TMI Tax Updates - e-Newsletter
February 24, 2020
Case Laws in this Newsletter:
GST
Income Tax
Customs
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Highlights / Catch Notes
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GST:
Grant of Regular Bail - wrongful availment of input tax credit which is also passed on -offence punishable u/s 132(1)(b) of CGST Act - Considering the case, the present application is allowed - The applicant is ordered to be released on regular bail, subject to conditions - HC
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Income Tax:
The sine qua non for acquiring jurisdiction to reopen an assessment is that such notice should be issued in the name of the correct person. This requirement of issuing notice to a correct person and not to a dead person is not a merely a procedural requirement but is a condition precedent. - HC
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Income Tax:
In the case of shortage of stock a valid presumptions would be that the stock has been sold outside the books of accounts - the only addition that can be made is that of gross profit on estimate basis - Since the stock was accounted for in the books of account accordingly there can be no addition on account of unexplained investments - AT
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Income Tax:
Penalty u/s.271A - non-maintenance of books of account u/s. 44AA - According to the registers the assessee is giving services of medical treatment and charging fee for the services/treatment given to the patients. Therefore, it cannot be denied that the assessee was not engaged in the medical profession which covers u/s.44AA - Levy of penalty confirmed. - AT
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Income Tax:
Contingent and unascertained expenditure - liabilities to pay arrear salary to the employees as per the recommendation of 6th Pay Commission - CIT(A) has rightly allowed the deduction towards pay revision debited to the profit and loss account holding the same as ascertained liability crystallized during the year under consideration. - AT
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Income Tax:
Genuineness of loss from trading of shares - The time gap involved between purchase and sale of shares is more than one year and shares were demated. In the circumstances, the transactions cannot be held as "not genuine" merely based on suspicion. Suspicion however, be strong cannot take the place of proof. - AT
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Income Tax:
Penalty u/s 271(1)(b) - default on the part of the assessee for not complying with the notices issued by the AO u/s 142(1) - Even if the AO issued 4 notices under section 142(1) but the information sought in all these notices was the same, then it would constitute only one default. - AT
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Income Tax:
Unexplained cash Deposits u/s 68 - Past saving / life long savings - the reasons for failure of the assessee to explain the source of deposit in the bank account as not having sufficient disclosed source of income cannot be a ground for immunity from attracting the provisions of Section 69 - AT
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Customs:
Valuation of imported goods - The adjudicating authority can not arbitrarily jump to the provisions of CVR, 2007, without rejecting the transaction value declared in terms of Section 14 of Customs Act, 1962 - under Rule 12 in case the officer has a doubt about the truth or accuracy of the declared value etc., the value cannot be determined under the provisions of sub-rule 1 of Rule 3 - AT
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Customs:
Transportation of goods to and from India through a foreign Territory - Circular
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Customs:
Supersession of regulation - Transportation of Goods (Through Foreign Territory), Regulations 1965 - Notes
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Corporate Law:
Companies (Incorporation) Amendment Rules, 2020 - Reservation of name or change of name - Notification
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Indian Laws:
Dishonor of cheque - section 138 of NI Act - there is a presumption in favour of the holder - at the time of the consideration of the case for summoning, the merit of the case cannot be tested - In the case at hand, the respondent-complainant has proved prima facie the basic ingredients of the offence under Section 138 of the Act, 1881. - HC
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Service Tax:
Scope of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - Govt’s legacy scheme should be broad enough to cover not only the aspect of demand of duty, but also to cover cases where goods are liable to be released upon payment of redemption fine in lieu of confiscation. Otherwise, the Scheme may itself provide only partial relief to the parties and also leave disputes unsettled thereby defeating the very object of the Scheme. - HC
TMI Short Notes
Articles
Notifications
Circulars / Instructions / Orders
Case Laws:
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GST
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2020 (2) TMI 998
Grant of Regular Bail - wrongful availment of input tax credit which is also passed on -offence punishable u/s 132(1)(b) of CGST Act - HELD THAT:- The applicant is in jail since 23.12.2019 - However, for the alleged transaction, it is always open for the respondent department to take departmental action for recovery of penalty against the applicant. The applicant, under the instructions, submitted that without prejudice to his rights and contentions, applicant is ready and willing to deposit ₹ 25 lakh before the respondent No.2 within a period of 8 weeks from the date of his actual release. Considering the case, the present application is allowed - The applicant is ordered to be released on regular bail, subject to conditions.
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Income Tax
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2020 (2) TMI 997
Settlement commission order - additional income which was disclosed during the course of the hearing - HELD THAT:- The nature and extent of delay and the issues involved, we are of the view that it would be appropriate and proper, in the interests of justice, for the writ petition to be heard on merits by the High Court, subject to payment of costs, which would be a condition precedent. The High Court ought not to have dismissed the petition on the ground of delay. The appellant raises issues which are worthy of consideration on merits. We accordingly order and direct that conditional on the appellant paying a sum quantified at ₹ 3,00,000 to the second respondent, by way of costs, withing a period of six weeks from today, the judgment and order of the High Court [ 2018 (8) TMI 577 - BOMBAY HIGH COURT] shall stand set aside and the writ petition shall stand restored to the file of the High Court for disposal on merits. In the event that the appellant fails to pay the costs, as directed, the benefit of this order shall not be available.
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2020 (2) TMI 996
Reopening of assessment - unexplained deposits in bank account - HELD THAT:- Interference at the notice stage is possible only in exceptional cases, this Court is of the view that it is quite open for the Appellant-Assessee to raise all the challenges, both legal and factual, by availing the statutory remedy. As pointed out already, the notice/proceedings under challenge in the writ petition have culminated in re-assessment order passed by the AO; which admittedly has been challenged by filing statutory appeal and is pending consideration. This being the position, this Court is of the firm view that, it is not a fit case to call for interference at this stage. There is a contention for the learned counsel for the Petitioner that though the actual grievance of the Petitioner has been correctly taken note of in paragraph 16 of the judgment passed by the learned Single Judge, there is some observation in the following paragraphs as to the scope of the proceedings and the mandate of statutory requirements. According to the learned counsel, some of such observations are quite detrimental to the rights and interest of the Appellant, and though appeal has already been preferred against the assessment order, it may not be possible for the appellate authority to consider and give an independent finding with regard to the scope of the provisions in view of the observations already made by the learned Single Judge. This will make the appellate remedy illusive. It has been made clear in 'paragraph 28' of the judgment passed by the learned Single Judge that no opinion was being expressed on merits. The apprehension expressed by the Appellant, though not correct or sustainable in view of the clear observation in view of paragraph 28 of the judgment, to rule out any possibility of a finding to the contrary, we make it clear that the observations made by the learned Single Judge in the judgment under challenge will stand only confined to consideration of the question whether interference was to be made by this Court at the notice stage or not. Appeal is not liable to be entertained.
