TMI Tax Updates - e-Newsletter
June 7, 2021
Case Laws in this Newsletter:
GST
Income Tax
Customs
Corporate Laws
Insolvency & Bankruptcy
PMLA
Service Tax
Highlights / Catch Notes
-
GST:
Validity of blocking of credit ledger and its continuance beyond one year - Rule 86-A(3) of the CGST Rules, 2017 - in light of blocking having been made on 21.01.2020, its continuance in the present instant is impermissible in law. - Consequential orders and restoring credit to the electronic credit ledger to be made forthwith. However, it is clarified that respondent are at liberty to take such action as is permissible in law in connection with the assessment proceedings. - HC
-
GST:
Seeking grant of Bail - fraudulent availment of input tax credit - evasion of GST - The applicant is sole proprietor of his firm and responsible for every act of his firm. Suffice to say prima-facie, the accused has committed an economic offence and caused monetary loss to the State which is most harmful. Investigation is still underway. - This case is not fit for bail to be granted - bail application dismissed. - DSC
-
GST:
Right of bail under Section 167(2) Cr.P.C - offence u/s 132(1)(b), 132(1)(c), 132(1)(1)(i) of CGST Act, 2017 - The statutory period as provided under Section 167(2) Cr.P.C i.e. 60 days had expired on 11.01.2021. The complaint/final report in this case were submitted before this court on 11.01.2021 itself. The application in hand has moved on 13.01.2021 i.e. 2 days after filing of the complaint/final report in the matter. - the contentions raised on behalf of the applicant are not covered under the provisions of 167(2) Cr.P.C. Consequently, the application is hereby dismissed. - DSC
-
GST:
Grant of Bail - bogus invoices - issuance of fake invoices without actual delivery of goods - The fact of the matter is that accused has himself disclosed that all relevant documents/material pertaining to the alleged transactions is lying with his CA who is still absconding. - The investigation in the present matter is still continuing and is at a crucial juncture as unless the CA joins investigation and provides all the documentary evidence to the department for the ascertainment of the actual liability, the release of the accused herein would be unwarranted as his release would certainly impede the ongoing investigation in the form of destruction of relevant material or tampering with the evidence - DSC
-
Income Tax:
Penalty u/s 271(1)(c) - Assessee has failed to explain the source with support of evidence, but his explanation was not found to be false. The lapse committed at his end may authorise the AO to make addition, but that will not authorise the AO to visit the assessee with penalty. The explanation of the assessee ought to have been found as false by the AO. Nothing that sort of exercise has been made or any material discernible from the record. - AT
-
Income Tax:
Revision u/s 263 - Doctrine of merger - the subject-matter in question “Disallowance under section 14A r.w.r.8D” ‘ has been considered and decided by the Commissioner of Income Tax (Appeals) - if any order of the assessing officer had merged in the order passed in appeal by the Commissioner of Income Tax (Appeals), the same cannot be set aside under section 263, in revision, by the Principal Commissioner of Income Tax. - AT
-
Income Tax:
Revision u/s 263 - ‘On-money’ receipt - the view taken by the A.O. was one of the possible views and the assessment order passed by him could not be held to be erroneous and prejudicial to the interests of revenue. There is difference between ‘Lack of enquiry’ and ‘inadequate enquiry’. It is for the AO to decide the extent of enquiry to be made as it is his satisfaction as what is required under law. - AT
-
Income Tax:
Deduction u/s 80P - Denying Section 80P deduction on parking of surplus funds in private banks and the interest received from the LIC deposits involving varying sums - We find no merit in the assessee's stand since their lordships said decision applies in an instance of section 80P deduction on interest income derived from nationalised banks only. - AT
-
Income Tax:
TP Adjustment - ALP adjustment qua receipt of management services - the assessee has already filed its detailed paper book in the nature of supportive evidence indicating receipt of management services in day to day functioning from its overseas Associated Enterprises. There is no rebuttal coming from Revenue’s side that all the said details lack genuineness which could be taken as the benchmark for arriving at nil ‘ALP’ thereof. We thus hold that the learned lower authorities action making impugned ALP adjustment is not sustainable.- AT
-
Customs:
Import of goods - refractory bricks - freely importable or restricted imports - The adjudicating authority could have contacted the other port authorities and ascertained the position - He could have moved the competent authority in DGFT and obtained clarification. Without doing so, he chose to straightaway pass the impugned order. This is clearly unfair as well as violation of Section 17 of the Customs Act. - HC
-
Customs:
Valuation - transaction value of food supplements imported - undervaluation and mis-declaration of goods - rejection of declared value - In the present case, it is observed that SG has categorically admitted for having discussed with the Foreign suppliers about the actual price and that the said actual prices were mentioned on the invoices received from the foreign suppliers. It is thereafter that Shri SG used to prepare fake invoices in his computer reducing the price of the invoices of foreign supplier to the extent of almost 50% thereof so as to file the same along with Bill of Entry - However, the order of demand and imposition of penalty on other importing firms and their respective proprietors is hereby set aside. - AT
-
Customs:
Recovery of Refund of SAD - Neither the assessee can seek refund nor Revenue can proceed to recover the refund already sanctioned without challenging the earlier order by way of remedy provided in Section 128 of the Act. Having not challenged the previous order, the Revenue cannot be allowed to re-open the issue - AT
-
Corporate Law:
Oppression and mismanagement - Merely because the Petitioner/Applicant is a majority shareholder in the Respondent No. 1, it is not entitled or authorised to file the captioned Application relating to contractual rights of the Respondent No. 1 and the Respondent No. 4. There is no shareholder right of the Petitioner/Applicant involved in relation of the use of the Premises by the Respondent No. 1 in contractual arrangement with the Respondent No. 1 - Tri
