arisen only in the State of Kerala, where the FIRs have been registered and the trial is pending before the Special Court at Kerala. Therefore, this Court is not the appropriate Court to entertain the present Writ Petitions.
Petition dismissed.
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2020 (12) TMI 1349
Preservation and refund of the moneys realized under the PBGs - wrongful trading under section 66 of I&B Code - misconduct during corporate insolvency resolution process under section 70 of the Code - false representation to creditors under section 73 of the Code - HELD THAT:- It is crystal clear that the invocation of BGs by MEL vide its letter dated 18.10.2019, stating that the Applicant herein has failed to perform its obligations in terms of the agreements, is completely in terms of the above referred clause which was duly agreed to by the parties to the contract - Since the irrevocable BGs were invoked much prior to initiation of CIRP, this Adjudicating Authority cannot sit over the BGs already invoked at this juncture, more so in view of clause 2 of the BGs.
The prayer is accordingly answered in the negative, holding that the invocation of BGs by MEL vide its letter dated 18.10.2019 is proper.
Seeking to take cognizance of fraud and wrongful trading - section 66 of the Code - HELD THAT:- It is clear from a bare reading of the Section 66 of the Code that it only empowers the IRP/RP to prefer an Application against the erstwhile management of the Corporate Debtor. Hence, this Adjudicating Authority finds that the Applicant herein is not vested with any authority to seek the prayer under Section 66 of the code.
Application disposed off.
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2020 (12) TMI 1348
Jurisdiction of Civil Court - validity of a sale deed - Section 430 of the Companies Act 2013 - HELD THAT:- There is no error in the finding that the suit which was filed for a declaration in regard to the invalidity of the sale deeds was properly instituted before the civil court and there was no occasion to transfer the appeal to the National Company Law Tribunal - Section 430 of the Companies Act 2013 bars the jurisdiction of a civil court to entertain a suit or proceeding in respect of any matter which the tribunal or the appellate tribunal is empowered to determine under the Act or any other law for the time being in force.
The jurisdiction to decide the validity of a sale deed would fall within the ambit of the civil court. Hence, the impugned order of the High Court is agreed upon - SLP disposed off.
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2020 (12) TMI 1347
Stay of the impugned order as regards making the payment of IRP costs - Appellant says that the direction in clause 4 is capable of being construed as direction against original Corporate Debtor, ‘Arcelormittal Nippon Steel India Limited’ - HELD THAT:- Prima facie it appears that the Resolution Applicant has been treated as the Corporate Debtor but that would be the subject of determination when the matter is heard. The tone and tenor of the aforesaid clause 4 is bound to raise the apprehension in the mind of the original Corporate Debtor that this direction has been passed against it and in the event of non-compliance the consequences as spelt out in clause 5 of para 68 may ensue.
List the appeal along with Company Appeal (AT) (Insolvency) No. 1038 of 2020 ‘for admission (after notice)’ on 22nd January, 2021.
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2020 (12) TMI 1346
IRP costs or not - usage charges for the use of slurry pipeline for running the Corporate Debtor as going concern during the Corporate Insolvency Resolution Process period of the Corporate Debtor - HELD THAT:- List the matter ‘for admission (after notice)’ on 22nd January, 2021 at 12:00 Noon.
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2020 (12) TMI 1345
Vivad Se Vishwas Act, 2020 - HELD THAT:- Government of India enacted the Direct Tax Vivad Se Vishwas Act, 2020 (Act No. 3 of 2020) to provide for resolution of disputed tax and for matter connected therewith or incidental thereto. The Act of the Parliament received the assent of the President on 17.03.2020 and published in the Gazette of India on 17.03.2020. In terms of the said Act, the assessee has been given an option to put an end to the tax disputes, which may be pending at different levels either before the First Appellate Authority or before the Tribunal or before the High Court or before the Supreme Court of India.
We dismiss these appeals as withdrawn, subject to the rider that in the unlikely event of matter not being resolved under the above Scheme, the assessee as well as Revenue shall have liberty to approach the Tribunal for restoration of the appeal for AY 2012-13 and assessee for AY 2013-14.
