TMI Tax Updates - e-Newsletter
October 30, 2020
Case Laws in this Newsletter:
GST
Income Tax
Customs
Corporate Laws
PMLA
Service Tax
Central Excise
Indian Laws
Highlights / Catch Notes
GST
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Valuation - Sale of vehicles - Demand of differential amount of token tax/fees of the vehicles sold - Any clarification issued by the department to a notification cannot have retrospective effect - the department issued the clarification on 26.11.2019. It is not in dispute that after the issuance of the aforesaid clarification the token tax is being calculated on the value of the vehicle including the amount of GST. - The impugned notices directing the petitioner to deposit the differential amount of tax / GST for the period from 03.08.2019 to 26.11.2019, are set aside. - HC
Income Tax
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Employees contribution received from its employees towards PF/ESI - deposited with PF/ESI authorities beyond the time stipulated under the relevant PF/ESI Act but were deposited within the time stipulated for filing of return of income under the provisions of Section 139(1) - Claim of deduction allowed - AT
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Benefit of Vivad Se Vishwas Scheme ('VVS Scheme') - Appeals of the Revenue should be disposed of with the liberty to the Department that if the Department does not issue Form No. 3 to the Assessee, then the Department is at liberty to file a Miscellaneous Application for recalling this order - AT
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Addition u/s.69A r/w Sec. 115BBE - unexplained cash found during search - Locker was last operated on 29.10.2015. The fact that the locker has not been operated in the assessment year 2017 -18 is before the revenue authorities. Hence, the amount deemed to have been undisclosed income for the assessment year 2016-17 whereas the amount has been brought to tax for the assessment year 2017 -18. Hence, the addition made in the AY 2017-18 cannot be upheld. - AT
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Revision u/s 263 - unaccounted purchases - The narration of facts clearly demonstrates that neither the AO failed to make proper investigation nor did he reach any wrong conclusion in holding that the amount of cash deposits by the assessee in his bank account did not pertain to him. - Revision order set aside - AT
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Income recognition - Accrual of income - the addition made by shifting back the gross sale receipts recognized by the assessee in FYs 2011- 12 & 2012-13 to FY 2010-11, without shifting the expenditure incurred in connection with the completion of the said project violates the Accounting Standard I notified u/s 145(2) - AT
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Benefit of Vivad Se Vishwas Scheme ('VVS Scheme') - The assessee is given liberty to restore this appeal in the event the ultimate decision to be taken on the declaration to be filed by the assessee under Section 4 of the said Act is not in favour of the assessee. If such a prayer is made, the Registry shall entertain the prayer without insisting upon any application to be filed for condonation of delay in restoration of the appeal - HC
Service Tax
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Liability of Service Tax - Failure on the part of the service recipient to pay the amount under the service provider agreement cannot be a reason sufficient enough for non-compliance of the statutory provisions by the service provider. Equally, it also cannot be set up as a defence in the adjudicatory proceedings - The liability to pay the tax in terms of Chapter V and VA of the Finance Act, 1994 rests solely upon the petitioner, being the service provider; - HC
Notifications
Customs-
41/2020 - dated
29-10-2020
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Cus
Seeks to further amend notification No. 16/2017-Customs dated 20th April, 2017, which provides exemption to specified medicines under certain Patient Assistance Programmes (PAPs) run by pharmaceutical companies
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40/2020 - dated
28-10-2020
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Cus
Seeks to prescribe concessional Basic customs duty rate on potato imports with the prescribed quota (TRQ) till the 31st January, 2021.
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39/2020 - dated
28-10-2020
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Cus
Seeks to amend Notification No. 50/2017- Customs, dated the 30th June, 2017
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103/2020 - dated
29-10-2020
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Cus (NT)
Notification No.103/2020-Customs (NT) dated 29.10.2020 with subject as "Tariff Notification in respect of Fixation of Tariff Value of Edible Oils, Brass Scrap, Poppy Seeds, Areca Nut, Gold and Silver
DGFT-
43/2015-20 - dated
29-10-2020
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FTP
Amendment in Export Policy of Onions Seeds
FEMA-
FEMA. 399/RB-2020. - dated
23-10-2020
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FEMA
Foreign Exchange Management (Margin for Derivative Contracts) Regulations, 2020
GST-
80/2020 - dated
28-10-2020
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CGST
Seeks to amend Notification No. 41/2020-Central Tax, dated the 5th May, 2020 - Extension of due date for furnishing of FORM GSTR 9/9C for FY 2018-19
GST - States-
31/2020– State Tax - dated
27-10-2020
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Delhi SGST
Seeks to amend Notification No. 13/2017- State Tax, dated the 30th June, 2017
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92/GST-2 - dated
28-10-2020
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Haryana SGST
Notification to prescribe return in FORM GSTR-3B of HGST Rules, 2017 along with due dates of furnishing the said form for October, 2020 to March, 2021 under the HGST Act, 2017
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91/GST-2 - dated
28-10-2020
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Haryana SGST
Notification to prescribe the due date for furnishing FORM GSTR-1 by such class of registered persons having aggregate turnover of more than 1.5 crore rupees in the preceding financial year or the current financial year, for each of the months from October, 2020 to March, 2021 under the HGST Act, 2017
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90/GST-2. - dated
28-10-2020
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Haryana SGST
Amendment of notification no.47/ST-2, dated 30.06.2017 to exempt satellite launch services provided by ISRO, Antrix Co. Ltd and NSIL as recommended by GST Council in its 42nd meeting held on 05.10.2020 under the HGST Act, 2017
Income Tax-
87/2020 - dated
28-10-2020
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IT
Equalisation levy (Amendment) Rules, 2020
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86/2020 - dated
28-10-2020
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IT
Supersession Notification No. 37/2018 dated the 8th August, 2018
Circulars / Instructions / Orders
News
Case Laws:
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GST
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2020 (10) TMI 1132
Exemption from GST - mobility devices - Attorney General states that there could be no objection to the petitioner pursuing a representation. HELD THAT:- List the Writ Petition for final disposal, in March 2021.
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2020 (10) TMI 1131
Application for release of seized goods which are perishable in nature - HELD THAT:- An application dated 29th September, 2020 has been preferred by the writ applicants addressed to the Superintendent, office of the Commisisoner of Cetral GST, Subhanpura, Vadodara under Section 67(6) of the Central Goods and Services Act, 2017 for provisional release of 7312 bags weighing 252,120 kg - At this point of time, we are not inclined to go into the issue with regard to the legality and validity of the action initiated by the authority under the provisions of the Act. Having regard to the fact that the goods seized are perishable in nature, the authority concerned are directed to look into the application dated 29th September, 2020, annexed at page-83A and pass appropriate order within a period of one week from today in accordance with law - application disposed off.
