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Showing 81 to 100 of 1466 Records
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2023 (1) TMI 1388
Dismissal of Application under Section 7 of the Insolvency and Bankruptcy Code, 2016 - application barred by Section 10-A of IBC - HELD THAT:- There being clear categorical statement in Part-IV that date of default is 15.12.2020 which is a period during which Section 10-A had operation thus no error has been committed by the Adjudicating Authority rejecting Application filed under Section 10-A. However, ends of justice will be served in giving liberty to the Appellant to file fresh Application in accordance with law.
Appeal dismissed.
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2023 (1) TMI 1387
Interest on delayed refund as per Section 11BB of the Central Excise Act, 1944 - claims pertaining to different periods after expiry of 3 months from the date of filing of the refund claims - HELD THAT:- The said issue need not be deliberated much being settled by Hon’ble Supreme Court in RANBAXY LABORATORIES LTD. VERSUS UNION OF INDIA AND ORS. [2011 (10) TMI 16 - SUPREME COURT]. Their Lordships after analysing the provisions of Section 11BB, observed 'the only interpretation of Section 11BB that can be arrived at is that interest under the said Section becomes payable on the expiry of a period of three months from the date of receipt of the application under sub-section (1) of Section 11B of the Act and that the said Explanation does not have any bearing or connection with the date from which interest under Section 11BB of the Act becomes payable.'
Applying the principles laid down by the Hon’ble Supreme Court, it is opined that even though the refund was sanctioned in 29/08/2019, the interest under Section 11BB be calculated on expiry of 3 months from the date of filing of the refund claim. Consequently, the interest amount of Rs.11,83,454/- quantified as shown in Annexure B to the written submission being not contested; hence admissible to the appellant.
The impugned order is set aside and the appeal is partly allowed to the extent of claim of interest of Rs.11,83,454/- - appeal allowed in part.
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2023 (1) TMI 1386
Cash refund claims of accumulated cenvat credit - intermediary services - export of service - Rule 5 of the CENVAT Credit Rules, 2004 read with N/N. 27/2012-CE(NT) dt. 18/06/2012 - HELD THAT:- It is not in dispute that the appellant through “Marketing and Sales Support Agreement” dt. 12/06/2006 and 06/05/2011 with MSP and MSA, inter alia, agreed to provide the various services like Promote products, Technical Services, Marketing and Technical Staff, Market analysis, Cooperation, Products problems and changes and Customer updates.
Similar terms of agreement have been examined by this Tribunal in Blackberry India Pvt. Ltd.’s case [2022 (12) TMI 660 - CESTAT NEW DELHI] and the Tribunal observed 'The terms of the Agreement also per se do not create any relationship of principal and agent or employer and employee. An agent is a person employed to do any act for another or to represent another in dealing with third persons. The persons for whom such act is done, or who is so represented, is the principal. A broker is a middleman or an agent who, for a commission on the value of the transaction, negotiates for others the purchase or sale of stocks, bonds, commodities, or a property. These two situations do not arise in the present case.'
There are no reason to not adopt the aforesaid reasoning of the Tribunal in understanding the meaning and scope of ‘intermediary service’ in the light of the same terms and conditions of the technical service agreement.
The services rendered by appellant cannot fall under the definition of ‘Intermediary Service’. In the result, the impugned order is set aside - Appeal allowed.
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2023 (1) TMI 1385
Levy of penalty under Section 15-A (1) (a) of U.P. Trade Tax Act - assessment order has been passed and no tax has been assessed payable by the assessee-revisionist while passing the assessment order - revisionist was liable to realize the tax from its purchasers when its purchasers have exempted from payment of that tax or not.
HELD THAT:- From perusal of record it transpires that once the assessment order was passed on 18.03.2006 and there was no levy of Entry Tax upon the assessee, the penalty proceedings could not have been initiated by the authorities hence the order passed by the Tribunal on 08.04.2010 is not justified. However, this fact was not brought to the notice of the Tribunal either by the Revenue or by the assessee.
