|
Advanced Search Options
Case Laws
Showing 61 to 80 of 1130 Records
-
2024 (4) TMI 1070 - ITAT MUMBAI
Addition u/s 68 r.w.s. 115BBE - Bogus LTCG - sale of equity shares alleged to be penny stocks - assessee during the impugned assessment year had declared these scrips and transactions in the return of income and generated loss - HELD THAT:- The assessee had made the transactions and generated loss through the transaction of scripts ACI and Tilak. The assessee’s holding was more than 2 years. There is no such direct communication reflected in the order of the Ld.AO that the entire transaction was made a sham transaction.
In the observation of recorded reasons, the Ld. AO mentioned that the transactions are undisclosed whereas during the assessment and appellate stages before the authorities were unable to substantiate that the entire transaction was not disclosed in the return. In recorded reason the ld. AO specifically mentioned that the transacted amount is not reflected in capital gain column of return filed U/s 139 of the Act. Whereas, the assessee declared the transaction as business transaction in return, not as capital gain. Respectfully, we rely on the order of Arvind Sahdeo Gupta [2023 (8) TMI 522 - BOMBAY HIGH COURT] for quashing of assessment order for wrong observation of the ld. AO.
The Hon’ble Bombay High Court in the case of PCIT vs. Ziauddin A Siddique [2022 (3) TMI 1437 - BOMBAY HIGH COURT] held that where (a) the transaction of purchase and sale of shares which is alleged to be a penny stock is done through Stock Exchange or through registered broker, the payments have been made through banking channel, STT is paid and the ld. Assessing officers has not criticised the documents and (b) assessee is not involved in price rigging, the transaction is genuine. -
CIT(A) had made the enhancement u/s 68 - AR only challenged the addition of CIT(A). Though the addition of the Ld.AO is duly quashed, so the enhancement by the CIT(A) has no leg to stand, so the amount is duly deleted. DR was not able to produce any contrary orders against the submission of the AR. So, the appeal order is duly set aside. The addition made by the AO and enhancement by the CIT(A) are deleted. Decided in favour of assessee.
-
2024 (4) TMI 1069 - ITAT PUNE
AO/CPC jurisdiction u/s 143(1) to carry out 43B(a) disallowance - Disallowance of interest on Maharashtra Value Added Tax Act, 2002 [‘MVAT’] u/s 43B(a) of the Act made in view of clause 26(i)(B)(b) of Tax Audit Report - HELD THAT:- In the present case, from clause 26(i)(B)(b) of the TAR it was on face of the record before the Ld. AO/CPC that the appellant while computing its taxable income did fail to disallow the interest payable which remained unpaid by the expiry of time limit prescribed u/s 139(1) of the Act. Thus, impugned disallowance u/s 43B(a) of the Act carried out on the basis of return and accompany TAR finds support in ‘Khatau Junkar’ [1992 (2) TMI 67 - BOMBAY HIGH COURT] which the appellant also relied in its written submission.
Going a step further in ‘Rohan Korgaonkar Vs DCIT’ [2024 (2) TMI 1373 - BOMBAY HIGH COURT] their Hon’ble lordships have recently held that, once the principle involved in matter of disallowance is settled by binding judicial precedents, the circumstance that the disallowance is carried out u/s 143(1)(a) through prima-facie adjustment makes no difference. The principle that the item falling u/c (a) of section 43B of the Act is entitled for deduction on actual payment basis is settled by the catena of judicial precedents, therefore the disallowance thereof carried out u/s 143(1)(a) of the Act in view of ‘Rohan Korgaonkar’ [2024 (2) TMI 1373 - BOMBAY HIGH COURT] cannot be faulted with. In view thereof we find no infirmity with the orders of tax authorities in carrying out the disallowance through prima-facie adjustment u/c (iv) of u/s 143(1)(a) of the Act. The ground therefore stands dismissed.
Whether interest on sales-tax/MVAT is deductible as an expenditure only upon actual payment? - According to section 30(3) of MVAT Act, if any tax remains unpaid up to one month after the end of the period of assessment, then the dealer is liable to pay simple interest at the rates as specified from time to time, on such tax for each month or part thereof from the date immediately following the last date of the period for which the dealer has been assessed till the date of the order of assessment. Thus s/s 30 of MVAT Act the assessee dealer is exposed to payment of interest in twin situation viz; (i) for delay in getting registered and (ii) for delay in discharging of sales tax liability incurred thereunder. The plain reading of aforestated provision amply clarify the nature of interest as compensatory for delayed compliance and in no manner capable of suggesting it to be in the nature of penalties for non-compliance.
Now coming to the provisions of section 43B of the Act we note that, the clause (a) does not explicitly provides for the term ‘interest’, so has to fall for vanilla disallowance. On the other hand, the clause (a) is abundantly clear, plain, and unambiguous, prowess capable of giving flawless meanings to items specified therein. Therefore items specified therein should be given ordinary meaning without adding thereto or modifying them. The application of golden rule of interpretation requires the words of the statute must prima-facie being given their ordinary meaning. That is to say when the words of the statute are clear, plain and unambiguous, then it is to be given natural meaning, irrespective of its consequences.
Revenue’s proposition to read clause (a) of section 43B of the Act the terms taxes/duties so as to include therein the term ‘interest’ therein would be ferocious and therefore impermissible in view of the decision of the Hon’ble Apex Court in ‘Britania Industries Ltd. Vs CIT’ [2005 (10) TMI 30 - SUPREME COURT] wherein the matter of interpretation of fiscal laws, their Hon’ble Lordships have categorically led that, when the language of a statute is clear and unambiguous, the courts are to interpret the same in its literal sense and not to give a meaning which would cause violence to the provisions of the statute.