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2020 (2) TMI 995
Reopening of assessment - eligibility of reason to believe - Reopening notice after four years - Violation of provisions of Section 80IB - HELD THAT:- In order to sustain a notice seeking to reopen assessment beyond normal period of 4 years, it is necessary for the Respondents to establish, at least, prima facie that there was failure to disclose fully and truly all material facts necessary for the assessment for that assessment year. In the facts of the present case, the Respondents have failed to establish this precondition even prima facie. Rather, the material on record establishes that there were full and true disclosures of all material facts necessary for the assessment of the Petitioner for the Assessment Year 2012-13. Despite this, the impugned notice seeking to reopen the assessment for the Assessment Year 2012-13 has been issued beyond the normal period of 4 years. According to us, on this short ground the impugned notice dated 29th March, 2019 and the impugned order dated 17th December, 2019 are required to be quashed and set aside. There is absolutely no reference to any alleged material facts which the Petitioner failed to disclose in the course of the assessment proceedings. Rather, the impugned notice refers to the list, as well as the letter issued by the Petitioner itself, which is sought to be made basis for reopening of the assessment. In this case, it is apparent that all the primary facts were disclosed by the Petitioner. In fact, the Petitioner had disclosed truly and fully all the material facts and it was open to the AO to take the same into account in the course of the assessment proceedings or, in any case, it was open to the AO to issue notice for reassessment within normal period of 4 years from the date of assessment. We allow the present Petition and quash and set aside the impugned notice - Decided in favour of assessee.
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2020 (2) TMI 994
Reopening of assessment - notice issued in the name of the dead person - HELD THAT:- In Sumit Balkrishna Gupta [ 2019 (2) TMI 1209 - BOMBAY HIGH COURT] the Division Bench of this Court upon considering several other decisions has held that issue of notice of reopening the income in the name of the of the deceased assessee and after considering the same, came to the conclusion that the notice issued in the name of the dead person for reopening of assessment is null and void. This Court has held that the issue of the Notice under Section 148 of the IT Act, is a foundation for reopening of assessment. The sine qua non for acquiring jurisdiction to reopen an assessment is that such notice should be issued in the name of the correct person. This requirement of issuing notice to a correct person and not to a dead person is not a merely a procedural requirement but is a condition precedent. Thus we quash the impugned Notice - Decided in favour of assessee.
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2020 (2) TMI 993
Freezing or attachment of the bank account - HELD THAT:- It is only appropriate that this department uploads the orders at the earliest. Ms. Razaq, on instructions, states that the Assessing Officer, in the present case, will upload the order dated 29.03.2017, which is to be found at Exhibit B, page 20 of the paper book, on the website at the earliest. Ms. Razaq states that otherwise also, the process of digitization is on and these are probably instances of some teething troubles which will also be sorted out at the earliest. According to us, with the aforesaid, the issue relating to freezing or attachment of the bank account stands suitably redressed. Adjustment of the refund amount otherwise due and payable to the petitioners - For the present, the adjustment is to the tune of hardly ₹ 27,250/-. Mr. Vaze however points out that there are further refunds due to the petitioners and the same are also being adjusted based upon such mis-communication. According to us, the petitioners, can immediately write to the authorities explaining their version of the matter and we are quite sure that any further action in the matter of adjustments will be taken after due consideration of the petitioners' version.
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2020 (2) TMI 992
Exemption u/s 10(23A) - eligibility of the Chhattisgarh State Bar Council to get exemption - HELD THAT:- As held that the course pursued by the Respondent/Department was not correct or sustainable and a declaration was made to the effect that the State Bar Council was entitled to get exemption, which was to be have an effect from the previous years as well; thus, allowing the writ petition, which is now put to challenge in this appeal. During the course of hearing, it is virtually conceded that there is no dispute with regard to the genesis of the case; particularly, as to the formation of the new State of Chhattisgarh, after having the same carved out from the erstwhile undivided State of Madhya Pradesh. It is also a fact conceded that there has to be only one Bar Council for the entire State as per the scheme of the Advocates Act and that the Bar Council of the undivided State was granted exemption in terms of Section 10(23A). After formation of the new State of Chhattisgarh, pursuant to the Act of 2000, the erstwhile Bar Council came to be separated as two different Bar Councils. Needless to say that a formal application had to be submitted by the Chhattisgarh State Bar Council for continuing to enjoy the benefit of exemption, but that is only a technical and procedural formality, insofar as the formation of new State and formation of the new State Bar Council is a statutory consequence. This being the position, this Court is of the firm view that the analysis made by the learned Single Judge with regard to the course pursued by the Department and declaration of eligibility of the Chhattisgarh State Bar Council to get exemption in terms of Section 10(23A) of the Act of 1961 are not liable to be interdicted in any manner.
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2020 (2) TMI 991
Reopening of assessment u/s 147 - violation of provisions of Section 54F by way of withdrawing from the amount deposited under the Capital Gain Account Scheme - no addition was made by the Ld. A.O in the reassessment proceedings for the reasons recorded in the notice issued u/s 148 - HELD THAT:- Assessment order passed u/s 143(3) r.w.s. 147 of the Act dated 8.11.2011 deserves to be quashed as it is illegal and bad in law since the Ld. A.O has not made any addition on the reasons to believe recorded in the notice issued u/s 148 of the Act and has himself admitted that the reasons so recorded are not coming in the purview of the escaped income because the early withdrawal of the amount deposited in the Capital Gain account before the expiry of the time period provided u/s 54F of the Act has been offered to tax by the assessee and shown as income for Assessment Year 2011- 12. Addition of ₹ 39,40,000/- made in the re-assessment proceedings was already made during the course of original assessment proceedings. The assessee has challenged the disallowance of cost of acquisition of the property denied by the Ld. A.O. in the appeal filed to Ld. CIT(A), who has still not adjudicated the issue on merit.We therefore quash the reassessment proceedings and allow the legal issue raised by the assessee in Ground No.1. Ground No.2 which is raised on merits we find it to be merely academic to adjudicate the same since we have already quashed the reassessment proceedings and impugned addition of ₹ 39,40,000/- is still pending before Ld. CIT(A) for adjudication in the appeal filed against the original assessment u/s 143(3) of the Act. We therefore dismiss Ground No.2 as infructuous.