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2020 (10) TMI 1130
Maintainability of petition - absence of appropriate forum - absence of constitution of Tribunal under the Goods and Services Tax Act, 2017 - HELD THAT:- In the absence of constitution of Tribunal under the Goods and Services Tax Act, 2017 the petitioners have no other alternative remedy but to approach this Court under Article 226 of the Constitution - Learned Standing Counsel has no objection to the same. This writ petition be connected with Writ Tax No. 1262 of 2019 and shall be listed on the date fixed in the said case.
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2020 (10) TMI 1129
Valuation - Sale of vehicles - Demand of differential amount of token tax/fees of the vehicles sold - period from 01.08.2019 to 26.11.2019 - liability of seller to pay such amount - HELD THAT:- As per Section 4 of the J K Motor Vehicles Taxation Act, 1957, the liability to pay the tax is on the registered owner or the person who has the possession of the vehicle and not that of the seller of the vehicle. The registration of the vehicle or payment of token tax was not rejected on the Portal as for all the vehicles registration certificates were issued. All of a sudden, the petitioner received a communication dated 22.06.2020, from the Transport Department directing it to deposit differential amount of token tax of the vehicles sold after issuance of SRO 492 dated 01.08.2019. It was the difference of tax on the amount of GST levied on sale of vehicle, on which the token tax was not charged earlier. It was with reference to the clarification issued by the Transport Department on 26.11.2019, which provided that the token tax/ road tax is to be levied on the aggregate cost of the vehicle which includes basic cost plus GST - It could not be disputed that the liability to pay the aforesaid tax is on the buyer of the vehicle who has to utilize the same on the public roads. The fault cannot be attributed to the petitioner for the reason that even the invoice was to be generated from the Vahaan Portal as per the Government Order dated 12.10.2017. Any clarification issued by the department to a notification cannot have retrospective effect - the department issued the clarification on 26.11.2019. It is not in dispute that after the issuance of the aforesaid clarification the token tax is being calculated on the value of the vehicle including the amount of GST. The impugned notices directing the petitioner to deposit the differential amount of tax for the period from 03.08.2019 to 26.11.2019, are set aside - petition allowed.
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2020 (10) TMI 1128
Detention of goods and vehicle - validity of EWB - the vehicle no. in the Part B of the EWB not updated - contravention of Rule 138(5) of CGST/SGST Rules, 2017 - Circular No. 64/38/2018, dated 14-9-2018 - HELD THAT:- It appears that there is no dispute regarding quantity of goods and further all concerns documents were placed before the proper officer. It is a fact that the E-way Bill for the material in question was generated at 05:52 pm on 1-11-2018 and further updated on 5-11-2018 at 06:38 pm in which all relevant detail were entered. Due to break down of material carrying vehicle the material were transhipped to another vehicle. The E-way Bill of the consignment which was produced before the proper officer pertains to the previous vehicle. The only mistake the E-way Bill part-B was that the number of the vehicle in which the material was transhipped had not been entered at the time of inspection of the vehicle. The appellant updated the E-way Bill and the number of the second vehicle was updated in the part-B of the E-way Bill at 11:52 am dated 6-11-2018. Despite the updation of the part-B of EWB the Ld. Respondent detained the vehicle and imposed tax/penalty to the tune of ₹ 16,28,23,728/-. As there is no doubt that the taxpayer has made procedural lapse and violated the provisions of the CGST/HPGST Act, 2017 and HPGST Rules 138(10) which says as Provided further that where, under circumstances of an exceptional nature, including transshipment, the goods cannot be transported within validity period of E-way Bill, the transporter may extend the validity period after uploading the detail in part B of the FORM GST EWB-01, if required . Therefore appellant should have updated the part 8 of EWB before resuming his journey further. So keeping in view the above facts the appellant is liable to pay minor penalty. The tax and penalty deposited by the appellant under Section 129(3) may be refunded and a penalty of Rs. Ten Thousand only is imposed on the taxpayer under Section 122(xiv) of the Act - appeal allowed.
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Income Tax
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2020 (10) TMI 1127
Rejection of books of accounts - HELD THAT:- In the instant case, the two observations made by the Assessing Officer cannot be said to be justifiable reasons to reject the books of accounts. Further, in case where the books of accounts are rejected u/s 145(3) then the assessment ought to have been completed u/s 144 of the Act. Section 144 provides for best judgment method of assessment by Assessing Officer and to complete the assessment u/s 144(1), the Assessing Officer has to afford an opportunity to the assessee to that extent. Since, the amounts have been duly reflected in the books of accounts and the reasons specified by the Assessing Officer are not justifiable and since the assessment has not been completed following the due procedure as mentioned u/s 144, we hereby hold that no addition in the case of the assessee is called for. Addition u/s.69A r/w Sec. 115BBE - unexplained cash found during search - search and seizure operation u/s 132 - Old currency notes which had zero intrinsic value as on the date of operation of locker No. 487 - HELD THAT:- The amount has been added as unexplained money u/s 69 A for the assessment year 2017-18. Hence, it needs to be considered as to whether for the period between 01.04.2016 to 25.04.2016, possession of these notes have any intrinsic value or not. On this issue, we are guided by the judgment of Hon ble High Court of Karnataka in the case of CIT Vs Andhra Pradesh Yarns Combines Pvt. Ltd. [ 2006 (1) TMI 66 - KARNATAKA HIGH COURT ] Locker was last operated on 29.10.2015. The fact that the locker has not been operated in the assessment year 2017 -18 is before the revenue authorities. Hence, the amount deemed to have been undisclosed income for the assessment year 2016-17 whereas the amount has been brought to tax for the assessment year 2017 -18. Hence, the addition made in the AY 2017-18 cannot be upheld. Appeal of the assessee is allowed.
