TMI Tax Updates - e-Newsletter
July 1, 2021
Case Laws in this Newsletter:
GST
Income Tax
Customs
Corporate Laws
Insolvency & Bankruptcy
PMLA
Service Tax
Central Excise
CST, VAT & Sales Tax
Indian Laws
Highlights / Catch Notes
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GST:
Levy of state tax on petrol and diesel - inclusion of petrol and diesel in the GST regime - Article 279 A (6) of the Constitution of India - GST Council, Central Government and Government of Kerala directed to take an appropriate decision within a period of six weeks from the date of receipt of a copy of representation - HC
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GST:
Validity of order passed u/s 74(1) - No sufficient time was afforded to the petitioner to represent his case; (b) order of assessment passed ex parte in nature, does not assign any sufficient reasons even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences. - HC
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Income Tax:
Vivad Se Vishwas scheme 2020 - ITAT had condoned the delay in filing the appeal - Once it is considered that the appeal before the Tribunal is deemed as having been filed in time, the same would have to be construed as having been filed before the “specified date”, and thus, an appeal can be stated to be pending before the appellate forum and the petitioner would have to be considered as an ‘appellant’ as defined in Section 2(1)(a)(i) of the Act of 2020, and the tax as assessed would have to be considered as ‘disputed tax’, as defined under Section 2(1)(j)(B) of the Act of 2020.- HC
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Income Tax:
Agricultural income or not - Profit from the sale of Jaggery - As also seen that though manufacturing of jaggery can be done by a small scale by a group of farmers by extracting juice from fresh sugarcane which is filtered and boiled in wide yellow shallow iron pans with continuous stirring and also adding soda or other similar chemicals to get the jaggery, it is evident that the process of converting sugarcane into jaggery is not an essential one to make sugarcane marketable and there is more profit in making it as jaggery and selling. If the exemption of agricultural income is extended to the sale of jaggery, it would only facilitate many agriculturists to claim this exemption and carrying revenue loss to the exchequer. - HC
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Income Tax:
Unverifiable purchases - Merely maintaining the books of accounts and not giving a plausible explanation regarding the purchases, the same cannot be stated that it is identical to the earlier Assessment Year 2011-12. This issues are a factual centric and purchases may be different in each year. The matter is not identical to that of Assessment Year 2011-12 in context of each Assessment Year is a different Assessment Year and to prove that these are estimated additions has to be determined after the proper perusal of the evidence before the AO. - AT
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Income Tax:
Assessment u/s 153A - Disallowance of section 80IAB - CIT(A) has already rejected the contention of the AO in remand proceeding which were based on the appraisal report. Merely, if it is mentioned in the appraisal report that certain documents are found during the course of the search, which are incriminating in nature, it cannot be presumed that such material was found. The onus is on the Revenue to substantiate their claim with the help of producing relevant incriminating material either before the Ld. CIT(A) or before the Tribunal. - AT
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Income Tax:
Ad hoc disallowance of expenses - the disallowance @ 25% made by the A.O. is on the higher side, since the assessee is a limited company and its accounts are being audited - the non-production of details and vouchers was also not appropriate. It is settled proposition that the onus to prove the claim would lie upon the shoulders of the assessee - disallowance of expenses may be reduced to 12.5% and the same would meet the ends of justice. - AT
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Income Tax:
Penalty levied u/s 271B - delayed furnishing of tax audit report u/s 44AB due to delay in getting statutory audit report under companies act - assessee had indeed sufficient and reasonable cause within the meaning of section 273B of the Act and hence, could not be invited with the levy of penalty under section 271B. - Income declared by the assessee in the revised computation of income in the sum has been indeed accepted by the AO in the scrutiny assessment - No penalty - AT
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Income Tax:
Estimation of interest income - the cancellation of banking license of the assessee and settlement of the advances is under one time settlement Scheme (OTS) etc. The ad-hoc estimation of income on OTS of doubtful advances, in any case, is against the doctrine of real income and thus cannot be countenanced. We thus see no perceptible reason to dislodge the conclusion drawn by the CIT(A) in favour of the assessee. - AT
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Income Tax:
Revision u/s 263 by CIT - Whether waiver of loan has been held to be capital receipt - the basis for assuming jurisdiction u/s. 263 of the Act is Note II to Schedule XIIIB of the balance sheet was very much examined by the Assessing Officer while framing assessment order u/s. 143(3) of the Act and, therefore, it cannot be said that there was no application of mind by the Assessing Officer.- AT
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IBC:
Legality of approved Resolution Plan - Since FSP is a different nature of company than a normal Corporate Debtor, where in thousands, Lakhs of Small Investors invest their funds for a reasonable interest income to take care of their future needs - It is generally considered that investment in Fixed Deposit, NCDs are low risk investment than investing in Equity Shares therefore these small investors should not be put to more risk, take more hair cut than the stronger Financial Institutions viz Banks, Financial Institutions and accordingly for this limited purpose we request, suggest the CoC to reconsider their distribution method, distribution amongst various members of CoC - Tri
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Service Tax:
Constitutional Validity of Sections 65 (30a), 65(105) (zzq), 66 and 67 of Chapter V of Finance Act, 1994 - levy of service tax - composite contract - Contractors Association cannot maintain a Writ Petition and the aggrieved members with reference to the provisions of the Act alone is competent to file a Writ Petition and thus, this Court is of an opinion that the Writ Petition itself is not entertainable - HC
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Service Tax:
Valuation - exclusion of reimbursement of expenses - The reply does not contain the bifurcation of the amounts liable to service tax and the reimbursable expenses, which are excludible. In the absence of such details, the Assessing Officer cannot be faulted in having brought to tax the entire amount. It is thus appropriate that the petitioner file statutory appeals in order that these factual aspects may be looked into. - HC
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VAT:
Validity of attachment notice - recovery of arrears of sales tax - for the purpose of recovery of any amount due under this Act, it is only the specified officers of the Commercial Taxes Department who have the requisite powers. As a consequence, the issuance of the present impugned notices by the Deputy Tahsildar is contrary to the provisions of the Act. - HC
Articles
Notifications
Customs-
37/2021 - dated
29-6-2021
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ADD
Seeks to amend notification No. 18/2017-Customs (ADD), dated the 12th May, 2017 to extend the levy of Anti-Dumping duty on 'Cold-Rolled flat products of alloy or non-alloy steel' originating in or exported from China PR, Japan, Korea RP or Ukraine, up to and inclusive of 15th December, 2021 .
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36/2021 - dated
29-6-2021
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ADD
Seeks to amend notification No. 17/2017-Customs (ADD), dated 11th May, 2017 to extend the levy of Anti-Dumping duty on 'Hot-Rolled flat products of alloy or non-alloy steel' originating in or exported from China PR, Japan, Korea RP, Russia, Brazil or Indonesia, up to and inclusive of 15th December, 2021 .
