TMI Tax Updates - e-Newsletter
June 11, 2020
Case Laws in this Newsletter:
GST
Income Tax
Customs
PMLA
CST, VAT & Sales Tax
Highlights / Catch Notes
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GST:
Jurisdiction to issue Attachment Order - Rule 159(5) of the Central Goods and Services Tax Rules, 2017 - GST authority directed to decide the objections filed under Rule 159(5) within three working days.
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GST:
Time limitation for filing appeal before the GST tribunal - the petitioner can invoke the remedy of filing appeal before the Tribunal in terms of the provisions of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019.
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Income Tax:
Exemption u/s 54F - Assessment Year in which the amount is taxable where the assessee had not constructed the house property within the period of 3 years - it will be charged to capital gain in the year in which the period of 3 years from the date of transfer of the original asset expires.
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Income Tax:
Addition of unexplained/unsecured loans/cash credit - All the transactions have passed through the eyes of the auditor who has issued tax audit report u/s 44AB of the Act mentioning about the loans taken and repaid during the year. There is no evidence on record to shows that any enquiry was initiated by the assessing officer on the basis of PAN No. and other details. - CIT(A) rightly deleted the additions.
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Income Tax:
Addition on account of under valuation of closing stock of Yarn - none of the authorities below have given direction to revise the value of the opening stock of the subsequent year. Thus in the absence of such direction, addition made for the year under consideration will again be taxed in the subsequent assessment year which is not desirable as the same income should not be taxed twice under the provisions of the Act.
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Income Tax:
Reopening of assessment u/s 147 - deduction u/s 54F - construction of new residential house - there is no bar in claiming the deduction u/s 54F of the Act against the capital gain proposed to be taxed by the A.O. in the proceedings U/s 147 of the Act.
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Income Tax:
Correct head of income - profit on sale of land /immovable property - business income or capital gain income - Correct head of income - profit on sale of land /immovable property - business income or capital gain income - income is taxable as capital gains.
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Income Tax:
Reopening of assessment u/s 147 - ingenuine loss - AO had tangible material, clear-cut information about the change of client code of assessee by TCG stock broking Ltd, exact nature of the changes are also available, it was also known to him that it is not miss punching or but complete change of all the keys.
Articles
Notifications
Circulars / Instructions / Orders
News
Case Laws:
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GST
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2020 (6) TMI 215
Time limitation for filing appeal before the GST Tribunal - petition has been filed bye-passing the remedy of appeal under Section 112 of the Act on the ground that the appellate tribunal has not been constituted till date - HELD THAT:- It has been pointed out by learned standing counsel that the Government, having regard to the difficulty faced by the assessees in filing appeal on account of non-constitution of the Tribunal and its Benches in various States and Union Territories, has issued Central Goods and Service Tax (Ninth Removal of Difficulties) Order, 2019 notified in the Gazette of India dated 3rd December, 2019 stipulating that in such a situation, the three months' period shall be considered to be the date on which the President or the State President, as the case may be, of the Appellate Tribunal after its constitution under Section 109, enters office. The instant petition is disposed of by providing that the petitioner can invoke the remedy of filing appeal before the Tribunal in terms of the provisions of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019.
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2020 (6) TMI 214
Maintainability of appeal - appealable Order - time limitation for filing appeal - petition has been filed bye-passing the remedy of appeal under Section 112 of the Act on the ground that the appellate tribunal has not been constituted till date - HELD THAT:- It has been pointed out by learned standing counsel that the Government, having regard to the difficulty faced by the assessees in filing appeal on account of non-constitution of the Tribunal and its Benches in various States and Union Territories, has issued Central Goods and Service Tax (Ninth Removal of Difficulties) Order, 2019 notified in the Gazette of India dated 3rd December, 2019 stipulating that in such a situation, the three months' period shall be considered to be the date on which the President or the State President, as the case may be, of the Appellate Tribunal after its constitution under Section 109, enters office. The instant petition is disposed of by providing that the petitioner can invoke the remedy of filing appeal before the Tribunal in terms of the provisions of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019.