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2020 (10) TMI 1126
Penalty u/s.271(1)(c) - disallowance made u/s.40A(3) - HELD THAT:- Assessee filed particulars involving claim u/s.40A(3) but however AO could not find the same as acceptable and proceeded to make disallowance u/s.40A(3) - penalty could not be levied on such disallowance made u/s.40A(3) of the Act only on the basis that the assessee made wrong claim. - Decided in favour of assessee. Penalty imposed on account of addition made u/s.69C - HELD THAT:- We find nothing on record showing that the assessee challenged the same before the Appellate Forum and therefore, taking into consideration the submissions of the Ld. DR, we uphold the order of the Ld. CIT(Appeals) in confirming the penalty levied u/s.271(1)(c) of the Act on account of disallowance made u/s.69C - Decided against assessee. Penalty levied on disallowance made u/s.68 - HELD THAT:- We find no cogent evidences before us as rightly pointed by the Ld. DR supporting the contentions of assessee and showing the addition has been deleted in the quantum proceedings. Therefore, we find no infirmity with the findings of the CIT(A) in confirming the penalty imposed u/s.271(1)(c) of the Act involving the disallowance made u/s.68 - Decided against assessee. Penalty imposed on disallowance made u/s.40(a)(ia) - violation of deduction of TDS on the payment made on account of TDR/Land cost - HELD THAT:- AO initiated penalty proceedings for failure to deduct TDS which itself clearly shows that the there were details regarding the payment involving TDR/land cost in the assessment proceedings which does not any way constitute furnishing of inaccurate particulars nor concealment of income. A mere disallowance as rightly contended by the assessee before the CIT(A) does not attract imposition of penalty. Therefore, the order of the CIT(A) in confirming the penalty imposed against disallowance u/s.40(a)(ia) of the Act is deleted. - Decided in favour of assessee.
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2020 (10) TMI 1125
Deduction u/s 80I/80IA - Lean gas is manufactured/ produced only at the two LPG Plants at Vaghodia (Gujarat) and Vijaipur (MP) and not at various customer terminals, as claimed by the appellant - as per CIT-A activities undertaken by the appellant at its customer terminals did not constitute manufacture or production of any article or thing - HELD THAT:- Since deduction is admissible for specified years, as a consequence of the order of the CIT(A), deduction in respect of profits derived from processed Lean Gas shall be considered from the year of setting up of the LPG Plant and not the relevant customer terminal at which such processed Lean Gas is supplied to the customer. Extensive processing activities undertaken by the assessee at the customer terminals to make lean gas and natural gas marketable and fit for use, clearly constitute manufacture . The contention of the assessee is that the claim of deduction made by the assessee under section 80I/80IA/ 80HH are genuine as the similar claims have been allowed in the earlier years by the revenue. Deduction allowed in earlier years cannot be denied in subsequent years. Since deduction under section 80IA of the Act in respect to profit derived from eligible units has been allowed by Revenue till assessment year 1995-96, the same cannot be denied subsequently. AR made reference to the decision of the CIT(A) in assessee s own case for the assessment year 1994-95. CIT(A) has not taken into account the revenue s stand in the earlier years and deviated from the same without any substantial reasons or evidence on record. Thus, the claim of deduction made by the assessee under section 80I/80IA/ 80HH are genuine in this year as well - Decided in favour of assessee. Misc. Income and Interest income eligible for deduction u/s 80IA, 80I and 80HH - HELD THAT:- Assessee has produced all the relevant evidence as regards to how the scrap sale is derived from the industrial undertaking. As regards to interest on fixed deposits, various decisions of the Hon ble High Court categorically held that the deduction in respect of interest on fixed deposits under Section 80IA is allowable. The revenue has not pointed out as to why the same should be denied to the assessee. The case laws given by the Revenue in fact reiterate the stand of the assessee. Hence, it is pertinent to remand back the matter to the file of the Assessing Officer and we direct the Assessing Officer to allow deduction in respect of interest on fixed deposits under Section 80IA of the Act. So far as interest on employees loans and advances is concerned, the interest on loan provided to employees in our opinion is inextricably linked to the business of the assessee and constitutes business income eligible for deduction. As regards to interest on customer outstanding is profit derived from eligible undertakings and entitled for deduction under Section 80IA/80I, in department s appeal, the issue is covered in favour of the assessee by various decisions of High Court. As regards to miscellaneous income, the said income is inextricably linked to and have first degree nexus with the profits and gains of the eligible undertaking and the same were eligible for deduction. Interest transferred to expenditure during construction liable to be excluded from eligible profits - HELD THAT:- The aforesaid issue of capitalization has been decided in favour of the assessee by the Tribunal in assessee s own case vide order dated 22.01.2010 for the A.Y. 1997-98. The Tribunal followed the decision of the Hon ble Supreme Court in case of CIT vs. Bokaro Steel [ 1998 (12) TMI 4 - SUPREME COURT] and Karnal Cooperative Sugar Mills [ 1999 (4) TMI 7 - SC ORDER] . CIT(A) should have directed the Assessing Officer to reduce the aforesaid interest and miscellaneous income capitalized while excluding the same from the eligible profits which the CIT(A) failed to do so. Therefore, we are remanding back this issue to the file of the Assessing Officer with the direction to reduce the aforesaid interest and miscellaneous income capitalized while excluding the same from the eligible profits. Ground of the assessee s appeal is partly allowed for statistical purpose. Horticulture expenses disallowance - HELD THAT:- The horticulture expenses on planting of trees, maintenance of lawns and areas in the close vicinity of the offices/ plants of the assessee in accordance with the mandate of the Government and the assessee has to comply with the government regulations for environmental cause. Thus, the CIT(A) has given a categorical finding while allowing these expenses. Ground No. 4 of Revenue s appeal is dismissed. Deferred revenue expenditure - HELD THAT:- Expenditure incurred on market survey to assess the degree and extent of utilization of additional ethylene proposed to be produced by the assessee is related to the business related. Thus, revenue expenditure incurred by an existing business for expansion or setting up of new unit in the same business is allowable business deduction. Therefore, the CIT(A) rightly allowed the said expenditure.
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2020 (10) TMI 1124
Benefit of Vivad Se Vishwas Scheme ('VVS Scheme') - Right of the revenue - Disposal of appeal since application has been filed by the assessee but Designated Authority has not accepted the declaration till date - HELD THAT:- Although the Declaration in Form 1 in accordance with Section 4 has been filed by the assessee company, however, the Designated Authority has not yet granted the Certificate in Form 3 under Section 5 of the Direct Tax Vivad Se Vishwas Act, 2020 accepting the said declaration and determining the tax arrears to be paid by the assessee. Assessee s counsel has further mentioned in her letter dated 19.10.2020 that the captioned appeals would be withdrawn once the Designated Authority accepts the declaration filed by the assessee issues Form 3 under section 5 of the Direct Tax Vivad Se Vishwas Act, 2020. Appeals of the Revenue should be disposed of with the liberty to the Department that if the Department does not issue Form No. 3 to the Assessee, then the Department is at liberty to file a Miscellaneous Application for recalling this order - Both the Appeals filed by the Revenue are dismissed with liberty to file Misc. Application for recalling the order if Form No. 3 of the Direct Tax Vivad Se Vishwas Act, 2020 is not issued to the Assessee.