In view of the said fact, the order dated 08.04.2010 passed by the Tribunal is unsustainable in the eyes of law and the same is hereby set aside. The matter is remitted back to the Tribunal for reconsideration of the matter after considering assessment order dated 18.03.2006 and pass fresh order within a period of one month of the from the date of production of a certified copy of this order.
Revision allowed in part.
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2023 (1) TMI 1384
Addition u/s 68 - case was selected for scrutiny on the ground that the assessee deposited large sums during demonetization period - to explain the source of the deposits in the bank, the assessee submitted that the deposits were received from 15 members in old currency between 09-11-2016 to 11-11-2016, which were deposited in the bank account
HELD THAT:- It is seen that the assessee is a Urban Cooperative Credit Society which received Rs. 1,78,400/- from 15 depositors whose all the necessary particulars have been given. The list comprises receipt of Rs. 85,970/- from 3 small saving agents and Rs. 94,000/- from 12 customers.
The assessee furnished necessary details in respect of the depositors. AO refused to accept the genuineness of the transaction and made the addition u/s. 68 of the Act
AR has brought to my notice an order passed in Prathamika Krushi Pattina Sahakari Sangha Niyamitha Itagi Pkpssn (2022 (6) TMI 151 - ITAT BANGALORE] in which the addition made under similar circumstances has been deleted. In this order, the Tribunal relied on another order in Bhageeratha Pattina Sahakara Sangha Niyamitha [2022 (2) TMI 1243 - ITAT BANGALORE]. No contrary order on such facts, in favour of the Revenue, has been brought on record by the ld. DR. Thus we direct to delete the addition sustained in the first appeal. Decided in favour of assessee.
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2023 (1) TMI 1383
Revision u/s 263 - Allowability of deduction u/s 80G in respect of contributions towards Corporate Social Responsibility (CSR) - HELD THAT:- As the issue pertaining to deduction u/s. 80G is concerned the same was not included in the enquiry notice issued u/s. 142(1). Although the details of the same have been Suo moto provided by the assessee vide para-9 of its submissions with annexures XXV. Here we are agree with the objection of the PCIT that the same is not examined by the AO, so to that extent order of the AO is erroneous but not prejudicial to the interest of the revenue, As the same has been duly explained with facts and law applicable on the same by the assessee before the PCIT itself we found based on the legal position in favour of assessee the same has been duly taken care of. This objection of PCIT no more stands against the assessee as erroneous in so far as prejudicial to the interest of the revenue.
Issue was not examined by the AO and on this front order is erroneous but not necessarily prejudicial to the interest of the revenue. Power of Ld. PCIT on the one hand empowers to verify any order on the criteria of being erroneous in so far as prejudicial to the interest of the revenue. On the other hand, the same section cast a responsibility on the Ld. PCIT that if during the proceedings before him u/s. 263 if assessee is able to substantiate that issue is not verified by the AO but the same is not prejudicial to the interest of the revenue, Ld. PCIT being guardian of law should evaluate and consider the fact of the case based on settled legal position.
As in this case as mentioned in the case of Infosys Technologies Ltd.[2013 (7) TMI 451 - KARNATAKA HIGH COURT] and benches of ITAT including jurisdictional bench have held that a claim of assessee which is not allowable under sec. 37 for CSR expenses can still be allowed u/s 80G. We find that assessee has already furnished the details relevant to sec. 80G deductions and same is in order, Ld. PCIT ought to have dropped objection on this front. In these terms we find that as far as issue of deduction u/s. 80G is concerned, the order of AO is not erroneous.
Allowability of commission paid on sales to CSD - As far as second objection of the Ld. PCIT is concerned we observed that it’s a regular practice of the assessee and there is nothing new specifically in this year. We have gone through the copies of agreements with the agents to whom commission has been paid against CSD sales. All these papers were submitted to the record of AO of the submission in response to notice u/s 142(1). This disallowance of 5% of commission by the AO is in line with previous years. Clearly establishes that he has gone through the practice of assessee, amount of commission paid and thereafter he disallowed certain percentage of commission.