Articles
Notifications
GST - States-
S. R. O. No. 350/2021 - dated
5-4-2021
-
Kerala SGST
Supersession Notification G.O.(P) No.69/2020/TAXES. dated 14th May, 2020
-
F.12(1)FD/Tax/2021-22 - dated
4-6-2021
-
Rajasthan SGST
Seeks to extend the due date for filing FORM GSTR-4 for financial year 2020-21 to 31.07.2021
-
F.12(1)FD/Tax/2021-21 - dated
4-6-2021
-
Rajasthan SGST
Seeks to amend notification no. F12(1)FD/TAX/2021-07, dated the 4th May, 2021
-
F.12(1)FD/Tax/2021-20 - dated
4-6-2021
-
Rajasthan SGST
Amendment in Notification No. F.12(46)FD/Tax/2017-Pt.V-152, dated the 30th March, 2020
-
F.12(1)FD/Tax/2021-19 - dated
4-6-2021
-
Rajasthan SGST
Seeks to rationalize late fee for delay in filing of return in FORM GSTR-7
-
F.12(1)FD/Tax/2021-18 - dated
4-6-2021
-
Rajasthan SGST
Seeks to rationalize late fee for delay in filing of return in FORM GSTR-4
-
F.12(1)FD/Tax/2021-17 - dated
4-6-2021
-
Rajasthan SGST
Seeks to rationalize late fee imposed under section 47 of the RGST Act, 2017 for late furnishing of the statement of outward supplies in FORM GSTR-1
-
F.12(1)FD/Tax/2021-16 - dated
4-6-2021
-
Rajasthan SGST
Seeks to rationalize late fee for late filing of return in FORM GSTR-3B from June, 2021 onwards and to provide one time relief by conditional waiver of late fee for delay in filing FORM GSTR-3B from July, 2017 to April, 2021 and to provide waiver of late fees for late filing of return in FORM GSTR-3B
-
F.12(1)FD/Tax/2021-15 - dated
4-6-2021
-
Rajasthan SGST
Seeks to provide relief by lowering of interest rate for a specified time for tax periods March, 2021, April, 2021 and May, 2021
-
F.12(1)FD/Tax/2021-14 - dated
4-6-2021
-
Rajasthan SGST
Seeks to extend the due date for FORM GSTR-1 for tax period of May, 2021 by 15 days
-
F.1-11 (91)-Tax/GST/2021 - dated
1-6-2021
-
Tripura SGST
Seeks to extend the due date for furnishing of FORM ITC-04 for the period Jan-March, 2021 till 31st May, 2021
-
GST/2021-22/F.No.509/64/Commercial Tax - dated
4-6-2021
-
Uttar Pradesh SGST
Seeks to amend Notification No. GST/2020-21/F. No.-509/61/Commercial tax dated 24.11.2020
-
GST/2021-22/F.No.509/63/Commercial Tax - dated
4-6-2021
-
Uttar Pradesh SGST
Seeks to amend Notification No. GST/2020-21/F. No.-509/57/ Commercial tax dated 24.11.2020
-
513/XI-2-21-9(47)/17-U.P.Act-1-2017-Order-(180)-2021 - dated
2-6-2021
-
Uttar Pradesh SGST
Seeks to amendment in Notification No. KA.NI.-2-690/XI-9(47)/17-U.P. Act- 1-2017-Order-(30)-2019 Dated May 01, 2019
-
512/XI-2-21-9(47)/17-U.P.Act-1-2017-Order-(179)-2021 - dated
2-6-2021
-
Uttar Pradesh SGST
Seeks to amend Notification No. KA.NI.-2-842/XI-9(47)/17-U.P. Act-1-2017-Order-(09)-2017 Dated June 30, 2017
-
511/XI-2-21-9(47)/17-U.P.Act-1-2017-Order-(178)-2021 - dated
2-6-2021
-
Uttar Pradesh SGST
Seeks to amend Notification No. KA.NI.-2- 836/XI-9(47)/17-U.P. Act-1-2017-Order-(06)-2017 Dated June 30, 2017
-
491/XI-2-21-9(47)/17-U.P. Act-1-2017-Order-(177)-2021 - dated
21-5-2021
-
Uttar Pradesh SGST
Amendment in Notification No. 1404/XI-2-20-9(47)/17 U.P.Act-1-2017-Order-(169) 2020- Dared 22th December, 2020
News
Case Laws:
-
GST
-
2021 (6) TMI 184
Refund of Export benefits - Section 16 of Integrated Goods and Service Tax Act, 2017 read with Section 54 of Central Goods and Service Tax Act, 2017 - HELD THAT:- The concerned Respondents are directed to decide the claim of refund of the Petitioner, details of which have been furnished in the writ petition, as early as possible and practicable, in accordance with law, rules, regulations and Government policies applicable to facts of the case and also keeping in mind the judgment of Hon ble Supreme Court in MAFATLAL INDUSTRIES LTD. VERSUS UNION OF INDIA [ 1996 (12) TMI 50 - SUPREME COURT] preferably within a period of 12 weeks from the date of receipt of copy of this order. Counsel for the Petitioner assures that Petitioner shall co-operate with the concerned Authority in providing requisite documents and information necessary for arriving at a final decision. Petition disposed off.
-
2021 (6) TMI 182
Validity of blocking of credit ledger and its continuance beyond one year - Rule 86-A(3) of the CGST Rules, 2017 - HELD THAT:- Without entering into the merits of the order blocking of the electronic credit ledger, in light of Rule 86-A(3), restriction in blocking of the electronic credit ledger cannot be extended beyond the period of one year from the date of imposing such restriction and accordingly, in light of blocking having been made on 21.01.2020, its continuance in the present instant is impermissible in law. Accordingly, it is declared that the action of the respondents in continuing the blocking of electronic credit ledger is set aside. - Consequential orders and restoring credit to the electronic credit ledger to be made forthwith. Petition disposed off.
-
2021 (6) TMI 176
Recall of order - service of notice - Interest due arising from late filing of return has not been paid - HELD THAT:- It appears that the system and the operators are solely responsible for the harassment being meted out to the poor assesses. As the enquiry referrred to by Mr. Trivedi is not on record, this Court is unable to decipher whether, the harassment to the taxpayer is a personal one or the system/service provider is to be blamed. Thus, it is deemed fit that the respondent no.3 is directed to file its response with regard to the submissions made by the applicant so that this Court may fix the liability on the relevant person. This Court is of the view that a direction for payment of cost as against the applicant and the observations shall remain stayed till the next date.
-
2021 (6) TMI 158
Seeking grant of Bail - fraudulent availment of input tax credit - evasion of duty - cognizable and non-bailable offence - HELD THAT:- During his statement recorded by the DGGI, GRU, Ghaziabad the applicant admitted he has irregularly availed the input tax of ₹ 1.30 Crore and assured the officers he will deposit the entire dues of G.S.T. but due to financial conditions he is unable to pay the same. The applicant also stated in his statement that for the purpose of purchase he is not in direct touch with the suppliers and even not know the proprietors of the firms. The applicant about total ITC of ₹ 8,52,43,881/availed by him, did not explain properly and reply satisfactorily. The applicant is sole proprietor of his firm and responsible for every act of his firm. Suffice to say prima-facie, the accused has committed an economic offence and caused monetary loss to the State which is most harmful. Investigation is still underway. This case is not fit for bail to be granted - bail application dismissed.