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2020 (10) TMI 1123
Exemption u/s 11 - denying the registration u/s 12AA - CIT-E had denied the registration solely on the ground that the appellant had not undertaken any charitable activities pursuant to objects on which it was set up activities of the trust in the last three financial years - HELD THAT:- It is not the case of the CIT(Exemption) that the objects of the appellant society are not charitable in nature. The reasoning of the CIT (Exemption) is not tenable under the law in view of the recent judgement of the Hon ble Supreme Court in the case of Ananda Social and Educational Trust [ 2020 (2) TMI 1293 - SUPREME COURT] Hon ble Supreme Court in the case of M/s. Ananda Social and Educational Trust [ 2020 (2) TMI 1293 - SUPREME COURT] held that merely because the trust has not spent any amount of its income for charitable activities and the fact that the trust has not spent any amount of income for charitable purpose does not amount to carrying on the activities contrary to its objects. In the light of legal position discussed supra, the order of the ld. Commissioner of Income Tax (Exemption) cannot be sustained in the eyes of law. The submission of the ld. CIT-DR the matter be remanded to Commissioner of Income Tax (Exemption) for fresh examination cannot be acceded to for the reason that it amounts to ordering fresh enquiry which is not permissible under the law - we direct the ld. Commissioner of Income Tax (Exemption) to grant registration of the appellant trust u/s 12AA of the Act. - Decided in favour of assessee.
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2020 (10) TMI 1122
Deduction u/s. 80P(2)(a)(i) - HELD THAT:- Hon ble Supreme Court in the case of The Citizens Cooperative Society Ltd. [ 2017 (8) TMI 536 - SUPREME COURT ] held that in order to do the business of a cooperative bank, it is imperative to have a licence from the Reserve Bank of India. It can therefore be said that a co-operative society which does not possess a license from RBI cannot be equated to a co-operative Bank, even though it might indulge in the business of banking. Co-operative Societies carrying on business of banking are therefore entitled to claim deduction u/s.80P(2)(a)(i). The CIT(A) s order was passed prior to the decision of the Hon ble Supreme Court in the case of The Citizens Co-operative Society Ltd., (supra) and hence the CIT(A) did not have the benefit of looking into the same. Appeal of the revenue is allowed for statistical purposes.
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2020 (10) TMI 1121
TDS u/s 194A - Non-deduction of TDS on interest paid to the members - disallowance u/s 40(a)(ia) - HELD THAT:- As decided in KODUNGALLUR TOWN CO-OPERATIVE BANK LTD. [ 2018 (5) TMI 1794 - ITAT COCHIN] and KADACHIRA SERVICE CO-OP. BANK LTD [ 2013 (2) TMI 208 - ITAT COCHIN] assessee are not cooperative society but co-operative bank carrying on banking business with the approval of the Reserve Bank of India and as such, the assessee are not liable to deduct TDS under section 194A of the I.T. Act on the interest paid to its own members. Denying the claim of deduction u/s 80P(2)(a)(i) - HELD THAT:- In the case of The Mavilayi Service Co-operative Bank Ltd. [ 2019 (3) TMI 1580 - KERALA HIGH COURT] we are of the view that there should be fresh examination by the AO as regards the nature of each loan disbursement and purpose for which it has been disbursed, i.e., whether it for agricultural purpose or not. A.O. shall list out the instances where loans have been disbursed for non-agricultural purposes etc. and accordingly conclude that the assessees activities are not in compliance with the activities of primary agricultural credit society functioning under the Kerala Co-operative Societies Act, 1969, before denying the claim of deduction u/s 80P(2). The issue raised in these appeals is restored to the files of the AO. AO shall examine the activities of the assessee-societies - Appeals filed by the assessee are allowed for statistical purposes.
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2020 (10) TMI 1120
Deduction u/s 80P(2)(a)(i) - assessee were essentially doing the business of banking, and therefore, in view of insertion of section 80P(4) with effect from 01.04.2007, the assessee will not be entitled to deduction u/s 80P - HELD THAT:- In the case of The Mavilayi Service Co-operative Bank Ltd. [2019 (3) TMI 1580 - KERALA HIGH COURT ] we are of the view that there should be fresh examination by the Assessing Officer as regards the nature of each loan disbursement and purpose for which it has been disbursed, i.e., whether it for agricultural purpose or not. A.O. shall list out the instances where loans have been disbursed for non-agricultural purposes etc. and accordingly conclude that the assessees activities are not in compliance with the activities of primary agricultural credit society functioning under the Kerala Co-operative Societies Act, 1969, before denying the claim of deduction u/s 80P(2). The issue raised in these appeals is restored to the files of the AO. AO shall examine the activities of the assessee-societies - Appeals filed by the assessee are allowed for statistical purposes.
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2020 (10) TMI 1119
Employees contribution received from its employees towards PF/ESI - deposited with PF/ESI authorities beyond the time stipulated under the relevant PF/ESI Act but were deposited within the time stipulated for filing of return of income under the provisions of Section 139(1) - HELD THAT:- As relying on M/S. UNIFAC MANAGEMENT SERVICES (INDIA) PRIVATE LIMITED [ 2019 (1) TMI 1787 - MADRAS HIGH COURT] and M/S. REPCO HOME FINANCE PVT. LTD. [ 2020 (6) TMI 470 - ITAT CHENNAI] we decide the issue in favour of the assessee by holding that the employee contribution towards PF/ESI received by assessee from its employees which was deposited beyond the due date as prescribed under the relevant statute governing PF/ESI but were deposited within the due date prescribed for filing of return of income u/s 139(1) of the 1961 Act shall be allowed as deduction while computing income of the assesse under Chapter IV-D of the 1961 Act under the head Profits and Gains from Business or Profession . - Decided in favour of assessee.
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2020 (10) TMI 1118
Additional income declared in survey - Income attribution - income from other sources OR business income - Deduction on interest and remuneration paid to partners - assessee was contended the amount disclosed during the course of survey as additional income is part and parcel of its regular trading receipts and cannot be deemed as unaccounted money u/s. 69 - HELD THAT:- The nature and source of said amount disclosed during the course of survey is established as business income as the assessee does not have any other business activity except business income from construction of housing project. Therefore, we hold the entire disclosed amount are attributable to the business activity and consequently is eligible for all allowances u/s. 40(b) of the Act. - Appeal of assessee is allowed.