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2020 (2) TMI 990
Condonation of delay in filing appeal - delay was for 491 days - Reasonable cause of delay - HELD THAT:- Assessee being a non resident was dependent on his counsel for the legal remedies available in the Act against the additions made by the Ld. A.O. Since the assessee was residing outside India the assessment order was served to the watchman thereafter handed over to the counsel for taking necessary action. However the counsel failed to take any action during the time permitted for filing the appeal which caused the delay. Assessee was in bonafide belief that appeal has been filed by the due date but when it came to his notice that no appeal has been filed by the counsel appointed by him, he changed the counsel who filed the appeal before Ld. CIT(A). Primarily it seems that the delay was not intentional and there was a reasonable cause preventing the assessee to file the appeal before Ld. CIT(A) and if the issues are not adjudicated on merits, justice will be denied to the assessee. See COLLECTOR, LAND ACQUISITION VERSUS MST. KATIJI AND OTHERS [ 1987 (2) TMI 61 - SUPREME COURT] - Thus in the interest of justice the delay in filing of appeal before Ld. CIT(A) needs to be condoned.
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2020 (2) TMI 989
Reopening of assessment u/s 147 - non serving the mandatory notice u/s. 143(2) - Assessee challenging the notice u/s. 143(2) of the Act issued on 21.6.2016 i.e. on the same date when the assesee appeared before the AO and filed a letter dated 21.6.2016 stating therein that the return filed u/s. 139(1) of the Act may be treated as return filed in response to the notice u/s. 148 - HELD THAT:- After thoroughly gone the orders passed by the Hon ble Delhi High Court in the case of Director of Income Tax vs. Society for Worldwide Interbank Financial Telecommunications [ 2010 (4) TMI 43 - DELHI HIGH COURT] and Micron Enterprises Pvt. Ltd. [ 2018 (5) TMI 1018 - ITAT DELHI] issue involved in the additional ground no. 1 which is legal in nature raised by the assessee is similar to the facts and circumstances of the aforesaid cases.- notice dated 21.6.2016 u/s. 143(2) of the Act is invalid and resultantly the assessment is not sustainable in the eyes of law, hence quash the same by setting aside the orders of the authorities below and deleted the addition in dispute by accepting the appeal of the assessee.
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2020 (2) TMI 988
Revision u/s 263 - AO simply accepted the income returned at ₹ 3,73,08,493/- as assessed income without any adjustment whatsoever by a brief and a non-descript order - HELD THAT:- Having regard to the sweeping conduct of the AO in finalizing the assessment without making requisite enquiry on the abnormal character of outstanding expenses having direct bearing on the assessed income, there appears to be an apparent plausibility in the action of the Pr.CIT by resorting to powers under s.263 of the Act which are of wide amplitude. As narrated, the circumstances clearly existed which demanded enquiry which was not done by the AO while discharging its statutory function. Thus, armed with fairly extensive powers, the Pr.CIT, in our view, has taken action compatible with circumstances. While holding so, we alive to the plea on behalf of the assessee that reasonable details were placed with regard to the pending expenses. We are not impressed by such line of argument when tested on the touchstone of Section 263 of the Act. The record clearly speaks of indifferent conduct by the AO accepting the book results. Therefore, the cause of action did exist for invocation of Section 263 of the Act. Hence, the Pr.CIT was fully justified in invoking its power under s.263 of the Act to set aside the assessment framed without any application of mind on the crucial aspect which is self-revealing in the context of the case. In order to invoke Section 263 of the Act, the competent authority is required to find that order sought to be revised is erroneous and caused prejudice to the Revenue. A lack of inquiry on a pertinent point which demonstrates possible revenue leakage of staggering amount would definitely tantamount to the order being both erroneous as well as prejudicial to the interest of the Revenue. Consequent upon the action of Pr.CIT, the assessment order is merely cancelled and set aside to the file of the AO for making relevant inquiries as specified for which objective material is available at the threshold. The assessee has not estopped in any manner from dealing with the inquiry as specified to the AO and to rebut the perception on error in the original order. The assessee is not prevented from supporting its case in any manner before the AO in the proceedings pursuant to Section 263 of the Act. We thus do not see any justifiable reason to interfere with the revisional action of the Pr.CIT. - Decided against assessee.
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2020 (2) TMI 987
Undisclosed investment - Commissioner of Income Tax (Appeals) sustaining the order of the AO in so for as ascertaining the investment towards the cost of construction based on the valuation officer report in excess - HELD THAT:- We find force in the submissions of the learned AR of the assessee because we find although various contentions were raised before CIT(A) as noted by him on pages 7 to 10 of his order, he has decided the issue in a very cryptic manner as per last para on page 10 of his order as reproduced above. Hence, we feel it proper to set aside the order of CIT(A) and restore the matter back to his file for a fresh decision by way of a speaking and reasoned order after providing reasonable opportunity of being heard to both sides. We order accordingly. In view of this decision, no adjudication on merit is called for at the present stage and we make no comment on merit. Ground No.5 is allowed for statistical purposes in all the four years. Disallowance of agricultural income - HELD THAT:- Order of CIT(A), it is seen that the order is very cryptic particularly in view of this fact that on page No.13 of his order, it is noted by learned CIT(A) that the assessee has filed written submissions where it is mentioned that the AO has accepted the income of the assessee for the financial years 2001-02 to 2003-04 but erred in rejecting the agricultural income for Assessment Years 2005-06 to 2008-09. Hence, we feel it proper to restore back this matter also to the file of CIT(A) for a fresh decision by way of speaking and reasoned order. We order accordingly. On this issue also, we set aside the order of CIT(A) in all these four years for a fresh decision on all aspects after providing reasonable opportunity of being heard to both sides. Accordingly, ground No.6 is also allowed for statistical purposes Addition for household expenses - contention raised by the assessee in the written submissions that the AO has not considered the income of the other family members of the assessee including the income of the assessee s husband who is pensioner from Govt. of Karnataka who is a former MLA and advocate by profession - HELD THAT:- When the drawing is considered for the family as a whole because the assessee and her husband are living jointly, the income of the assessee as well as her husband s income should be considered to decide as to whether drawing shown by the assessee is inadequate or not. It is observed by learned CIT(A) on page 16 of his order that no income details of the assessee s husband were furnished before CIT(A) or before the AO. We feel that when the matter is going back to CIT(A) for a fresh decision on two other aspects, on this aspect also, the matter may be restored back to the file of CIT(A) for a fresh decision. Accordingly, we set aside the order of CIT(A) on this issue also and restore the matter back to his file for a fresh decision - Ground No.7 is also allowed for statistical purposes
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2020 (2) TMI 986
Unexplained investment u/s.69 - physical stock found is less than what is reflected in the books of account - HELD THAT:- CIT(Appeals) observed that where physical stock found is less than what is reflected in the books of account, than there cannot any addition on account of unexplained investment. In the case of shortage of stock a valid presumptions would be that the stock has been sold outside the books of accounts and therefore, the Ld.CIT(Appeals) was of the view, the only addition that can be made is that of gross profit on estimate basis. Since the stock was accounted for in the books of account accordingly there can be no addition on account of unexplained investments. - Decided against revenue Penalty proceedings u/s.271 (1)(c) - Defective notice - HELD THAT:- AO should be clear as to which of the two limbs under which penalty is imposable, has been contravened or indicate that both have been contravened while initiating penalty proceedings. It cannot be that the initiation of penalty proceedings would be on both the limbs i.e. for furnishing inaccurate particulars of income or concealment of income or without any limbs of Section 271(1)(c) of the Act. AO has to mention specific limbs while imposing penalty u/s.271(1)(c) of the Act. The sanctity in terms of natural justice with regard to this proposition is that the assessee under the scheme of welfare legislation which is embedded in the Income Tax Act, 1961 should get an opportunity to prepare himself for the defense as regards to the exact charge on which penalty is imposed upon him u/s. 271(1)(c) of the Act. In the instant case, no limb/charge has been mentioned by the Assessing Officer and therefore, levy of penalty is not warranted. - Decided in favour of assessee.