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35/2021 - dated
29-6-2021
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ADD
Seeks to further amend notification No. 11/2016-Customs (ADD), dated the 29th March, 2016 to extend the levy of Anti-Dumping duty on 'Tyre Curing Presses also known as Tyre Vulcanisers or Rubber Processing Machineries for tyres, excluding Six Day Light Curing Press for curing bi-cycle tyres' originating in or exported from China PR, up to and inclusive of 30th November, 2021.
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34/2021 - dated
29-6-2021
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Cus
Seeks to reduce the basic custom duty on Crude Palm Oil [1511 10] and Palm Oil other than Crude Palm Oil [1511 90] till 30th September 2021.
DGFT-
10/2015-2020 - dated
30-6-2021
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FTP
Amendment in import policy of items under HS Code 1511 90 of Chapter 15 of ITC (HS), 2017, Schedule – I (Import Policy)
GST - States-
16407-FIN-CTI-TAX-0002/2020 - dated
21-6-2021
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Orissa SGST
Seeks to rationalize late fee imposed under section 47 of the CGST Act, 2017 for late filing of return in FORM GSTR-4 from FY 2021-22 onwards
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16403-FIN-CTI-TAX-0002/2020 - dated
21-6-2021
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Orissa SGST
Seeks to rationalize late fee imposed under section 47 of the CGST Act, 2017 for late furnishing of the statement of outward supplies in FORM GSTR-1, from tax period of June, 2021 onward
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164011-FIN-CTI-TAX-0002/2020 - dated
21-6-2021
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Orissa SGST
Seeks to rationalize late fee imposed under section 47 of the CGST Act, 2017 for late filing of return in FORM GSTR-7 from tax period of June, 2021 onward
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16399-FIN-CTI-TAX-0002/2020 - dated
21-6-2021
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Orissa SGST
Seeks to rationalize late fee imposed under section 47 of the CGST Act, 2017 for late filing of return in FORM GSTR-3B from June, 2021 onwards
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16395-FIN-CTI-TAX-0002/2020 - dated
21-6-2021
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Orissa SGST
Seeks to provide relief by lowering of interest rate for a specified time for tax periods March, 2021, April, 2021 and May, 2021
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16285-FIN-CTI-TAX-0001/2020 - dated
18-6-2021
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Orissa SGST
Odisha Goods and Services Tax (Fifth Amendment) Rules, 2021
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413-A/CT/GST/2018 - dated
18-6-2021
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Puducherry SGST
Corrigendum - Notification G.O. Ms. No. 8, dated the 10th May, 2021
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3240/CTD/GST/2021/2 - dated
17-6-2021
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Puducherry SGST
Amendment in Notification No. 3240/CTD/GST/2020/12, dated the 30th November, 2020
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3240/CTD/GST/2021/1 - dated
17-6-2021
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Puducherry SGST
Seeks to amend Notification No. 3240/CTD/GST/2020/12, dated the 30th November, 2020
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G.O. Ms. No. 5/2021-Puducherry GST (Rate) - dated
14-6-2021
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Puducherry SGST
Seeks to provide the concessional rate of Puducherry Goods and Services Tax Act, 2017 on Covid-19 relief supplies, up to and inclusive of 30th September 2021
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G.O. Ms. No. 4/2021-Puducherry GST (Rate) - dated
14-6-2021
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Puducherry SGST
Amendment in Notification G.O. Ms. No. 11/2017-Puducherry GST (Rate), dated 29th June, 2017
Indian Laws-
S.O. 2616(E) - dated
29-6-2021
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Indian Law
Seeks to bring in force Part III of the Finance Act, 2021
Circulars / Instructions / Orders
News
Case Laws:
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GST
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2021 (6) TMI 1052
Reversal of Input tax credit - non-payment of tax by the seller - HELD THAT:- When the physical verification was offered to be made by petitioner it was not accepted. It is stated that for the recovery of like nature from the buyer, the action can only be available in the exceptional circumstances. A perusal of the notice and recovery order dated 22.01.2021 would show that the issue raised by the petitioner needs consideration - List it in the week commencing 02nd August, 2021.
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2021 (6) TMI 1046
Maintainability of petition - efficacious alternative remedy available to petitioners - Contractual dispute - completion or alleged completion of the Works or termination or determination of the Contract - Reference to the Dispute Resolution Board - Clause 71 of the General Conditions of Contract - HELD THAT:- Clause 71 provides for referring disputes first to the Disputes Resolution Board in case the contacts valuing to ₹ 10 crore or more, which would precede reference of dispute to the arbitrator under Clause 70 of the agreement. It is therefore Clause 71 which has to be first applied and the remedy available before the Dispute Resolution Board has to be first exhausted. We are not inclined to uphold the argument that Dispute Resolution Board could be constituted only if petitioner agreed and, therefore, since the petitioners have not given their consent, such Board could not be constituted. We are therefore persuaded to uphold the preliminary objection raised by the learned counsel for the respondents and direct the respondents to constitute a Dispute Resolution Board within a period of one month from the copy of passing of this order is produced before them and further direct that the Board shall, after providing opportunity of hearing to the petitioners as well as the respondents, give its verdict, within a period of three months thereafter. Petition disposed off.
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2021 (6) TMI 1045
Levy of state tax on petrol and diesel - inclusion of petrol and diesel in the GST regime - Article 279 A (6) of the Constitution of India - HELD THAT:- It is directed that the Goods and Services Tax Council represented by the Special Secretary, Office of the GST Council Secretariat, New Delhi (respondent No.3) to forward Exhibit P2 representation dated 7.6.2021 to the Union of India, represented by the Finance Secretary, New Delhi, to take an appropriate decision within a period of six weeks from the date of receipt of a copy of Exhibit P2 representation. Similarly, Chief Secretary, Government of Kerala, Thiruvananthapuram (respondent No.4), to dispose of Exhibit P3 representation. Petition disposed off.
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2021 (6) TMI 1040
Validity of order passed u/s 74(1) - Maintainability of petition - availability of alternative remedy of appeal - opportunity of hearing provided or not - HELD THAT:- This Court, notwithstanding the statutory remedy, is not precluded from interfering where, ex facie, it is opined that the order is bad in law. This is for two reasons-(a) violation of principles of natural justice, i.e. Fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case; (b) order of assessment passed ex parte in nature, does not assign any sufficient reasons even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee. The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences. Impugned order set aside - petition allowed.