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2020 (10) TMI 1117
Benefit of Vivad Se Vishwas Scheme ('VVS Scheme') - Option to appeal in case application for settlement is rejected - HELD THAT:- It may not be necessary for this Court to decide the Substantial Questions of Law framed for consideration on account of certain subsequent developments. The Government of India enacted the Direct Tax Vivad Se Vishwas Act, 2020 (Act 3 of 2020) to provide for resolution of disputed tax and for matters connected therewith or incidental thereto. The Act of the Parliament received the assent of the President on 17th March 2020 and published in the Gazette of India on 17th March 2020. In terms of the said Act, the assessee has been given an option to put an end to the tax disputes, which may be pending at different levels either before the First Appellate Authority or before the Tribunal or before the High Court or before the Hon'ble Supreme Court of India. The assessee is given liberty to restore this appeal in the event the ultimate decision to be taken on the declaration to be filed by the assessee under Section 4 of the said Act is not in favour of the assessee. If such a prayer is made, the Registry shall entertain the prayer without insisting upon any application to be filed for condonation of delay in restoration of the appeal and on such request made by the assessee by filing a Miscellaneous Petition for Restoration, the Registry shall place such petition before the Division Bench for orders. We direct the appellant / assessee to file the Form No.I on or before 09.11.2020 and the competent authority shall process the application / declaration in accordance with the Act and pass appropriate orders as expeditiously as possible preferably within a period of six (6) weeks from the date on which the declaration is filed in the proper form.
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2020 (10) TMI 1116
Income recognition - Accrual of income - Addition being the value of consideration received by the assessee - Accounting principle followed - whether substantial amounts have been received by the assessee before signing of the agreements of sale during the year? - HELD THAT:- In the instant case, the AO has simply followed the AIR information of registration of agreements of sale made during the year and held that the assessee is not entitled to defer the receipts to later years. This is not the correct way to make an assessment. AO could have called for the books of accounts maintained by the assessee and examined it. He has not done so. There is no finding by the AO that the books of accounts maintained by the assessee are defective. Also we find that the AO has shifted the gross sale receipts recognized by the assessee in FYs 2011-12 2012-13 back to FY 2010-11 without shifting the expenditure incurred in connection with completion of the said properties. The assessee is following mercantile system of accounting. In the instant case, the addition made by shifting back the gross sale receipts recognized by the assessee in FYs 2011- 12 2012-13 to FY 2010-11, without shifting the expenditure incurred in connection with the completion of the said project violates the Accounting Standard I notified u/s 145(2) - we uphold the order of the Ld. CIT(A) in deleting the addition - Decided in favour of assessee. Interest / premium paid on cancellation of gala - Whether CIT(A) was right in deleting the addition by admitting fresh evidences in contravention of Rule 46A of IT Rules - HELD THAT:- CIT(A) having examined the balance sheet of the assessee as at 31.03.2010 (earlier year), ledger accounts and TDS certificates, has arrived at a definite finding that the amount was repaid to the parties and tax was also deducted on the compensation/premium paid on cancellation. A perusal of the details filed by the assessee before the AO clearly indicates that there is no contravention of Rule 46A of the Income Tax Rules, 1962 by the Ld. CIT(A). We uphold the order of the Ld. CIT(A) and dismiss ground of appeal of revenue.
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2020 (10) TMI 1115
Taxable event u/s. 56(2)(vii)(b) - transfer recognized u/s. 2(47)(vi) - year of assessment - property under reference stands received by the assessee during fy 2012-13 OR fy 2013-14, i.e., the previous years relevant to AYs. 2013-14 and 2014-15 respectively - HELD THAT:- The de facto ownership, recognized in Podar Cement Pvt. Ltd. [ 1997 (5) TMI 2 - SUPREME COURT] is for the purpose of section 22 of the Act. The reason/s therefor is not far to seek, i.e., the object of the Act, being to tax the person who is in the effective control of the asset (property), and who has a better title thereto than anyone else, receiving income therefrom in his own right. No doubt, the word employed in section 56(2)(vii) is receives . The same, again, could only mean receipt in his own right, assuming effective control over and right on the usufruct of the property, implying a de facto ownership. It is only a de facto transfer, which stands recognized u/s. 2(47)(vi) of the Act, that would result in a de facto ownership, fulfilling the requirement of a receipt u/s. 56(2)(vii) inasmuch as it enables one to exercise, for all practical purposes, rights in and over the property received . While the sale, resulting in a de jure ownership, is complete only on 24/4/2013, the de facto transfer, leading to a de facto ownership, gets completed earlier on 30/3/2013 on the execution of the instrument of sale, with each party having fulfilled his part of the contract to transfer. There is thus receipt of the subject land by the assessee on 30/3/2013, i.e., during the previous year relevant to AY 2013-14, the immediately preceding year. The taxable event u/s. 56(2)(vii)(b) thus takes place during the said year, and not the current year. That, for that year, the law did not bring the short consideration to tax, but only where the subject property is received without consideration, is a different matter altogether, with which we are not concerned and, in fact, is, to that extent, an irrelevant consideration. The Revenue s action in invoking s. 56(2)(vii)(b)(ii) for the current year is thus not sustainable in law. - Decided in favour of assessee.
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2020 (10) TMI 1114
Rectification application u/s 254 - Disallowance u/s 36(1)(iii) - As per assessee disallowance under Sec.36(1)(iii) of the interest expenditure of ₹ 3,53,06,301/-, as had been sustained by the Tribunal, was liable to be restricted only to the extent of ₹ 6,534/- - HELD THAT:- Advancing of loans to third parties and overdrawing of the capital account of the partners could safely be related to the interest bearing loans or the bank overdrafts availed by the assessee. As regards the claim of the assessee that profit of ₹ 29.73 crores generated during the year under consideration was available with it to explain the source of the interest free advances given during the year under consideration, it was observed by the Tribunal that the said profits would only go to reduce the debit balances, overdrafts etc. In fact, it was observed by the Tribunal that a perusal of records revealed that the cumulative balance in the capital accounts of the partners on 31.03.2011 after crediting the profits of ₹ 29,73,91,730/- therein stood reflected at ₹ 14,62,65,453/- (dr.) Tribunal while upholding the disallowance u/s 36(1)(iii) of ₹ 3,53,06,301/-, had taken a conscious view in the backdrop of the facts available on record. Considering the claim raised by the assessee in its aforesaid application, we find ourselves to be in agreement with the contention advanced by the ld. D.R, that the assessee in the guise of the present application is in fact seeking a review of the order that was passed by the Tribunal while disposing off the appeal is beyond the powers vested with the Tribunal under subsection (2) of Sec.254. - Decided against assessee.