In the light of assesses submission and copy of agreements with sales agent for CSD sales we find that the concern of Ld. PCIT is not on valid premises. Payments to agents were being made for number of services in the form of certain field work, logistics co-ordination and handling of the goods. These services are essential part of any FMCG company. We do not find any error in the order of AO and that is to there is complete transparency at the end of the assessee. Following the principle of consistency assessee and AO both are following the established norms of the industries and assessment procedures respectively. In view of above appeal of the assessee is allowed and order of Ld. PCIT is set aside on above terms.
Appeal filed by the assessee is allowed.
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2023 (1) TMI 1382
Seeking issuance of notification for imposition of anti-dumping duty, based on the recommendation made by the designated authority - HELD THAT:- The maintainability of the appeal under section 9C of the Tariff Act was examined at length by this very Bench in M/S APCOTEX INDUSTRIES LIMITED AND OTHERS VERSUS UNION OF INDIA AND OTHERS [2022 (11) TMI 1096 - CESTAT NEW DELHI] and it was held that the appeal would be maintainable against the decision of the Central Government contained in the office memorandum not to impose anti-dumping duty.
The Bench also examined whether the determination by the Central Government was legislative in character or quasi-judicial in nature and after examining the relevant provisions of the Tariff Act, the 1995 Anti-Dumping Rules and the decisions of the Supreme Court and the High Courts observed that the function performed by the Central Government would be quasi-judicial in nature. The Bench also, in the alternative, held that even if the function performed by the Central Government was legislative, then too the principles of natural justice and the requirement of a reasoned order have to be compiled with since the Central Government would be performing the third category of conditional legislation contemplated in the judgment of the Supreme Court in STATE OF T.N. SECRETARY HOUSING DEPTT. MADRAS VERSUS K. SABANAYAGAM & ANR. [1997 (11) TMI 520 - SUPREME COURT].
The inevitable conclusion, therefore, that follows from the aforesaid discussion is that the decision taken by the Central Government not to impose anti-dumping duty despite a recommendation having been made by the designated authority for imposition of anti-dumping duty, cannot be sustained as it does not contain reasons nor the principles of natural justice have been compiled with and the matter would have to be remitted to the Central Government for taking a fresh decision on the recommendation made by the designated authority.
The office memorandum dated 08.01.2022 is set aside and the matter is remitted to the Central Government to reconsider the recommendation made by the designated authority in the final findings - Appeal allowed.
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2023 (1) TMI 1381
Penalty passed under section 72 (6) of the JVAT Act - penalty above Rs. 5,000 can be levied if no tax is payable on the goods being transported - notice given by the respondent is in conformity with Rule 59 of the JVAT Rules 2006 or not - adequate opportunity of hearing was given or not - opportunity to be given to produce the documents.
Whether in terms of Section 72 (6) of the JVAT Act, any penalty above Rs. 5,000 can be levied if no tax is payable on the goods being transported? - HELD THAT:- This court holds that in terms of section 72 (6) of the JVAT Act no penalty above Rs. 5000 can be levied if no tax is payable on the goods being transported, inasmuch as, this section categorically provides that the penalty is to be levied on three times of the tax payable and if no tax is payable the maximum penalty is Rs. 5000/-. The contention of the Revenue counsel that there can be a scenario that 3 times of tax will be less than Rs. 5000/-; and in such circumstances, the legislature has used the words “penalty equal to the amount of three times of the tax, leviable on such goods, or rupees five thousand whichever is greater, is not acceptable.