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2020 (6) TMI 213
Jurisdiction to issue Attachment Order - Rule 159(5) of the Central Goods and Services Tax Rules, 2017 - HELD THAT:- The present writ petition is disposed of with a direction to the respondent No.3 to decide the objections filed under Rule 159(5) of Central Goods and Services Tax Rules, 2017 within three working days.
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Income Tax
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2020 (6) TMI 218
Exemption u/s 54F - Assessment Year in which the amount is taxable where the assessee had not constructed the house property within the period of 3 years - HELD THAT:- Where the assessee had invested the long term capital gains in purchase of land towards construction of house but could not complete the construction before the expiry of 3 years as to pretend under law in the case of Sri Prasad Nimmagadda [ 2013 (5) TMI 74 - ITAT HYDERABAD] held that on examination of section 54 and 54F it is found that the provisions contained in section 54 including the proviso are pari materia with section 54F and the proviso to section 54 lays down that if the amount of capital gain is not utilised towards construction of residential house within a period of 3 years from the date of transfer of original asset, then, it will be charged to capital gain under section fortify of the Act in the year in which the period of 3 years from the date of transfer of the original asset expires. In the case of Vegesina Kamala [ 2016 (3) TMI 88 - ITAT VISAKHAPATNAM] the contention of the Commissioner of Income Tax that as per section 54F only unutilised portion of sale consideration is taxable in the previous year in which the period of 3 years expires from the date of sale of original asset, but the investment made in the vacant site has to be taxed in the year in which capital gain arose has expressly been rejected by the Tribunal and the Tribunal held that a since the assessee had offered to capital gain the long term capital gains after completion of 3 years from the date of sale of original asset, it was in accordance with law. Difficult to uphold the addition and direct the assessing officer to the addition if the assessee offered the long term capital gains to tax in the assessment year 2016-17. Subject to these observations, for the limited purpose of verification, we set aside the issue to the file of the learned Assessing Officer to grant exemption for the Assessment Year: 2013-14 if the assessee offered the long term capital gains to tax in the Assessment Year: 2016-17 - Appeal of the assessee is allowed.
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2020 (6) TMI 210
Reopening of assessment u/s 147 - ingenuine loss - client code modification and assessee being beneficiary client has taken contrived losses and shifted out profits during the financial year 2008 09 to 2010 11 - HELD THAT:- The basis of the above reason was a report of survey and the details of the transaction carried out by the assessee. The report shows that it is not a genuine error because of the reason that it is not wrong punching of one or two keys but, code has been replaced. Therefore, it cannot be considered as a genuine loss. There is no assessment of income of the assessee u/s 143 (3) prior to issue of notice u/s 148 of the act. He perused the above information with the return of income filed by the assessee. He noted that assessee company has directors namely Mrs. Minakshi Gupta and Mr. Satinder pal Gupta. He found that there are no sales shown by the assessee. Only interest income is earned. Same is adjusted against expenses. Derivative loss is claimed in profit and loss account. On this basis he reopened the assessment. According to us, he has tangible information in the form of various reports of investigation, which is also backed by SEBI report, there was no assessment on the assessee on the return filed, and he found that there is a derivative loss booked by the assessee. Such loss is not genuine as per those reports. Thus we do not find any reason to interfere with the order of the ld AO and CIT (A) in upholding reopening of assessment - no infirmity in the reasons recorded by the learned assessing officer and in the reopening of the assessment under section 147. AO had tangible material, clear-cut information about the change of client code of assessee by TCG stock broking Ltd, exact nature of the changes are also available, it was also known to him that it is not miss punching or but complete change of all the keys. Ingenuine loss - when the assessing officer has categorically shown that there is a genuine allegation that the transaction entered into by the assessee of booking the loss is not genuine, the duty is cast upon the assessee to show that they are genuine. AO has categorically shown whole transactions with evidence to the assessee but assessee merely relied on the paperwork of client code modification. None of the evidences placed by the assessing officer were rebutted by the assessee. AO has not relied upon the statement of the broker of the assessee because he did not confirm anything. Therefore, there is no requirement of giving is cross-examination because the addition has not been made on the basis of his statement. The assessee also did not show by producing the director and the broker that client code modification has been done for some genuine reasons. We do not find any infirmity in the orders of the lower authorities in making the addition on account of client code modification as alleged bogus contrived loss of trained by the assessee. Accordingly we dismiss ground number three and four of the appeal.