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2020 (10) TMI 1113
Revision u/s 263 - unaccounted purchases - HELD THAT:- It is more than clear that albeit the cash was deposited in the assessee s bank account but the source of such cash was Mr. Dilip Talekar, partner of Laxmisen Agencies. He used the assessee s bank account by purchasing demand drafts in favour of Wokhardt Limited for making purchases, which business the firm was admittedly doing outside the books of account. AO, not only examined this fact after recording the statement of Mr. Dilip Talekar as well as the assessee, but also got such transactions verified with Wokhardt Limited and the bank of the assessee. This amply proves that the AO made proper verification of the assessee s claim and reached right conclusion that such cash deposits, in fact, represented transactions carried out by Mr. Dilip Talekar for and on behalf of Shri Laxmisen Agencies. Not only that, the AO of the assessee passed on this information to the AO of Shri Laxmisen Agencies, who, in turn, made addition towards unaccounted purchases. The narration of above facts clearly demonstrates that neither the AO failed to make proper investigation nor did he reach any wrong conclusion in holding that the amount of cash deposits by the assessee in his bank account did not pertain to him. We, therefore, set-aside the impugned order doubting the correctness of the assessment order.
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Customs
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2020 (10) TMI 1112
Right to seek the test of the consignments for determining whether the goods imported confirm to IS 3024:2015 - Seizure of imported consignment - 242 MT of CRGO Steel Sheets/ Coils - prime quality goods or not - HELD THAT:- Undoubtedly in the present case the ADG, Adjudication, DRI Mumbai, was acting as adjudicating authority, and has made this record of personal hearing as adjudicating authority. Also by stating As regards request for testing, it was informed to them that the same was considered and found to be not acceptable, in view of the fact of the case and evidences placed before the adjudicating authority. , he has made a determination and have rejected the request for testing of the consignment made by the appellant. Any such determination during the course of adjudication by the adjudicating authority is an order passed by the passed by the adjudicating authority and is within the purview of section 129A(1)(a) against which the appeal lies to this tribunal. The matter needed to be considered in more serious manner and proper reasons to be assigned, because in any judicial/ quasi judicial proceedings, the effected party has the right to lead the evidence in the manner which suits to him best. Any order which is contrary to this basic principle has to be more considered and reasoned. The sentence As regards request for testing, it was informed to them that the same was considered and found to be not acceptable, in view of the fact of the case and evidences placed before the adjudicating authority. appearing in the record of personal hearing dated 18.11.2019 is set aside - matter remanded to adjudicating authority for reconsideration of the request made by the appellant for testing of the consignments.
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Corporate Laws
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2020 (10) TMI 1111
Sanction of Scheme of Arrangement - section 230-232 of Companies Act, 2013 - HELD THAT:- This Bench hereby directs the Applicant Companies to issue notices for various meetings required to be held - scheme sanctioned.
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2020 (10) TMI 1110
Sanction of scheme of amalgamation - sections 230 to 232 and other applicable provisions of the Companies Act, 2013 read with the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 - HELD THAT:- As per the petition, the scheme in question will help in optimum and efficient utilization of resources either in the form of assets and sharing of ancillary facilities, benefit by obtaining synchronization of synergies, etc. - the procedure specified in sub-sections (1) and (2) of section 232 of the Companies Act, 2013 has been complied with, and that the scheme of amalgamation can be sanctioned. The scheme of amalgamation (as annexed with this petition) is hereby sanctioned and the appointed date of the scheme shall be April 1, 2019.
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2020 (10) TMI 1109
Sanction of Scheme of amalgamation - section 230-232 of Companies Act, 2013 - HELD THAT:- The present Scheme is an arrangement between the Transferor Company No.1, Transferor Company No.2 and their shareholders as contemplated under Section 230(1)(b) and not in accordance with the provisions of Section 230(1)(a) of the Companies Act, 2013 as there is no Compromise and/or Arrangement with creditors as no sacrifice is called for. The rights of the creditors will not be affected at all. The copy of the Scheme is annexed as Exhibit- O1 to the Application. In view of the fact that the Applicant Companies have obtained consent affidavits from all their creditors, the meetings of the respective creditors of the Applicant Companies are hereby dispensed with as prayed for - Directions for various meetings to be convened issued - scheme sanctioned.
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PMLA
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2020 (10) TMI 1108
Release of attached properties - Attachment of immovable properties - continued attachment of the FDRs - concealment of proceeds of crime or not - HELD THAT:- The Tribunal in the present case, in its impugned order dated 26.07.2019, agreed with most of the contentions raised on behalf of Kamats and Alemaos and even concluded in para 78, that the properties attached in the matter are liable to be released 'in the light of the reasons stated in earlier paras'. However, instead of setting aside the attachment, the Tribunal issued a host of directions in para 79, perhaps not even contemplated under the PMLA, by simply observing that there is a need to strike a balance in these matters since the trial is pending before the Special Court - Once the Tribunal concluded that the attachment orders were liable to be set aside, it could not have avoided setting aside the same, by merely observing that there are allegations by the CBI against Kamats and Alemaos who are facing trial and therefore, in the name of striking balance, confirmed the attachment of the FDRs or imposed conditions for raising the attachment on the immovable properties. The directions issued by the Tribunal in its impugned order are this, quite contrary to its reasoning. The directions, therefore, are quite unsustainable in such circumstances. On a plain reading of the provisions of Section 5(1) of the PMLA, it is apparent that the two predicates in clauses (a) and (b) have to be construed conjunctively and not disjunctively as suggested by Mr. Vaze, learned counsel for the ED. This means that the director or the authorized officer before he proceeds to make an order under Section 5(1) of the PMLA, must have reason to believe, on the basis of material in his possession, not only any person is in possession of any proceeds of crime but further, such proceeds of crime are likely to be concealed, transferred or dealt with to frustrate confiscation proceedings under Chapter III of PMLA - reading the and which connects the two predicates in clauses (a) and (b) might even lead to an absurd position because it might imply that even though a person is not in possession of any proceeds of crime, he is nevertheless likely to conceal, transfer or deal with 'such proceeds of crime' to frustrate confiscation proceedings under Chapter III of PMLA. Further, if the expression and is construed as it stands, it is not as if some absurdity would result in the construction of Section 5(1) of the PMLA or the object of Section 5(1) of the PMLA would be frustrated or defeated. There is, according to us, nothing in the text or the context obliging the Court to read and as or simply because the Court, may, in certain circumstances, have the power to do so. Therefore, based upon the supposed intention of the Legislature, the expression and which connects the predicates in clauses (a) and (b) of Section 5(1) of the PMLA cannot be read as or . There is nothing in the context to indicate that the Legislature intended to provisionally attach the proceeds of crime irrespective of whether or not there was any likelihood of such proceeds of crime being concealed, transferred, or dealt with to frustrate any confiscation proceedings under Chapter III of the PMLA. Rather, it appears that the Legislature intended to empower the director or the authorized officer to provisionally attach the proceeds of crime where such proceeds of crime were likely to be concealed, transferred, or dealt with to frustrate the confiscation proceedings. The Legislature was conscious that it was vesting the director or the authorized officer with such extraordinary powers in the teeth of the presumption of innocence and therefore, such extraordinary power was hedged with certain contentions which had to be cumulatively existent. In the present case, analysis of the Joint Director s order dated 30.03.2017 makes it clear that there are no reasons whatsoever recorded by the Joint Director in support of his alleged belief that the proceeds of crime were likely to be concealed, transferred or dealt with in any manner by the Kamats or Alemaos to frustrate proceedings relating to the confiscation of such proceeds under Chapter III of the PMLA. The mere incantation that the officer had reason to believe that such proceeds of crime will be dealt with in a manner which may result in frustrating any proceedings relating to the confiscation of such proceeds of crime, constitutes no compliance whatsoever with the predicates of clause (b) of Section 5(1) of the PMLA. The statement made on behalf of the Appellants-Kamats that they will not sell, transfer, alienate, encumber or liquidate or encash the attached properties/FDRs and order until the conclusion of PMLA Case No.1/2018 pending before the Special Court at Mapusa and for one month thereafter, is hereby accepted. The Appellants-Kamats will have to abide by this statement - Application disposed off.