-
2021 (6) TMI 157
Right of bail under Section 167(2) Cr.P.C - offence u/s 132(1)(b), 132(1)(c), 132(1)(1)(i) of CGST Act, 2017 - HELD THAT:- Record of the case reveals that the applicant was apprehended in this case on 12.11.2020 and produced before the Magistrate on 13.11.2020. The statutory period as provided under Section 167(2) Cr.P.C i.e. 60 days had expired on 11.01.2021. The complaint/final report in this case were submitted before this court on 11.01.2021 itself. The application in hand has moved on 13.01.2021 i.e. 2 days after filing of the complaint/final report in the matter. Ashish Kumar Sharma. It is also a matter of record that the averments made in the complaint are clearly in respect of the averments made in the first application for judicial custody of the accused moved in this case - application dismissed.
-
2021 (6) TMI 156
Grant of Bail - bogus invoices - issuance of fake invoices without actual delivery of goods - investigation is still pending as statement of CA is yet to be recorded - HELD THAT:- The grant of bail depends upon complex of facts and circumstances in the light of golden principles laid down from time to time by the higher Courts. In DIPAK SHUBHASH CHANDRA MEHTA VERSUS CBI. [ 2013 (6) TMI 105 - SUPREME COURT] Hon'ble Apex Court held that the Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is need to indicate in such orders reasons for prima facie concluding whey bail was being granted. particularly, where the accused is charged of having committed serious offence. The fact of the matter is that accused has himself disclosed that all relevant documents/material pertaining to the alleged transactions is lying with his CA Nitin Jain who is still absconding. The investigation in the present matter is still continuing and is at a crucial juncture as unless the CA Nitin Jain joins investigation and provides all the documentary evidence to the department for the ascertainment of the actual liability, the release of the accused herein would be unwarranted as his release would certainly impede the ongoing investigation in the form of destruction of relevant material or tampering with the evidence - application dismissed.
-
2021 (6) TMI 155
Cancellation of registration of petitioner - Non-filing of GST returns - scope of SCN - 3 months were wrongly omitted from SCN - Principles of natural justice - HELD THAT:- The adjudicating authority has issued a show cause notice Reference Number WM060109193A0713, dated 19-11-2019 in Form GSTR-3A under Section 46 of the CGST Act, 2017 stating the reason being Non-filing of GST returns (GSTR-3B) for the period October, 2018 to March, 2019 and April, 2019 to September, 2019 (Financial Year 2018-19 and 2019-2020). Further, the adjudicating authority has passed the best judgment Assessment Order C. No. CGST-20/R-XXVI/Non-filing NBD/178/19/8287, dated 30-1-2020 in Form GST ASMT-13 under Section 62 of the CGST Act, 2017 for non-filing of GSTR-1 statement and GSTR-3B return for the months of January, 2019 to December, 2019 and, also for not discharging/set-off their outward liability (CGST ₹ 31,13,628/- + SGST ₹ 31,13,628/-, Interest ₹ 5,46,890/- and Penalty ₹ 6,22,726/-) total amounting to ₹ 73,96,872/-. The appellant has mainly contested in their appeal memo that the adjudicating authority has passed the best judgment Assessment Order C. No. CGST-20/R-XXVI/Non-filing NBD/178/19/8287, dated 30-1-2020 in Form GST ASMT-13 under Section 52 of the CGST Act, 2017 for non-filing of GSTR-1 statement and GSTR-3B return for the months of January, 2019 to December, 2019 whereas, in the show cause notice Reference Number WM060109193A0713, dated 19-11-2019 issued in Form GSTR-3A under Section 46 of the CGST Act, 2017 for Non-filing of GST returns (GSTR-3B) under which the period of dispute has been shown from October, 2018 to September, 2019 Financial Year 2018-19 and 2019-2020. Thus, the adjudicating authority did not issue any show cause notice in Form GSTR-3A under Section 46 of the CGST Act, 2017 for the period of October, 2019, November, 2019 and December, 2019 and passed the best Assessment Order dated 30-1-2020 taking the period from January, 2019 to December, 2019 without the following of principle of natural justice. Scope of SCN - HELD THAT:- The adjudicating authority while passing Assessment Order in Form ASMT-13, dated 30-1-2020 under Section 62 of the CGST Act, 2017 the period of dispute has been taken from January, 2019 to December, 2019 whereas, in show cause notice issued under Section 46 of the CGST Act, 2017 the period of dispute has been taken from October, 2018 to March, 2019 and April, 2019 to September, 2019. Thus as per above situation it is clearly proves that in the show cause notice the period of three months i.e. October, 2019, November, 2019 and December, 2019 has been left unnoticed by the adjudicating authority and reply to show cause notice of the appellant dated 25-11-2019 has also not been considered. The registration of the appellant was cancelled with effect from 21-1-2020 vide Reference Number ZA080120044221D, dated 21-1-2020 with following due procedure as per law. In these circumstances, the provisions of Section 63 of CGST Act, 2017 shall be applicable as the best judgment assessment order has been passed by the adjudicating authority on 30-1-2020 after cancellation of registration of the appellant on 21-1-2020 - matter remanded to the adjudicating authority with direction to follow the procedures as laid down under the CGST Act and Rules, 2017 and other instruction/circular issued in this regard and pass the speaking order accordingly by following the principle of natural justice. Appeal allowed by way of remand.
-
2021 (6) TMI 154
Seeking grant of Bail - illegal availment and utilization of input tax credit - It is submitted that not even a single rupee has been received by the accused in his personal account and there is no documentary proof of applicant received any monetary benefit from the alleged offence - bail is sought also on the ground of age and medical urgency for the accused - HELD THAT:- For the purpose of deciding a bail application only prima facie look on the facts through the prism of guiding principles is required and not a meticulous analysis of the factual matrix. The law of bail dovetails on various facts and the golden principles laid down from time to time by the higher Courts. In Dipak Subhash Chandra Mehta Vs. CBI [ 2013 (6) TMI 105 - SUPREME COURT ] Hon'ble Apex Court held that the Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is need to indicate in such orders reasons for prima facie concluding whey bail was being granted, particularly, where the accused is charged of having committed serious offence. In the given facts, accused is a old man of 66 years of age apparently having clean antecedents as no evidence has been brought forth by the department to show that he has previously been involved/engaged in similar offences. Further, the conduct of the accused seems to be reasonable during investigation as it has not come from the department that he evaded arrest or remained defiant to the directions of the 10. The accused is in custody since 25.11.2020 for about a month and during this time the department got him examined only once which makes it clear that his custodial interrogation is no more required. Having a poor health due to several/multiple diseases may be due to old age is a relevant factor and same can be considered where other yardsticks of granting bail are met out - Further, the investigating agency is having the possession of all the documentary evidence collected so far and although the investigation is ongoing for collection of some more documents/incriminating material, the bail should not be refused where the accused does not seem to be a threat to the ongoing investigation. Bail granted subject to conditions imposed - bail application allowed.
