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2024 (7) TMI 1580
Invocation of doctrine of forum conveniens - Territorial jurisdiction of Delhi High Court to entertain the writ petition filed by the petitioner-institute - Seeking direction to respondents to grant renewal permission to the petitioner institute for 150 seats for admission to the MBBS Course for Academic Year 2024-25 - HELD THAT:- It is noted that the petitioner-institute is situated in the State of Punjab and the medical college is affiliated with Baba Farid University of Health Science and is under the administrative control of the Director, Medical Education and Research, Punjab, SAS Nagar, Mohali, Punjab. The petitioner-institute is also approved and recognized by the State Government of Punjab. The ground on which the petitioner-institute has approached this High Court is that the Head Office of National Medical Commission i.e., respondent no. 2 is situated within the territorial jurisdiction of this Court. However, merely because the office of respondent no. 2 is situated within the territorial jurisdiction of this Court, it cannot be a ground to entertain the instant writ petition.
As per the Kusum Ingots & Alloys Ltd. v. Union of India [2004 (4) TMI 342 - SUPREME COURT], in case a small part of cause of action arises within the territorial jurisdiction of a High Court, the same by itself may not be considered to be a determinative factor to compel that particular High Court to exercise its jurisdiction. Further, in appropriate cases, the Court may decline to exercise its discretion by invoking the doctrine of forum conveniens.
A Coordinate Bench of this Court in the case of Chinteshwar Steel Pvt. Ltd. v. Union of India [2012 (10) TMI 1281 - DELHI HIGH COURT], has held that in case of pan India Tribunals, or Tribunals/statutory authorities having jurisdiction over several States, the situs of the Tribunal would not necessarily be the marker for identifying the jurisdictional High Court.
This Court also notes, based on judicial precedents, that Courts have the power under Article 226 of the Constitution of India to exercise or decline their discretion to entertain writ petitions when the petitioner has an alternative, more appropriate, and convenient High Court to approach. It is reiterated that it is a settled position of law that if only a part of the cause of action arises within the territorial jurisdiction of the Court, the Court may decline to entertain the case if it is of the opinion that it is not the forum conveniens.
Conclusion - The jurisdiction is not solely determined by the location of a respondent's office but requires a substantial part of the cause of action to arise within the jurisdiction.
Petition dismissed.
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2024 (7) TMI 1579
Unexplained money u/s 69A - assessee accepted SBNs from customers / agents for sale of ITC products and from debtors despite the fact that the same ceased to be legal tender - HELD THAT:- AO has made addition only for those deposits which are in SBNs. However, the fact would remain the same that those cash has been generated out of business activities only since the assessee do not have any other source of income. Such cash collections form part of books of account of the assessee. No defect has been pointed in the same.
The assessee has furnished cash books which would show that the aforesaid deposits have been sourced out of business receipts only. It could also be seen that the deposits so made by the assessee has been remitted to the principal supplier only. AR has placed on record month-wise cash book break-up which would show that major sales are in cash which are regularly deposited in the bank account and no abnormality could be noted in this pattern post demonetization announcement. On these facts, impugned additions could not be sustained.
AO has not followed the prescribed standard operating procedure. AO has reduced merely the profit margins on sales while making impugned additions. The said working would assume that the purchases were also not genuine which was never the case of AO. Therefore, we would hold that impugned addition is liable to be deleted. Decided in favour of assessee.
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2024 (7) TMI 1578
Denial of Deduction u/s. 10AA - Assessee has not filed the requisite Statutory Form 56F within the time limits as prescribed - HELD THAT:- The above condition, in our considered opinion, is directory and not mandatory in nature since filing of requisite form could be said to be procedural requirement and therefore, technical default in filing of the same would not jeopardize the claim of the assessee. It could be seen that the assessee has fulfilled all the other requirements to lay claim on this deduction in this year. In fact, it is the sixth year of claiming of impugned deduction.
The objective of requirement of Filing of Form 56F, in our considered opinion, is to enable the revenue to ascertain that the deduction has correctly been claimed by the assessee in accordance with law. The mere technical failure to comply with this condition would not, therefore, result into denial of deduction to the assessee. The assessee has already filed this form on 20-12-2018 as against prescribed date of 31-10-2018.
In our considered opinion, the assessee, in the present case, has fulfilled the substantive requirement as well as procedural requirement to lay claim on the impugned deduction. Decided in favour of assessee.