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Service Tax
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2020 (10) TMI 1107
Liability of Service Tax - business of providing washing and cleaning bedrolls and linen - non-receipt of payment of the amount of tax from the recipient of the services - non-compliance with the statutory provisions or not - maintainability of appeal under Section 85 of the Act, challenging the order(s) of the appropriate authority constituted under the Act - HELD THAT:- Language of the statute is simple, clear and unambiguous. The service provider, so defined, is mandatorily required to register and make payment of component of tax with receipt to the services so rendered. The Act does not stipulate payment only on receipt thereof - petitioner has not registered itself under the statute; nor paid any tax. The order passed was after affording an opportunity of filing response; all contentions allowed to be raised, considered and dealt with; fair opportunity of hearing afforded; reasons for assessing the liability stands assigned; statutory provisions correctly appreciated and applied to the attending facts and circumstances. There is no violation of principles of natural justice. There is no misconstruction or misappreciation of fact or misapplication of the law - Petitioner has been providing service to the Government authority. The service does not fall within the specified services contained in the negative list. The amount received from the Railway Authorities is not in dispute, and the incidence of taxation stands correctly determined. The defence taken by the petitioner of persuading the service recipient to pay the amount or having initiated proceedings seeking appointment of an Arbitrator for settlement of disputes rightly stands rejected by the Assessing Authority, for compliance of the statutory provisions are not subject to or dependent upon the contractual terms governing the parties - Arbitral proceedings would only determine obligations inter se the parties to the agreement and not the liability or factum of compliance of statutory provisions. The statute mandates timely payment of component of tax. There is no provision for deferment, either till the time of its receipt or payment only subject to that. Hence, the contentions raised by the learned counsel at the time of the hearing, being untenable stands rejected. The liability to pay the tax in terms of Chapter V and VA of the Finance Act, 1994 rests solely upon the petitioner, being the service provider - Such liability cannot be deferred. It is not subject to receipt of any amount, be it a tax or otherwise, from the service recipient - Failure on the part of the service recipient to pay the amount under the service provider agreement cannot be a reason sufficient enough for non-compliance of the statutory provisions by the service provider. Equally, it also cannot be set up as a defence in the adjudicatory proceedings - The Act provides for a complete mechanism for adjudication of all issues of fact or law before different forums.
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Central Excise
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2020 (10) TMI 1106
Refund of CENVAT Credit - rejection on the ground of time limitation - manufacture and export of fire vehicle took place in June to August, 2015 and refund claim was filed on 22nd September, 2017 - HELD THAT:- Clause 3(b) of Notification 27/2012 prescribes that section 11B of the Central Excise Act, 1994 will be applicable to all claims made under Rule 5. In the instant case, the appellant is a manufacturer and, therefore, there is no ambiguity. The refund claim relates to the period June to August, 2015 and the same was filed on 22nd September, 2017 which clearly beyond the scope of limitation prescribed under section 11B of the Central Excise Act, 1944. Appeal dismissed.
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Indian Laws
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2020 (10) TMI 1105
Cancellation of Bail granted - filing of an additional complaint by the investigating agency - Whether the indefeasible right accruing to the appellant under Section 167(2), CrPC gets extinguished by subsequent filing of an additional complaint by the investigating agency? - Whether the Court should take into consideration the time of filing of the application for bail, based on default of the investigating agency or the time of disposal of the application for bail? HELD THAT:- Admittedly the Appellant-accused had exercised his option to obtain bail by filing the application at 10:30 a.m. on the 181st day of his arrest, i.e., immediately after the court opened, on 01.02.2019. It is not in dispute that the Public Prosecutor had not filed any application seeking extension of time to investigate into the crime prior to 31.01.2019 or prior to 10:30 a.m. on 01.02.2019. The Public Prosecutor participated in the arguments on the bail application till 4:25 p.m. on the day it was filed. It was only thereafter that the additional complaint came to be lodged against the Appellant - the Appellant-accused was deemed to have availed of his indefeasible right to bail, the moment he filed an application for being released on bail and offered to abide by the terms and conditions of the bail order, i.e. at 10:30 a.m. on 01.02.2019. He was entitled to be released on bail notwithstanding the subsequent filing of an additional complaint. It is clear that in the case on hand, the State/the investigating agency has, in order to defeat the indefeasible right of the accused to be released on bail, filed an additional complaint before the concerned court subsequent to the conclusion of the arguments of the Appellant on the bail application. If such a practice is allowed, the right under Section 167(2) would be rendered nugatory as the investigating officers could drag their heels till the time the accused exercises his right and conveniently files an additional complaint including the name of the accused as soon as the application for bail is taken up for disposal. Such complaint may be on flimsy grounds or motivated merely to keep the accused detained in custody, though we refrain from commenting on the merits of the additional complaint in the present case. Irrespective of the seriousness of the offence and the reliability of the evidence available, filing additional complaints merely to circumvent the application for default bail is, in our view, an improper strategy - the High Court was not justified in setting aside the judgment and order of the Trial Court releasing the accused on default bail. The High Court has wrongly entered into merits of the matter while coming to the conclusion. The reasons assigned and the conclusions arrived at by the High Court are unacceptable. Once the accused files an application for bail under the Proviso to Section 167(2) he is deemed to have availed of or enforced his right to be released on default bail, accruing after expiry of the stipulated time limit for investigation. Thus, if the accused applies for bail under Section 167(2), CrPC read with Section 36A (4), NDPS Act upon expiry of 180 days or the extended period, as the case may be, the Court must release him on bail forthwith without any unnecessary delay after getting necessary information from the public prosecutor, as mentioned supra. Such prompt action will restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigative agency - right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding pendency of the bail application; or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court; or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court. The impugned judgment of the High Court stands set aside - appeal allowed.