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2020 (12) TMI 1344
Condonation of delay of 358 days in filing petition under Section 9 of the I&B Code - HELD THAT:- The said lA was dismissed on 25.09.2020, as not maintainable. However, due to inadvertence, the instant petition is remained unheard. Though, admittedly there was delay’ of 358 days, it had to be dismissed along with IA 626 of 2020. It has come to our knowledge only today.
The instant IB Petition is dismissed as time barred.
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2020 (12) TMI 1343
Vivad Se Vishwas Scheme, 2020 - assessee has submitted withdrawal application stating that the assessee has opted to settle the dispute relating to the tax arrears - HELD THAT:- As we accept the request of the assessee for withdrawal of the appeal as Pr.CIT-2 has issued Form-3.
The aforesaid is subject to a caveat that in case the dispute relating to tax arrears for the captioned A.Y. is not ultimately resolved in terms of the afore-stated Act, the appellant (i.e. the assessee) is at liberty to approach the Tribunal for reinstitution of the appeal and the Tribunal shall consider such application appropriate as per law. The Ld.DR for the revenue has no objection with regard to the aforesaid caveat.
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2020 (12) TMI 1342
Profiteering - purchase of flat in Celebrity Garden Block-K - it is alleged that the Respondent had not passed on the benefit of input tax credit (ITC) to him by way of commensurate reduction in the price - contravention of provisions of Section 171 of the CGST Act, 2017 - Penalty - HELD THAT:- It is observed that the Respondent is in the real-estate business and has been developing his project "Celebrity Garden-Block K" in Lucknow. It is on record that Applicant No. 1 had filed a complaint alleging that the Respondent has not passed on the benefit of ITC to him by way of a commensurate reduction in the price of the flat purchased by him (Applicant No. 1) from the Respondent - It is found that the DGAP, after a detailed investigation, has found that the Respondent has not passed on ITC benefit amounting to Rs. 1,54,269/- (inclusive of GST) to his recipients/homebuyers as required under the provisions of Section 171 of the CGST Act, 2017.
It is observed that the provision of the RERA Act, 2016 makes it mandatory for a real estate developer/promoter to maintain separate bank accounts for each of his projects registered separately under the RERA Act, 2016. In the case of the Respondent, the above provision implies that he was required to maintain four separate escrow/bank accounts in respect of the four towers/blocks of the project "Celebrity Gardens", however the DGAP's Report has no mention of this aspect. It has a bearing on the instant proceedings since the DGAP's Report dated 23.03.2020 only covers one of the four blocks i.e. Block 'K'. As the Respondent had obtained four separate RERA registrations for his four blocks/towers, he should have maintained separate escrow/bank accounts - the compliance of the Respondent with the provisions of the RERA Act, 2016, becomes paramount and need to be examined. In view of this, there arises the need to revisit the investigation to ascertain if the Respondent has passed on the benefit of ITC to the homebuyers of the other 3 towers/blocks of the impugned project by a commensurate reduction in the prices of the residential units supplied by him in terms of Section 171 of the CGST Act, 2017.
In terms of the provisions of Section 171 (2) of the CGST Act and for the reasons detailed in this Order, the DGAP is directed to further investigate the present case under Rule 133 (4) of the CGST Rules, 2017 to ensure the Respondent has passed on the benefit of ITC by way of a commensurate reduction in the prices in respect of the residential units supplied by him. Hence, without dwelling upon any other aspect of the case and without going into any contentions of the Respondent and the Applicants, this Authority, under the powers conferred on it vide Rule 133(4) of the CGST Rules read with Section 171 of the CGST Act 2017, directs the DGAP to reinvestigate this case and recompute the quantum of profiteering.
The DGAP is directed to submit a fresh Report after a detailed investigation as per Rule 129 (6) of the above Rules, 2017. The Respondent is directed to extend all necessary assistance to the DGAP and furnish him with necessary documents or information as required during the course of the investigation - matter on remand.