Reference in this regard may also be given to the case of Krishi Utpadan Mandi Samiti v. Pilibhit Pantnagar Beej Ltd. [2003 (11) TMI 591 - SUPREME COURT] wherein the Hon’ble Apex Court has held that if there is any ambiguity with regard to interpretation of the statute the view which is favorable to the assessee shall be taken into consideration
So far as other questions/issues raised by the counsel of the petitioner with regard to giving adequate opportunity of the petitioner-company and also inadequate notice issued under JVAT Act, 2002, it is deemed proper not to give any finding on that for the sole reason that the petitioner after passing of the assessment order has availed alternative remedy of appeal and revision and had enough opportunity to canvass his case, as such no prejudice has caused to him.
The petitioner is liable to pay penalty of Rs. 5000/- in each case - Hence the petitioner is directed to pay the same within a period of one week from the date of receipt of the order. The Tax authority shall accept the same.
Petition allowed.
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2023 (1) TMI 1380
Nature of expenditure - Allowability of ESOP expenses - difference between the market value of shares as computed under the guidelines of SEBI and the value at which these shares were issued to the employees - AO disallowed the ESOP expenses on the ground that the same cannot be allowed u/s 37 (1) on the ground that these expenses are notional in nature and the same are required to be disallowed being capital in nature - HELD THAT:- This issue has been discussed at length in the case of Biocon Ltd [2020 (11) TMI 779 - KARNATAKA HIGH COURT] wherein the facts were that assessee floated Employees Stock Option Plans (ESOP) and provided shares to its employees at a discount discount. There was difference between grant price to employees and market price as on date of grant of ESOPs. The ESOPs were vested in employee over a period of four years. The deduction of discount on ESOP over vesting period was in accordance with accounting in books of account, which had been prepared in accordance with SEBI Guidelines.
The Karnataka High Court held that on exercise of option by an employee, actual amount of benefit that had to be determined was only a quantification of liability, which would take place at a future date. The Court further held that the discount on issue of ESOPs was not a contingent liability but was an ascertained liability. Accordingly, issuance of shares at a discount would be an expenditure incurred for purposes of section 37(1) as primary object of aforesaid exercise was not to waste capital but to earn profits by securing consistent services of employees and therefore, same could not be construed as short receipt of capital. Thus, discount on issue of ESOP was allowable deduction under section 37(1) of the Act.
The Delhi High Court in the case of PVR Ltd. [2022 (8) TMI 1234 - DELHI HIGH COURT] has held that difference between price at which stock options were offered to employees of assessee-company under ESOP and ESPS and prevailing market price of stock on date of grant of such options was allowable as revenue expenditure.
As the object of issuing such share at a lower price is nowhere directly connected with the earning of income but when the company undertakes to issue shares to its employees at a discounted premium at a future date the primary object of this exercise is not to raise the share capital but to earn profit by securing the consistent and concentrated efforts of dedicated employees during the vesting period, such discount is construed, both by the employees and the company, as nothing but a part of package of remuneration, a substitute for giving direct incentive in cash for availing of the services of the employees. Therefore, it is not justified while upholding the disallowance of the assessee's claim. Decided in favour of assessee.
Disallowance u/s 14A - AO observed that that the assessee did not disallow any direct or indirect expenses in relation to investments made by the company during the year under consideration but assessee has not earned any exempt income - HELD THAT:- Admittedly, during the year under consideration, the assessee did not earn any exempt income.
It is a well-settled law on the subject that no disallowance can be made under section 14A in case the assessee has not earned any exempt income. The Hon'ble Supreme Court in the case of State Bank of Patiala [2018 (11) TMI 1565 - SC ORDER] held that where High Court took a view that amount of disallowance under section 14A could be restricted to amount of exempt income only, SLP filed against said order was to be dismissed. The Hon'ble Supreme Court in the case of Chettinad Logistics (P.) Ltd [2018 (7) TMI 567 - SC ORDER] dismissed SLP against High Court ruling that section 14A cannot be invoked where no exempt income was earned by assessee in relevant assessment year. Thus CIT(Appeals) has not erred in facts and in law in deleting the addition made un/s 14A - Decided in favour of assessee.