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2020 (2) TMI 985
Revision u/s 263 - AO not inquired whether any capital gain arose to the assessee; whether he has computed any deduction under section 54C/54E - HELD THAT:- AO has not asked any question relating to the issue entertained by the ld.Commissioner in 263 proceedings. The assessee during the course of hearing drew our attention towards question raised at serial no.6 of the questionnaire but under this question, the AO has only called for a copy of any sale/purchase deed, if done by the assessee. He has not inquired whether any capital gain arose to the assessee; whether he has computed any deduction under section 54C/54E etc. This questionnaire is totally silent. Thus, it gives an impression that the AO has accepted the accounting entry as it is, without making any inquiry. Therefore, to our mind, it is a fit case where the ld.Commissioner has jurisdiction to take cognizance under section 263 of the Income Tax Act. We do not find any error in the order of the ld.Pr.CIT. Accordingly, the appeal of the assessee is dismissed.
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2020 (2) TMI 984
Disallowance of expenditure toward Special Purpose Vehicle u/s 37 - HELD THAT:- As decided in own case [ 2018 (10) TMI 1120 - ITAT AHMEDABAD] compensation is proportionate to area of illegal mining outside the leased area and that the assessee has paid the proportionate compensation for mining in the areas outside the sanctioned area allotted to it and that 10% of sum is to be transferred to SPV and the balance 10% is to be reimbursed to the respective lessees, according to us, proves that it is a payment made as compensation for extra mining, without which the assessee could not have resumed its activities. Therefore, we are inclined to accept the contention of the assessee that it is compensatory in nature and is a business expenditure and is allowable u/s 37(1) of the Act. Addition made towards mine closure obligation - ascertained liability OR not ? - HELD THAT:- As decided in own case [ 2017 (5) TMI 1714 - ITAT HYDERABAD] Mine closure obligation is not a contingent liability but an ascertained liability. Since the quantum of such ascertained liability has to be determined year-wise, we direct the assessee to furnish the relevant data to the Assessing Officer towards mines closure obligation. The Assessing Officer shall verify such data and recompute the disallowance, if any, warranted, in accordance with law and after giving reasonable opportunity of hearing to the assessee. Decided against revenue
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2020 (2) TMI 983
Penalty u/s 271(1)(c) - defective notice u/s 274 r.w.s 271(1) (c) - difference in recording of satisfaction/mentioning of reasons for initiation of penalty proceedings and imposition of penalty finally - HELD THAT:- Penalty provisions of section 271(1)(c) of the Act are attracted where the assessee has concealed the particulars of income or furnished inaccurate particulars of such income. It is also a well-accepted proposition that the aforesaid two limbs of section 271(1)(c) of the Act carry different meanings. Therefore, it is imperative for the Assessing Officer to strike - off the irrelevant limb so as to make the assessee aware as to what is the charge made against him so that he can respond accordingly. In the case of Manjunatha Cotton Ginning Factory [ 2013 (7) TMI 620 - KARNATAKA HIGH COURT] observed that the levy of penalty has to be clear as to the limb under which it is being levied. As per Hon'ble High Court, where the Assessing Officer proposed to invoke first limb being concealment, then the notice has to be appropriately marked. Hon'ble Supreme Court in the case of Dilip N. Shroff vs. JCIT [ 2007 (5) TMI 198 - SUPREME COURT] has also noticed that where the Assessing Officer issues notice under section 274 of the Act in the standard proforma and the inappropriate words are not deleted, the same would postulate that the Assessing Officer was not sure as to whether he was to proceed on the basis that the assessee had concealed the particulars of his income or furnished inaccurate particulars of income. According to the Hon'ble Supreme Court, in such a situation, levy of penalty suffers from non-application of mind. Having regard to the manner in which the Assessing Officer has issued notice under section 274 r.w.s. 271(1)(c) of the Act dated 27.03.2015 without striking off the irrelevant words, apparently goes to prove that the Assessing Officer initiated the penalty proceedings by issuing the notice u/s 274/271(1)(c) of the Act without specifying whether the assessee has concealed ''particulars of income or assessee has furnished inaccurate particulars of income , so as to provide adequate opportunity to the assessee to explain the show cause notice. Rather notice in this case has been issued in a stereotyped manner without applying mind which is bad in law, hence can not be considered a valid notice sufficient to impose penalty u/s 271(1)(c) of the Act. Thus the penalty is not leviable - Decided in favour of assessee.
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2020 (2) TMI 982
Penalty u/s.271A - non-maintenance of books of account u/s. 44AA - assessee could not file any reasonable cause for non-maintenance of books of accounts - HELD THAT:- Assessee has maintained various registers and money receipt books containing details of fee received from patients against the medical services obtained by the patients. Therefore, it cannot be said that the assessee is not engaged in the medical profession. It is not necessary that the proprietor of the institution must have qualified degree. The predominant purpose of service needs to be tested for falling u/s.44AA which is existing in the present case. The AO has calculated the income of the assessee in detailed manner after verifying from the seized record. Assessee as taken in ground No.1 is not acceptable because the AO has not accepted the returned income of the assessee while calculating taxable income of the assessee. Therefore, no need to issue defect notice by the AO u/s.139(9)(f) before initiating penalty u/s.271A. With regard to ground No.2 the contention of the assessee is that as the turnover of the assessee during the year did not exceed the threshold limit, therefore, Section 44AD of the Act cannot be invoked. This contention of the assessee is also not acceptable because the assessee has different type of registers which were discovered during the course of search and seizure proceedings. According to the registers the assessee is giving services of medical treatment and charging fee for the services/treatment given to the patients. Therefore, it cannot be denied that the assessee was not engaged in the medical profession which covers u/s.44AA. During the course of assessment proceedings, the assessee could not produce any accounts which were required to be maintained by the assessee for earning the impugned income from the operation of nursing home. AO was justified in imposing the penalty u/s.271A for non-maintenance of the books of accounts. No reason to interfere in the order of the CIT(A) in upholding the penalty levied by the AO u/s.271A - Decided against assessee.