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2020 (6) TMI 209
Correct head of income - profit on sale of land /immovable property - business income or capital gain income - Assessee is engaged in the business of trading of Dyes and Dye Intermediates and Financing Activities - thrust of the Revenue for holding the transaction for the sale of the property as in the nature of trade was based on the fact that the assessee has been incurring expenses on continuous basis for the development of the land purchased in the auction over certain period of time which is akin to the activity of the builders of the property - HELD THAT:- None of the authority below has brought out anything on record on the aspects as discussed above but arrived at the conclusion that the assessee has been carrying on business of property development on the basis that the assessee has been incurring the expenditure on continuous basis for the development of the land. The contention as raised by the assessee before the authorities below that it wanted to development the impugned land for its business activities has not been challenged. In the similar facts and circumstances the Hon ble Tribunal Jodhpur has decided the issue in favour of the assessee in the case of Marudhar Hotels Pvt. Ltd v/s ACIT [ 2013 (2) TMI 840 - ITAT JODHPUR] wherein held that share of sale consideration received by the appellant from developer on sale of plots under the development agreement was in the course of realization of a capital asset held by the appellant for over 30 long years, giving rise to income taxable under the head 'Capital gains'. Such an activity could not, on the undisputed facts of the case, be regarded as carrying on an adventure in the nature of trade. Thus we hold that the income generated by the assessee from the sale of the property in dispute is taxable under the head capital gain. - Decided in favour of assessee. Order being pronounced after ninety (90) days of hearing - COVID-19 pandemic and lockdown - HELD THAT:- Taking note of the extraordinary situation in the light of the COVID-19 pandemic and lockdown, the period of lockdown days need to be excluded. See case of DCIT vs. JSW Limited [ 2020 (5) TMI 359 - ITAT MUMBAI ]
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2020 (6) TMI 208
Addition of undisclosed income - addition ignoring the peak credit theory concept - HELD THAT:- Present case is not pertaining to an assessee doing business accommodation entry profit that cash deposits and withdrawals have been made by the assessee but by the employee Shri U.C.Panda himself on behalf of the assessee and such bank account has been owned by the assessee without any dispute. Therefore benefit of the judgment in the case of D..K.Garg [ 2017 (8) TMI 450 - DELHI HIGH COURT] is not available for the Revenue in the present case. We reach to a logical conclusion that the AO was not correct in holding that the entire amount of cash deposits is undisclosed income or undisclosed profit of the assessee and thus, the ld CIT(A) was not correct in confirming the entire addition made by the AO. We hold that when admittedly and undisputedly, the account was not disclosed to the department then, the amount of cash deposit cannot be ignored by the revenue authorities. In the totality of facts and circumstances of the case, we may point out that the assessee has already disclosed amount of ₹ 15 crores during search and seizure operation, wherein, the impugned bank account was found by the revenue authorities. Since, we are satisfied that the amount of cash deposit and cash withdrawals have been made by the employee Shri U.C.Panda, on behalf of the assessee and there were regular cash withdrawals and deposits have been made in the same bank, therefore, the entire amount of deposits cannot be treated as undisclosed income or undisclosed profit of the assessee. In these peculiar facts of the case, the assessee is entitled to benefit of peak credit theory of ₹ 13,06,500/- being closing balance as on 26.11.2014 - addition made by the AO is restricted to the peak credit amount of ₹ 13,06,500/- - Decided in favour of assessee partly.