Thus referring to judicial precedents laid by Hon’ble Calcutta High Court in case of ‘Hindustan Motors Limited .[1995 (7) TMI 26 - CALCUTTA HIGH COURT] and SHANKAR TRADING CO P. LTD VERSUS CIT [2012 (1) TMI 91 - DELHI HIGH COURT] we hold that, in absence statutory provisions i.e. specific entry u/c (a), the interest liability incurred against delayed discharge of statutory liability is entitled for deduction u/s 37(1) of the Act without subjecting it disallowance u/s 43B(a) of the Act. The Revenue could hardly place on record any contrary decisions of Hon’ble Jurisdictional High Court thus warranting us to deviate from above. Consequently we set-aside the impugned order confirming the disallowance of interest payable on MVAT statutory liability u/s 43B (a) of the Act and direct the Ld. AO to delete the impugned disallowance being contra-legem. The ground number 2 stands accordingly allowed.
Levy of interest u/s 234A, 234B & 234C is mandatory and not at the discretionary of tax authorities - See Anjum H Ghaswala [2001 (10) TMI 4 - SUPREME COURT]
Appeal of assessee is partly allowed.
-
2024 (4) TMI 1068 - CESTAT NEW DELHI
Revocation of the custom broker license - forfeiture of security deposit - penalty - goods exported were falling under SCOMET list - export of the same without obtaining the license from the DGFT - violation of Regulation 11(d), 11(e) and 11 (n) of CBLR, 2013 - HELD THAT:- To verify whether the export items as described in the export documents would fall under the SCOMET List, it is first required to first examine the amendment introduced in the SCOMET List. Notification No. 29/2015–20 dated 21.09.2017 was issued by the DGFT whereby amendments were introduced in Appendix –3 of SCOMET List.
On examining the description of goods as mentioned by the exporter in the invoice, packing list and shipping bill with the description given in the entry, there are no similarity found to connect the goods in question to fall in the amended entry. The components designed for such fermenters in the entry have been specifically provided as cultivation chambers designed to be sterilised or disinfected, cultivation chamber, holding devices or process control units, capable of simultaneously monitoring and controlling two or more fermentation system parameters. That is the reason why neither the appellant nor the Customs Authorities were able to ascertain that the goods are covered as fermenters or as components for which export license is required.
Since the goods exported do not fall in terms of the entry in the notification, there is no justification to penalise the appellant.
Violation of provisions of Regulation 11(d)? - HELD THAT:- The CHA was aware and had knowledge that the products falling under the SCOMET list required license from DGFT for its clearance but they were not aware that the fermenters and their components are falling under SCOMET list and export of the said items required export authorization for their clearance. From the export documents, it is apparent that the description of the goods is not such which would fall under the SCOMET list and therefore there was no scope for the appellant to advise the exporter for compliance of the export authorisation. Moreover, the amendment was introduced on 21.09.2017 and within two months thereafter the goods were exported and since it is an extremely technical matter, it appears that neither the CA nor the customs authorities were aware of its applicability. The Revenue has not clarified as to how the goods in question would fall under the entry of fermenters and components thereof nor the Adjudicating Authority has applied its mind to the respective shipping bills covering different items with reference to the description given in the entry - thus, the appellant who is merely a Customs House Agent cannot be expected to be an expert in SCOMET List and therefore the provisions of Regulation 11(d) cannot be invoked against the appellant.
Violation of provision of Regulation 11(e) of CBLR - HELD THAT:- The allegation on which the violation of Regulation 11(e) has been made out is the statement of the appellant where they have admitted that they never verified the product or parts manufactured in the factory nor verified the use of the export product and their parts. The allegation do not fall within the obligation as provided in Regulation 11(e) which requires the CHA to exercise due diligence to ascertain the correctness of information which he imparts to a client with reference to any work related to clearance of cargo baggage and hence, invocation of Regulation 11(e) is unsustainable - the appellant cannot be held guilty for violating Regulation 11 (e).
Violation of provision of Regulation 11(n) of CBLR - HELD THAT:- Regulation 11(n) requires the CHA to verify antecedent, correctness of Importer Exporter Code (IEC) number, identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information. Here, also, Regulation 11(n) has been invoked on the same statement of the appellant that he was not aware that the fermenters and their components are falling under SCOMET list and the export of the said items required export authorisation for their clearance. These allegations are not relevant for the purposes of Regulation 11(n). Neither the Revenue has pointed out, nor the Adjudicating Authority has ascertained the actual violation in terms of Regulation 11(n), though the appellant claimed that in compliance to its obligations, they had verified the correctness of IEC code of the exporter, identified its client and its functioning as per the KYC norms as also the statutory documents issued by other Government Authorities - In the absence of any such allegations, it is unreasonable to say that the appellant had violated the provisions of Regulation 11(n) of the CBLR and hence the findings that the appellant failed to discharge their obligation under Regulation 11(n) is rejected.
In similar circumstances, this Tribunal in the case of M/s. Trinity International Forwarders [2023 (8) TMI 133 - CESTAT NEW DELHI] concluded that the Customs broker cannot be held guilty for violating the Regulation 11(d), 11(e) and 11(n) of CBLR, 2013 where the case of the Revenue was that the Customs Broker by filing the shipping bills with over-invoiced export values of the garments exported by the exporter so as to claim ineligible drawback. In that context, it was observed that the Customs Broker has no authority to inspect or examine the goods and the possibility of the Customs Broker suspecting that the goods may have been overvalued also does not arise.
Penalty - HELD THAT:- There are no specific discussion on the applicability of the parameters provided in the regulations so as to hold the appellant guilty of contravention thereof. The punishment of forfeiture of license is a very serious punishment affecting the livelihood of a person for all times to come, hence it was necessary for the Adjudicating Authority to have considered the issue of violation of the provisions of the Regulations on merits with an open mind as the punishment imposed on the appellant in the proceedings under the Customs Act was only penalty of Rs.20,000/- separately under both the Sections.
The appellant has not violated the obligations under Regulation 11(d), 11(e) and 11 (n) of CBLR, 2013 and therefore the punishment of revocation of the Customs Broker License, forfeiture of security deposit and imposition of penalty is unsustainable. Consequently, the impugned order deserves to be set aside - Appeal allowed.