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Income Tax
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2021 (6) TMI 1054
Vivad Se Vishwas scheme 2020 - petitioner would contend that having regard to the scheme of the Act of 2020 and various clarifications issued by the Central Board of Direct Taxes in exercise of powers conferred under Sections 10 and 11 therein from time to time, the appeal filed by the petitioner before the Tribunal, even though with an application for condonation of delay, has to be considered, as dispute pending as on the specified date under the Act of 2020 - HELD THAT:- If Board circular is construed in such a restrictive manner, as is contended by respondents, the same would run contrary to the scheme of the Act of 2020 and the powers exercised by Board under Section 10 and 11 to issue directions or orders in public interest or to remove difficulties. We are unable to persuade ourselves to confine the benefit of deemed pendency of appeal only if an application for condonation is filed on or before 04.12.2020, as in our view no significance can be attached to the said date of issue of the circular, since, what is required to be considered is the pendency of the appeal with an application for condonation and the admission of the appeal as on the date of filing of declaration. In our view, even after 04.12.2020, if an appeal is filed with an application for condonation of delay and the appeal is admitted by the appellate authority before the date of filing of the declaration, the benefit is to be extended, as otherwise, it would lead to creation of separate class of persons among the declarants, without any reasonable basis, resulting in discrimination thereby violating Article 14 of the Constitution of India. In the present case, the petitioner having filed an appeal before Tribunal along with an application for condonation and the Tribunal, having heard the matter on 05.02.2021 by condoning the delay, it is to be construed as pending appeal as on the date of filing of declaration on 08.02.2021. As a matter of fact, the Tribunal by order dt.15.02.2021, allowed the appeal of the petitioner remitted the matter back by restoring the appeal on the file of CIT, for fresh adjudication. Once it is considered that the appeal before the Tribunal is deemed as having been filed in time, the same would have to be construed as having been filed before the specified date , and thus, an appeal can be stated to be pending before the appellate forum and the petitioner would have to be considered as an appellant as defined in Section 2(1)(a)(i) of the Act of 2020, and the tax as assessed would have to be considered as disputed tax , as defined under Section 2(1)(j)(B) of the Act of 2020. As noted that since, the last date for filing declaration had been extended up to 31.03.2021 and the Tribunal, having found cogent reasons to condone the delay and allowing the appeal filed by the petitioner and remitting the matter back to the CIT by its order dt.15.02.2021, would automatically revive and restore the appeal, which was dismissed by the CIT by his order dt.18.09.2019. Thus, by order of the Tribunal dt.15.02.2021, the appeal of the petitioner before of the CIT filed on 19.02.2019 would stand revived, and such restoring of appeal relates back the original date of filing, which is within the specified date as per Act of 2020. Thus, considered from any angle, the declaration/application submitted by the petitioner on 08.02.2021 or the revised declaration/application submitted in Form 1 and 2 on 31.03.2021 cannot be considered as invalid and liable for rejection . As noted above, the Act of 2020 is a beneficial piece of legislation and the benefit under such legislation should enure to the benefit of the assessee and cannot be denied by taking hyper-technical view. This Court is of the considered view that the remark/reason given by the 1st respondent in rejecting the declaration in Forms 1 and 2 filed by the petitioner on 31.03.2021 as well as on 20.02.2021 cannot be sustained, as the said reasons are not inconsonance with the scheme of the Act and also do not confirm to the intent and purpose of the Legislation. Writ Petition is allowed and the impugned proceeding of the 1st respondent, dt.22.04.2021, is hereby set aside; the 1st respondent is directed to accept the revised declaration Form 1 and 2 filed by the petitioner on 31.03.2021; process the same in accordance with the Act of 2020; issue Form 3; and accept the payment from the petitioner in terms thereof before the due date as notified.
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2021 (6) TMI 1047
Agricultural income or not - Profit from the sale of Jaggery - HELD THAT:- It is not the case of the appellant/assessee that the sugarcane in its original form could not be marketed by him. The conversion of sugarcane into jaggery is also not an essential process to make sugarcane marketable. In the decision in CIT Vs. H.G. DATE [ 1970 (2) TMI 41 - BOMBAY HIGH COURT ] as held that the sugarcane variety raised by the assessee was not usable in its natural form which inevitably forced the farmer to convert it into sugar or jaggery to market. As the basis for such a ruling that the sugarcane which was converted to jaggery still falls under the agricultural produce category to make it eligible for Income Tax exemption. Such instances are far and few and definitely the exception cannot be a rule - the assessment Officer in his order dated 18.11.2005 has categorically found that the present assessee did not state the circumstance under which the asseessee converted the sugarcane into jaggery. It is further observed by him that the assessee has incurred an expenditure of ₹ 1,70,000/- for manufacturing of jaggery while he incurred expenditure of ₹ 1,30,000/- towards cultivating sugarcane. As also seen that though manufacturing of jaggery can be done by a small scale by a group of farmers by extracting juice from fresh sugarcane which is filtered and boiled in wide yellow shallow iron pans with continuous stirring and also adding soda or other similar chemicals to get the jaggery, it is evident that the process of converting sugarcane into jaggery is not an essential one to make sugarcane marketable and there is more profit in making it as jaggery and selling. If the exemption of agricultural income is extended to the sale of jaggery, it would only facilitate many agriculturists to claim this exemption and carrying revenue loss to the exchequer.
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2021 (6) TMI 1037
Penalty u/s 271(1)(c) - search u/s 132 - additions on account of assessment u/s 153A - HELD THAT:- This sub-clause contemplates that the assessee would be directed to pay a sum in addition to taxes, if any, payable by him, which shall not be less than , but which shall not exceed three times the amount of tax sought to be evaded by reason of concealment of income and furnishing of inaccurate particulars of income. The quantification of the penalty is depended upon the addition made to the income of the assessee. The assessee has filed appeals before the Tribunal against these quantum additions in all these three years under consideration. The Tribunal vide order dated 27.12.2017 has remitted the issue of additions to the file of the ld.CIT(A) for de novo proceedings, therefore, no penalty at this stage is quantifiable or imposable. Since the issue of quantum addition has been remitted to the file of the CIT(A), we remit the issue regarding levy of penalty in these years as well to the file of CIT(A). CIT(A) after adjudication of the quantum additions, shall take a call as to whether penalty is to be imposed upon the assessee or not. In other words, the ld.CIT(A) shall decide the issue regarding levy of penalty after determination of the income in pursuance of Tribunal s order in the above three years. Appeals of the assessee are allowed for statistical purpose
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2021 (6) TMI 1035
Unverifiable purchases - assessee was asked to reconcile the difference in respect of receipts by the AO during the assessment proceeding - HELD THAT:- Merely maintaining the books of accounts and not giving a plausible explanation regarding the purchases, the same cannot be stated that it is identical to the earlier Assessment Year 2011-12. This issues are a factual centric and purchases may be different in each year. The matter is not identical to that of Assessment Year 2011-12 in context of each Assessment Year is a different Assessment Year and to prove that these are estimated additions has to be determined after the proper perusal of the evidence before the AO. Before the CIT(A), the assessee has submitted that books of account, purchase bills, wages/salary registers were produced but was not examined properly by the AO as per the contention of the Ld. AR. The assessee has not filed any paper book before us as to show which documents were before the Assessing Officer. Therefore, it will be appropriate to remand back the issue to the file of the Assessing Officer for taking proper cognizance of all the records related to books of accounts, purchase bills, wages/salary registers etc. Appeal of the assessee is partly allowed for statistical purpose.