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2020 (6) TMI 207
Deduction u/s 80P(2)(a)(i) - as per AO assessee was essentially doing the business of banking, and therefore, in view of insertion of section 80P(4) of the I.T.Act with effect from 01.04.2007, the assessee will not be entitled to deduction u/s 80P - AO concluded that the assessee cannot be treated as co-operative society - HELD THAT:- Narration in loan extracts in the audit reports by itself may not conclusive to prove whether loan is a agricultural loan or a non-agricultural loan. The gold loans may or may not be disbursed for the purpose of agricultural purposes. Necessarily, the A.O. had to examine the details of each loan disbursement and determine the purpose for which the loans were disbursed, i.e., whether it is for agricultural purpose or non-agricultural purpose. In this case, such a detailed examination has not been conducted by the A.O. At the time of assessment, the judgment of Chirakkal Service Cooperative Bank Ltd. [ 2016 (4) TMI 826 - KERALA HIGH COURT] was ruling the roost and the certificate issued by the Registrar of Co-operative Society terming the assessee as a primary agricultural credit society would be sufficient for grant of deduction u/s 80P of the I.T.Act. In the light of the dictum laid down by the Full Bench of the Hon ble Kerala High Court in the case of The Mavilayi Service Co-operative Bank Ltd. v. CIT [ 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 - issue raised in this appeal is restored to the files of the Assessing Officer - Decided in favour of assessee for statistical purposes.
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2020 (6) TMI 206
TP Adjustment - non-granting of Capacity under utilization adjustment while determining Arms length price of international transactions - assessee is engaged in the business of manufacture and sale of self adhesive tear tapes - HELD THAT:- We notice that an identical issue has been examined by the coordinate bench in the case of IKA India Pvt. Ltd. [ 2018 (10) TMI 49 - ITAT BANGALORE] thus we hold that the assessee is entitled for deduction from its PLI towards capacity under-utilisation adjustment. As noticed earlier that the assessee has computed the adjustment by presuming that the comparable companies have operated at 100% of capacity. A.R also accepted that the said adjustment should have been computed by considering the details of actual capacity utilization by comparable companies. Since the said details are not available in public domain, it is imperative to restore this issue to the file of AO/TPO with the direction to collect the relevant details from comparable companies for the year under consideration and accordingly compute the adjustment. We notice that the co-ordinate bench has given certain directions to be followed by the AO/TPO in the case of IKA India Ltd (supra). Accordingly, we set aside the order passed by AO on the impugned issue and restore the same to the file of AO/TPO with similar directions. - Appeal filed by the assessee is treated as allowed for statistical purposes.
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2020 (6) TMI 205
Reopening of assessment u/s 147 - deduction u/s 54F - HELD THAT:- Where the assessee is a farmer and a senior citizen, the claim of deduction u/s 54F cannot be denied without verification of the fact of utilization of the sale consideration for construction of the house. Since it is a case of non-filing of return of income and the A.O. has issued notice u/s 148 for assessing the capital gain in the hands of the assessee, therefore, there is no bar in claiming the deduction u/s 54F of the Act against the capital gain proposed to be taxed by the A.O. in the proceedings U/s 147 of the Act. Hence, the issue of deduction u/s 54F of the Act is required to be considered and decided after considering the facts of utilization of sale proceed in construction of new residential house. Therefore, in the substantial interest of justice, we set aside the matter back to the record of the A.O. for deciding the same afresh after giving due and reasonable opportunity of hearing of the assessee. Appeal of the assessee is allowed for statistical purposes only.