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2024 (7) TMI 1577
Money Laundering - predicate offence - Seeking to quash the proceedings initiated by the Enforcement Directorate - inherent powers of the High Court under Section 482 of the Code of Criminal Procedure (Cr.P.C) can be invoked to quash the proceedings initiated by the ED - HELD THAT:- Concededly, the crime registered against respondent Nos. 3 to 5 has resulted in a final report referring the case as civil in nature. The final report has been accepted by the Chief Judicial Magistrate on 05.01.2024 as per Annexure A5, which is also not disputed. In view of the above, the predicate offence does not survive any more. Since the predicate offence is not in existence, the ED cannot continue its investigation on the proceeds of crime emanating out of the predicate offence. Consequently, the ED ought to have immediately closed the case. Having not done so, petitioner is justified in approaching this Court.
Section 482 Cr.P.C saves the inherent power of the High Court. The said provision clothes this Court with the power to make such orders as may be necessary to give effect to any order under the Cr.P.C to prevent abuse of the process of any Court or to even secure the ends of justice. A reading of section 482 Cr.P.C itself is sufficient to comprehend the profound extent and scope of the power vested upon this Court. Any order passed under the provisions of the Cr.P.C can be given its full effect by issuing appropriate orders under section 482 Cr.P.C. The scope of the power under section 482 Cr.P.C is not limited or constricted by the character or nature of the order under challenge. Even an administrative order can be quashed in exercise of the power under section 482 Cr.P.C, if it is required to give effect to an order issued under the Cr.P.C or if it is necessary to secure the ends of justice.
The final report in the predicate offence did not reveal the commission of any criminal offence. The order of the learned Chief Judicial Magistrate, Thrissur accepting the final report as RC.No. 73/2023 on 05.01.2024 is an order issued under the Cr.P.C. To give full effect to such an order, this Court can exercise its inherent powers to quash a proceeding, including an administrative document like the ECIR, when it continues to exist, without legal authority.
Conclusion - The existence of a predicate offence is essential for proceedings under the PML Act. The High Court has inherent powers under Section 482 Cr.P.C to quash proceedings to prevent abuse of process and secure justice.
Application allowed.
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2024 (7) TMI 1576
Validity of proceedings initiated u/s 147 v/s Section 153A/153C - applicability of the special provisions enacted for search and requisition cases - addition on account of expenses incurred out of undisclosed source - HELD THAT:- Contention of the Ld. AR that provisions of Section 153C are applicable in the assessee’s case being other person to whom according to the AO documents found during the search in case of Narayan Sai and Asaram Bapu pertaining to or information contained therein related to, appears correct preposition of law as the AO was very well aware about Section 153C of the Act while issuing the notice under Section 148 of the Act which was in the year of 2016 i.e. after the amendment i.e. 01.06.2015.
The decision of the Hon’ble Supreme Court in Vikram Sujitkumar Bhatia [2023 (4) TMI 296 - SUPREME COURT] though is subsequent to the order passed by the CIT(A), ultimately it is the provisions of Section contemplated and which incorporated in the Act which was in the year 2015 which is much prior to the decision of the CIT(A). Thus, the additional ground taken by the assessee is allowed.
On merits it appears that the comments related to the merits of the case is also important as in the present case the documents found cannot be held as incriminating documents as the name contemplated in the said document is that of Madhusudan Modasa and Ghanshyam Madhusudhan Soni which never give any clear picture about who has given the money to the other person i.e. Vanibhai. Thus, there is no signature of the assessee and in fact the details filed by the assessee during the assessment proceedings clearly set out that the assessee did not have any transaction and do not have related ledger in respect of repayment of loan.
Thus, the material found by the AO in case of search operation of Narayan Sai and Asaram Bapu cannot be stated to be that of the assessee and in fact the document does not have value as incriminating material in assessee’s case. These aspects were totally ignored by the Assessing Officer on merit also. Assessee appeal allowed.
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2024 (7) TMI 1575
Validity of Assessment u/s 153C - period of limitations - HELD THAT:- AO having jurisdiction of such other person shall initiate proceedings u/s 153C, if he is satisfied that such books of accounts or documents have a bearing on the determination of the total income of such other person. The proceedings u/s 153C of the Act can be initiated for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made.