Applicability of disallowance u/s 14A on the computation of liability u/s 115JB of the Act - HELD THAT:- Since, we have already held that in the instant set of facts no disallowance is called for under section 14A of the Act while adjudicating ground of appeal number 2, this ground of appeal number 3 becomes academic and the same is dismissed hereby.
Allowability of education cess as an expense - whether education is allowable expense in the hands of the assessee while computing taxable income? - HELD THAT:- Chambal Fertilisers & Chemicals Ltd. [2022 (12) TMI 1098 - SC ORDER] held that Education cess on rate or tax levied on PGPB is to be disallowed in view of retrospective amendment made by FA2022 to section 40(a)(ii) w.r.e.f. 1-4-2005. The ITAT Bangalore in the case of Cypress Semiconductor Technology India (P.) Ltd. [2022 (7) TMI 1518 - ITAT BANGALORE] held that Education cess is not allowable as deduction under section 37(1) of the Act.
Thus Payment of education cess including secondary and higher education cess is not allowable as deduction. Accordingly, ground number 1 of the assessee’s appeal is dismissed.
Allowability of PF/ESI u/s 36(1)(va) of the Act - assessee had not deposited employees' contributions towards PF and ESI within prescribed period in law - HELD THAT:- The issue is squarely covered against the assessee by the order of Hon'ble Supreme Court in the case of Harrisons Malayalam Ltd. [2023 (1) TMI 137 - SC ORDER] wherein the Supreme Court dismissed the SLP against order of High Court that where assessee-company failed to pay employees’ contribution towards EPF and ESI within due date prescribed in respective Acts, deduction under section 36(1)(va) was not allowable.
Again in the case of Checkmate Services (P.) Ltd. [2022 (10) TMI 617 - SUPREME COURT] the Supreme Court held that there is a marked difference between nature and character of assessee-employer's contribution and amounts retained by assessee from out of employee's income by way of deduction wherein one is liability to be paid by employer and second is deemed income as per section 2(24)(x) which is held in trust by assessee employer, thus, said marked difference was to be borne while interpreting obligation of assessee-employer under section 43B.Therefore, the non obstante clause under section 43B could not apply in case of amounts which were held in trust as was case of employee's contribution which were deducted from their income and was not part assessee-employer's income, thus, said clause would not absolve assessee-employer from its liability to deposit employee's contribution on or before due date as a condition for deduction.
Thus where assessee had not deposited employees' contributions towards PF and ESI amounting Rs. 15.20 lakhs within prescribed period in law and AO by invoking provisions of section 36(1)(va) read with section 2(24)(x) made addition of aforesaid amount to income of assessee, impugned addition made to income of assessee was justified - Decided against assessee.
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2023 (1) TMI 1379
Challenged the order passed by the High Court - Rejection of a request for a 'No Objection Certificate' (NOC) by the District Magistrate for starting a retail outlet dealership - subsequent dismissal of the petition by the High Court based on the filing of an appeal against a previous decree - HELD THAT:- From the documents produced along with the counter affidavit, the respondents have produced the extract of the present case status of FA-16/2022. It is pointed out that the appeal is filed on 11.03.2022 which was registered on 15.03.2022 and the scrutiny for posting the appeal before the Court is yet to be completed.
Though, such contention is put forth by the respondents, keeping in view the provisions as contained in Order 41 Rule 5 of CPC, unless the appeal is listed and there is an interim order, the mere filing of the appeal would not operate as a stay. If that be so, the judgment and decree dated 25.08.2021 would enure to the benefit of the petitioner as on today and the rejection of the NOC only on the ground that the appeal has been filed, would not be justified. In that view, the High Court was also not justified in rejecting the petition.
Accordingly, the Order passed by the High Court of Patna in Civil [2022 (8) TMI 1516 - PATNA HIGH COURT] Writ Jurisdiction is set aside. Consequently, the rejection of the NOC by the District Magistrate is held unjustified and the District Magistrate is directed to take note of the decree passed on 25.08.2022 and issue the NOC within a period of two weeks from this day to the petitioner, which shall however, remain subject to the result of the appeal pending before the High Court.