-
2024 (4) TMI 1067 - SUPREME COURT
Initiation of CIRP - Financial Creditor of Operational Creditor - Scope and Meaning of the term "Financial creditor" u/s 7(5) of IBC - security deposits under the agreements constitute financial debt or not - Invoking sub-section (5) of Section 60 of the IBC - HELD THAT:- Where one party owes a debt to another and when the creditor is claiming under a written agreement/ arrangement providing for rendering 'service', the debt is an operational debt only if the claim subject matter of the debt has some connection or co-relation with the ‘service’ subject matter of the transaction. The written document cannot be taken for its face value. Therefore, it is necessary to determine the real nature of the transaction on a plain reading of the agreements. What is surprising is that for acting as a Sales Promoter of the beer manufactured by a corporate debtor, only a sum of Rs.4,000/- per month was made payable to the first respondent. Apart from the sum of Rs.4,000/- per month, there is no commission payable to the first respondent on the quantity of sales. Clause (6) provides for termination of the appointment by giving thirty days’ notice. Though clause (10) provides for the payment of the security deposit by the first respondent, it is pertinent to note that there is no clause for the forfeiture of the security deposit.
As there is no clause regarding forfeiture of the security deposit or part thereof, the corporate debtor was liable to refund the security deposit after the period specified therein was over with interest @21% per annum. Since the security deposit payment had no correlation with any other clause under the agreements, as held by the NCLAT, the security deposit amounts represent debts covered by subsection (11) of Section 3 of the IBC. The reason is that the right of the first respondent to seek a refund of the security deposit with interest is a claim within the meaning of subsection (6) of Section 3 of the IBC as the first respondent is seeking a right to payment of the deposit amount with interest. Therefore, there is no manner of doubt that there is a debt in the form of a security deposit mentioned in the said two agreements.
Coming back to the definition of a financial debt under sub-section (8) of Section 5 of the IBC, in the facts of the case, there is no doubt that there is a debt with interest @21% per annum. The provision made for interest payment shows that it represents consideration for the time value of money. Now, we come to clause (f) of sub-section (8) of Section 5 of the IBC. The first condition of applicability of clause (f) is that the amount must be raised under any other transaction. Any other transaction means a transaction which is not covered by clauses (a) to (e). Clause (f) covers all those transactions not covered by any of these sub-clauses of sub-section (8) that satisfy the test in the first part of Section 8. The condition for the applicability of clause (f) is that the transaction must have the commercial effect of borrowing. “Transaction” has been defined in sub-section (33) of Section 3 of the IBC, which includes an agreement or arrangement in writing for the transfer of assets, funds, goods, etc., from or to the corporate debtor. In this case, there is an arrangement in writing for the transfer of funds to the corporate debtor. Therefore, the first condition incorporated in clause (f) is fulfilled.
In the financial statement of the corporate debtor for the Financial Year 2016-17, the amounts paid by the first respondent were shown as “other long-term liabilities”. Therefore, if the letter mentioned above and the financial statements of the corporate debtor are considered, it is evident that the amount raised under the said two agreements has the commercial effect of borrowing as the corporate debtor treated the said amount as borrowed from the first respondent.
The NCLAT's view that the amounts covered by security deposits under the agreements constitute financial debt, is agreed upon. As it is a financial debt owed by the first respondent, sub-section (7) of Section 5 of the IBC makes the first respondent a financial creditor.
Appeal dismissed.
-
2024 (4) TMI 1066 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI - LB
Initiation of CIRP - NCLAT admitted the application u/s 7 - NPA - default in repayment of dues - Relevant date of default - date of default should be the date of the Loan Recall Notice or not - scope of Section 10A of IBC - HELD THAT:- It is an admitted fact that the Corporate Debtor owes Rs. 46.80 crores to the financial creditor, though the Appellant has been claiming that as per the Statement Of Account (SOA) the Financial Creditor has attached incorrect and fabricated SOA. Without going into the exact amount of the debt, it is an admitted fact that the debt was Rs.46.80 crores as on the date of declaration of NPA i.e. 27.09.2019. This amount is more than the threshold of Rs.1 crore and is enough for initiating proceedings. There is no requirement to calculate and fix the exact amount of repayment.
Whether the date of NPA declaration (September 27, 2019) or the date of Loan Recall Notice (August 11, 2020) constitutes the default date? - HELD THAT:- In adherence to Reserve Bank of India (RBI) regulations, the classification of Non-Performing Assets (NPAs) serves as a pivotal measure for maintaining the financial health and stability of the banking sector. When a borrower defaults on loan payments for a stipulated period, typically 90 days, the loan account is rightfully classified as an NPA. This classification isn't arbitrary; it's a well-defined threshold indicating a lapse in repayment obligations - In the present case, a loan instalment due on June 30, 2019, remains unpaid. Following the regulatory protocol, on September 27, 2019, marking the 90th day of default, the loan account was rightly categorized as an NPA. This classification is not an arbitrary punishment but rather a consequence of a fundamental breach of repayment terms.
Crucially, the onus lies on the borrower to rectify the default and regularize the loan account. Unfortunately, in this instance, the borrower, despite ample opportunity, failed to address the defaulted payments, thus perpetuating the default status. Such inaction cannot be condoned or overlooked - the bank is well within its rights to pursue its options for the outstanding amounts owed by the borrower.
In the instant case the default was occurring 90 days prior to the NPA declaration (September 27, 2019). It is difficult to accept the argument of the Appellant that this date should not be treated as the date of default.
The remedies stipulated for events of default in the Sanction Letter primarily focus on the acceleration of maturity and the enforcement of security interest, such as filing a Recovery suit before the Debt Recovery Tribunal (DRT) and enforcing security interest under the SARFAESI Act, 2002. Notably, there is no mention of resolution under the IBC. Hence, relying on events of default and their corresponding remedies outlined in the Sanction Letter does not bolster the CD's case and this line of argument cannot be relied upon - Once the CD defaulted and the loan accounts were classified as NPAs, a legal recourse was well within the Bank's statutory rights. Pursuing resolution under the IBC 2016, which serves as a specialized law governing the resolution of distressed entities, was a legitimate course of action for the Bank.