There is no ambiguity that for the proceedings u/s 153C the year of search shall be substituted by the year of receipt of books or documents by the AO of the other person and thereafter the period of six years has to be counted backwards from that year. In the instant case, seized documents were received by the AO of the assessee in F.Y. 2017-18 relevant to A.Y. 2018-19. The proceeding u/s 153C could have been initiated in the case of the assessee for the six years preceding the A.Y. 2018-19 i.e. for the A.Y. 2017-18 to A.Y. 2012-13 only.
Scope of amended provision of section 153A - Proceedings can be started for the assessment year beyond preceding six assessment years from the date of search or from the date of handing over the documents pertaining to other person but not later than ten assessment years, if the income that has escaped assessment is rupees fifty lakhs or more in aggregate. Thus, the proceeding could have been initiated in this case for the A.Y. 2011-12 only if the escaped income for this year or for the preceding 7th to 10th year was Rs. 50 Lacs or more.
From the satisfaction as recorded by the AO for initiating proceeding u/s 153C of the Act, no such fact is evident. In fact, the addition made by the AO in the A.Y. 2011-12 was to the extent of Rs. 22.56 Lakhs only. Therefore, the condition of escapement of income of Rs. 50 Lacs or more was also not satisfied in this year. Therefore, no proceeding u/s 153C could have been initiated in this case for the A.Y. 2011-12.
AO had no jurisdiction to initiate proceedings u/s 153C for the A.Y. 2011-12. Therefore, the additional ground taken by the assessee is allowed and the order of the AO passed u/s 153C r.w.s. 143(3) of the Act, being beyond jurisdiction, is quashed. Assessee appeal allowed.
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2024 (7) TMI 1574
Validity of reopening of assessment - Addition u/s 68 - unsecured loans claimed by the assessee as unexplained income of the assessee - AO received information from the Investigation Wing that the assessee’s proprietorship concern has received funds during the year from three shell companies - HELD THAT:- AO did not corelate the said information with the accounts of the assessee. There was no credible information available with the AO to form the belief that the income of the assessee has escaped assessment. It has been held time and again that the reasons to believe regarding the escapement of the income should be based on certain tangible material and it should not be mere pretence of the AO. The reasons to believe does not mean reason to suspect.
Reopening of the assessment is not permitted for making fishing and roving enquiries. AO after receipt of alleged information received from the Investigation Wing was supposed to corelate the same with the records and other facts of the case and thereafter should have satisfied himself of escapement of income. Reopening is not permissible on the basis of borrowed satisfaction of the Assessing Officer. Therefore, reopening of the assessment in this case is held as bad in law.
Addition u/s 68 - As in the assessment order, AO has merely relied on the report of the Investigation Wing. That the AO has not discussed a single evidence/document furnished by the assessee and has not pointed out any defect or discrepancy in the evidence furnished by the assessee to prove the identity, creditworthiness and genuineness of the transaction. The ld. counsel for the assessee has duly demonstrated from the record that all the creditors had sufficient net worth to give loan to the assessee.
counsel has duly demonstrated that the entire loan was repaid during the subsequent assessment years. As noted, the loan duly carried interest, TDS was duly deducted on the interest expenditure, the interest income has been accounted by lender and the same forms part of the income of the lender. Interestingly, the Assessing Officer has not made any disallowance in respect of interest expenditure incurred by the assessee on the aforesaid loan amount. In our view, neither the Assessing Officer nor the ld. CIT(A) has pointed out any defect or discrepancy in the evidences furnished by the assessee - No justification on the part of the lower authorities in making/confirming the impugned addition and the same is accordingly ordered to be deleted. Assessee appeal allowed.
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2024 (7) TMI 1573
Liability of co-owners to pay service tax on aggregate amount of sum total of rent received in regard to the co-owned property - co-owners of a property leasing it out are considered independent service providers for the purpose of service tax liability or not - Applicability of the threshold exemption limit under N/N. 6/2005-ST as amended by N/N. 8/2008-ST to each co-owner individually - HELD THAT:- There is no dispute that the immovable property is co-owned by both the appellants and the rent was received from Punjab National Bank (lessee) equally to both the co-owners. In this fact, both the co-owners are to be treated as independent service provider. Therefore, individually each appellant received rent for the financial year involved in the entire period of this case is much below the threshold limit of exemption under N/Ns. 6/2005-ST dated 01.03.2005 and No. 8/2008-ST dated 01.03.2008, therefore service tax demand will not sustain.