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2020 (12) TMI 1341
Maintainability of appeal - non-compliance with the requirement of pre-deposit - whether the appellate authority was right in rejecting the appeal of the petitioner for want of payment of 12.5% of the disputed tax? - HELD THAT:- From a reading of the provisions of Section 31(1), 31(2) and 31(3)(a) of A.P. VAT Act, it is clear that any VAT dealer objecting to "any order" passed or proceeding recorded by any authority under the provisions of the Act other than an order passed by Additional Commissioner or Joint Commissioner or Deputy Commissioner, may within 30 days from the date on which the order or proceeding was served on him, appeal to such authority as may be prescribed. It is to be noted here that the word used is 'any order' passed and not 'order of assessment'. Hence, the argument of the learned Government Pleader that appeal itself may not lie cannot be accepted. The word 'any order' referred to in Section 31 cannot be limited to only assessment orders. If that was the intention of the Legislature, the same would have been incorporated therein. In the absence of the same, the endorsement made by the Assistant Commissioner on 21.11.2019 can be challenged in an appeal.
Payment of 12.5% of the difference of tax assessed by the authority prescribed - HELD THAT:- A reading of material placed before the Court does not show that the dispute or the lis between the parties was with regard to payment of any tax or collection of difference of tax or the penalty imposed therein. In fact, the Counsel for the petitioner submits that he is not disputing, at this stage, any tax liability or interest or penalty, but, his request before the authority, at this stage, is only to consider Form-H, which he has received at a belated stage. It is no doubt true that there is a delay in making an application before the authority concerned for accepting the Form-H, but, the request before the authority was only to receive Form-H, which he has received at a belated stage, but the same was rejected. The same does not relate to collection of tax or payment of tax as the assessment was complete and the same was not challenged - Further, the proviso categorically states that an appeal shall not be admitted by the appellate authority unless the dealer produced proof of payment of tax admitted to be due and proof of payment of 12.5% of difference of tax assessed by the authority prescribed and the tax admitted by the appellant for the relevant tax period in respect of which appeal is preferred. Here the appeal does not relate to imposing tax for the relevant tax period, but for a different purpose i.e., refusing to accept 'H' Form. Therefore, we are of the view that insisting on payment of 12.5% of difference of tax may not be proper.
The impugned order is set aside, directing the 2nd respondent-Appellate Deputy Commissioner (CT), Tirupati, to entertain the appeal of the petitioner against the endorsement of the 1st respondent-Assistant Commissioner (ST), Ongole-I Circle, dated 21.11.2019 and deal with the appeal without insisting on payment of 12.5% of tax, in accordance with the law - Petition allowed.
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2020 (12) TMI 1340
Right to file reply - Seeking time for filing reply - HELD THAT:- On 03.11.2020, Learned Counsel for the Corporate Debtor had undertaken to file reply within two weeks till date no reply is filed and seeks further time. As a last chance five days time is given to file reply, failing which, right to file reply will be closed. Rejoinder, if any, within five days thereafter, with copy in advance to the other side.
List on 14.01.2021.
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2020 (12) TMI 1339
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditors - existence of debt and dispute or not - HELD THAT:- Considering the format and particulars required to be given in the format if the Application is complete, it is required to be admitted unless the Corporate Debtor shows Pre-existing dispute. The Hon’ble Appellate Tribunal further held that the dispute raised in this case was that there was no dealing between the Corporate Debtor and the Operational Creditor, that there was no agreement. It was however, mentioned in the reply that it there was a dispute with the branch office and that they wanted to verify the transaction. The Bank Statement of the Operational Creditor was also seen and it was found that various payments of more than Rs.3 Crores were stated to have been made from the outstanding dues and for a small amount of Rs. 21,07,916/- , the Operational Creditor was required to move to the Adjudicating Authority.
The application filed by the Operational Creditor under Section 9 of the Insolvency & Bankruptcy Code, 2016 for initiating Corporate Insolvency Resolution Process against the Corporate Debtor, M/s Ambient Computronics Pvt.Ltd. is hereby admitted - moratorium declared.