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2021 (6) TMI 1033
Deduction u/s 11(1) denied - amount of unutilized grant in aid treated as income - HELD THAT:- The source of funding for the various projects run by the society is from government grants, state government grants, FCRA Funds/contributions from various countries and donations etc. The accounts of the assessee are subject to statutory audit and also audit by the Government Agencies like AGCR and by the auditors appointed by the funding agencies. These facts were not disputed by the AO. The grant/funds received from Government, various Ministries and grants from foreign contributions/funds are in pursuance to agreements/contracts and in terms thereof the amount of unutilized grants is liable to be refunded. AO while passing an order u/s 143(3) has wrongly considered the amount of unutilized grant in aid as income and disallowed on ad-hoc basis from the expenses incurred or funds applied for charitable purposes. AO has also wrongly denied deductions u/s 11(1) to the society which is not just and proper once, the assessee society has given the details of the unutilized grant in aid and expenses and fulfills the criteria prescribed under Section 11(1) - CIT(A) has taken a proper cognizance of all the relevant facts thereby calling remand report from the AO. The Assessing Officer has not given any adverse comment in respect of the remand report regarding the assessee s contentions before the CIT(A). Therefore, there is no need to interfere with the findings of the CIT(A). The appeal of the Revenue is dismissed.
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2021 (6) TMI 1032
Revision u/s 263 - Valuation of fair market value of the unquoted per equity share - HELD THAT:- AO at the time of assessment order / proceedings has specifically raised queries relating to the fair market value of the unquoted per equity share and the related document were present before the AO while passing the final assessment order. After perusal of the document which were presented before the AO, we have noticed that the reasoning given by the Pr. CIT that the total share of 39,510 at ₹ 220/- per share against the face value of ₹ 10/- each and the received share premium to the tune of ₹ 82,97,100/-, has totally ignored the explanation given by the Assessee before the Assessing Officer as well as before the Pr. CIT. The assessee has properly demonstrated through bank statement, the valuation under Rule 11UA along with audit report and audit trading account as relates to the FMV of the share premium. There is no prejudice to the revenue and Section 263 of the Act cannot be invoked in the present case. After going through the evidences and submissions the Assessing Officer passed the Assessment Order. While invoking Section 263 (1) of the Income Tax Act, 1961, the Pr. CIT has not made out the case that the Assessment Order is passed without making inquiries or verification which should have been made. There was no material brought by the Pr. CIT stating therein that the Assessment Order is passed allowing any relief without inquiring into the claim of the assessee. - Decided in favour of assessee. In the present case the Assessing Officer has made all the inquiries and after verifying the documents/ material on record passed a reasoned Assessment Order. Therefore, the Commissioner does not have any locus standi to make further inquiry. - Decided in favour of assessee.
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2021 (6) TMI 1030
Assessment u/s 153A - Disallowance of section 80IAB - whether there was any incriminating material found during the course of the search qua the part disallowance of deduction under section 80 IAB? - HELD THAT:- There is no question of considering the same as part of the incriminating material found during the course of the search. DR has further referred to the remand report of the AO, wherein it is mentioned that disallowance in question was based on documents and statement recorded both during and post search proceeding. DR was given opportunity to produce any such search material related to part disallowance u/s 80IAB, which is in the nature of the incriminating, but he failed to produce any such incriminating material. CIT(A) has already rejected the contention of the AO in remand proceeding which were based on the appraisal report. Merely, if it is mentioned in the appraisal report that certain documents are found during the course of the search, which are incriminating in nature, it cannot be presumed that such material was found. The onus is on the Revenue to substantiate their claim with the help of producing relevant incriminating material either before the Ld. CIT(A) or before the Tribunal. The Revenue cannot take shelter of the appraisal report, which is a confidential document between the Investigating Wing and the Assessing Officer and not a documentary evidence to be relied upon by the Appellate Authority. The second condition of the ratio of the decision in the case of Kabul Chawla [ 2015 (9) TMI 80 - DELHI HIGH COURT] is not satisfied in the facts of the instant case. The finding of the Ld. CIT(A) on the issue in dispute is well reasoned and accordingly, we uphold the same. The grounds raised by the Revenue are accordingly dismissed.
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2021 (6) TMI 1029
Bogus LTCG - Addition u/s 68 - No satisfactory explanation of identifying the scrip for investment - HELD THAT:- Where the purchase has not been done through open platform of recognized stock exchange and the SEBI has also noticed abnormal activities of artificial price rigging in the shares of M/s Cressand Solutions Ltd., the assessee has failed in discharging his onus of substantiating the transaction of long-term capital gain as a real transaction. The order of the Learned CIT(A) on the issue in dispute is well reasoned and we do not find any infirmity the same. Accordingly, we uphold the same. The grounds raised by the assessee are dismissed.
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2021 (6) TMI 1027
Addition u/s 68 - unexplained cash credit - Can the amount of share money be regarded as undisclosed income under section 68 ? - CIT-A deleted the addition - assessee has issued share warrants to M/s BDPL during the year - HELD THAT:- The transactions were duly reflected in the financial statements of the investor entity. The transactions have taken place through banking channels. After going through all these facts and evidences, we find that the onus casted upon assessee in terms of requirement of Sec.68 to prove the identity of the investor, their respective creditworthiness and the genuineness of the transactions, was duly discharged by the assessee. The onus, had thus shifted on Ld. AO, to disprove the assessee s documents and to bring on record any material to prove that assessee s own money flew back to it in the shape of share warrant application money. However, noting of that sort is available in the assessment order. The documents, which in the opinion of Ld. AO could not be furnished, include correspondence with M/s BDPL prior to issue of warrants, details of introducers of directors of M/s BDPL, details of services taken from investment banker, proof of receipt of share warrant application form, proof of dispatch of notice of AGM along with postal records, proof of dispatch of share warrants and shares. However, all these documents, as rightly noted by Ld. CIT(A), were not of much relevance since the transactions were duly confirmed by the investor entity as supported by other vital documentary evidences. So far as the applicability of the provisions of Sec.56(2)(viia) is concerned, the same do not apply to the assessee since the assessee is not the recipient of any property rather it is only an issuer of share warrants only and therefore, these provisions do not apply to the assessee. As settled position of law that to avoid the rigors of Section 68, the assessee must prove the identity, creditworthiness of the lenders / investors to advance such monies and genuineness of the transactions. Once these three ingredients are shown to be fulfilled by the assessee, the primary onus casted upon him, in this regard, could be said to have been discharged and accordingly, the onus would shift upon revenue to dislodge the assessee s claim by bringing on record material evidences and unless this onus is discharged by the revenue, no addition could be sustained u/s 68. The assessee had discharged the onus of proving the fulfillment of primary requirements of Section 68 and the onus was on Ld. AO to disprove the same. In the absence of any such facts on record, the impugned additions could not be sustained in the eyes of law and therefore, Ld. CIT(A) has rightly deleted the same. - Decided against revenue.