-
2021 (6) TMI 153
Maintainability of petition - refund of CGST - fixation of Special rate - HELD THAT:- The Commissioner of CGST, Guwahati (respondent no.2) shall dispose of the application submitted by the petitioner, received in the office of the Commissioner on 05.03.2021, for fixation of special rate within a period of 4(four) weeks from the date of receipt of the certified copy of the order. It is provided that till such decision is taken, no coercive measure be taken against the petitioner pursuant to the demand notice dated 28.12.2020 and recovery notice dated 27.01.2021 impugned in this writ petition. List the matter on 19.05.2021.
-
Income Tax
-
2021 (6) TMI 183
Validity of reopening of assessment u/s 147 - notice against entity non existent - HELD THAT:- The petitioner claims that since Elegent Real Tech Private Limited ceased to exist upon the approval of the amalgamation scheme, the impugned notice could not have been issued qua the said entity. For this reason, the respondent/revenue has taken a stand before us that it would drop the proceedings against Elegent Real Tech Private Limited, with liberty to initiate/continue the proceedings against the petitioner, as per law. The statement of Mr. Rai, made in that behalf, is taken on record. The writ petition is, accordingly, closed.
-
2021 (6) TMI 181
Reopening of assessment u/s 147 - petitioner had raised a specific objection that the proposal for reopening the assessment is liable to be dropped, since there is no finding that there was escapement of income - further contended that for the purpose of carrying on verification exercise, reopening cannot be ordered - HELD THAT:- Though such specific contention was raised, instead of dealing with the same, by passing a speaking order, the first respondent chose to merely inform the assessee that the proceedings have been initiated only with the approval of the jurisdictional Joint Commissioner. The first respondent has not at all dealt with the contentions raised by the assessee. The Hon'ble Supreme Court in GKN Driveshafts [ 2002 (11) TMI 7 - SUPREME COURT] had specifically held that the assessing officer is bound to dispose of the assessee's objections by passing a speaking order. In as much as this requirement of law as laid down by the Supreme Court has not been complied with, the respondent is directed to dispose of the petitioner's objections by passing a speaking order within a period of four weeks from the date of receipt of a copy of this order.
-
2021 (6) TMI 175
Penalty u/s 271(1)(c) - additions as unexplained cash deposited in his bank account and non-disclosure of bank interest - HELD THAT:- As gone through the bank statement. It is duly reflected that in the month of April, he has given advance of roughly ₹ 14 lakhs. Thereafter, in the month of September and October, ₹ 14 lakhs has been deposited in his account. To some extent, the explanation of the assessee is plausible that he has given advance for purchase of the property which was not materialized and received back the amount during the year itself. The only deficiency in his explanation was that he could not buttress this explanation with supporting evidence i.e. confirmation from two persons viz. T. Ramkrishna S. Bhaskara Rao. Thus he failed to explain the source with support of evidence, but his explanation was not found to be false. The lapse committed at his end may authorise the AO to make addition, but that will not authorise the AO to visit the assessee with penalty. The explanation of the assessee ought to have been found as false by the AO. Nothing that sort of exercise has been made or any material discernible from the record. As far as interest part is concerned, it is a very small amount. There might have some minor discrepancy while calculating the interest at the time of filing of the return. Considering all these aspects, the assessee does not deserve to be visited with penalty. Appeal of the assessee is allowed.
-
2021 (6) TMI 174
Disallowance under section 14A r.w.r. 8D - interest expenditure considered for disallowance - HELD THAT:- CIT(A) deleted the disallowances by following the order of ITAT, Ahmedabad ITO Vs. Karnavati Petrochem P.Ltd.[ 2014 (1) TMI 920 - ITAT AHMEDABAD] wherein it was held that when the interest income was more than the interest expenses, and the assessee was having net positive interest income, the interest expenditure could not be considered for disallowance under section 14A - We find that the ld. CIT(A) also examined the reserve and surplus fund available with the assessee company, which is more than the investment made by assessee for earning exempt income. No contrary fact or law is brought to our notice by the Revenue to take a different view. Therefore, the ground of appeal raised by revenue in its appeal for A.Y. 2009-10 is dismissed. Administrative expenses addition - CIT(A) has restricted the same at 0.5% of average value of investment, as per Rule 8D(2)(iii) - We find that the assessee has claimed that no expenditure was incurred for earning exempt income, therefore, the assessee prayed since the same being on higher side, a reasonable disallowance be made. ld.CIT(A) has determined the administrative same on adhoc basis, and no nexus has been made between the expenditure incurred and the exempt income. Therefore, to meet the ends of justice, we restrict the disallowance to ₹ 1,50,000/- in each assessment year under appeal. This ground is accordingly allowed.
-
2021 (6) TMI 173
Addition u/s 68 on account of unexplained Share Premium - CIT-A deleted the addition - HELD THAT:- CIT(A) has passed a very short and laconic order which does not exhibit proper application of mind. Accordingly in the interest of justice we remit the issue to the file of learned CIT(A). The learned CIT(A) is directed to consider the issue afresh and pass a proper speaking order as per law after giving the assessee proper opportunity of being heard. The learned CIT(A) will also bear in mind our observation hereinabove. In remitting the matter to the file of the learned CIT(A), we also draw support from the order of Hon ble Supreme Court decision in the case of Shri Kapurchand Shrimal [ 1981 (8) TMI 2 - SUPREME COURT] for the proposition that it is the duty of appellate authority to correct the errors in the order of authority below and remand the matter with or without direction unless prohibited by law. Appeal by the Revenue stands partly allowed for statistical purposes.