The loan accounts of the Corporate Debtor were officially classified as Non-Performing Assets (NPA) on September 27, 2019, following 90 days of non-payment, thereby triggering a default event. Despite subsequent partial payments made by the borrower, the NPA status and default persisted, indicating a continuous state of default. Consistent with established judicial precedents and the specific circumstances of the case, the date of NPA classification serves as the valid "Date of Default" for initiating insolvency proceedings. Even after the NPA classification, the borrower remained in default. Consequently, September 27, 2019, the date of NPA classification, stands as the "date of default" under the Insolvency and Bankruptcy Code (IBC), superseding any subsequent events, such as the loan recall notice issued on August 18, 2020.
There are no discernible flaws in the orders issued by the Adjudicating Authority; hence, they are upheld without any alteration - Appeal is dismissed.
-
2024 (4) TMI 1065 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI
Delayed filing of appeal - relevant date for calculation of time limitation - from the date of pronouncement of the Judgment or from the date of uploading of the judgement - Maintainability of section 9 application - initiation of CIRP Proceedings - HELD THAT:- Under the NCLAT Rules, the provision for preferring an Appeal is contemplated, under section 61, which provides for the time period during which appeal could be filed before the Appellate Tribunal i.e. within the 30 days of passing of the Order, the same could be registered only based on the Certified Copy of the Order upon being produced as per Rule 22, as certified copy has be filed of along with the Appeal - The issue would be as to whether the Free Copy which has been issued under Rule 50 of the NCLT Rules, cannot be taken as to be the Certified Copy under the Provisions of section 22(2) to enable to file an appeal under section 61.
It has not been the case of the Appellant, that the Appeal was accompanied with the Certified Copy as contemplated under Rule 22 of the NCLT Rule and that the Certified Copy would be as provided under sub section 9 of section 2 of the NCLT Rules, which could be taken as to be the basis for the purpose of determining the period of limitation. The limitation to file appeal would be determined only from the date of pronouncement of the Judgment i.e, dated 31.10.2023, uploading of the Impugned on 09.11.2023 it becomes insignificant. It is admitted case of the Appellant that he has applied for the free copy only on 14.11.2023 by presenting an application before the Registry of the court.
The limitation for filing an Appeal has to be considered from the date of pronouncement of Judgment and not the date on which the Appellant received the Certified Copy, but since he applied Certified Copy on 21.03.2024 the Appeal will not be within the period prescribed under Proviso sub section 2 of Section 61 of the Code. Because, the Appeal itself for its registration was presented before the Registry on 26.12.2023, that too despite of the fact, that the Appellant had already received the Free Copy on 14.11.2023. Even, according to the case of the Appellant, since he received the knowledge and the Free Copy of the Judgment was received by him on 14.11.2023, the appeal since presented on 26.03.2024, would be barred by limitation.
As Condone Delay Application carries no justification as to why the Appeal was filed on 26.12.2023 i.e. beyond the prescribed period of limitation under Law. Even, according to the Appellant himself, the appeal has been filed with 12 days delay. The Appeal is barred by limitation, hence the Condone Delay Application i.e. IA No.95/2024 would stand rejected and consequences there to the Company Appeal (AT) (CH) (Ins) No.29/2024, M/s. Whitehand Services Vs M/s. RD Buildtech and Developers (Karnataka) Pvt. Ltd. would too stand rejected.
Appeal dismissed.
-
2024 (4) TMI 1064 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI
Settlement of belated claims - Condonation of delay in filing the claim - direction to Resolution Professional to admit the claim of the Appellant’s in the category of Financial Creditor - Since the Resolution Plan had already been approved by the CoC, the Adjudicating Authority rejected the claim of the Appellant by the impugned order - whether claims are barred or not in terms of the provisions of IBC and Regulation 12(2) of the CIRP Regulations and also various judicial precedents? - HELD THAT:- In the instant case the date of RFRP issue date is prior to the date of COC meeting which has approved the Resolution plan. Even if later date is taken to the advantage of the Appellant as per above provision, which is later than 90 days, it will not help the Appellant due to peculiar facts of the case, where the claim has been filed after the approval of Resolution Plan by the COC.
For condonation of delay in filing the claims, the Appellant has tried to rely upon Suo Motu Writ Petition (C) No. 3 of 2020 titled “In Re: Cognizance for Extension of limitation” of Hon’ble Apex Court [2020 (5) TMI 418 - SC ORDER]. The protection with regard to extension of limitation granted by the Hon’ble Supreme Court commences from 15.03.2020 and grants protection to cases only where limitation would have expired during the period of 15.03.2020 till 28.02.2022. In the instant case, the time period available with the Appellants, even after 90 days, expired on 13.01.2020, much before the Covid-19 crises began, meaning that the protection granted by the Hon’ble Supreme Court in Suo Motu Writ Petition (C) No. 3 of 2020 cannot be relied upon to seek refuge.
The issue regarding the belated claims is further enunciated in Pratap Technocrats (P) Ltd. vs. Monitoring Committee of Reliance Infratel Limited, [2021 (8) TMI 553 - SUPREME COURT], wherein the Hon’ble Apex Court has concluded that the jurisdiction of the Adjudicating Authority under Section 31(1) is to determine whether the resolution plan, as approved by the CoC, complies with the requirements of Section 30(2). The NCLT is within its jurisdiction in approving a resolution plan which accords with the IBC. There is no equity-based jurisdiction with the NCLT, under the provisions of the IBC.
In the instant case belated claims have been considered upto 90 days and also of those whose information exists in CRM database, even though they have not filed the claims. The Appellant has filed its claims after 540 days in terms of Section 15 of the Code and approximately two months after the approval of the plan from the CoC on 07.05.2021. The IBC is a time bound process and the Appellant cannot be allowed to reopen this chapter and unleash the hydra headed monster of undecided claims on the Resolution Applicant. Belated claim of the Appellant could not have been accepted by the RP after approval of plan by the Committee of Creditors - Appellant could not have been allowed by the Adjudicating Authority as the CoC in its commercial wisdom had approved the resolution plan on 07.05.2021 itself and the said resolution plan provides for specific treatment of belated claims, if any.