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2020 (12) TMI 1338
Levy of penalty, interest and GST, for the remittance of the shortage amount - the shortage was found at the time of counting the stocks, subsequent to the transfer of the same from Shop to godown for the purpose of safe custody - HELD THAT:- When the respondent issued a show cause notice to the petitioner, with regard to the imposition of penalty under Section 7(b) (xiv) of the Code, the petitioner sent a reply stating that only the respondents have construed it as shortage amount but it was only the after sales amount.
When such being the case, without conducting any domestic enquiry to find out the fact that whether the said amount was after sales amount or it was a shortage amount; whether the petitioner was really sent any intimation about the after sales amount to the respective District managers and whether there was any obstacles to the petitioner to deposit, the after sales amount. All these facts can be proved only by conducting a domestic enquiry and enquiring the concerned District Managers, Supervisors, Salesmen and those who did stock verification. Without conducting any such enquiry and giving the opportunity to the petitioner to explain his case, in a personal hearing, it is not proper for the respondents to arrive at a preconceived manner as if that the amount deposited subsequent to the stock taken by the respondents as shortage amount particularly when the petitioner took a stand that the amount already deposited subsequent to the stock verification is only an after sales occurred between 4.00 p.m. to 6.00 p.m. On 24.03.2020. When the petitioner has taken definite stand that it was only an after sale amount and not a shortage amount, the respondents should not have come to the conclusion arbitrarily without conducting the domestic enquiry as shortage amount.
This Court is of the opinion that the impugned order was passed in an arbitrary manner and in violation of the principles of natural justice, without conducting any domestic enquiry as contemplated in the Code and the procedure adopted in the course of decision making process is not as contemplated in the Code, thus, this Court find fault on such decision making process and the same is totally illegal and liable to be quashed.
Whether the penalty imposed in a disciplinary proceedings in a service matter is liable for GST, in terms of Section 7(1) (d) or 7(1-A) of the GST Act, 2017? - HELD THAT:- Admittedly the said Section 7(1) (d) was not in force as on the date of passing the impugned order in the month of September 2020. The said Section was omitted with effect from 01.02.2019. The respondent, in his counter clearly stated that the notice of collection of GST was issued under Section 7(1) (d) alone. Therefore, without any provision/authority, the third respondent has issued the show cause notice to collect the GST, which is totally illegal - Secondly, even assuming that Section 7(1A) of the Act r/w Rule 5(e) of the Rules will be applicable and the show cause notice was issued in accordance with the said provision, as contended by the learned counsel for the respondents, nowhere either in the show cause notice or in the impugned order or in the counter affidavit, the respondents never ever stated about the applicability of Section 7(1A) r/w Rule 5(e).
In any angle, the imposition of the GST by the respondents, to the penalty imposed, under Rule 7(b) (xiv) of the Code, in a disciplinary proceedings initiated against the employees would not attract the GST and the penalty referred therein would only refer the penalty imposed in the course of trade or commerce - As such in the present case the penalty was imposed in a disciplinary proceedings which cannot be construed that the penalty imposed in the course of trade or commerce for the imposition of GST.
The GST imposed by the respondents is illegal on the face of it and the same is liable to be set aside - Petition allowed - decided in favor of petitioner.
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2020 (12) TMI 1337
Restoration of the name of the Appellant Company in the register maintained by the Registrar of Companies - Section 252(1) of the Companies Act, 2013 - HELD THAT:- The Appellant Company was neither in operation nor was carrying out any substantial business. Further, the dispute between the Appellant Company with a third party cannot be a ground for non-filing of Balance Sheets or Annual Income Tax Returns - despite being in the business of real estate, the Appellant Company has failed to place or show any document relating to ownership of any fixed asset or project under development, which could justify the need of restoration of the name of the Appellant Company in the Register of Companies.
This Bench is not inclined to interfere with the striking off action taken by the RoC against the Appellant Company under Section 248(5) of the Companies Act 2013 - Appeal dismissed.
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2020 (12) TMI 1336
Validity of assessment u/s 153A - Whether no incriminating evidence / material was found during the course of search? - HELD THAT:- From the facts, it emerges that the original return was filed by the assessee on 04/09/2008 and the search took place on 16/04/2013. Admittedly, no assessment proceedings were pending against assessee on the date of search and it was not a case of abated assessment. Upon perusal of the assessment order, it is quite evident that Ld. AO has not referred to any incriminating material against the assessee and the additions made therein are also not based on any incriminating material. The business expenditure claimed that is sought to be disallowed was already claimed in the original return of income.