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2020 (6) TMI 204
Addition on account of over valuation of opening and closing stock - HELD THAT:- If the assessee has overvalued its closing stock of the earlier assessment year which suggests that amount of profit was increased by that amount or the loss was decreased by the same amount of that assessment year. As such the effect of the closing stock of the earlier assessment year has already been given effect in that particular year which cannot be challenged in the year under consideration. The assessee before the CIT (A) has contended that it has valued its closing stock at the market rate being lower than the cost as per the Accounting Standard 2 notified under the Companies Act, 1956. The assessee in this regard has also filed valuation report of its closing stock as on 31 March 2012 which is placed on pages 101 to 104 of the paper book which was also available before the learned authorities below. But none of the authority has pointed out any defect in such valuation report. We are not convinced with the finding of the authorities below. Accordingly, we set aside the order of the learned CIT (A) and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is allowed. Addition on account of under valuation of closing stock of Yarn - HELD THAT:- All the necessary details were available before the authorities below and none of the authorities have pointed out any defect in such details. Besides the above, it is the established practice that the opening stock of one year becomes the closing stock of another year. On this reasoning, we find that there is no impact on the income of the assessee over a period of time. Assuming, the assessee has shown less value of the closing stock in the year under consideration which will eventually become the opening stock of the subsequent year at the lesser value having no impact on the income of the assessee. We also note that none of the authorities below have given direction to revise the value of the opening stock of the subsequent year. Thus in the absence of such direction, addition made for the year under consideration will again be taxed in the subsequent assessment year which is not desirable as the same income should not be taxed twice under the provisions of the Act. In view of the above we are not convinced with the finding of the authorities below - Direct the AO to delete the addition. Understatement of stock or unrecorded sale - HELD THAT:- Onus lies on the assessee to justify based on the documentary evidence that the quantity of the sales return has been included in the stock register. But the assessee failed to justify the same before the authorities below including during the remand proceedings. At the time of hearing before us, a specific query was raised to the learned AR for the assessee to show us from the documentary evidence that the assessee has accounted for the inventory of the sales return in the stock register. But the learned AR failed to furnish any detail in support of his contention. Also perused the relevant pages of the paper book of the stock register but note that there was no such entry for the quantity of the sales return shown by the assessee. In the absence of documentary evidence and after considering the concurrent finding of the authorities below, we uphold the addition made by them (lower authorities). Accordingly, we dismiss the ground of appeal raised by the assessee. Disallowances on account of shortage of stock - losses in the production process but failed to file the supporting evidence - AO disregarded the loss claimed by the assessee - HELD THAT:- Onus lies on the assessee to justify based on the documentary evidence that it has incurred the quantity loss during the manufacturing process. But the assessee has failed to justify the same before the authorities below including during the remand proceedings. At the time of hearing before us, assessee failed to show us from the documentary evidence that the assessee has incurred such loss in the manufacturing process. Thus in the absence of documentary evidence and after considering the concurrent finding of the authorities below, we uphold the addition made by them (lower authorities). Accordingly, we dismiss the ground of appeal raised by the assessee. Order being pronounced after ninety (90) days of hearing - COVID-19 pandemic and lockdown - HELD THAT:- Taking note of the extraordinary situation in the light of the COVID-19 pandemic and lockdown, the period of lockdown days need to be excluded. See case of DCIT vs. JSW Limited [ 2020 (5) TMI 359 - ITAT MUMBAI ]
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2020 (6) TMI 203
Addition u/s 56(2)(viib) - CIT-A taxing the share premium hereunder - HELD THAT:- Respectfully following this Tribunal order and in turn the judgment of Hon ble Bombay High Court rendered in the case of Vodafone M-Pesa Ltd., Vs. Pr.CIT [ 2018 (3) TMI 530 - BOMBAY HIGH COURT] we set aside the order of CIT(A) on this issue and restore the matter back to the file of AO for a fresh decision. Unexplained cash credit - Addition u/s 56 v/s 68 - AO has made addition by treating the same as income under section 56(2)(viib) - Enhancement by CIT-A without complying with the mandatory requirements of section 251 - HELD THAT:- We find that in Assessment Order, the AO has noted that prima facie the said amount of ₹ 95 lakhs can be construed as unexplained cash credit and thereafter, he has discussed and decided about the addition ultimately made by him of ₹ 93,01,290/- under section 56(2)(viib) Assessment Order is dated 06.11.2017. Under these facts, it appears that there is apparent mistake in the Assessment Order because even after observing this in para 1.1 of the Assessment Order that the entire amount of ₹ 95 lakhs is unexplained cash credit, the AO has made addition of only ₹ 93,01,290/- under section 56(2)(viib) without making any addition u/s 68. Even now, the period of rectification under section 154 has not expired and hence, we feel it proper that on this aspect also as to whether any addition is to be made under section 68 or not, we feel that the matter should be decided afresh by the AO.Assessee s appeal is partly allowed for statistical purposes.