This issue has been considered time and again in various judgements - reliance can be placed in Sarojben Khushalchand versus Commissioner of Service Tax, Ahmedabad [2017 (5) TMI 240 - CESTAT AHMEDABAD] where it was held that 'it is difficult to accept the proposition advanced by the Revenue that all the co-owners providing the service of renting of immovable property be considered as an association of persons and the service tax on the total rent be collected from one of the co-owners'.
It is found that the ground of appeals stated by Revenue in the said appeal is before me are only about what constitutes “association of persons”. There are no ground which establishes that the eight individuals who are respondents can be called “association of persons” through any definition provided by any law, when they have not entered into any agreement to form “association of persons”. Even the definition of “person” in Section 3(42) of the General Clauses Act, 1897 states that “person” shall include any company or association or body of individuals. So, since the definition is inclusive, there has to be an association of individuals to become “person” under said Section 3(42) of the General Clauses Act, 1897.
The impugned order is set-aside and the appeal is allowed.
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2024 (7) TMI 1572
Liability to pay interest u/s 11AA of the Central Excise Act, 1944 even though the order does not specify for the recovery of interest and even the notice did not propose levy of interest - order passed by Commissioner, is unreasoned and passed in breach of principal of natural justice or not - HELD THAT:- It is agreed that the impugned order is non speaking. No reasons are given.
The impugned order dated 30th June 2017 is hereby quashed and set aside and the matter is remanded for denovo consideration.
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2024 (7) TMI 1571
Re-classification of imported goods - goods claimed by the importer to be ‘penetrating oil – 60 (for industrial use)’, conforming to description corresponding to tariff item 3403 9900 of First Schedule to Customs Tariff Act, 1975, was held to be ‘diesel oil’ chargeable to duty corresponding to tariff item 2710 1990 of First Schedule to Customs Tariff Act, 1975 by relying upon test reports of the Central Revenue Control Laboratory (CRCL) and, thereby, in violation of ‘canalising’ restriction in the Foreign Trade Policy.
HELD THAT:- From a perusal of the finding of the original authority, and sustained in the impugned order, which relied upon the test reports for overruling the declared classification solely by the content of ‘petroleum oils or oils obtained from bituminous minerals’ being above 70%, the test report, at serial number 11, offers no clue about the manner of computation or conformity thereof with the heading proposed in the show cause notice. In both the test reports relied upon, besides indicating lack of conformity with IS:1460 in that of their own laboratory and in that of the state level coordinator – oil industry of sample not meeting the test of high speed diesel, the possibility of conforming to the other tariff line for diesel oil had not been considered. That is a flaw in the classification exercise which the lower authorities were required to in the light of the reports of non-conformity.
The adopted tariff item is not intended to cover adulterated diesel oil but ‘oils and preparations’ other than ‘light oils and preparations’ and, in the absence of clear finding of not being ‘light oil’ as to merit classification under sub-heading 2710 19 of First Schedule to Customs Tariff Act, 1975, the only available fitment is as ‘preparations’ which was the claim of appellant too, albeit in a different heading - the finding of the impugned goods as ‘preparations’ has not been subjected to conformity with the text of the adopted description. This is yet another ground for invalidating the classification adopted by the lower authorities.
The adopted heading, for ‘preparations’, requires the article to comprise not only 70% or more by weight of ‘petroleum oils or oils obtained from bituminous minerals’ but also of these as the basic constituents; the second qualification is not evident in the reports. The report of the ‘state level coordinator’ is even lacking in reference to weight and, despite lack of whisper even about basic constituent, the lower authorities were not constrained in presuming so - The test reports are lacking in isolation of the source as petroleum oil or bituminous oil and the lower authorities appear not to have noticed that heading 2710 of First Schedule to Customs Tariff Act, 1975 is not restricted to petroleum or bituminous sources; it was, therefore, necessary to identify the specific source before venturing upon the residual sub-heading below.
It is clear that the test for validation of re-classification devolving on the proper officer of customs by judicial mandate and by legislative obligation has not been conformed to and, consequently, the classification adopted by the lower authorities is not in accordance with law. It is found that the classification declared in the bill of entry would suffice for assessment. The lower authorities have ventured upon rejection of declared value under rule 12 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 solely on the finding that the impugned goods are diesel oil. It is not required to examine the correctness of the rule applied for re-determination of value inasmuch as the foundation for proceeding to rule 3(4) of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 has been displaced. Consequently, re-determination of value as well as re-assessment of the duty liability do not have any basis in law.