Petition is accordingly disposed of.
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2023 (1) TMI 1378
Appeal filled u/s 130 of the Customs Act, 1962 - Admissibility of benefit of exemption under Notification nos. 21 of 2002 and 61 of 2007 - Conflicting views of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) - HELD THAT:- It is not in dispute that the larger Bench of the CESTAT has already answered the reference on 8.8.2022. It had directed the appeals to be listed before the regular division Bench for hearing. We are given to understand that those appeals are already heard and hearing of all the three matters have been completed on both the sides and the stage is for pronouncement of judgment. That be the case, in our opinion, the present appeals would not fall under the definition of an appeal under Section 130 of the Act.
These petitions being prematured, we do not entertain them without entering into the merits for keeping all issues open including those challenged before this Court for both the sides, to be agitated before the CESTAT in pending appeals and before this Court eventually, if the need arises. Let the disposal of these appeals not prejudice the rights of either sides.
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2023 (1) TMI 1377
Territorial jurisdiction in arbitration proceedings - Challenge to award rendered by the Micro and Small Enterprises, Facilitation Council, Nagpur.
The objection is that the arbitration having been conducted under the MSMED Act in Nagpur and the award having been rendered in Nagpur, the seat of the arbitration in the present case was in Nagpur and, therefore, the challenge to the award would not lie before this Court.
HELD THAT:- The Division Bench of this Court in Indian Oil Corporation Ltd. vs. FEPL Engineering (P) Ltd. [2019 (9) TMI 1701 - DELHI HIGH COURT] proceeds on an interpretation of Section 18(4) of the MSMED Act vis-a-vis the contractual provisions contained in the arbitration clause and the jurisdiction clause of the agreement. However, in the present case, the Purchase Order does not contain an arbitration clause at all. In such circumstances, it is, not possible to hold that the parties agreed to a particular seat of the arbitration which would vest jurisdiction in this Court despite the provisions of the MSMED Act.
In any event, the judgment of the Supreme Court in Gujarat State Civil Supplies Corporation Ltd. [2022 (11) TMI 91 - SUPREME COURT] makes it clear that the provisions of Chapter V of the MSMED Act would override the Arbitration Act and the contractual arrangement.
Thus, the seat of the arbitration, conducted by the Facilitation Council, was in Nagpur and the petition filed before this Court is not maintainable.
The petition, alongwith the pending application, is therefore dismissed as not maintainable.
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2023 (1) TMI 1376
Reopening of assessment u/s 147 - Reassessment v/s review - disallowance of spill over mutual fund expenses and disallowance of SEBI registration fees - HELD THAT:- AO is only entitled to reopen the assessment, but he cannot review an assessment in the sense that there cannot be a rethinking or different opinion on the same material, which was the subject matter of the original assessment proceedings. Thus, bearing these principles in mind, if we examine the case on hand, we need to scrutinize as to whether the reopening was a change of opinion and was there any attempt to review the original order of assessment.
There cannot be adjudication into the merits or roving enquiry into the merits of the assessment to come to a conclusion as to whether the reopening was justified or not. Prima facie, AO should be able to establish that the reopening of assessment was not on account of change of opinion, be it within four years or beyond four years.
When a regular order of assessment was passed u/s 143(3) a presumption could be raised that such an order had been passed on application of mind and if it was to be held that an order, which had been passed purportedly without application of mind would itself confer jurisdiction upon the AO to reopen the proceeding without anything further, the same would amount to giving premium to the Authority exercising quasi-judicial function to take benefit of his own wrong.
If such is the position, in the absence of any allegation that there was any fresh material to come to a conclusion that income escaped assessment, the AO cannot now take a stand that the claim made by the assessee u/s 37 which was acceded to by the AO was incorrect and the expenditure is not allowable. If this is the observation and reason for reopening, it would be a clear case of change of opinion. What the AO purported to do is to review his earlier decision.