Whether on the basis the materials on record, it can be concluded that the Appellant is a homebuyer or not? - HELD THAT:- Pertinently, the Allotment Letter and the Buy Back Agreement mention different unit numbers: while the Allotment Letter mentions the unit no. D2- 601, the Buy Back Agreement mentions unit no. D2-2002. Further, there is no proof of actual disbursement of the sum of Rs. 50,00,000/- by the Appellant to the Corporate Debtor, such as bank statement, audited accounts, etc. Further, the said payment is not recorded in the Corporate Debtor’s books of accounts. All the above facts do not lend credence to the Appellant’s assertion that she is a genuine homebuyer. In fact, the Appellant herself filed the Claim in Form-C as a Financial Creditor, and not in Form CA as a Homebuyer. Further, the Appellant’s name also does not find mention in the ‘List of Homebuyers who have not submitted Claims’ published by the Resolution Professional.
The claim that the Corporate Debtor has received benefit from the allotment of the Appellant, which now stands void and in compliance of Section 65 of the Indian Contract Act, 1872, the Respondents are liable to restore the benefit received from the allotment of units is not borne out of the facts of this case. As per the records of the Corporate Debtor, there exists no allotment in the Appellant and nor has any acceptable evidence been produced for the receipt of Rs. 50 Lacs by the Corporate Debtor.
From the materials on record, it is noticed that in compliance with the provisions of IBC, the Resolution Professional has undertaken various activities relating to collation and verification of the claims and upon due verification of the books of the account of the Corporate Debtor, it duly reflected the units qua which the claims have been received and the units for which claims have been not received - there are no substance in the claim of the Appellant that the resolution professional has failed to carry out statutory duties as prescribed under Section 25 of the Code.
The claim of the Appellant is that since approval of Resolution Plan is pending before the Adjudicating Authority, its claim can be considered on merits. This issue is examined in detail basis the facts of the case, wherein the Appellant seeks condonation of 540 days and basis the current position of law. It becomes unsustainable to accede to his request to allow his belated claim to be considered, particularly in the background that there is no acceptable material on record to suggest actual disbursement of Rs.50 lakhs to the Corporate Debtor and more so when the Appellant itself has filed Form – C and not CA raising its claim.
Overall, the delay in filing the claim, lack of credible evidence, and inconsistencies undermine the Appellant's case. The Adjudicating Authority's decision to reject the belated claim is upheld, as it aligns with the time-bound nature of CIRP proceedings and the absence of legal grounds for indulgence.
Appeal dismissed.
-
2024 (4) TMI 1063 - CESTAT AHMEDABAD
Extended period of Limitation - Classification of services - Business Auxiliary Services or not - payment of commission to foreign agent during the year 2008-09 and 2009-10 towards trading of petroleum products and booked expenditure in their books of account - revenue neutrality - HELD THAT:- The extended period of limitation can be invoked only when there is suppression of facts, willful mis-statement, and collusion with intent to evade the payment of tax. The extended period of limitation can be invoked only on these grounds which are specifically provided under the statute. If the department seeks to invoke the extended period of limitation on grounds other than those mentioned in statute then such an invocation of extended period of limitation is bad in law.
In this case there was no deliberate intention on the part of the appellant in either not disclosing correct information or to evade the payment of any tax. There is no positive Act was found on the part of the appellant to evade the payment of any service tax nor has any proof towards this been adduced by the revenue. A mere omission will not cause to suppression of fact and as the appellant was of bona fide belief that no service tax was liable to be paid in relation to payment made to foreign agent categorized under ‘Business Auxiliary Service’. Therefore, the longer period of limitation cannot be invoked in the fact of the present case - there are no act of the appellant which prescribed under Proviso to Section 73(1) of the Finance Act, such as suppression of fact, willful mis-statement, collusion with intent to evade payment of tax. Therefore, the demand being under extended period cannot be sustained.
Revenue Neutrality - HELD THAT:- The entire situation is revenue neutral and there is no loss of the revenue. For this reason also there is no mala fide intention on the part of the appellant. Hence, the extended period is not invokable.
The impugned order is set aside - appeal allowed.
-
2024 (4) TMI 1062 - SUPREME COURT
Validity of order of High Court remanding back the order for re-consideration - Failure of the Department to follow the instructions given by the CESTAT - Doctrine of Merger - Clandestine removal - excess quantities of stock were stored for illicit removal - absence of document containing detailed explanation - HELD THAT:- The direction issued by the tribunal undisputedly has got merged with order dated 27.11.2008 it would be apt and appropriate to note at this juncture itself the contention raised by Shri Shekhar Naphade, learned Senior Counsel which is to the effect that by virtue of the direction issued by the tribunal under its order dated 06.09.2006 having attained finality, the authorities subordinate to the CESTAT having failed to comply with the directions so issued should have resulted in automatic allowing of the appeals by the High Court, though at first blush looks attractive, same cannot be accepted for reasons more than one.
Firstly, the direction so issued by the tribunal on 06.09.2006 included a direction to the respondent to pass orders afresh which had resulted in respondent passing the orders on 21.11.2008 and 27.11.2008 respectively - Secondly, the High Court under the impugned order has itself observed that letter dated 20.01.2001 has not been relied upon by the revenue as an adverse document against the assessee while adjudicating the SCN’s - Thirdly, it has been the consistent stand of the respondent-department that the said letter was in fact supplied to the assessee’s representative and the same has been discussed in threadbare by the High Court under the impugned order.
The High Court has opined and rightly so that the said letter dated 20.01.2001 (with enclosures) which is claimed by the appellant has not having been furnished is only a ruse for not replying to the show cause notices and it would in no way prejudice the appellant’s claim, particularly in the background of reliance not having been placed by the respondent-authority for adjudicating the SCN’s and in the absence of prejudice having been caused to the appellant no fault can be laid at the doors of the respondent.