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2021 (6) TMI 1025
Approval for exemption u/s.80G - applicant is registered under section 12AA - HELD THAT:- In order to grant exemption u/s.80G of the Act, it is very essential for the Ld. CIT(Exemption) to satisfy himself as per Section 80G(5) r.w.r.11AA of the Income Tax Rules, 1962. That the genuineness of the charitable activities undertaken by the assessee trust/institution should has to be ascertained. The assessee in this case was unable to furnish credible evidences specifically the bills/vouchers in respect of the expenditure claimed with regard to activities performed as per Object Clause of the assessee trust/institution. We are of the considered view, one more opportunity should be granted to the assessee for the very fact that Income Tax Legislations are welfare legislation and not penal legislation and therefore, adjudication on merits before the Ld. CIT(Exemption) is required. DR did not raise any objection. We set aside the order of the CIT(Exemption) and remand the matter back to his file to re-adjudicate the issue as per law and at the same time, we direct the assessee/ applicant to file necessary evidences/documents before the Ld. CIT(Exemption) as would be called for so that the requirements of Section 80G(5) r.w.r.11AA of the Rules would be satisfied. Appeal of the assessee is allowed for statistical purposes.
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2021 (6) TMI 1024
Disallowance of interest expenses - assessee did not collect any interest from the advances made - addition of interest on the interest free advances computed @ 14.5%, being the rate charged by SBI - HELD THAT:- Admittedly, the own funds available with the assessee as at the beginning and end of the year worth ₹ 367.92 crores and ₹ 416.53 crores respectively. The interest free advances given by the assessee is ₹ 87.30 crores as on 31.3.2013. It has been held by Hon'ble Bombay High Court in Reliance Utilities Power Ltd. [ 2009 (1) TMI 4 - BOMBAY HIGH COURT] that where the interest free funds far exceed the value of investments, it should be considered that investments have been made out of interest free funds. Accordingly, the interest disallowance is not called for in the present case.. Even though the A.O. has observed that the Ld. A.R. has accepted for the addition of interest expenditure, the said observation is being disputed now before us. In any case, the decision rendered by Hon'ble Bombay High Court supports the case of the assessee. - Decided in favour of assessee. Ad hoc disallowance of other expenses - AO made ad hoc disallowance of 25% of the aggregate amount of expenses - HELD THAT:- Admittedly, the assessee did not furnish evidences in support of the claim of various expenses before the A.O. As pointed out by Ld. D.R., we also notice that the additional evidences furnished by the assessee are mainly in the form of ledger account copies, self-made vouchers, etc. Hence, we are of the view that no useful purpose would be served in admitting these additional evidences and in remitting the matter to the file of the A.O. Accordingly, we decline to admit the additional evidences. However, we are of the view that the disallowance @ 25% made by the A.O. is on the higher side, since the assessee is a limited company and its accounts are being audited - the non-production of details and vouchers was also not appropriate. It is settled proposition that the onus to prove the claim would lie upon the shoulders of the assessee - disallowance of expenses may be reduced to 12.5% and the same would meet the ends of justice. Accordingly, we modify the order passed by Ld. CIT(A) on this issue and direct the A.O. to restrict the disallowance to 12.5% of the other expenses claimed by the assessee - Appeal filed by the assessee is partly allowed.
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2021 (6) TMI 1023
Addition being the expenditure under the head consumption of stores and space - Admission of additional evidence - HELD THAT:- We find that in the appeal proceedings before the ITAT, the ITAT had taken note of the evidence filed by the assessee and also that the AO has not verified such evidence. Therefore, ITAT thought it fit and proper to remand the issue to the file of the CIT(A) and directed him to call for a remand report from the AO on the evidence filed by the assessee. We find that in the remand proceedings before the CIT(A), the assessee had filed an application for admission of additional evidence and also the additional evidence - CIT(A) had called for the comments of the AO only on the petition for admission for additional evidence and did not forward the additional evidence to the AO and therefore AO has submitted his remand report only on the petition for admission of the additional evidence. Thus, it is clear that the additional evidence has not been verified either by the AO or the CIT(A) and hence the directions of the ITAT have not been followed in its letter and spirit - we deem it fit and proper to remand the issue to the file of the Assessing Officer for verification and denovo consideration of the issue in accordance with law. - Revenue's appeal is treated as allowed for statistical purposes.
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2021 (6) TMI 1022
Penalty levied u/s 271B - delayed furnishing of tax audit report u/s 44AB due to delay in getting statutory audit report under the companies act - HELD THAT:- We find that assessee had sought to explain the genuine difficulty it has faced in finalizing the accounts without which the statutory audit under Companies Act and Tax audit under Income Tax Act could not be completed. The levy of penalty contemplated under section 271B of the Act is not automatic and the same shall not be levied if the assessee was able to provide reasonable cause for the delay. In the instant case, from the above narration of facts, that led to delay in finalization of statutory audit and tax audit as detailed hereinabove, we find that assessee had indeed sufficient and reasonable cause within the meaning of section 273B of the Act and hence, could not be invited with the levy of penalty under section 271B. Income declared by the assessee in the revised computation of income in the sum has been indeed accepted by the AO in the scrutiny assessment, which proves that all the necessary details were indeed made available by the assessee before the completion of assessment proceedings to the satisfaction of the learned Assessing Officer, together with the tax audit report and its annexures. We find that the Hon ble Madras High Court in the case of CIT vs A N Arunachalam [ 1994 (1) TMI 65 - MADRAS HIGH COURT ] had held that the tax audit report was ultimately made available to the ld AO before the completion of assessment proceedings and hence no penalty u /s 271B of the Act could be levied on an assessee. - Decided in favour of assessee.