The goods having been correctly declared, both in terms of description as well as value, case for confiscation under section 111(d) of Customs Act, 1962 and section 111(m) of Customs Act, 1962 as the goods imported are neither adulterated nor canalized, does not have authority of law.
The impugned order is set aside and appeal allowed.
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2024 (7) TMI 1570
Levy of service tax - Business Auxiliary Service - incentive received by the appellant on account of early payment - HELD THAT:- This issue is no longer res-integra as in respect of identically placed delcredere agent in the case of M/S. TRADEX POLYMERS PVT LTD VERSUS COMMISSIONER OF SERVICE TAX, AHMEDABAD [2011 (12) TMI 398 - CESTAT, AHMEDABAD] this Tribunal has held that 'The discounts/incentives received by the assessee from the print media will not be liable for service tax under the category of advertising agency services.'
Thus, in view of the said judgments, the issue is no longer res-integra - the impugned order is set aside - appeal allowed.
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2024 (7) TMI 1569
Seeking to relax the condition imposed by the trial Court directing him to deposit cash security, while he was enlarged on bail - offences punishable under Sections 370, 323 and 343 read with Section 34 of the Indian Penal Code, Sections 3, 4 and 5 of the Immoral Traffic Prevention Act, 1956 and Section 14 of the Foreigners Act, 1946 - HELD THAT:- Petitioner was ordered to execute a personal bond for Rs.1,00,000/- with one solvent surety for the likesum. Apart from other conditions imposed, he was also directed to deposit cash security of Rs.50,000/-. Such onerous condition to deposit cash security was not warranted and in view of the said condition imposed by the trial Court, petitioner is still in judicial custody.
In the order dated 04.03.2024 passed in Criminal Miscellaneous No.1970/2024 by the Court of XLV Additional City Civil and Sessions Judge, Bengaluru, directing the petitioner to deposit cash security of Rs.50,000/- is hereby relaxed - Petition is allowed.
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2024 (7) TMI 1568
Reopening of assessment u/s 147 - diversion of the loan to sister concerns - petitioner impugned the exercise of the assessment which came to be continued post the rendering of the judgment in Ashish Agarwal [2022 (5) TMI 240 - SUPREME COURT] in terms of a Section 148A(b)
HELD THAT:- We find ourselves unable to sustain that challenge bearing in mind the fact that the credible information which constituted the bedrock for the formation of opinion had categorically alluded to the aforesaid transactions, namely, the alleged diversion of the loan to sister concerns. The direction of the Court was to carry out an exercise of examining the explanation as proffered by the petitioner afresh.
In that view of the matter, we are of the opinion that the AO was clearly not disabled from proceeding to examine the entire case including on the basis of the allegations which formed part of para 2.5 of the original “reasons to believe”.
Consequently, we find no merit in the challenge which stands raised. The writ petition fails, and stands dismissed.
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2024 (7) TMI 1567
TP Adjustment - international transaction obtaining with respect to AMP expenses - Application of BLT - HELD THAT:- Tribunal adverted to the decisions rendered in Sony Ericsson Mobile Communications India (P) Ltd. [2015 (3) TMI 580 - DELHI HIGH COURT] and Maruti Suzuki India Ltd. [2015 (12) TMI 634 - DELHI HIGH COURT] Concededly, coordinate benches have ruled that BLT has no “statutory mandate”. We are told that the appellant/revenue has preferred appeals with the Supreme Court these two cases above.
This view has also been followed in Bausch & Lomb Eyecare (India) (P.) Ltd.[2015 (12) TMI 1332 - DELHI HIGH COURT] and Sharp Business Systems (India) (P.) Ltd. [2022 (8) TMI 1539 - DELHI HIGH COURT]
We may also note that argument is that the TPO has failed to establish that there was an international transaction obtaining with respect to AMP expenses, with a view to build the brand of the AE, with the object that AE could achieve sales in other territories. Needless to state, this submission has been made by Assessee on the merits of the appeal.
Insofar as the position in law is concerned, i.e., concerning the application of BLT, concededly, insofar as this court is concerned, it stands concluded via the decisions referred to hereinabove, albeit, against the appellant/revenue and in favour of the respondent/assessee.
No substantial question of law arises for our consideration.