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2020 (2) TMI 981
Claim of provisions made towards contingent and unascertained expenditure disallowance - admissibility of provisions created for unforeseen and unascertained expenditure - liabilities to pay arrear salary to the employees as per the recommendation of 6th Pay Commission - CIT-A deleted the addition - HELD THAT:- CIT(A) while dealing with the issue has observed that the Board of Directors of assessee company on 323rd meeting held on 23.12.2008 has constituted a committee to examine and recommend the revision of sale of pay of the employees of IKIWL and IFCAL w.e.f.01.01.2006 in the line with State Government employees. The committee has mentioned that the corporation is in a position to bear the additional financial burden and the amount payable in F.Y.2008-2009 is crystallized when the Board of Directors of assessee company and the committees of the Board had taken the decision on 11.02.2009 16.02.2009 on the basis of ascertained liabilities to pay arrear salary to the employees as per the recommendation of 6th Pay Commission w.e.f. 01.06.2006. CIT(A) has rightly allowed the deduction towards pay revision debited to the profit and loss account holding the same as ascertained liability crystallized during the year under consideration. No good reason to interfere with the observations of the CIT(A) in deleting the addition so made by the AO on account of admissibility of provisions created for unforeseen and unascertained expenditure. Disallowance of write off of doubtful loans and advance to subsidiary - proper accounting treatment has not been given in the books of account for write off of advance - vehemently argued by ld. AR that in the said additional information the 1st column contains Opening Balance; 2nd column contains advance Released; 3rd column contains Advance refunded; 4th column contains Advance written off and 5th column contains closing Balance. Hence, the position of opening balance and closing balance is now clear - HELD THAT:- We set aside the impugned order passed by CIT(A) and remit the matter to the file of CIT(A) to pass a fresh order after considering the submissions of the assessee as well as the documents filed by the assessee in the form of paper book before us. Needless to say, the assessee shall be given due opportunity of hearing. The assessee is also directed to cooperate the CIT(A) in early disposal of the case.
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2020 (2) TMI 980
Disallowance of depreciation on trade marks - transaction regarding purchase of trade mark was between sister concerns of the assessee - valuation of the same could not be substantiated with any evidence - HELD THAT:- Before us, the assessee has furnished a copy of valuation report regarding trade mark which is dated 05.09.2017 whereas the order of CIT(A) is dated 22.12.2017 for Assessment Year 2013-14 and dated 18.12.2017 for Assessment Year 2014-15. In the Paper Book this is not made clear as to whether the valuation report was made available before CIT(A) or not and obviously it could not be made available before the AO since the Assessment Orders are much prior to the date of the valuation report but there is no finding of the learned CIT(A) on this aspect as to whether any valuation report was made available before him or not. In the facts of the present case, this valuation report appears to be a new evidence which appears in the Paper Book without complying with the Tribunal Rules in respect of filing of Paper Book and hence, we do not admit the valuation report - Decided against assessee.
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2020 (2) TMI 979
Correct head of income - Profits realized on sale of shares - Long Term Capital Gains or business income - period of holding - HELD THAT:- As relying on own case [ 2015 (12) TMI 1816 - ITAT DELHI] intention of the assessee is very much clear as to what stocks are to be treated as business stock and what to be treated as investment stock. The Policy and treatment of stock transaction are clearly reflected in the Balance sheet of the assessee. We thus fully concur with the finding of the Learned CIT(Appeals) that the profit in respect of shares sold during the year (including gain realized on sale of shares of Dawar India Ltd. ) has been rightly treated by the assessee as long term capital gain and thus the Learned CIT(Appeals) has rightly held that the assessee is eligible for exemption under sec. 10(38) of the Act on the said long term capital gain - Decided against revenue.
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2020 (2) TMI 978
Revision u/s 263 - deduction u/s.80P(2)(a)(i) allowed - HELD THAT:- Assessee before us submitted that there is no grievance to the assessee against the order of the learned PCIT under section 263 of the Act as discussed above. Accordingly he submitted that the appeal filed against the order of the learned PCIT under section 263 of the Act is not required to be adjudicated. DR has not brought anything on record contrary to the submissions made by the learned AR for the assessee. But he relied on the order of the ld. PCIT. Heard the rival contentions of both the parties and perused the materials available on record. As there is no grievance to the assessee against the order of the learned PCIT as it got relief from the order of the learned CIT (A) as discussed above. Accordingly, we do not find any reason to adjudicate the issue raised by the assessee.
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2020 (2) TMI 977
Addition u/s 14A read with rule 8D(2)(iii) on account of administrative expenses - HELD THAT:- As decided in own case [ 2019 (7) TMI 1567 - ITAT AHMEDABAD] CIT(A) after taking note of the various facts as reproduced above came to the conclusion for non applicability of Rule 8D(2)(ii). No substantive fallacy has been pointed out on behalf of the Revenue in the action of the CIT(A) except placing reliance upon the order of the AO. We find that the action of the CIT(A) is in tune with law and judicial precedents. Without repeating the contents of the CIT(A), we endorse the same. - No merit in the plea of the Revenue for applicability of Rule 8D(2)(iii) where the specification of the nature of the expenditure is available and such expenditure can be reasonably identified toward revenue from taxable operations and revenue from income which is exempt. Assessee is entitled for the deduction of employee benefit expenses to the tune of 2/3rd such expenses. Accordingly the assessee gets relief in part. Hence the ground of appeal of the assessee is allowed in part. MAT Computation u/s 115JB - HELD THAT:- The claim of the assessee that no adjustment i s called for while computing book profit is violative of Explanation 1(f) referred to Section 115JB of the Act and thus cannot entertained. No blanket exemption can re ad in the special bench decision in Vireet s case [2017 (6) TMI 1124 - ITAT DELHI] in this regard. Disallowance of late payment of employee s contribution to PF and ESI - HELD THAT:- As decided in GUJARAT STATE ROAD TRANSPORT CORPORATION [ 2014 (1) TMI 502 - GUJARAT HIGH COURT] tribunal has erred in deleting respective disallowances being employees' contribution to PF Account / ESI Account made by the AO as, as such, such sums were not credited by the respective assessee to the employees' accounts in the relevant fund or funds (in the present case Provident Fund and/or ESI Fund on or before the due date as per the explanation to section 36(1)(va) of the Act i.e. date by which the concerned assessee was required as an employer to credit employees' contribution to the employees' account in the Provident Fund under the Provident Fund Act and/or in the ESI Fund under the ESI Act. - Decided against assessee.