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2020 (6) TMI 202
Unverified commercial advance - Addition deleted by CIT-A - HELD THAT:- Assessee has a regular trading account of M/s Sona Trading Company to which regular sales are made and payments received through banking channel. The revenue authorities have not raised any question on the genuineness of the transactions. We, therefore, find no inconsistency in the finding of Ld. CIT(A) and the same is upheld. Ground no.1 of the revenue s appeal is dismissed. Addition of unexplained/unsecured loans/cash credit - Addition deleted by CIT-A - HELD THAT:- Assessee has filed confirmation letters with the name, address and PAN No. of all the creditors. Most of the loan accounts were squared off during the year, all the transactions were carried out through proper banking channel. All the transactions have also passed through the eyes of the auditor who has issued tax audit report under section 44AB of the Act mentioning about the loans taken and repaid during the year. There is no evidence on record to shows that any enquiry was initiated by the assessing officer on the basis of PAN No. and other details. CIT(A) has rightly appreciated the evidence filed by the assessee and considering them to be sufficient enough to prove identity, genuineness and creditworthiness of the loan transactions. We, therefore, find no reason to interfere in the finding of Ld. CIT(A) deleting the addition. Addition on account of Chukara Khata - HELD THAT:- The transactions are not directly between the assessee and the farmers but are through the Mandi and the employees of the Mandi maintain complete records of the transactions entered into between assessee and farmers. Generally the payments are to be made on the same date but it s strictly compliance is very hard to achieve. Ld. Counsel for the assessee has referred to various instances in the form of Newspaper cutting placed at page 18 of the paper book showing that payments to farmers remain outstanding on various occasions Even otherwise revenue authorities have not doubted the genuineness of the purchase and have not rejected the books of accounts. We, therefore, in the given facts and circumstances of the care, are of the considered view that there is no infirmity in the detailed finding of the Ld. CIT(A), and therefore, the addition made. Disallowance of expenses being 20% of the expenses out of salary wages and Hamali expenses, disallowance being 20% to freight expenses - HELD THAT:- Whether the books of accounts are duly audited u/s 44 AB of the Act and the ledger account of the expenses placed in the paper book, restrict the disallowance to 10% as against 20% made by the assessing officer. Thus, as against the disallowances made by the assessing officer, we confirm the disallowance being 10% of salary wages and Hammali and being 10% of freight expenses. Thus, ground no.4 5 of the revenue s appeal are partly allowed. Evidences in violation of provision of Rule 46A of the IT. Rules - HELD THAT:- We find that the additional evidences placed by the assessee before the ld. CIT(A) through application u/s 46A of the I.T. Rules were going to the root cause of the issues i.e. additions made by the assessing officer. They mainly constituted the documents and evidences given in order to prove the identity, genuineness and creditworthiness of the cash creditors. CIT(A), in order to adjudicate the issues on merits and in the light of the facts was justified in accepting the application under Rule 46A of the I.T. Rules for admission of additional evidences.
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Customs
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2020 (6) TMI 217
Valuation of imported goods - inclusion of royalty charge and franchisee fees paid to the foreign supplier in assessable value - Rule 10(1) and Rule 10(1)(e) of the Customs Valuation (Determination of Value Imported Goods) Rules, 2007 - It was held by Tribunal that Once the goods have been cleared from the Customs area the same is not required to be treated as imported goods and all the activities of the management, consultation etc. is relatable to the goods which is ceased to be imported goods in terms of the Customs Act, 1962. HELD THAT:- Appeal admitted.