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2020 (10) TMI 1104
Smuggling - Charas - Whether bias was caused by complainant also being the investigating officer? - HELD THAT:- There are no reason to draw any adverse inference against PW8 himself investigating his complaint. The appellants claim of bias stems from the purported delays, non-compliance of statutory mandates and non-examination of independent witness. In effect, the appellants are seeking to circuitously use the very same arguments which have individually been held by the High Court to be factually incorrect or legally irrelevant. Although in some cases, certain actions (or lack thereof) by the Investigating Officer might indicate bias; but mere deficiencies in investigation or chinks in the prosecution case can t be the sole basis for concluding bias. The appellants have at no stage claimed that there existed any enmity or other motive for the police to falsely implicate them and let the real culprits walk free. Further, such a huge quantity of charas could not have been planted against the appellants by the police on its own. Whether alternate version has been established and what is the effect of lack of independent witnesses? - HELD THAT:- As correctly appreciated by the High Court in detail, non-examination of independent witnesses would not ipso facto entitle one to seek acquittal. Though a heighted standard of care is imposed on the court in such instances but there is nothing to suggest that the High Court was not cognizant of this duty. Rather, the consequence of upholding the trial Court s reasoning would amount to compulsory examination of each and every witness attached to the formation of a document. Not only is the imposition of such a standard of proof unsupported by statute but it is also unreasonably onerous in our opinion. The High Court has rightly relied upon the testimonies of the government officials having found them to be impeccable after detailed reappreciation of the entire evidence - there are no reason to disagree with such finding(s). Whether High Court erred in reversing acquittal in appeal? - HELD THAT:- There is no gainsaid that High Courts are well within their power to reverse an acquittal and award an appropriate sentence; though they cautiously exercise such powers in practice. Illustratively, a few permissible reasons which would necessitate such interference by the High Court include patent errors of law, grave miscarriage of justice, or perverse findings of fact - the trial Court appreciated facts in a mechanical manner and dismissed the prosecution case based on a misinterpretation of law, particularly qua satisfying the burden of proof. Hence, there were more than enough reasons for the High Court to interfere with the acquittal and arrive at a different finding. There is no merit in the appeal - appeal dismissed.
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2020 (10) TMI 1103
Smuggling - Charas with a resin content of 34.5% - offence under Section 20 of the NDPS Act - scope and essence of the High Court s appellate jurisdiction against a judgment of acquittal - extent of reliance upon a document with which the other side was not confronted with during cross-examination - non-examination of independent witnesses. Scope of appeal in cases of acquittal - HELD THAT:- There is no legal necessity for us to reappreciate the entire evidence merely on the premise that the High Court has convicted the appellant for the first time in exercise of its appellate jurisdiction. Instead, the scope of the present appeals ought to be restricted to test whether the trial Court s order was indeed perverse and whether the High Court s reappreciation of evidence and consequent conviction was founded on cogent evidence. Reliance on prosecution s reply to bail application - HELD THAT:- The High Court has correctly noted in the present case that no opportunity to controvert this reply document was given to the prosecution, nor was PW5 confronted with it. Moreover, no weight can be accorded to such reply when the trial Court itself, while rejecting bail on 17.11.1994, had interpreted the same to conclude that the police was not having a prior information that the petitioner was carrying Charas in his Maruti Van, though, it appears, that there was a general information against the petitioner indulging in such activities. - Since irrelevant material was impermissibly relied upon by the trial Court to arrive at an acquittal, the High Court was adequately justified to interfere with and reverse the findings. Need for independent witnesses - HELD THAT:- As regards the question of contradiction between PW2 and PW5 s statements, we find that the High Court s observations are unimpeachable. It would indeed be patently wrong to suggest that PW5 deposed that the independent witnesses were called after the suspected contraband had already been recovered from underneath the driver s seat. In fact, both PW2 and PW5 unequivocally state that the polythene bag was inspected only after the independent witnesses had arrived. There might be some confusion over the timing of removal of the other substances, being the tins of ghee, honey, maize etc., but such trivialities are not material. Leniency in sentencing - HELD THAT:- Section 20(ii)(C) of the NDPS Act, as it stands post the amendment of 2001, specifies the same minimum mandatory punishment of ten years for possession of commercial quantity of cannabis. The High Court, as the law was being misconstrued at that time, relied upon the quantity of pure resin content of 424 gms - the sentence accorded by the High Court is clearly already far too charitable. The appellant s bail bonds are cancelled and the respondent State is directed to take the appellant into custody to serve the remainder of his two years sentence - Appeal dismissed.
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2020 (10) TMI 1102
Possession of disproportionate assets - offence punishable under section 13 (2) r/with section 13 (1)(e) of the Prevention of Corruption Act, 1988 - HELD THAT:- In this case, the appellants have demonstrated no prejudice whatsoever on account of the non-examination of the investigating officer. It is not the case of the appellants that they had offered any explanation to the investigating officer, which, the investigating officer, failed to investigate. The charts which Mr. Singh refers to are not documents but they are merely figures culled out by the learned Special Judge from the proven evidence on record, which was mostly documentary in nature. The investigating officer's examination was not required for proving such charts. Besides, in this case, most of the documents were admitted under Section 294 of Cr.P.C. without any objection from the appellants. All this indicates that the appellants suffered no prejudice whatsoever in this matter on account of the non-examination of the investigating officer - it is not possible to fault the prosecution case on account of the non-examination of the investigating officer in this matter. It is difficult to hold that the prosecution, in this case, has established the guilt of A.2 beyond a reasonable doubt. Therefore, the benefit of the doubt is due to A.2 in this matter. In so far as the sentence awarded to A.1 is concerned, there is no case made out for interference. There is no merit in the contention that the learned Special Judge has applied the 2014 amendment by which the minimum punishment is enhanced to 4 years. In this case, the learned Special Judge had not imposed minimum punishment upon A.1. The learned Special Judge rejected the contention on behalf of A.1 that some lenient sentences should be imposed upon A.1 - Even the fine imposed by the learned Special Judge is quite consistent with the parameters under Section 16 of the said Act. Accordingly, there is no case made out to interfere with the sentence imposed upon A.1. Appeal dismissed.
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