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2020 (2) TMI 976
Reopening of assessment u/s 147 - addition of deposits being commission income - HELD THAT:- Tribunal on a number of occasions and the appeal is being adjourned at the request of the assessee. On 11.12.2019 when the case was called for hearing, none appeared for assessee. On perusal of the docket order, it is noticed that the appeal is defective and when the same was pointed out for the assessee who appeared on 12.7.2019, he sought time for rectification of the same. Further on 26.7.19, 14.8.19 and 15.10.19 also the case has been adjourned at the request of the assessee for rectification of the defects. However, the defects have not yet been rectified till date. Since the assessee neither appeared nor rectified defects nor filed any information to substantiate assessee s claim of deposits being commission income, do not find any reason to interfere with the order of the AO/CIT(A). Accordingly, assessee s appeal is dismissed.
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2020 (2) TMI 975
Genuineness of loss from trading of shares - Set off of loss incurred in the business of purchase and sale of shares - penny stocks - AO made disallowance doubting the genuineness of the transactions of purchase and sale of shares - HELD THAT:- From the perusal of the order of the lower authorities there is nothing on record to say that report of the Director of Investigation Wing, Kolkata was made available to the assessee. Furthermore, the Assessing Officer had not established collusion of the assessee in the alleged fraud. M/s. Kodak Securities Ltd is not one of those banned entities by SEBI. The time gap involved between purchase and sale of shares is more than one year and shares were demated. In the circumstances, the transactions cannot be held as not genuine merely based on suspicion. Suspicion however, be strong cannot take the place of proof. It is settled position of law that no addition can be made on mere suspicion. Therefore, we are of the considered opinion that disallowance of claim for set off of loss in trading of the transactions cannot be upheld. Hence, we reverse the order of the lower authorities and allow the appeal of the assessee.
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2020 (2) TMI 974
Penalty u/s 271(1)(b) - default on the part of the assessee for not complying with the notices issued by the AO under section 142(1) - HELD THAT:- Since there was no compliance by the assessee to the said notice, therefore, again a notice under section 142(1) was issued on 12th July, 2017. Similarly, the AO again issued two more notices under section 142(1) on 25.07.2017 and 11.08.2017. All these notices under section 142(1) were issued by the AO seeking the same information from the assessee, therefore, once the assessee has committed a default of non-compliance of the information sought by the AO then issuing repeated notices by the AO seeking same information would not multiply the default. Even if the AO issued 4 notices under section 142(1) but the information sought in all these notices was the same, then it would constitute only one default. As regards the explanation of the assessee for explaining the cause of non-compliance, we find that except the last notice dated 11.08.2017, the earlier 3 notices issued by the AO under section 142(1) were issued prior to the date of alleged transfer on 03.08.2017. Therefore, the said explanation of the assessee is without any substance or merits. Hence we restrict the penalty levied under section 271(1)(b) of the Act to one default as against 4 defaults treated by the AO. - Decided partly in favour of assessee.
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2020 (2) TMI 973
Validity of initiation of proceedings u/s 147/148 - unexplained deposit of cash - HELD THAT:- AO has found out the facts of deposit of cash of ₹ 14.00 lacs in the bank account of the assessee and no return of income has been filed by the assessee for the year under consideration. Thus this very fact of deposit of cash of ₹ 14.00 lacs and not filing of the return of income by the assessee itself constitute a tangible material to form the belief that income assessable to tax has escaped assessment. We further note that JCIT after considering the reasons also recommended the reasons recorded by the AO for issuing notice u/s 148 of the Act. Based on these facts, the ld. Pr.CIT finally granted the approval. Therefore, it was not a case where the prudent person could have taken another view or opinion. Accordingly, we do not find any error or illegality in the impugned order of the ld. CIT(A) upholding the validity of reopening of the assessment. Unexplained cash Deposits u/s 68 - Past saving / life long savings - Held that:- except the cash book prepared by the assessee in support of the source of deposit, no other material was produced by the assessee regarding the past savings of the assessee. - Once the assessee is capable of earning income then failure to explain the source of deposit in the bank would attract the provisions of Section 69 of the Act. Hence, in the facts and circumstances of the case, plea of the assessee cannot be accepted that the disclosed source of income of the assessee is not sufficient for making the deposit in the bank. if the said amount of deposit cannot be assessed as income of the assessee then the very object and purpose of provisions of Section 69 of the Act is defeated. Section 69 of the Act contemplates that if the assessee is found to have invested money without explaining the source of the same then it will be deemed as unexplained investment. Therefore, the reasons for failure of the assessee to explain the source of deposit in the bank account as not having sufficient disclosed source of income cannot be a ground for immunity from attracting the provisions of Section 69 of the Act and consequential deletion of such addition made by the AO. Appeal of the assessee is dismissed
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2020 (2) TMI 972
TP Adjustment - comparable selection - HELD THAT:- Assessee is engaged in providing consultancy/ information technology enabled services (ITeS) to its foreign Associate Enterprises (AE), thus companies functionally dissimilar with that of assessee need to be deselected from final list. Thus we direct the AO/TPO to exclude Infosys BPO Ltd., Accentia Technology Ltd., Acropetal Technology Ltd. and Eclerx Services Ltd. and include Datamatics Financial Services Ltd. in the final set of comparable and recompute the ALP of ITeS support services with its AE Exclusion of Eclerx from final set of comparable on functional dissimilarity. Therefore, following the principle of consistency, the AO/TPO is directed to exclude Eclerx from final set of comparable and recompute the ALP of its international transaction with AE.
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2020 (2) TMI 971
Liability of directors of private company in liquidation u/s 179 - Recovery proceedings - argument is that instead of recovering the aforesaid amount in tune with the provisions of Section 179 the Department proceeded to put the immovable properties to auction - HELD THAT:- We issue notice in the petition. The principal tax due (in respect of the auction of these nine properties) being ₹ 1.33 crores, we direct that Shri Gulati s client deposits the same within three weeks from today with the Registry of this Court which amount shall be invested in short term fixed deposit of a nationalised Bank. In the meanwhile, auction sales that have been made not to be confirmed.
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2020 (2) TMI 970
Rectification u/s 254 - purpose of initiating penalty proceedings under Section 271(1)(c) - recover the penalty amount from one of the directors of the Assessee the business of which was closed - HELD THAT:- Special leave petition is dismissed. However, the question of law is left open.