If the appellant/revenue were to succeed in the appeals pending in the matters concerning Sony Ericsson Mobile Communications India (P) Ltd. and Maruti Suzuki India Ltd., it would have leave to approach the court for reopening the appeal, as per law.
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2024 (7) TMI 1566
Money Laundering - provisional attachment order - scheduled offence - appellant submitted that the properties attached by the respondent were acquired much prior to the alleged offence in the year 2015, and in July 2016 to January 2017 - whether the property under attachment were acquired prior to the commission of the crime? - HELD THAT:- The issue aforesaid has been dealt with by this Tribunal in the case of Ayush Kejriwal vs. The Deputy Director, Directorate of Enforcement, Kolkata, [2024 (6) TMI 451 - APPELLATE TRIBUNAL UNDER SAFEMA AT NEW DELHI] where it was held that 'The fact is that the property was originally belonging to the accused Nirmal Kumar Kejriwal, the grandfather of the appellant. A gift was made in the year 2020 in favour of the appellant whereas the FIR was registered in the year 2017 followed by the ECIR in the year 2019. The way property was given to the appellant has been noticed and as it was earlier belonging to one of the accused thus, the documents were seized by the respondent and we do not find any illegality in it. The words “the value of such property” does specify it to be earlier to the crime or subsequent and we can insert words “thus value of such property” would mean the property acquired prior or subsequent to the crime.'
It is not that only those properties which have been were derived or obtained directly or indirectly out of the crime can be attached rather in case of non-availability of the property derived or obtained directly or indirectly rather when it is vanished or siphoned off, the attachment can be of any property of equivalent value.
It is necessary to clarify that the proceeds of crime would not only include the property derived or obtained directly or indirectly out of the criminal activity relating to the scheduled offence but any other property of equivalent value. The word “or” has been placed before “the value of any such property” and is of great significance. Any property of equivalent value can be attached when the proceeds directly or indirectly obtained out of the crime has been vanished or siphoned off. Here,the significance would be to the property acquired even prior to commission of crime - The word “the value of any such property” signifies without any embargo that it should be the property purchased after the commission of crime or prior to it rather it would apply in both the eventuality in the given circumstance. Thus, the counsel for the appellant not agreed upon, who has questioned the attachment in reference to the property acquired prior to commission of crime.
Finding no merit in any of the issue raised, the Appeal would fail and is dismissed.
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2024 (7) TMI 1565
Rejection of refund application of the petitioner - Vires of Section 54 of Central Goods & Services Tax Act, 2017 - application filed beyond time limitation - HELD THAT:- It would be appropriate to note that under Section 54 of the Act, the application for refund is to be filed in a prescribed manner, within two year from the relevant date. In the present case, the relevant date is March, 2018. As per Section 54 of the Act, the application could have been made till March, 2020.
The Supreme Court in IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [2022 (1) TMI 385 - SC ORDER] ordered that the period from 15.03.2020 till 28.02.2022 shall be excluded for the purpose of limitation prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings.
Considering that as per circular issued after decision of application, the period from 15.03.2020 till 28.02.2022 is to be excluded. Consequently, the impugned order is set aside and the matter is remitted back to the respondents to decide the application afresh in accordance with law. Considering that refund claimed is for year 2017-2018, it would be appreciated if the respondents makes a sincere endeavor to decide the application as early as possible.
Petition allowed by way of remand.
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2024 (7) TMI 1564
Delay of foreign tax credit due to delay in submission of Form 67 - submission made before the Ld. CIT (A) in support of the claim that the provision of DTAA override the provision of the Act and therefore, the credit for foreign tax paid in Singapore should be allowed - HELD THAT:- Since the provision of DTAA override the provision of Section 90 of the Act as they are more beneficial to the assessee, in view of judicial pronouncements in this regard and since Rule 128(a) does not preclude the assessee from the claiming credit for FTC in case of delay in filing the return of income as the credit for FTC is a vested right of the assessee and since form 67 was filed in response to the query received from CPC as contended by the assessee, therefore, there was no justification for not allowing the credit for FTC.
Hence, Ground Nos. 1 and 2 of the appeal are allowed and the AO is directed to allow the FTC in accordance with DTAA between India & Singapore and as per law. Appeal of the assessee is allowed.