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2020 (6) TMI 212
Advance Authorization Scheme - execution of Bank Guarantee - deemed exports - HELD THAT:- The recovery proceedings by the respondents shall be kept in abeyance for a period of four weeks from today. The petitioner is granted four weeks time to approach the jurisdictional competent authorities before the State of Karnataka for appropriate remedy. It is made clear that if the petitioner fails to avail this opportunity within a time frame stipulated by this Court, it is open to the respondents to take appropriate action in the manner known to law. Petition disposed off.
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PMLA
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2020 (6) TMI 216
Money Laundering - interplay between Section 306, and Section 308, of the Code of Criminal Procedure, 1973 - revocation of the tender of pardon - HELD THAT:- The Certificate, of the Public Prosecutor, in the present case, does not allege that, before the Court, the respondent concealed anything essential, or gave false evidence. In fact, a holistic reading of the application, filed by the petitioner before the learned Special Judge, reveals that the grievance of the petitioner is, essentially, that the respondent has not cooperated during investigation, and has withheld material in his possession. Mr. Handoo is right when he contends that non-co-operation, during investigation, is not one of the circumstances contemplated, by Section 308 (1), as justifying issuance of certificate by the Public Prosecutor. Quite obviously, this is because the condition, whereunder pardon is granted to the accomplice, is candour before the court, and not candour before the investigating officer. Non-cooperation with the investigative process, therefore, is irrelevant, insofar as Section 308 (1) is concerned. The grounds, urged in the application of the petitioner, preferred before the learned Special Judge did not, therefore, make out a case for issuance of Certificate under Section 308 (1), by the Public Prosecutor. The learned Special Judge, therefore, rightly chose not to revoke the pardon extended to the respondent, on the basis of the said averments. One of the serious apprehensions, voiced by the learned ASG, was that, as a consequence of the impugned order of the learned Special Judge, the prosecution would be compelled to lead the evidence of the respondent, even after having found him to be an untrustworthy witness. This apprehension, in my view, cannot be said to rest on any sound factual, or legal, basis. Factually, the apprehension is unfounded, as the learned Special Judge has not rejected the application, of the petitioner, on merits, but has dismissed it as premature, as no statement, of the respondent-approver, was recorded during trial. Liberty has been reserved, even in the impugned order, with the petitioner, to move an appropriate application, at the appropriate stage. It cannot, therefore, be said that, by operation of the impugned order, the petitioner has been compelled to use the evidence of an untrustworthy witness. Legally, too, this apprehension cannot sustain. Before the recording of his statement under Section 306 (4) of the Cr PC, the application, of the petitioner, as preferred before him, was not maintainable - the issuance of certificate, by the Public Prosecutor, under Section 308 (1), Cr PC, had to be necessarily preceded by the recording of the statement of the approver, under Section 306 (4). Petition dismissed.
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CST, VAT & Sales Tax
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2020 (6) TMI 211
Maintainability of revision - violation of Rule 63(5) of the U.P. Value Added Tax Rules, 2008 - HELD THAT:- The conduct of the appellant has not been up to the mark. He should have appeared before the Courts where he had filed the appeals - In the event, no appearance is there, the Courts have no other option but to decide the cases summarily. At the same time I also find that the Appellate Courts have not adhered to the Rule 63(5) of the U.P. Value Added Tax Rules, 2008. The First Appeal being First Appeal No.2 of 2015 is restored to its original number and the applicant shall appear and argue the case and thereafter the First Appellate Court shall decide the appeal on merits as per the provisions of Rule 63 (5) of the U.P. Value Added Tax Rules, 2008. The First Appeal shall be fixed for 8.4.2020 - Revision allowed.
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