The High Court has also rightly not remitted the matter to the adjudicating authority for considering the matter afresh and the findings of the High Court recorded under the impugned order, having been affirmed, it is deemed appropriate to reserve the liberty to the appellant to urge all contentions before the tribunal including the one urged before this Court namely to demonstrate as to how prejudice has been caused to the appellant by non-furnishing of the said letter dated 20.01.2001 (with enclosures) and contentions of both parties are kept open and the order of remand made to the tribunal by the High Court under the impugned order would stand affirmed subject to the observations made.
The appeals stand disposed of.
-
2024 (4) TMI 1061 - SC ORDER
Maintainability of appeal - low tax effect - Classification of goods - printing of gray wrappers which is used in the packaging of cigarette packs. - Classification under heading 4823.90 or under heading 4901.90 - Manufacturing of goods through job worker - it was held by CESTAT that goods in question are properly classified under heading 4901.90 which attracts NIL rate of duty and no demands of duty can survive against the assessee - HELD THAT:- The Civil Appeals are disposed of, owing to low tax effect keeping open the question of law, if any.
-
2024 (4) TMI 1060 - ALLAHABAD HIGH COURT
Validity of Service of notice u/s 74(5) instead of u/s 74(1) of CGST / UPGST Act, 2017 - Non-payment of Tax / GST - violation of principles of natural justice - HELD THAT:- From the record, it is clear that a notice was issued to the petitioner under Section 74(5) of the Act on June 4, 2021 wherein officer asserted that the tax is payable by the assessee. However, upon non-payment of the tax, Section 74(7) of the Act would come into play and the proper officer is required to give a notice under Section 74(1) of the Act. This procedure, that is to be followed, was not followed and no show cause notice was issued to the petitioner. Instead of the same, the impugned order dated July 7, 2021 was passed.
Thus, it is clear that proper show cause notice was not issued to the petitioner, and therefore, all the orders impugned herein are without any basis of law. In my opinion, the impugned orders are required to be set aside.
Petition allowed.
-
2024 (4) TMI 1059 - ALLAHABAD HIGH COURT
Levy of penalty - the e-way bill had expired one hour fifteen minutes prior to interception - intent to evade tax or not - HELD THAT:- This Court in M/s Hindustan Herbal Cosmetics v. State of U.P. and Others [2024 (1) TMI 282 - ALLAHABAD HIGH COURT] and M/s Falguni Steels v. State of U.P. and Others [2024 (1) TMI 1150 - ALLAHABAD HIGH COURT] held that mens rea to evade tax is essential for imposition of penalty.
The factual aspect in the present case clearly does not indicate any mens rea whatsoever for evasion of tax. The goods were accompanied by the relevant documents and the explanation of the petitioner with regard to slow movement of the goods clearly indicate that the truck had broken down resulting in delay. This factual aspect should have been considered by the authorities below. The breach committed by the petitioner with respect to not extending time period of the e-way bill is only a technical breach and it cannot be the sole ground for penalty order being passed under Section 129(3) of Act.
The finding of the authorities with regard to intention to evade tax is not supported by the factual matrix of the case, and accordingly, the impugned orders are quashed and set aside - Petition allowed.
-
2024 (4) TMI 1058 - ALLAHABAD HIGH COURT
Violation of principles of natural justice - Ex-parte order - non-appearance of petitioner on account of compelling grounds - quantification of liability under the Uttar Pradesh Goods and Service Tax Act, 2017 u/s 130 of the Act - intention of evade GST - improper accounting of goods - HELD THAT:- Upon a perusal of the judgement in M/S MAA MAHAMAYA ALLOYS PVT. LTD. VERSUS STATE OF U.P. AND 3 OTHERS [2023 (3) TMI 1358 - ALLAHABAD HIGH COURT], it is clear that the quantification of tax liability cannot be done under Section 130 of the Act rather the authorities should take recourse to Section 74 of the Act.
Furthermore, it appears from the record that the order impugned was passed ex parte. However, it appears that several opportunities were given to the petitioner, but the petitioner did not appear before the authorities. Counsel appearing on behalf of the petitioner submits that there were compelling grounds for non-appearance of the petitioner before the appellate authority.
The impugned order dated December 7, 2023 is quashed and set aside, with a direction upon the authority below to grant opportunity of hearing to the petitioner and thereafter pass a reasoned order - petition disposed off.
-
2024 (4) TMI 1057 - MADRAS HIGH COURT
Breach of principles of natural justice - non application of mind - Calculation of Tax Liability based on subsequent year's Balance Sheet - non-service of SCN - petitioner did not reply to the show cause notice because the notice was uploaded on the “View Additional Notices and Orders” tab on the GST portal and not communicated to the petitioner through any other mode - HELD THAT:- The justification of the petitioner for not responding to the show cause notice is not convincing in as much as the petitioner is under an obligation to monitor the GST portal on an ongoing basis as a registered person. Therefore, it is also necessary to put the petitioner on terms.
On instructions, learned counsel for the petitioner submits that the petitioner agrees to remit a sum of Rs. 10,00,000/- as a condition for remand.
The impugned order dated 29.12.2023 is set aside on condition that the petitioner remits a sum of Rs. 10,00,000/- (Rupees Ten lakhs only) towards the disputed tax demand as agreed to within a period of three weeks from the date of receipt of a copy of this order. The petitioner is permitted to submit a reply to the show cause notice within the aforesaid period.
The writ petition is disposed off.
-
2024 (4) TMI 1056 - MADRAS HIGH COURT
Breach of principles of natural justice - validity of assessment orders - contravention of sub-section (4) of Section 75 of applicable GST enactments by failing to provide a personal hearing after such reply was issued by the petitioner - HELD THAT:- On perusal of the documents on record, it is clear that the petitioner responded to the show cause notice. After receipt of such reply, the respondent did not offer a personal hearing to the petitioner. Subsection (4) of Section 75 of applicable GST enactments prescribes that a personal hearing should be offered either if requested for or if an order adverse to the tax payer is proposed to be issued. Since such statutory prescription was contravened in this case, the impugned orders call for interference.