-
2021 (6) TMI 172
Enhancing the income by invoking the provisions of section 10A - HELD THAT:- As decided in own case [ 2020 (3) TMI 228 - ITAT PUNE] AO has not proved that any arrangement had been arrived between the parties which resulted in higher profits. Consequently, the re-working of the profits by Assessing Officer by invoking section 10A r.w.s. 80- IA(10) of the Act is not justified. The action of the Assessing Officer to restrict the deduction u/s 10A as against the claim of assessee is hereby set-aside. Thus, assessee succeeds on this aspect. Disallowing the economic adjustment as bad debt - HELD THAT:- As assessee claimed to have disallowed the expenditure in respect of provision for bad debt in the computation of total income for A.Y. 2005-06 and accordingly, the said provision should be treated, in our opinion as non-operating expenditure for the purpose of computing profitability under the transfer pricing provisions. Further, we note that d. CIT(A) held the bad debt is an operating expenditure but however observed exclusion of companies by the AO/TPO having bad debt for the purpose of comparability is not justified. Therefore, we agree with the finding of ld. CIT(A) to the extent of inclusion of comparable companies having bad debt in the final set of comparable companies. Therefore, in the facts and circumstances of the case considering the submissions of ld. AR and ld. DR, we deem it proper to remand the matter to the file of AO and accordingly, the AO/TPO is directed that the provision for bad debt should be treated as non-operating expenditure while computing the profitability of the assessee which has been disallowed as an expense while computing the income under the ITR. The ad-hoc bad debts filter as applied by the TPO liable to be rejected and to include the comparable companies having bad debt should be considered in the final set of comparables.
-
2021 (6) TMI 169
Revision u/s 263 - Doctrine of merger - while computing disallowance u/s 14A by applying formula under Rule 8D item (iii) being percent of average investment, investment in partnership firm M/s. Gokulanand Petro Fibers was not considered - HELD THAT:- PCIT under 263 revision proceedings directed the assessing officer to recompute the disallowance under section 14A r.w.r.8D, although in the meantime the order of assessment passed by the assessing officer under section 143(3) r.w.s. 92CA(3) of the Act, had been the subject-matter of appeal before the Commissioner of Income Tax (Appeals). Therefore, order passed by the assessing officer has merged with the Commissioner of Income Tax (Appeals), hence ld Principal Commissioner of Income Tax ( Ld. PCIT) does not have power under section 263 to exercise his jurisdiction on the issue of disallowance under section 14A r.w.r.8D , since the said issue has been already adjudicated by the Commissioner of Income Tax (Appeals) Provision contained in clause (c) of Explanation 1 to section 263(1) has been inserted by amendment by the Finance Act, 1989 with effect from 1-6-1988. We note that the subject-matter in question Disallowance under section 14A r.w.r.8D has been considered and decided by the Commissioner of Income Tax (Appeals), therefore, now ld PCIT could not invoke the revisional jurisdiction under section 263(1) of Act. The power of revision conferred on the Commissioner by section 263 to call for and examine then record of any proceeding under the Act and to interfere if he considers that any order passed therein by the assessing officer is erroneous insofar as it is prejudicial to the interest of the revenue, does not empower the Commissioner to interfere with any order passed by the Commissioner of Income Tax (Appeals). Therefore, if any order of the assessing officer had merged in the order passed in appeal by the Commissioner of Income Tax (Appeals), the same cannot be set aside under section 263, in revision, by the Principal Commissioner of Income Tax. For the reasons given above, we are of the view that order of the Principal Commissioner of Income Tax passed under section 263 is without jurisdiction and hence, invalid in law - Appeal of the assessee is allowed.
-
2021 (6) TMI 168
Revision u/s 263 - On-money receipt - Lack of enquiry v/s inadequate enquiry - HELD THAT:- In the case of the assessee, there is no denying the fact, as detailed above and acknowledged in the assessment order u/s. 143(3) dated 11.12.2017, that in response to notices u/s 143(2)/142(1) and further requisitions made during the course of assessment proceeding, the A/R of the assessee appeared from time to time and produced/ submitted necessary details/documents as per requisitions in relation to the issues raised by the Ld. Pr. C.I.T., which were examined by Assessing Officer. Therefore, it is the appraisal of the same records which are already with the Ld. A.O. and the Ld. Pr. C.I.T. took a different view than adopted by the A.O. on the same set of facts, which is not permissible u/s. 263 The view taken by the A.O. was one of the possible views and the assessment order passed by him could not be held to be erroneous and prejudicial to the interests of revenue. There is difference between Lack of enquiry and inadequate enquiry . It is for the AO to decide the extent of enquiry to be made as it is his satisfaction as what is required under law. CIT cannot pass the order u/s 263 of the Act on the ground that further/thorough enquiry should have been made by Assessing Officer. We note that assessing officer has examined the issue of On-money of ₹ 8,20,00,000/-(vide para 4 of the assessment order passed under section 143(3) of the Act, dated 11.12.2017) and applied his mind, therefore such order passed by him is neither erroneous nor prejudicial to the interest of revenue. Based on the above discussion on assessee`s facts as well as on various precedents applicable to assessee s facts, we are of the view that revisionary jurisdiction exercised by the Ld. Pr. C.I.T. u/s. 263 of the Act was not in tune with the facts and evidences on record duly explained to the Ld. A.O. and verified by him and that being so the order passed u/s. 263 of the Act on such erroneous stand is liable to be quashed. - Decided in favour of assessee.
-
2021 (6) TMI 165
Section 80P deduction qua its interest income derived from parking of surplus funds in nationalised banks - HELD THAT:- We find no substance in the Revenue's argument in view of the fact that the hon'ble jurisdictional high court's decision in The Vavveru Co-operative Rural Bank Ltd [ 2017 (4) TMI 663 - ANDHRA PRADESH HIGH COURT ] and [ 2017 (4) TMI 1548 - ANDHRA PRADESH HIGH COURT] has settled the very issue in assessee's favour and against the department thereby granting Section 80P deduction to a co-operative society qua interest income derived from parking of surplus funds in nationalised banks as well. - Decided in favour of assessee. Denying Section 80P deduction on parking of surplus funds in private banks and the interest received from the LIC deposits involving varying sums - We find no merit in the assessee's stand since their lordships said decision applies in an instance of section 80P deduction on interest income derived from nationalised banks only. We thus affirm the CIT(A)'s reasoning denying the impugned relief to the assessee. These three cross-objections of the assessee are dismissed.