As held by the Hon'ble Supreme Court, in a plethora of judgements, it is not for the assessee to tell as to how the AO has to complete the assessment. The duty of the assessee is to make a full and true disclosure of all materials. If the assessee is put on notice calling for additional materials, the assessee is duty bound to fully and truly disclose all materials and thereafter, it is for the AO to take a call on the materials.
We are satisfied that whatever be the concern, it was to be traced in the assessment u/s 143(3) of the Act, the details in the understanding of the AO were called for and the details were placed by the assessee and thereafter, the assessment has been completed. Therefore, we find that the reopening was wholly without jurisdiction. As pointed out earlier, the AO, while disposing of the objections, has not touched upon the issue relating to jurisdiction.
Appeal of the assessee is allowed.
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2023 (1) TMI 1375
Cancellation of GST registration of petitioner - time limitation - rejection of the appeal on the ground of delay in submission of appeal - non-speaking order - HELD THAT:- This Court finds that the assessee has taken grounds in his memo of appeal wherein he has explained the delay in approaching the appellate forum which the first appellate authority has not considered and has passed an order based on a format in a routine manner.
This Court finds that such type of practice cannot be accepted from an appellate authority as the cancellation of registration of GST affects the business of an assessee and by cancellation of registration in a routine manner would only lead to evasion of more taxes by a businessman - The authorities should be more sensitive while dealing with the cancellation of registration of GST and if it is found that a plausible explanation has been afforded by the assessee, the authorities should pass an order so as to see that more and more business thrives in a legal manner and no tax is evaded by any person carrying of any business.
This Court finds that the appellate order dated 19.10.2022 passed by the first appellate authority is unsustainable in the eyes of law as it is a non-speaking order and same is hereby set aside. The matter is remitted to the first appellate authority to consider and decide the appeal afresh in accordance with law.
Writ petition stands partly allowed by way of remand.
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2023 (1) TMI 1374
Grant of regular bail - smuggling of Ganja - HELD THAT:- It appears that some of the occupants of the `Honda City’ Car including Praveen Maurya @ Puneet Maurya have since been released on regular bail. It is true that the quantity recovered from the petitioner is commercial in nature and the provisions of Section 37 of NDPS Act may ordinarily be attracted. However, in the absence of criminal antecedents and the fact that the petitioner is in custody for the last two and a half years, the conditions of Section 37 of the Act can be dispensed with at this stage, more so when the trial is yet to commence though the charges have been framed.
Without expressing any views on the merits of the case, the petitioner is directed to be released on bail subject to his furnishing bail bonds to the satisfaction of the Trial Court - SLP disposed off.
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2023 (1) TMI 1373
Penalty u/s 271(1)(c) - Assessee argued AO has failed to point out the exact head/limb under which the penalty is levied and has claimed that it made the penalty invalid - HELD THAT:- We find that the above ground has not been raised before any of the authorities below nor any evidence in the said notice, without ticking off the relevant limb, has been filed before us.
In these circumstances, in the interest of justice, we remit the issue to the file of the CIT(A). CIT(A) is directed to examine the assessee’s claim that the relevant limb in the penalty notice about the charge against the assessee was not specified. After examining the same and the factual veracity thereof, the ld.CIT(A) shall pass an order as per law. Needless to add, the assessee should be granted adequate opportunity of being heard.
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2023 (1) TMI 1372
Validity of notice issued u/s 148A - assessment order triggered on account of a notice issued u/s 148 [i.e., the old regime] - scope of new regime - petitioner, says that the impugned order and notices cannot be sustained, because revenue have already passed an assessment order u/s 147 r.w.s. 144B of the Act - HELD THAT:- In our view, prima facie, the impugned order and the notices are unsustainable as the respondents/revenue have already passed an assessment order, qua which an appeal is pending with the CIT(A).
Issue notice. In case instructions are received to resist the writ petition, counter affidavit will be filed before the next date of hearing.