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2020 (2) TMI 960
Liability of directors of private company in liquidation u/s 179 - Recovery proceedings - argument is that instead of recovering the aforesaid amount in tune with the provisions of Section 179 the Department proceeded to put the immovable properties to auction - HELD THAT:- It is too late in the day for the writ-applicants to redress any grievance of any nature having not challenged the order passed u/s 179 and having permitted the order to attain finality. At this point of time, it would not be appropriate for this Court to disturb the entire auction proceedings undertaken by the Department. The company has defaulted in payment of income tax to the tune of ₹ 1907.90 Lakh. In such circumstances, even if the say of the writ-applicants is accepted that the company has to recover an amount of ₹ 694.60 Lakh, the company would not be in a position to make the payment of the outstanding tax liability. Therefore, when the order dated 27.12.2017 passed under Section 179 has attained finality and is implemented with the auction of the immovable properties, no interference is called for at this belated stage. The grievance of the writ-applicants with regard to so called irregularities and illegalities in the auction proceedings conducted by the respondents can be agitated before the appropriate forum. Merely because the company is now a running concern by virtue of the orders passed by the NCLT, Mumbai in the Insolvency Petition filed by the ARCIL, it would not alter the situation with regard to the recovery of the dues of the income tax under the provisions of the Act1961. The order passed by the NCLT has been quashed by the Supreme Court. 10. In the result, this writ-application fails and is hereby rejected.
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Customs
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2020 (2) TMI 969
Demand for Cost Recovery Charges and Merchant Overtime Charges - demand for Duty Free Shop which the petitioner operates at Dabolim International Terminal - HELD THAT:- By our Interim Order dated 16.1.2012, we had protected the petitioner insofar as CRC Charges are concerned but directed the petitioner to pay MOT Charges until the disposal of the petition to the respondents. There is no dispute that the petitioner have paid the MOT Charges in terms of our Order, though, at one stage there was issue of deposit of such charges in this Court instead of actual payment to the respondents - According to us, the interim position can continue until the disposal of the adjudication proceedings by the respondents. This means that the petitioner will only be liable to pay the MOT Charges and that too without prejudice to their contention that these charges are not liable to be paid in respect of the Duty Free Shop which they operate at Dabolim International Airport. This petition is disposed off by recording the statement made on behalf of the respondent that within a period of four weeks from today Show Cause Notice will be issued to the petitioner for the purpose of adjudication proceedings.
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2020 (2) TMI 968
Maintainability of appeal - appropriate forum - Order of seizure passed by the Superintendent of Customs - demurrage charge - Jurisdiction to pass order u/s 110A of the Customs Act, 1962 - HELD THAT:- The Petitioner, on instructions, states that the Petitioner would file an appeal to the Appellate Authority in the light of the decision of this Court in the case of THE COMMISSIONER OF CUSTOMS (IMPORT -I) MUMBAI VERSUS S.S. OFFSHORE PVT. LTD. [ 2017 (12) TMI 1460 - BOMBAY HIGH COURT] - The Petitioner has sought to raise various legal questions such as authority of the Officer who passed the order under section 110A of the Act, the validity of the seizure under section 110 as also the issue regarding detention and demurrage charges. Keeping all the contentions of both the parties open, the petition is disposed off with liberty to the Petitioner to file an appeal.
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2020 (2) TMI 967
Smuggling - Betel Nuts of foreign origin - illegal importation - Revenue s entire reliance is on the basis of ARDF Certificate - Confiscation of truck - imposition of penalties - HELD THAT:- As it is reported that the ARDF is not an accredited Laboratory, no legal liability can flow from the report of such institution. The Revenue could not prove that the goods were smuggled or produce any corroborative evidence in support of their case. Appeal dismissed - decided against Revenue.
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2020 (2) TMI 966
Valuation of imported goods - motor yatch of model Azimut 68 Evolution - allegation of mis declaration and under valuation - Rejection of declared value - Rule 12 of the Valuation Rules followed or not - HELD THAT:- Learned Commissioner of Customs has not rejected the value declared by the appellant under Rule 12 of Customs Valuation Rules, 2002, instead, it appears that he has considered the price quoted in the proforma invoice to be the actual price paid or payable - the value declared in terms of Section 14 can be rejected only under Rule 12 of Customs Valuation Rules, 2007 under which as per Rule 12 (1) when the proper officer has reason to doubt about the truth or accuracy of the value declared in relation to any imported goods, he may ask he importer of such goods to furnish further evidence and if, after receiving such further information, or in the absence of a response of such importer, the proper officer still has reasonable doubt about the truth or accuracy of the value so declared, it shall be admitted that the transaction value of such imported goods cannot be determined under the provisions of Sub Rule 1 of Rule 3 . In the instant case the Commissioner finds that it is a well established principle that once a discrepancy has been noticed in respect of description particulars, the onus of proving correct values shifts from revenue to the importer. Learned Commissioner proceeds on the value appearing in the proforma invoice and applied the same to the impugned case in terms of Rule 3 (1). However it is pertinent to note that under Rule 12 in case the officer has a doubt about the truth or accuracy of the declared value etc., the value cannot be determined under the provisions of sub-rule 1 of Rule 3 of CVR 2007. The adjudicating authority is required to give his findings after properly evaluating the evidence on record and the provisions of law. He can not arbitrarily jump to the provisions of CVR, 2007, without rejecting the transaction value declared in terms of Section 14 of Customs Act, 1962 - Having given the findings that the value declared under Section 14 is not correct due to the misdeclaration, the learned Commissioner has no scope to determine the value under Rule 3 (1) in terms of the provisions of Rule 12 of CVR, 2007. It will be in the interest of justice that the matter should go back to the Original Authority for the proper appreciation of the available records, evidence on hand and legal aspects before determining or re-determining the value declared - appeal allowed by way of remand.
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Service Tax
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2020 (2) TMI 965
Scope of Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 - whether the proposed confiscation is covered by the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019? - HELD THAT:- Prima facie, it appears to us that the respondent s legacy scheme should be broad enough to cover not only the aspect of demand of duty, but also to cover cases where goods are liable to be released upon payment of redemption fine in lieu of confiscation. Otherwise, the Scheme may itself provide only partial relief to the parties and also leave disputes unsettled thereby defeating the very object of the Scheme. The respondents are directed to examine the aforesaid aspect and place their response on record within four weeks - Rejoinder be filed before the next date. List on 10.09.2020.