-
2021 (6) TMI 164
TP Adjustment - ALP adjustment qua receipt of management services - HELD THAT:- Case law CIT vs. Cushman and Wakefiled (India) Pvt.Ltd. [ 2014 (5) TMI 897 - DELHI HIGH COURT] and CIT vs. EKL Appliances Ltd [ 2012 (4) TMI 346 - DELHI HIGH COURT] holds that it is not within the domain of the TPO to determine the actual benefits derived from the International transactions in issue which needs to be seen from assessee s view point going by common business prudence only. We make it clear that the assessee has already filed its detailed paper book in the nature of supportive evidence indicating receipt of management services in day to day functioning from its overseas Associated Enterprises. There is no rebuttal coming from Revenue s side that all the said details lack genuineness which could be taken as the benchmark for arriving at nil ALP thereof. We thus hold that the learned lower authorities action making impugned ALP adjustment is not sustainable. The same is directed to be deleted. The assessee succeeds in its first substantive grievance therefore. Interest on receivables addition qua the overdue credit period regarding international transactions between the assessee and its overseas Associated Enterprise - CIT DR fails to rebut the clinching fact that the TPO as well as the CIT(A) have adopted prime lending rate of 14.5% as issued by the SBI which has no relevance to international transactions forming subject matter of ALP determination mechanism before us. All the learned lower authorities have failed to adopt even the most appropriate method MAM before adopting SBI lending than LIBOR rate as the interest on receivables benchmark. There is hardly any dispute that chapter X of the Act is a special provision wherein each and every adjustment qua an assessee s international transaction could be made only after adopting the MAM followed by selection of comparables in the very segment only. We thus direct the TPO to delete the impugned latter adjustment on interest on receivables as well. The assessee succeeds in both of its substantive grievances.
-
2021 (6) TMI 163
Estimation of income - Bogus purchases - addition of the bogus purchase @ 12.5% - HELD THAT:- Since the matter of controversy has been adjudicated by Hon ble ITAT in the appeal filed by the revenue [ 2021 (5) TMI 774 - ITAT MUMBAI] wherein held CIT(A) has clinched the issue in the correct perspective. The estimation of 12.5% was quiet fair and reasonable and the same do not require any interference -.Dismiss the present appeal of the assessee.
-
Customs
-
2021 (6) TMI 180
Maintainability of petition - availability of alternative remedy of appeal - import of second hand goods - refractory bricks - freely importable goods or restricted goods - time limitation - HELD THAT:- The issue turns on an interpretation of the policy notification issued by the Director General of Foreign Trade. The customs authority on its own ought not to have interpreted as to whether the goods in question can be called as restricted items. The respondent ought to have sought a clarification directly from the concerned authority in DGFT. In the alternative, the respondent could have mandated the petitioner to move the competent authority under Foreign Trade (Development and Regulation) Act, 1992 and obtain a clarification. Instead of doing so, the respondent applied his own understanding of the policy notification. What the respondent has done is not in accordance with Section 17 of the Customs Act. The respondent authority had acted illegally and in violation of the statutory procedure - matter is remitted to the file of the respondent to pass order afresh in accordance with law - Petition allowed by way of remand.
-
2021 (6) TMI 179
Maintainability of petition - alternative remedy of appeal - Import of goods - refractory bricks - freely importable or restricted imports - period for filing statutory appeal - interpretation of the policy N/N. 45/2015-2020 dated 31.01.2020 issued by the Director General of Foreign Trade - Clarification by DGFT vide Trade Notice No.8/2020-2021, dated 04.05.2020 - goods confiscated without issuance of SCN - Principles of natural justice. HELD THAT:- The issue turns on an interpretation of the policy notification issued by the Director General of Foreign Trade. The customs authority on its own ought not to have interpreted as to whether the goods in question can be called as restricted items. The respondent ought to have sought a clarification directly from the concerned authority in DGFT. In the alternative, the respondent could have mandated the petitioner to move the competent authority under Foreign Trade (Development and Regulation) Act, 1992 and obtain a clarification. Instead of doing so, the respondent applied his own understanding of the policy notification. What the respondent has done is not in accordance with Section 17 of the Customs Act - However, vide notification No.45/2015-2020 dated 31.01.2020, the Director General of Foreign Trade prohibited import of stock lot . Issue arose as to what was meant by this expression. Thereafter, clarification was provided by DGFT vide Trade Notice No.8/2020-2021, dated 04.05.2020 - The Trade Notice has clarified that If the whole imported paper consignment is without description for each category of paper, it is a stock lot. The respondent should have adopted a similar approach in this case - He could have contacted the other port authorities and ascertained the position - He could have moved the competent authority in DGFT and obtained clarification. Without doing so, he chose to straightaway pass the impugned order. This is clearly unfair as well as violation of Section 17 of the Customs Act. Principles of Natural Justice - HELD THAT:- The impugned order is also violative of the principles of natural justice. The order of confiscation has been passed without issuing show cause notice - It is true that the petitioner has called upon the respondent to finalise the issue without show cause notice or personal hearing. But a careful reading of the contents of the petitioner's letter dated 06.08.2018 would show that since according to him there is no policy violation, he wanted the goods to be cleared without any delay. But the respondent had a different perception. They were not on the same page. There was a fundamental divergence in the stand taken by the two. Therefore, the respondent ought to have followed the procedure laid down in Section 124 of the Act. Section 124 is couched in imperative terms. The matter is remitted to the file of the respondent to pass order afresh in accordance with law - Petition allowed by way of remand.