The orders impugned herein are set aside and the matters are remanded for reconsideration by the respondent. The respondent is directed to provide a reasonable opportunity to the petitioner, including a personal hearing, and thereafter issue fresh orders within two months from the date of receipt of a copy of this order.
Petition is disposed off.
-
2024 (4) TMI 1055 - ITAT RAJKOT
Levy of penalty u/s 271(1)(c) - purchase of agricultural land - assessee could not explain the source of this investment and agreed for an addition - HELD THAT:- This is not a fit case of levy of penalty. The assessee has shown contractual receipts and had also produced copy of cash book, which showed that the assessee was having sufficient cash balance for the purpose of purchasing the aforesaid property. Further, the above agricultural land was also shown by the assessee in the books of accounts as well as in the Audit Report. Penalty under Section 271(1)(c) of the Act cannot be levied simply on the basis that the assessee has agreed to additions / not contested additions made in quantum proceedings. Accordingly, just because the assessee as agreed to the aforesaid addition in quantum proceedings, would itself not justify imposition / levy of penalty. Ground No. 1 of the assessee’s appeal is allowed.
Levy of penalty in respect of addition on account of contractual receipts - mismatch between the Revenue recognized by the assessee and the amount reflecting in Form 26AS - HELD THAT:- As the explanation given by the assessee on account of the possible cause of mismatch between the Revenue recognized by the assessee and the amount reflecting in Form 26AS, looking into the fact that the mismatch was only of a meagre amount of Rs. 1,05,827/- against the total contractual receipts of Rs. 2,14,08,976/- shown by the assessee as his contractual receipts, we are of the considered view that this is not a fit case for levy of penalty u/s 271(1)(c) of the Act
Apparently the assessee has no mala fide intention to conceal the Revenue or furnish inaccurate particulars of his Revenue. In the result, levy of penalty with respect to addition on account of contractual receipts is hereby directed to be deleted. Decided in favour of assessee.
-
2024 (4) TMI 1054 - ITAT RAIPUR
Penalty proceedings u/s 270A - under reporting of the income - allowability of depreciation on acquisition of mining rights treating the same as intangible asset - malafide intentions to under report the income by claiming depreciation - allowability of depreciation so claimed by the assessee was denied by the revenue on account of no activity leading to income from extraction of Iron Ore in the relevant year or in the preceding year - CIT(A) was convinced with the explanations of the assessee, observing that the disallowance of depreciation is a subject matter of debate as in the case of holding company of the assessee i.e., NMDC the mining right has consistently been held as a depreciable asset eligible for depreciation u/s 32
HELD THAT:- Since there were different order of different courts including case of NMDC, the holding company of the assessee before us, wherein, the allowability of depreciation was a debatable issue. Moreover, since the mining right are held as an intangible asset eligible for depreciation u/s 32 of the Act by the ITAT, Hyderabad in the case of NMDC Limited for various assessment years from AY 2008-09 [2014 (3) TMI 682 - ITAT HYDERABAD], AY 2009-10 [2014 (9) TMI 629 - ITAT HYDERABAD], AY 2010-11 [2014 (7) TMI 993 - ITAT HYDERABAD], AY 2011-12 [2015 (3) TMI 928 - ITAT HYDERABAD], AY 2012-13 [2017 (5) TMI 1714 - ITAT HYDERABAD], AY 2013-14, AY 2014-15 [2018 (10) TMI 1120 - ITAT AHMEDABAD] the assessee company has a bonafide belief that depreciation would be allowed on such mining rights to the assessee company.
It is also an admitted fact transpired from the order of Ld. CIT(A) that the assessee appellant had filed an application before the Ld. AO, seeking immunity u/s 270AA of the Act after fulfilling all the pre-requisite conditions of the said section. There was no reason for the Ld. AO to deny grant of immunity to the assessee towards the application submitted u/s 270AA. Considering the facts and circumstances of the case, since there were justifiable reasons supporting the bonafide belief of the assessee in claiming the depreciation on mining rights and since mala-fide intentions of the assessee could not be established by the revenue in terms of any cogent material or explanation.
The decision of Ld. CIT(A) found to be worth concurrence, in absence of any plausible argument, explanation, evidence or decision by the department to extricate the findings the Ld. CIT(A), thus, we uphold the same. Therefore, Ground No. 1 of the appeal of the revenue stands dismissed.
-
2024 (4) TMI 1053 - ITAT MUMBAI
Penalty proceedings u/s. 271(1)(b) - non-compliance of 3 notices u/s. 142(1) - Delay in late response as per date mentioned in notice - nowhere assessee had denied that notices were not served upon him nor there was any plausible explanation for non-compliance of notice - HELD THAT:- Although it is correct that assessee had not complied the date fixed in the notice u/s. 142(1), however, the assessee had filed all the details in response to the said show-cause notice on 24/02/2022 and also on 20/03/2022. Further, in response to show-cause notice also assessee had filed the details and also brought to his knowledge that all the transactions which has been alleged had already been offered to tax and part of profit and loss account. The remarks in the chronology of events clearly justify the compliance made by the assessee before the ld. AO.
Thus, it is not a case of failure to comply with the notice, albeit there is failure to respond on the date mentioned in the notice. Delay in late response have been explained that; firstly, it was an old matter and assessee took time for retrieving the old date; secondly, assessee was having heavy losses due to small scale business operation after Covid and during the Covid period office of the assessee was also not opened. Apart from that, assessee has no employee and director was old and was the only person who was handling the affairs of the assessee company and was not aware of any online technicalities of notices sent through online. It was later on when assessee sought for assistance of a Chartered Accountant; the assessee compiled and filed all the details before the ld. AO which has been duly acknowledged. Thus, it cannot be held that assessee has purposefully defied the compliance of notices u/s. 142(1) and there was sufficient and reasonable cause in filing the details belatedly.