The facts of the case, in our considered opinion are squarely covered in assessee’s favor by the decision in CIT V/s Continental Warehousing Corporation (Nhava Sheva) Ltd. [2015 (5) TMI 656 - BOMBAY HIGH COURT] as well in Gurinder Singh Bawa [2015 (10) TMI 1761 - BOMBAY HIGH COURT] which has held that in the absence of any incriminating material, the unabated assessments could not be disturbed. Similar is the view of Hon’ble Delhi High Court in CIT V/s Kabul Chawla[2015 (9) TMI 80 - DELHI HIGH COURT].
Thus we are inclined to setaside the additions so made in the hands of the assessee in the assessment order. The ground thus raised stand allowed.
Disallowance of business expenditure - business had not been commenced - HELD THAT:- Upon due consideration, we find that the premises was taken on lease since 2006 and the business could not be commenced by the assessee till AY 2014-15 which would substantiate the fact that there was not any temporary dormancy or lull period for the business. No fresh material has been placed before us to disturb these findings rendered by learned first appellate authority. However, in our considered opinion, the expenditure which was quite necessary to maintain assessee’s corporate personality would be an allowable expenditure since without incurring the same, the assessee could not have remained into existence. Therefore, we direct Ld. AO to identify such expenditure and allow the same to that extent. The assessee is directed to furnish the requisite details, in this regard.
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2020 (12) TMI 1335
Condonation of delay in filing appeal - time limitation - delayed filing of appeal under Section 100 (2) of the CGST Act - henna is classifiable under chapter 14 or 33 of GST Tariff or not - HELD THAT:- The Appellant has filed appeal on line on 17.06.2020. The Appellant has deposited SGST fee of Rs. 10000/- on 15.06.2020 and CGST fee of Rs. 10000/- on 22.10.2020. On perusal of appeal filed on 17.06.2020, it was found that the appellant has not filed the appeal in prescribed format. The appellant further filed the appeal in prescribed format on 02.11.2020 - the date of filing of appeal is 02.11.2020 which is 63 days delay from the last date i.e 31.08.2020. Further, the Appellant has deposited CGST (appeal) fee of Rs. 10000/- on 22.10.2020. As per provisions, the authority has discretion to condone the delay for 30 days. As discussed, we hold that delay in filing of this appeal is beyond the discretionary power (30 days) provided to Appellate authority. Therefore, condonation application filed by the appellant is liable to be rejected.
The non-payment of CGST fee and non-filing appeal in prescribed format are procedural lapses - the payment of appeal fee and filing of appeal in prescribed format is mandatory requirements as per provisions of Section 100 (3) of the CGST Act, 2017. Section 100 (3) of the CGST Act, 2017 stipulates that every appeal under this section shall be in such form, accompanied by such fee and verified in such manner as may be prescribed. The said rules do not provide any discretion in non- implementation.
The appellant has relied upon on the decisions in CENTRAL INDIA TOBACCO PRODUCTS PVT. LTD. VERSUS COLLECTOR OF CENTRAL EXCISE [1987 (2) TMI 256 - CEGAT, NEW DELHI] and UNION OF INDIA, DELHI VERSUS ROSHAN LAL AND ANR. [1967 (9) TMI 157 - DELHI HIGH COURT] where the issue was related to non-payment of court fees, but in this case, issue is related to determination of date of filing of appeal also. In this case, part fee has been deposited on 15.06.2020 and second part fees have been deposited on 22.10.2020. In this case complete fee has been deposited and appeal in prescribed format has been filed after more than 30 days from the due date of filing of appeal. Therefore, these case laws are not squarely applicable in this case.
When it has been held that delay in filing of appeal is beyond the discretionary power provided to Appellate authority, therefore, it is observed that discussing appeal on merit would not be relevant.
The condonation application filed by the appellant is hereby rejected and appeal is also rejected
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