List the matter 03.02.2023. In the meanwhile, the AO is restrained from continuing with the assessment/reassessment proceedings which have been triggered on account of the impugned order and notice.
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2023 (1) TMI 1371
Disallowance made u/s 143(1) - failure to pay the employee’s contribution of PF/ESI within the prescribed due dates as per Section 36(1)(va) - Assessee submits that the assessee has filed written submission along with tax audit report but the ld. CIT(A)/NFAC has grossly erred in sustaining the addition in respect of delay payment of contribution employees towards PF and ESI, where the addition is not on account of disallowance on expenditure indicating in the audit report but not taken into account computing in the total income in the return as per section 143(1)(a)(iv)
HELD THAT:- We note that the assessee seeks to raise certain legal grounds. Hence, we are of the view that all issues may be restored to the file of the AO for examine the issues that may be urged by him. Accordingly, we set aside the order of the ld. CIT(A) and restore all issues to the file of the Ao for verification and fresh hearing by providing adequate opportunity to the assessee. Thus the appeal of the assessee is allowed for statistical purposes as per direction mentioned above. Appeals of the assessee are allowed for statistical purposes.
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2023 (1) TMI 1370
Validity of assessment passed u/s 143(3) r.w.s. 144C as barred by limitation - need for issuance of draft order u/s 144C(1) - According to CIT(A), since there was no variation in the returned income by the assessee/foreign non-resident company (eligible assessee), the AO ought not to have passed the draft assessment order and should have straight away proceeded to pass the assessment order - HELD THAT:- We note that though the assessee herein is an eligible assessee u/s 144C(1) of the Act, however the condition required to be satisfied for issuance of draft order u/s 144C(1) of the Act has not been satisfied because there was no variation of returned income which is prejudicial to the interest of the assessee.
Therefore, we find that the aforesaid condition prescribed u/s 144C(1) of the Act was not satisfied. Therefore, the AO ought to have passed the assessment order u/s 143(3) of the Act within the limitation time prescribed u/s 153(1) of the Act i.e. within the twenty one (21) months from the end of the assessment year i.e. on or before 31st December, 2016. And since the assessment order was framed on 7th Feb, 2017, the action of the AO is barred by limitation. No infirmity in the impugned order of the Ld. CIT(A). Therefore, we confirm the action of the Ld. CIT(A) and decline to interfere with the order of the CIT(A). Hence the appeal of the revenue is dismissed.
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2023 (1) TMI 1369
Recovery of dues - priority of dues - whether the dues of secured financial institution will have priority over State tax dues or not? - HELD THAT:- In the instant case, it is an undisputed fact that respondent No.1 – Bank of Baroda is a secured creditor. Therefore, the Bank has valid first charge over the properties in question by way of mortgage and has first right to sell the same in view of priority under Section 26E of the Act and recovered its dues from it. The petitioners are the bona fide purchasers, purchased the properties in question from the public e-auction held by the bank and paid full and total sale consideration to the bank and the bank has issued sale certificate in favour of the petitioners and also handed over the peaceful and vacant possession to the petitioners. Indisputably, the charge created by respondent No.3 – State Authority is later point of time. Therefore, the debts due to Bank of Baroda – a secured creditor shall be paid in priority over other debts/taxes payable to the State Government. The petitioners have no concern with the dues of the State Authorities.
Moreover, now it is well settled legal position that the mortgagor bank has priority to recover the dues against any charges of the State Government or Central Government, more particularly the mortgage is created prior to the registration of such charge by the Authority.
It is held that the SARFAESI Act is meant for enforcement of security interest which is created in favour of the secured creditor – financial institution, and provides specific mechanism / provision for the financial assets and security interest. Any other provision(s) would not defeat the provision of Section 26E of the SARFAESI Act and also the object and purpose of the SARFAESI Act.
This Court holds that the petitioners are the bona fide purchasers and are the absolute owners of the properties in question with legal and valid title. Consequently, the sale deed registered by the Authority concerned is legal and valid document - the present petition is partly allowed.
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9911796707