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2024 (7) TMI 1563
Valuation of Excise duty - inclusion of freight charges shown separately in the invoices and collected from the buyers of the goods in the transaction value of such excisable goods for the purpose of charging excise duty - sale is on FOR basis - HELD THAT:- The issue is no more res-integra in view of judgments cited by the learned Counsel particularly the judgment of Hon’ble Apex Court in the case of COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE, NAGPUR VERSUS M/S ISPAT INDUSTRIES LTD. [2015 (10) TMI 613 - SUPREME COURT] wherein the identical facts involved and the sale was on FOR basis, the place of removal was considered as factory gate. Therefore, freight charges shown separately and collected from the customers cannot be included in the assessable value for the purpose of charging excise duty. Accordingly, the demand in the present case is not sustainable.
The impugned order is set-aside and the appeal is allowed.
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2024 (7) TMI 1562
Validity of approval granted by the ld. JCIT u/s 153D - allegation of non application of mind - non application of mind in the approval process - HELD THAT:- Hon'ble Jurisdictional High Court in the case of PCIT vs Shiv Kumar Nayyar [2024 (6) TMI 29 - DELHI HIGH COURT] wherein it was held that where order of approval u/s 153D of the Act for relevant assessment year was granted by Additional Commissioner who had granted approval for 43 cases on a single day without perusing the draft assessment orders at all and without an independent application of mind, impugned assessment order was rightly declared to be illegal by Tribunal.
We find that similar issue has been addressed by the Hon'ble Jurisdictional High Court in the case of PCIT vs. Anju Bansal [2023 (7) TMI 1214 - DELHI HIGH COURT] wherein, under similar circumstances, the Hon'ble Delhi High Court categorically held that statutory approval given by a quasi judicial authority without due application of mind as contemplated in section 153D of the Act would be fatal to the entire search assessment proceedings
We have no hesitation in holding that the approval u/s 153D of the Act has been granted by the ld. JCIT in the instant case before us in a mechanical manner without due application of mind, thereby making the approval proceedings by a high ranking authority, an empty ritual. Such an approval has neither been mandated by the provisions of the Act nor endorsed by the decisions of as relied upon.
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2024 (7) TMI 1561
Penalty u/s 271AAA(1) - assessee declared the surrendered amount under the head "additional income" which was accepted by the Revenue - purported failure on the part of the assessee to substantiate the manner in which the undisclosed income was derived - whether CIT(A) and the Tribunal were justified in deleting the penalty? - HELD THAT:- In terms of Section 271AAA(2), the statute clearly provides that sub-section (1) would not apply provided the assessee admits to the undisclosed income and specifies the manner in which such income had been derived in a statement made and recorded u/s 132(4). That provision then places the additional burden of substantiating the manner in which the undisclosed income was derived upon the searched assessee. It is only thereafter that in terms of clause (iii) of sub-section (2), a payment of tax together with interest in respect of undisclosed income is contemplated.
As we read clauses (i) and (ii) of sub-section (2), it becomes evident that there is a statutory obligation placed upon the assessee to not only “specify” the manner in which the undisclosed income had been derived but also to “substantiate” the statement that may be made u/s 132(4). We also bear in mind the indubitable position that for the purposes of being absolved from the additional tax burden which stands constructed in terms of Section 271AAA(1), the burden is placed upon the assessee to establish that its case falls squarely within the scope and ambit of sub-section (2) thereof.
As relying on Ritu Singal [2018 (3) TMI 593 - DELHI HIGH COURT] income which was ultimately brought to tax pursuant to the disclosure made, which was voluntary on the part of the assessee is stating the obvious. The assessee merely stated that the sums advanced were undisclosed income. She did not specify how she derived that income and what head it fell in (rent, capital gain, professional or business income out of money lending, source of the money, etc.).
Unless such facts are mentioned with some specificity, it cannot be said that the assessee has fulfilled the requirement that she, in her statement (under section 132(4)) "substantiates the manner in which the undisclosed income was derived". Such being the case, this court is of the opinion that the lower appellate authorities misdirected themselves in holding that the conditions in section 271AAA(2) were satisfied by the assessee.
Although learned counsel for the respondents sought to draw support from an earlier judgment rendered in Emirates Technologies Pvt. Ltd. [2017 (8) TMI 387 - DELHI HIGH COURT] we find that the same rests solely on the Court ultimately coming to conclude that the same did not give rise to a substantial question of law.In any case, we find ourselves bound by the more elaborate discussion which appears in the judgment rendered in Ritu Singal. Decided against assessee.
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