Thus it is not a fit case to levy penalty - Appeals of the assessee are allowed.
-
2024 (4) TMI 1052 - ITAT AHMEDABAD
Validity of reopening of assessment u/s 147 - Reason to believe - as argued AO has failed in giving the exact reason for reopening the assessment and the reasons which the assessee came to the knowledge of the assessee from the assessment order are vague in nature - HELD THAT:- When asked, during hearing, the Ld. Counsel agreed and confirmed that the reasons for reopening were not asked for by the assessee during the course of either assessment proceedings or appellate proceedings.
The Hon’ble Supreme Court in its judgement of GKN Driveshaft (India) Ltd.[2002 (11) TMI 7 - SUPREME COURT] held that when a notice u/s 148 of the Income tax Act is issued, the proper course of action for the noticee is to file return and if he so desires, to seek reasons for issuing notices. The assessing officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a speaking order.
Thus as agreed by assessee has not sought for any reason during the course of entire assessment and therefore seeking relief merely on technical ground is not tenable. Therefore, relying on facts and the judgment of Hon. Supreme Court the ground of appeal is dismissed.
Addition u/s 69C on account of the capital introduced by the partner - HELD THAT:- In the present case, the partner (Late Dhaval B. Patel, who is expired on 18.12.2021 and we have taken note of the death certificate placed on record) has explained the source funds towards introduction of the capital. Therefore, if the department was not satisfied with the explanation given by the partners, then it is legitimate for the department to draw inference that these amounts represent undisclosed profits/unexplained credits and to assess them in their hands in their own individual assessment. Thus, the amounts credited to the partners’ bank account cannot be assessed in the hands of the firm. Once the partner has owned that the money deposited in his accounts are of his own, the AO is entitled to and may proceed against the partner and assess the same in his individual hands.
Thus we are of the opinion that Ld.CIT(A) has not taken into consideration, principles to the facts of the judicial pronouncement as referred above in case of CIT Vs. Pankaj Dyestuff Industries (2005 (7) TMI 601 - GUJARAT HIGH COURT]and has erred in confirming the addition. Therefore, the ground of the assessee is allowed.
Addition u/s 69C of the Act on account of unsecured loans - HELD THAT:- Counsel explained with the help of remand report and the facts reproduced by the Ld.CIT(A) in his order, that the assessee has proved the identity and genuineness by providing PAN, bank statement and copy of ITR of the person who lent money to the assessee as unsecured loan. It was also observed by the AO in the remand report that the person who lent money by cheque to the assessee had deposited cash in his account to clear the cheque.
Since the identity, genuineness and creditworthiness of the depositor are proved by the assessee and hence the primary onus cast upon the assessee is discharged and the onus now shifted to the AO to show why the assessee's case could not be accepted and why it must be held that such loans remained unexplained and treating as dubious and doubtful.
In order to arrive at such a conclusion, the AO has to be in possession of sufficient and adequate material. Further the assessee cannot be presumed to have special notice about the source of source or origin of origin. Once the assessee has explained the source of the funds having come from the depositors as an explanation to support the loans received, it is not expected from the assessee to explain the source of the source. Even if it is assumed that the person who lent the money, was unable to explain the nature and source of the funds received by them which were given as loan to the assessee than its unexplained amount could be treated as unexplained investment in the hands of the depositors u/s. 69 of the Act or other section but could not be taxed in the hands of the assessee as unexplained expenditure u/s 69C of the Act in absence of any evidence. Thus CIT(A) is not justified in confirming the addition.
-
2024 (4) TMI 1051 - ITAT AHMEDABAD
Rejecting registration u/s 12A(1)(ac)(iii) - name mismatch between the certificate of registration issued by the Charity Commissioner, Vadodara and the PAN database - assessee/applicant submitted that the variation in nomenclature arises due to the English translation of the organization's name - HELD THAT:- Name of the assessee/applicant trust has not changed but in translation from Gujarati to English, words in Gujarati "Bhutpurva Vidhyarthi Mandal" is translated in English as "Alumni Association". Instead of "Bhutpurva Vidhyarthi" the word "Alumni" is translated in English and for the word "Mandal", it is translated as "Association". Otherwise, the entity is the same as it is registered under the Bombay Public Trust Act, which is proved from the Trust Registration Number mentioned in Registration Certificate in Gujarati and translated in English. The Counsel for the assessee submitted that the applicant trust has got provisional registration in the name "Parul University Alumni Association" on the basis of legal documents like Trust Registration Certificate and Memorandum of Association. Same documents were also filed with the application form applied in the same name for registration in Form 10AB. Hence, name of the assessee/applicant trust is consistent with it’s legal entity and it has remained the same before all Government Authorities.
In our considered view, the assessee/applicant trust has been able to reasonably explain the mismatch between the name as appearing in the legal documents submitted by the assessee/applicant trust before CIT (Exemptions) and the name as appearing in the PAN database. In view of the detailed explanation in support of the alleged mismatch given by the assessee/applicant trust, we are of the considered view that it is not a fit case where the application filed by the assessee/applicant trust can be summarily rejected only the ground of name mismatch alone.
Accordingly, CIT (exemptions) is directed to examine this issue afresh after taking on record the detailed submissions filed by the assessee/applicant trust in support of this contention/issue.
Objects of the assessee/applicant trust are not for public at large - Looking into the objects of the trust, it cannot be held that the assessee/applicant trust has been formed only for the benefit of a particular community only. Further, we also agree with the Counsel for the assessee that this aspect should be considered at the time of grant of exemption under Section 11 of the Act and the provisions of Section 13 should not be invoked at time of grant of registration under Section 12AA of the Act. In the result, the matter is being restored to the file of CIT (Exemptions) to examine the activities carried out the trust (since we observe that the trust has been recently formed/registered) and to carry out the requisite analysis whether the trust is engaged in carrying out genuine activities, so as to be eligible for grant of registration under Section 12AA of the Act.
Assessee’s appeal is allowed for statistical purposes.
........
|