-
2021 (6) TMI 171
Valuation - transaction value of food supplements imported - undervaluation and mis-declaration of goods - rejection of declared value - fake invoices in the name of firm owned / controlled by him showing lower value - HELD THAT:- The valuation of imported goods is required to be done in terms of section 14 of the Customs Act, 1962 read with Customs Valuation Rules, 2007 which provides that transaction value of the goods shall be the price actually paid or payable for the goods when sold for export to India where the buyer or the seller of goods are not related and the price is the sole consideration for the same subject to such other conditions as may be specified under the Rules made in this behalf. The Valuation Rules have been framed in exercise of powers conferred by section 14 of the Customs Act and in normal course, the declared value i.e. the price which is actually paid for importing the goods has to be treated as the transaction value. In the present case, no doubt arose on the basis of comparable quantities in comparable commercial transaction nor it was observed at the time of clearance at the very port. But it is apparent that doubt arose on the basis of intelligence whereafter searches were conducted and recovery of documents and impugned imported food supplements got effected. Apparently no data or evidence is collected by the department after the said intelligence and during investigation as is otherwise required under Rule 4, 5 and 6 of the CVD Rules 2007 and is also required under Rule 12 - the present is the case where importer has admitted the entire allegations of alleged manipulation / forgery in the invoices as far as the price of imported goods are concerned At the stage of redetermination of value during investigation, the appellant himself had opted to pay the assessed differential duty. The voluntary payment is sufficient corroboration to his admitted manipulation for evading the duty. Such payment also amounts to the admission of appellant about re-determining value of the imported goods at lower prices. Though the learned Counsel has placed reliance upon the decision wherein it has been held that payment of duty at the stage of investigation does not amount to the admission of guilt. But in the present case, the fact is that the guilt has not merely been admitted once, but it has been admitted in corroboration, at six number of times with no single retraction of either of these admissions nor there is any protest recorded while making payment in lieu of re-determined value - Tribunal, Mumbai also in the case of SACCHA SAUDHA PEDHI VERSUS COMMISSIONER OF CUS. (IMPORT) , MUMBAI [ 2014 (9) TMI 1039 - CESTAT MUMBAI] has held that once the witnesses admitted to undervaluation and accepted actual price of imported goods mentioned in the purchase orders messages of supplier, then the said admitted price becomes transaction value in which case, there is no need to resort to contemporaneous import. In the present case, it is observed that Sunny Gujral has categorically admitted for having discussed with the Foreign suppliers about the actual price and that the said actual prices were mentioned on the invoices received from the foreign suppliers. It is thereafter that Shri Sunny Gujral used to prepare fake invoices in his computer reducing the price of the invoices of foreign supplier to the extent of almost 50% thereof so as to file the same along with Bill of Entry - there remained no burden upon the Department to prove the allegations against the appellants nor the department was required to comply with section 138 C of the Customs Act with respect to the documents being the computer print outs, the data whereof has dully been acknowledged to have been filled in by Shri Sunny Gujral himself. It is apparent fact on record that there is no admission of Shri Sunny Gujral about involvement of the importing firms and the proprietors of the other importing firms nor of any of his dealers in manipulating invoices with an intent to evade duty. The department also has not produced any document with respect to any one else. The only document for doubting the transaction value is the price list. The law is settled that the price list cannot be the proof of transaction value. In the absence thereof and in view of no admission on part of the remaining importers then Shri Sunny Gujral, who is the proprietor of M/s. Jaskaran Enterprise, we see no reason for imposition of penalty and demand of differential duty from rest of the appellant firms and their respective proprietors. The order under challenge is upheld only about Shri Sunny Gujral the proprietor of M/s Jaskaran Enterprise. However, the order of demand and imposition of penalty on other importing firms and their respective proprietors is hereby set aside. Since the amount of ₹ 12.95 lakh has already been deposited by Shri Sunny Gujral, the same is hereby ordered to be set off - Appeal allowed in part.
-
2021 (6) TMI 170
Recovery of Refund of SAD - Refund sanctioned has not been reviewed or challenged and the said fact is not in dispute - demand on the ground that the CA certificate was not issued by the statutory auditor who certified the annual accounts of the assessee - HELD THAT:- Neither the said fact has been disputed by the Ld. AR appearing for the Revenue. SCN dated 05.03.2018 has been issued under Section 28 of the Customs Act to recover the amount refunded vide earlier Order dated 26.9.2014 with the presumption that the refund was erroneously granted to the assessee. Whether or not refund has been erroneously granted would have to be decided in the manner provided in law. Neither the assessee can seek refund nor Revenue can proceed to recover the refund already sanctioned without challenging the earlier order by way of remedy provided in Section 128 of the Act. Having not challenged the previous order, the Revenue cannot be allowed to re-open the issue - Appeal allowed - decided in favor of appellant.
-
Corporate Laws
-
2021 (6) TMI 177
Report filed for dissolution of the company - company under liquidation has complied with all formalities and has made all necessary payments - HELD THAT:- Considering the ratio laid down by the Hon'ble Apex Court in the case of Meghal Homes Pvt. Ltd. [ 2007 (8) TMI 447 - SUPREME COURT] , where it was held that the arrangement has to go back to the meeting of members, creditors, etc. of the company in terms of section 391 of the Act and once it is adopted or adopted with modifications with the requisite majority at the meeting, the arrangement would require a fresh scrutiny by the Company Court thereafter, we cannot avoid interfering with the decision of the Division Bench on the ground put forward by learned Senior Counsel of benefit to the workers, the report deserves to be accepted. The Company, named, M/s. Mangal Rasayan Limited (In Liqn.) is hereby dissolved under Section 481 of the Act and the Official Liquidator attached to this Court stands discharged and is relieved as liquidator of M/s. Mangal Rasayan Limited (In Liqn.). The official liquidator is also permitted to transfer the available amount in the company s account as on date to the Common Pool Account maintained by the office of the Official Liquidator. Report is allowed.
-
2021 (6) TMI 161
Oppression and mismanagement - refusal to access the company records on account of the fact that Prime Tower was still not operational owing to the outbreak of COVID-19 pandemic - obstructing the entry of the Company Secretary Mr. Rajnish Kumar and the HR Head Mr. Mazhar Hussain into the Company Prime Tower premises, who visited to get access on necessary documents - Sections 58, 59, 241, 242 and other applicable provisions of the Companies Act, 2013 - HELD THAT:- It was well within the rights of the Respondent No. 4 to enter into the Premises and revoke the Agreement from November 2018, when the Respondent No. 1 failed to pay the service charges for the month of October 2018. Instead, the Respondent No. 4, in an unequitable show of good faith, allowed the Respondent No. 1 to continue to use the Premises even thereafter without any hindrance to it - It is evident from reading the Agreement that neither the Respondent No. 1 nor the Respondent No. 4 is provided with the right to claim any set-off. Further, the Respondent No. 4 has never accepted nor acquiesced to the Respondent No. 1's claims of set-off. It is trite law that those persons/entities who are not party to a contract, do not have any right to initiate action or claim benefits/performance of the contract. This is enshrined within the legal doctrine of privity of contract, which is respected, followed, and enforced by all the courts, tribunals, and other adjudicating authorities of similar power and stature in India - Merely because the Petitioner/Applicant is a majority shareholder in the Respondent No. 1, it is not entitled or authorised to file the captioned Application relating to contractual rights of the Respondent No. 1 and the Respondent No. 4. There is no shareholder right of the Petitioner/Applicant involved in relation of the use of the Premises by the Respondent No. 1 in contractual arrangement with the Respondent No. 1 - the dispute is in respect of the payment of rent, which the respondent no. 4 is claiming from respondent no. 1 company and which according to the applicant is set off against the outstanding dues, which is payable by the respondent no. 4 to the respondent no. 1. A defence of set off can be claimed by the defendant in a suit for the recovery of money and set off must be a certain sum but herein the case in hand, of course by filing the written submissions, the respondent claimed set off of the service charge but nowhere it is mentioned in the application that any suit for the recovery of money is pending in which the applicant has claimed set off. Of course, amount of claim is certain. Therefore, in our considered view the first condition is lacking. Hence defense of set off claim by the applicant is not liable to be accepted. Though the act of respondent no. 2 to 4 does not come within the purview of oppression, for the smooth functioning of the company, it is directed, in the meantime, both the parties should ensure that no hindrance is made by any of the parties or its officers and employees to ensure smooth functioning of the company - application disposed off.