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2021 (6) TMI 1021
Unexplained cash deposit u/s 68 - HELD THAT:- As noticed that during the year under consideration, an information was received from the ADIT (Inv.), Ajmer regarding cash deposits in the bank account of the assessee. AO issued necessary notices to the assessee for explaining the deposits of cash in the bank account and in response thereto, it was submitted by the assessee that the assessee s account was used by his fast friend Mr. Kana Ram to deposit sale proceeds of his immovable property. As submitted by the assessee that since Mr. Kana Ram was his fast friend and at the time of sale of his immovable property, the said Kana Ram was not having any bank account in any bank, therefore, he requested the assessee to deposit the said funds in assessee s account and it was agreed between the assessee and Mr. Kana Ram that Kana Ram would transfer the entire amount to his bank account as and when the same is opened in any bank - as per the assessee, an affidavit was given by said Mr. Kana Ram to the assessee. As further submitted by the AR that the amount deposited by Mr. Kana Ram was withdrawn/paid as per the direction of Mr. Kana Ram and the details of the buyers have already been given by the assessee in his written submissions which of the order of the ld. CIT(A). We noticed that in order to verify the statement of the assessee, summons was issued to said Mr. Kana Ram by the ADIT (Inv.), Ajmer. However, in response to the said summons, the reply was filed by one Shri Shailendra Singh Rathore, Advocate on behalf of Mr. Kana Ram thereby taking a contrary stand and denied the liability of the said Kana Ram. Even during the course of assessment proceedings, the A.O. had sought information from the bank u/s 133(6) of the Act and also issued summons u/s 131 of the Act to the said Kana Ram. On one occasion, the said Mr. Kana Ram sought adjournment on the ground that he is ill and therefore, on said request, the matter was adjourned by the A.O. for 10/12/2018. The said Mr. Kana Ram did not appeal. Again, another notice through registered post was sent to Mr. Kana Ram, however, the same was returned back unserved by the postal authority with the remark recipient is out of Kekri and refused to receive the post by his family members . All those facts on record goes to show that the assessee has miserably failed to prove the affidavit filed by the said Mr. Kana Ram and even the said Kana Ram did not attend the office of the A.O. in spite of the fact that he was served with the summons U/s 131 of the Act. In this way, the statement made in the said affidavit remained unproved and no other independent evidence has been brought on record by the assessee to substantiate the statement made by the said Mr. Kana Ram in the affidavit. No evidence has been placed on record in the shape of ITR of the said Mr. Kana Ram for the year under consideration reflecting the source of the funds. Keeping in view the totality of the facts and circumstances, we are of the view that the addition sustained by the ld. CIT(A) do not need any interference. Appeal of the assessee is dismissed.
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2021 (6) TMI 1020
Disallowance of 10% out of total expenses incurred - HELD THAT:- We see no reason to discredit the findings given by the CIT(A) and restore the action of the AO as demanded by Revenue. The reasons given by the CIT(A) are that the expenses incurred are comparable and there is no allegation that expenses are bogus from the AO. Having regard to past history and in the absence of any specific defect, the CIT(A) rightly concluded that the action of the AO is unsustainable on facts. Merely because the expenses incurred appears excessive qua the corresponding business activities, it cannot be a ground for ad hoc disallowance as long as the expenses incurred are commercially expedient. We thus see not merit in the grievance of the Revenue in this regard. Addition being 10% out of sundry credits - HELD THAT:- CIT(A) found force in the claim of assessee for reversal of additions on the ground that there is no mismatch or non-tallying with figures of sundry creditors. Revenue could not point out any specific defect in the order of the CIT(A) in its rebuttal before us. We totally fail to understand the rationale for disallowance of ad-hoc sum out of existing sundry creditors in this manner. Hence, we decline to interfere. Estimation of interest income towards notional interest @12% on loans and advances - HELD THAT:- We notice from the order of the CIT(A) that the AO has not found any justification in low income in comparison to corresponding high loans/advances/investment in shares. CIT(A) reversed the action of the AO towards addition of notional interest income on the ground that income arising from advances are duly recorded in the books and the position is to be viewed in the peculiar facts of the case i.e. the cancellation of banking license of the assessee and settlement of the advances is under one time settlement Scheme (OTS) etc. The ad-hoc estimation of income on OTS of doubtful advances, in any case, is against the doctrine of real income and thus cannot be countenanced. We thus see no perceptible reason to dislodge the conclusion drawn by the CIT(A) in favour of the assessee.
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2021 (6) TMI 1016
Revision u/s 263 by CIT - Whether waiver of loan has been held to be capital receipt and cannot be taxed u/s. 28(iv)? - HELD THAT:- While framing the assessment u/s. 143(3) of the Act, pursuant to the order u/s. 263 of the Act, the Assessing Officer has not made any addition in so far as interest part is concerned and in so far as waiver of principal amount is concerned, the issue is highly debatable, in as much as, there are direct decisions in favour of the assessee and against the revenue. We are of the considered view that the basis for assuming jurisdiction u/s. 263 of the Act is Note II to Schedule XIIIB of the balance sheet was very much examined by the Assessing Officer while framing assessment order u/s. 143(3) of the Act and, therefore, it cannot be said that there was no application of mind by the Assessing Officer. AO has taken a plausible view after going through the relevant balance sheet, profit and loss account, audit report and notes thereon. After considering the facts, the Assessing Officer has taken a plausible legal view that waiver of loan by joint promoters by way of corporate guarantee for strengthening net worth was capital receipt. Waiver of loan has been held to be capital receipt and cannot be taxed u/s. 28(iv) of the Act as mentioned above, This view has been taken by the Hon'ble Bombay High Court in the case of Mahindra and Mahindra [ 2003 (1) TMI 71 - BOMBAY HIGH COURT] This shows that the view taken by the Assessing Officer is a plausible view in line with the decision of the Hon'ble High Court and, therefore, by no stretch of imagination, the assessment order dated 22.12.2006 can be said to be erroneous and prejudicial to the interest of the Revenue. We find that in the case of CIT Vs. Anil Kumar [ 2010 (2) TMI 75 - DELHI HIGH COURT] has held that where it was discernible from record that the A.O has applied his mind to the issue in question, the ld. CIT cannot invoke section 263 of the Act merely because he has different opinion. Thus we are of the considered opinion that the assessment order framed u/s. 143(3) of the Act is neither erroneous nor prejudicial to the interest of the Revenue. - Decided in favour of assessee.
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2021 (6) TMI 1015
Bogus LTCG - Addition u/s 68 - gain derived from sale of such share was treated as long term capital gain and claimed to be exempt under section 10(38) - genuineness of the capital gain derived from sale of shares of GFL Financials - HELD THAT:- As observed by CIT (A) that even on the date on which the shares were split, i.e. on 09-03-2013, the shares were not credited to the demat account of the assessee. All these facts certainly raise some amount of doubt and suspicion regarding the share transaction - it is trite that doubt and suspicion howsoever strong, cannot take the place of evidence - merely based on doubt and suspicion, no addition can be made - in our considered opinion, the assessee must also come clean on facts and prove the genuineness of the transaction by properly explaining the doubts raised by the departmental authorities with regard to the belated credit of the shares to her demat account and encashment of cheque after more than a year of transaction. Doubts raised by the departmental authorities in their respective orders, may not have been put forward to the assessee seeking clarification. It is also a fact that enquiry which was required to be done by the departmental authorities to go to the root of the matter and ascertain the genuineness of the shares of GFL Financials, have not been done. The entire issue relating to the genuineness of share transaction involving the shares of GFL Financials requires fresh consideration at the end of the AO. As regards the decisions relied upon by learned counsels appearing for the parties, though, there cannot be any dispute regarding the principle/ratio laid therein; however, they have to be applied only after full facts are brought on record. Since, in the facts of the present case we are of the view that the facts relating to the disputed issue have not been fully brought on record, we cannot apply the ratio laid down in the decisions relied upon in vacuum. Accordingly, we deem it appropriate to set aside the impugned order of CIT(Appeals) and restore the issue to the file of the AO for fresh adjudication keeping in view our observations hereinabove. Grounds are allowed for statistical purposes.