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2020 (2) TMI 964
Non-payment of service tax - storage and warehousing services within the FTWZ rendered to clients based abroad as well as Indian clients - period July, 2012 to March, 2015 - reimbursable expenses or not - HELD THAT:- It is not disputed that the storage and warehousing unit was inside the Free Trade Zone (SEZ). It is also not disputed that the service recipient is situated abroad and also that the consideration received for these services is in convertible foreign currency. The department has proceeded to demand service tax alleging that there is no export of service since the place of provision of service is located in India. Section 26, Clause (e) provides for exemption from service tax. Section 51 states that the Act will have overriding effect notwithstanding anything inconsistent in any other law. This Act thus will override the Finance Act, 1994, as well as the Rules framed thereunder to give effect to the exemption contained in Section 26 - In such circumstances, the department cannot press into application Service Tax Rules, Place of Provision of service or other Rules to hold that the appellant has not exported any services. The meaning of service and export contained in the special legislation of SEZ Act, 2005 by which SEZ or FTWZ has been created has to be given effect. The Service Tax Rules, 1994 cannot be pressed into application so as to defeat the intention and purpose of Section 26. When the intention of creating such FTWZ within India is to give exemption from levy of all duties and taxes, the department ought to have confined to the definitions contained in Section 2 (z) and 2 (m) of the said Act. Further, the consideration is received in foreign currency as well as the service recipient is a person placed outside India. The department cannot then contend that there is no export of services. The demand of service tax on consideration received by the appellant from the foreign service recipient under Storage and Warehousing services cannot be subject to levy of service tax under reverse charge mechanism - demand set aside - the issue is found in favour of the appellant. Demand on amounts collected by appellant and confirmed under various services - HELD THAT:- Learned Consultant has submitted that they have not produced necessary documentary evidence before the adjudicating authority to establish the nature of these amounts. That these are actual reimbursements - the appellant has to be given a further opportunity to furnish necessary documents in this regard - For this limited purpose of reconsideration of demand on such charges/services, the matter is remanded to the adjudicating authority. Appeal allowed in part and part matter on remand.
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Central Excise
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2020 (2) TMI 963
CENVAT Credit - input - steel items - cement - input services - sole reason for denial of Cenvat credit is the decision of the Larger Bench of this Tribunal in the case of VANDANA GLOBAL LTD. VERSUS CCE [ 2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] - HELD THAT:- Admittedly, the said decision has been turned down by the Hon ble Chattisgarh High Court in M/S VANDANA GLOBAL LIMITED AND OTHERS VERSUS COMMISSIONER, CENTRAL EXCISE AND CUSTOMS, CENTRAL EXCISE [ 2018 (5) TMI 305 - CHHATTISGARH, HIGH COURT] - therefore, the decision of the Larger Bench of this Tribunal holds no force and hence, Cenvat credit cannot be denied based on the decision of Larger Bench of this Tribunal in the case of Vandana Global Ltd - Admittedly, it is not disputed that the cement and steel items have been used by the appellant for setting up new factory or capital goods - credit allowed. CENVAT Credit- input services - services received by the appellant at the factory for setting up a new factory - sole denial of Cenvat credit to the appellant is that the appellant has received services in their factory and invoices are in the name of their Nandyal office - HELD THAT:- It is not the case of the revenue that the appellant has not used the services in question in course of business of manufacturing of goods. Therefore, in terms of Rule 2(l) of CCR, 2004 the appellant is entitled to avail Cenvat credit as held by the Hon ble Bombay High Court in the case of CCE, NAGPUR VERSUS ULTRATECH CEMENT LTD., [ 2010 (10) TMI 13 - BOMBAY HIGH COURT] - also the invoices in question for availment of input service are having all the particulars in terms of Rule 9(2) of CCR, 200, but having certain corrections which cannot be reason to deny Cenvat credit - credit allowed. Appeal allowed - decided in favor of appellant.
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CST, VAT & Sales Tax
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2020 (2) TMI 962
Non-payment of security deposit - amendment of registration certificate - Tripura VAT Act - HELD THAT:- The insistence on the part of the department to collect security deposit of ₹ 12,00,000/- from the petitioner for amending the registration certificate is wholly impermissible. Under Memorandum dated 20th July, 2015 the Commissioner of Taxes in exercise of powers under Rule 12(4) of the Rules of 2005 has prescribed the security deposit amounts required for different classes of re-sellers, importers, manufacturers and transporters - As per this Memorandum thus, the Government could insist on collecting security deposit in two cases namely where transporters of all categories by whatever name called seek registration or when branch office of transporters of all categories are to be registered. However, when it comes to amendment of registration other than inclusion of branch office of transporters as mentioned in Clause (v), the amount of security required is nil. In the present case, the petitioner only required amendment of the registration certificate by including a go-down. It s case would therefore fall under Clause (vi) of the said Memorandum. Only if the request of the petitioner was for including the branch office in the registration certificate the security amount of ₹ 12,00,000/- prescribed in Clause (v) of the said Memorandum would have applicability. What are the rules and regulations for amendment of a registration certificate of a transporter under the new regime is not brought to our notice. Under the circumstances, we permit the petitioner to make a fresh application for amendment of the registration certificate. If such an application is made, the same shall be examined by the GST authorities on the basis of the presently prevailing rules and regulations - petition disposed off.
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Indian Laws
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2020 (2) TMI 961
Dishonor of cheque - section 138 of NI Act - Breach of Section 269SS of the Act, 1961 - respondent had send a notice which was presumed served upon the present applicant but payment was not made to the respondent - HELD THAT:- Breach of Section 269SS of the Act, 1961 provides that the penalty to which the person would be subjected to under Section 271D of the Act, 1961 - Section 271D does not provide that such a transaction would be null and void. There is no provision under the Act, 1881 which would vitiate the entire loan transaction for dealing with cash amount above ₹20,000/-. The culpability of offence under Section 138 of the Act, 1881 will not freeze for the reason of violation of Section 269SS of the Act, 1961 and nothing prevents the operation of the statutory presumption under Section 118 and Section 139 of the Act, 1881. The applicant could not show any statutory provisions under the Act, 1961 or any other law which stipulates that a loan transaction which is in violation of Section 269SS of the Act, 1961, would be void. Violation of Section 269SS of the Act, 1961 would not render the loan as not recoverable through a legal process. The payer of the money in cash in violation of Section 269SS of the Act, 1961 would, therefore, be entitled to enforce an agreement of advancement of money in cash beyond ₹20,000/-. Under Section 139 of the Act, 1881, there is a presumption in favour of the holder. Section 139 of the Act, 1881, stipulates that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. It is also well settled that at the time of the consideration of the case for summoning, the merit of the case cannot be tested - In the case at hand, the respondent-complainant has proved prima facie the basic ingredients of the offence under Section 138 of the Act, 1881. It is wholly impermissible for this Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint. The Court would not also examine the genuineness of the allegations made in the complaint, since the Court does not function as a Court of Appeal or Revision while exercising its jurisdiction under Section 482 of the Code of Criminal Procedure, 1973. The application has no force - The application, filed under Section 482 of the Code of Criminal Procedure, 1973, is dismissed.
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