-
Insolvency & Bankruptcy
-
2021 (6) TMI 167
Liquidation of Corporate Debtor - Section 33(2) of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- The Applicant/RP has also filed his 'written communication' to act as Liquidator of the Corporate Debtor in Form 2 as required under Section 34(1) of the IBC, 2016. This Bench is inclined to accept the relevant Resolution of the COC dated 31.03.2021 and order Liquidation of the Corporate Debtor - Application is allowed, ordering Liquidation of the Corporate Debtor-M/s. On Dot Courier and Cargo Limited in the manner as laid down in the Chapter III of Part II of the Insolvency and Bankruptcy Code, 2016 and in accordance with the relevant Rules and Regulations
-
2021 (6) TMI 166
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - non-payment of installments/interest/principal debt, the account of the corporate debtor has been classified as non performing asset - Section 13(2) of SARFAESI Act, 2002 - HELD THAT:- It is beyond doubt that the default has occurred with respect to the payment of the financial debt due to the Applicant. Debt is confirmed as per the confirmation letter issued by the corporate debtor on 01.12.2016 and also the debt is authenticated as per the records of the information utility services (the certificates annexed),there is no doubt left that the debt is due. Even after issuance of notice under section 13 (2) of SARFAESI Act, the debt is not serviced and proceedings before DRT were initiated. Though the DRT has declared that the declaration of account of corporate debtor as NPA was illegal and the same was quashed, but the fact still remains that the debt is unpaid. That in the present case, the date of default was mentioned as the date of declaration of NPA as 02.12.2016. In view of the quashing of the declaration of the account of the corporate debtor as NPA, the date of default now can be considered as date of default as recorded in the certificate of information utility services which is 03.09.2016. The application is filed on 12.03.2019, which is well within the period of limitation and not barred by law - The Applicant is entitled to claim its dues, establishing the default in payment of the financial debt beyond doubt. Application admitted - moratorium declared.
-
2021 (6) TMI 162
Seeking extension of CIRP period of 90 days beyond 180 days - HELD THAT:- The reason shown for extension of the period of CIRP. Further, exclusion of certain period from CIRP appear to be reasonable and bona fide. Hence, the present IA 1350 of 2020 and IA 1365 of 2020 can be considered positively and deserves to be allowed. Application allowed.
-
2021 (6) TMI 160
Restoration of main application - condonation of delay of 326 days in filing of this present restoration application - condonation of delay of 03 days in filing of the Main Application - HELD THAT:- The cause shown for the delay in filing of the instant application appears to be genuine and bona fide. There is no inaction or negligence or want of bona fide. The delay is purely on the part of formalities which are to be mandatorily undertaken by the Applicant. Thereby, it causes delay of 326 days in filing the instant application for restoration of IA 140 of 2020. It is pertinent to mention herein that there was also delay of 3 days in filing of IA 140 of 2020 for which the Applicant has already made a prayer for condonation, as such the same will be considered at the time of adjudication of IA 140 of 2020 - Instant application is allowed by condoning the delay of 326 days. Application allowed.
-
2021 (6) TMI 159
Seeking second extension of 60 days' time period beyond 270 days for completing the CIRP of the corporate debtor and exclusion of 62 days, i. e., July 1, 2020 to August 31, 2020 being the period of lockdown in computing the 330 days CIRP period - HELD THAT:- In this case, the commencement of CIRP was initiated by this Adjudicating Authority vide its order dated November 7, 2019 and period of 180 days got completed on May 4, 2020. However due to outbreak of Covid-19 pandemic and its outfall, the period from March 25, 2020 to June 30, 2020 was excluded vide this Adjudicating Authority's order dated August 25, 2020. In view of the amendments brought in section 12 of the IBC, 2016 with effect from August 16, 2019 the CIRP shall be mandatorily completed within a period of 330 days from the insolvency commencement date including any extension of the period of the CIRP granted under section 12 of the IBC, 2016. Since, the CIRP period of 180 days has already been extended by another 90 days vide this Adjudicating Authority's order dated August 25, 2020 and the period of 270 days came to end on November 10, 2020 we hereby allow to complete the corporate insolvency resolution process within another 60 days with effect from the date of this order - The applicant is hereby directed to take all necessary steps to complete the CIRP within the mandatory period of 330 days, failing which the liquidation proceeding will commence. The permission is granted on having considered the steps already been taken by the RP and the current stage of CIRP in the case of the present corporate debtor, i. e., M/s. Meenakshi Energy Ltd. - Application disposed off.
-
PMLA
-
2021 (6) TMI 178
Grant of regular bail - Money Laundering - reverse burden of proof on the accused under Section 24 of the PML Act - allegation against this applicant is of very serious nature that the applicant being an IAS officer, misused his position and power and made unlawful gain - HELD THAT:- On the basis of the report of Adjudicating Authority dated 27.06.2018 in which, it has been held that the properties of M/s Prime Ispat Ltd., which has been attached by the PAO, is not involved in the money laundering. It is the submission of the respondent side, that this report is under challenge before the Appellate Authority, but for the present, there is no order of the Appellate Authority, setting aside or varying the report of the Adjudicating Authority. Under the present scenario, the applicant has the report of Adjudicating Authority in his favour, which has not been varied or set aside by the Appellate Authority so far. There is no specific report present to show that the applicant has tampered with the investigation or made any manipulation during pendency of investigation/ enquiry since year 2010. There is no reason to hold that the applicant may abscond in case, he is granted bail. The maximum punishment, which can be imposed is upto seven years. The applicant is in judicial custody since 09.11.2020 therefore, this appears to be no further requirement of his detention for custodial interrogation or for any other purpose of investigation. It would be proper to grant bail to the applicant at this stage - Bail application allowed.
-
Service Tax
-
2021 (6) TMI 185
Refund of service tax due to retrospective exemption - period of limitation - Validity and Vires of Section 103(3) of the Finance Act, 1994 - HELD THAT:- It was held by the High Court that The substantive right to claim the refund in favour of the petitioner would be under Section 103 of the Finance Act, 2014. Therefore, subsection (3) of Section 103 of the Finance Act, 1994 cannot be said to be discriminatory and/or violative of Article 14 of the Constitution of India as contended on behalf of the petitioner. The view taken by the High Court is a possible view. Hence the special leave petition is dismissed.
|