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2021 (6) TMI 1013
Addition u/s 68 - unexplained share Capital and Share Premium - need for share - applicants to appear before the Id AO when they filed confirmations, bank accounts, statements, ITRs and also complied with statutory notices u/s 133 (6) - HELD THAT:- Most of the share - applicants were also simultaneously subjected to scrutiny assessment u/s 143(3) wherein the matter of investment in shares of appellant - company and the sources of same were being examined by the AOs. AO could have informed the concerned AO to make any verification he wanted to. As argued that the Id AO is duty bound to inform concerned AO of share - applicant and not to do direct inquiry with them, as held in the decision RANCHHOD JIVABHAI NAKHAVA [ 2012 (5) TMI 186 - GUJARAT HIGH COURT] by the jurisdictional High Court. That the share applicants did not turn up before the Id AO, cannot a reason for addition, when all confirmatory documentary evidences are furnished. Considering these above facts and circumstances, we are of the view that assessee has satisfied three ingredients of the Section 68 , viz: (i) identity, (ii) creditworthiness and (iii) genuineness of the transactions.That being so, we decline to interfere with the order of Id. CIT(A) in deleting the aforesaid additions. His order on this addition is, therefore, upheld and the grounds of appeal of the Revenue are dismissed. Estimation of Gross Profit (GP) - No reason of downfall of GP with supporting evidences by assessee - CIT-A deleted the addition - HELD THAT:- We note that while deleting the addition on account of estimation of Gross Profit, the CIT(A) held that books of accounts can be rejected only on cogent finding of defects in the books of accounts, when the AO has not examined the books of accounts, there is no question of rejection of the same.We note that there is no infirmity in the conclusion reached by the ld CIT(A). The conclusions arrived at by the ld CIT(A) are, therefore, correct and admit no interference by us. We, approve and confirm the order of the CIT(A). - Decided against revenue.
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Customs
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2021 (6) TMI 1049
Seeking direction to respondent to issue 'G' Card License to the petitioner - conversion of H Card license holder to 'G' Card License to the petitioner - N/N. 41/2018 - Customs (N.T.) dated 14.05.2018 - HELD THAT:- It is clear that the respondent authorities have conducted the examination not with a view to upgrade the licence holder, but with a view to reject the upgradation from H to G . The object of any examination is to ensure that the qualified candidate is promoted to the next post. If an examination is conducted with the object to reject candidates, then the examination itself has to be struck down. In this case, the respondent had no right to conduct any oral examination. It is not provided in the Rules. The Rules stipulate that written examination alone must be conducted. Other State authorities have conducted only written examination and they have not called upon the qualified candidates to again appear for an oral examination. In the present case, for the written examination, the maximum mark was 100 and the qualifying mark was 50 and separately, for oral examination 100 marks were allotted as a maximum and the qualifying mark was given as 50. It is not known what is the nature of oral examination, which was conducted and how the candidates were assessed. Those details are absent in the counter affidavit. Except merely stating that only two candidates passed in the oral examination, no other specific details have been given in the counter affidavit. The counter affidavit has to be rejected - A direction is issued to the respondent, insofar as the petitioner is concerned, since he has passed the written examination, to appoint him as G card licence holder within a period of four weeks from the date of receipt of a copy of this order. Petition allowed.
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Corporate Laws
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2021 (6) TMI 1031
Scheme of Amalgamation - seeking dispensation of the meeting of the Equity Shareholders, Secured Creditors and Unsecured Creditors in respect of the scheme of Amalgamation - Sections 230 to 232 and other relevant provisions of the Companies Act, 2013 - HELD THAT:- The material on record establishes that the Transferee Company is a Wholly Owned Subsidiary of the Transferor Company and there is no issuance of any new shares and therefore there is no reorganization of share capital and consequently no arrangement wherein Shareholders have to compromise with Creditors of the Transferor Company . The documentary evidence substantiates that the net worth of the Transferee Company is definitely positive - there are force in the contention of the Learned Counsel appearing for the Appellants that there are no Creditors in the subsidiary Companies and that the Transferee Company is the only Shareholder of the Transferor Company . This Tribunal has placed reliance in IN RE : DLF PHASE IV COMMERCIAL DEVELOPERS LIMITED, DLF REAL ESTATE BUILDERS LIMITED, DLF RESIDENTIAL BUILDERS LIMITED, DLF UTILITIES LIMITED AND DLF LIMITED [ 2019 (8) TMI 829 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI ] and observed that the scheme would not prejudicially affect the Creditors or Shareholders of the Appellant Company when an Application is filed by the Transferor Company or Transferee Company , a separate Application is not necessary and dispensed with the meeting of the equity Shareholders and Creditors of the Appellant Company. At the cost of repetition, keeping in view that the financial position of the Transferee Company is highly positive, the merger does not involve any compromise/arrangement with any Creditor of the Company, that there would be a positive net worth and Creditors would not be compromised, the Tribunal ought to have exercised the discretion in dispensing with the requirement of convening the meeting which would facilitate ease of doing business and save time and resources. When the Transferor and Transferee Company involve a parent Company and a Wholly Owned Subsidiary the meeting of Equity Shareholders, Secured Creditors and Unsecured Creditors can be dispensed with as the facts of this case substantiate that the rights of the Equity Shareholders of the Transferee Company are not being affected - the direction in respect of the Transferee Company issued by the NCLT, to convene the meetings of the Equity Shareholders, Secured Creditors and Unsecured Creditors on 22.04.2021 is set aside - application allowed.
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2021 (6) TMI 1014
Approval of scheme of Arrangement - seeking orders and directions with regard to dispensation of various meetings - Section 230-232 of Companies Act - HELD THAT:- Various directions regarding convening and holding of various meetings issued - various directions regarding issuance of various notices issued - the scheme is approved - application allowed.
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Insolvency & Bankruptcy
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2021 (6) TMI 1028
Challenge to Approval of Resolution Plan - HELD THAT:- Without rights claimed by Appellant being adjudicated before Adjudicating Authority, Appellant cannot maintain challenge to approval of Resolution Plan by way of Appeal. No comments are made on the merits of rival claims. Suffice it to state that the Appellant third party is trying to maintain this appeal challenging the Resolution Plan approved, without getting decided I.A. No. 929 of 2021, one way or other. The appeal is disposed of as premature with liberty to the Appellant to raise admissible issues.
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2021 (6) TMI 1019
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - Operational Creditor - existence of debt and dispute or not - time limitation - HELD THAT:- Notice with respect to the application was issued to the Corporate Debtor vide order dated 23.01.2020 of the Adjudicating Authority. Further, it has been observed that neither a reply to the Demand Notice nor to Section 9 application was filed by the Corporate Debtor - The dates of default which are continuing from 2015 onwards till 2019. Considering the limitation period, the invoices from 2016 to 2019 will be within limitation, the amount of which is more than 1 Lac and the default is continuing. The present application is filed on 19.01.2020. Hence the application is not time barred and filed within the period of limitation. The registered office of corporate debtor is situated in Delhi and therefore this Tribunal has jurisdiction to entertain and try this application - Having considered the facts and circumstances and the material available on record, the Application filed by the Operational Creditor is complete in all respect. This authority is satisfied that the Operational Debt which is due to the Applicant has remained unpaid and default has occurred. The Application is admitted and the commencement of the CIRP is ordered.
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2021 (6) TMI 1018
Liquidation of the Corporate Debtor - Section 33 r.w. Section 34 of the Insolvency Bankruptcy Code, 2016 - HELD THAT:- An order of liquidation can be passed in the present case as no resolution has been received and COC has also resolved to do so. The COC has passed the resolution to liquidate the corporate debtor in compliance of section 39B 39C of IBBI (CIRP) Regulations, 2016. The sole member of COC has also resolved to contribute to the costs of liquidation. The name of the RP has been proposed by the applicant in the present application whose name has already been approved by COC to act as liquidator. Hence the proposed RP/applicant is appointed to act as a liquidator. Application allowed.
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2021 (6) TMI 1017
Dissolution of Corporate Debtor - Section 54 of the Insolvency and Bankruptcy Code, 2016 - HELD THAT:- Having satisfied to the fullest extent that no further assets to be utilized for recovery of dues of the Creditors/Stakeholders, no further proceedings would remain in the Liquidation Process of the Corporate Debtor, the Liquidator has approached this Adjudicating Authority for appropriate directions under Section 54 of the IB Code - this Adjudicating Authority in exercise of the powers conferred under Sub-Section (2) of Section 54 of the Code, hereby, orders the dissolution of the Corporate Debtor viz., M/s. Subhlaxmi Dyeing Printing Mills Private Limited from the date of this order and the Corporate Debtor stands dissolved. The Liquidator Mr. Kailash T Shah is discharged from his duties and responsibilities as the Liquidator of the Corporate Debtor - application allowed.
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2021 (6) TMI 1012
Legality of approved Resolution Plan - NCDs fixed deposits etc. - claims of more than 70,000 Fixed Deposit Holders (including individuals), Lakhs of Employees of Uttar Pradesh State Power Sector Employees Trust, Board of Trustees of Uttar Pradesh Power Corporation Contributory Provident Fund Trust, investment by Capgemini Business Services India Ltd., Employees Provident Fund Trust - distribution to public depositors, Fixed Deposit holders, subscribers to NCDs - HELD THAT:- The details of claim of all the Applicants in the form of NCDs fixed deposits etc., claims admitted, amount payable were discussed in detail in the Resolution Plan approved - With regard to the claims of more than 70,000 Fixed Deposit Holders (including individuals), Lakhs of Employees of Uttar Pradesh State Power Sector Employees Trust, Board of Trustees of Uttar Pradesh Power Corporation Contributory Provident Fund Trust, investment by Capgemini Business Services India Ltd., Employees Provident Fund Trust, other claimants falling in the similar category, and we are of the considered view that considering the number of small investors running into lakhs, senior citizens, who had deposited their hard earned savings, have to meet various expenses especially in this Covid-19 Pandemic situation, loss of jobs to number of depositors, to meet marriage, education expenses, other essential needs the employees of the PF Trust which is the money they would get at the time of/after superannuation. Since FSP is a different nature of company than a normal Corporate Debtor, where in thousands, Lakhs of Small Investors invest their funds for a reasonable interest income to take care of their future needs - It is generally considered that investment in Fixed Deposit, NCDs are low risk investment than investing in Equity Shares therefore these small investors should not be put to more risk, take more hair cut than the stronger Financial Institutions viz Banks, Financial Institutions and accordingly for this limited purpose we request, suggest the CoC to reconsider their distribution method, distribution amongst various members of CoC within two weeks from today and report the same to this Adjudicating Authority. Decision on distribution to this public depositors, Fixed Deposit holders, subscribers to NCDs - HELD THAT:- There is no additional monetary obligation for the Successful Resolution Applicant to pay anything more than what it has committed in the Resolution Plan i.e an amount of ₹ 37,250 Crores. It is only an inter se distribution of resolution money amongst various creditors. Therefore, with regard to the manner of distribution, the method of distribution amongst various creditors viz Public Depositors, Fixed Deposit Holders, NCD Holders, Small Investors, Employees Provident Fund Trust etc, the CoC is suggested to reconsider the same so that lakhs of small investors would be benefited - Further while directing and observing so, we find support from the decision of NCLT Ahmedabad Bench in the matter of Standard Chartered Bank and State Bank of India V/s Essar Steel Limited [ 2019 (3) TMI 1706 - NATIONAL COMPANY LAW TRIBUNAL, AHMEDABAD] which has been confirmed by the Hon'ble Supreme Court of India wherein the Adjudicating Authority has directed to the CoC to consider the distribution mechanism for giving more apportionment Amount to the Operational Creditors and unsecured Financial creditors. The CoC is requested to reconsider their distribution method, distribution amongst various Members of CoC within two weeks and report the same to this Adjudicating Authority - application disposed off.
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PMLA
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2021 (6) TMI 1048
Validity of attachment of property - whether it is permissible for the Assistant Director, Directorate of Enforcement, acting under the provisions of Prevention of Money Laundering Act, 2002, to ask the Tehsildar, Narbal, Budgam, Kashmir, not to issue revenue extracts vis- -vis certain properties which, admittedly, have not been attached under Section 5 of the said Act and have, in fact, been left out of attachment order already made by and confirmed by the competent authority? HELD THAT:- In the instant case, except issuing the impugned communication dated 18.03.2020 to the concerned Tehsildar directing him not to issue revenue extracts of even those properties earlier belonging to Zahoor Ahmad Shah Watali and his family members, that too, by an officer of the rank of Assistant Director, not designated in sub-section (1) of Section 5 of the Act, no other procedure contemplated by the provision of law has been followed. Instead it is consistently stated that the case is under further investigation and that mutations and registration of the properties at this stage in favour of third party may result in non-availability for attachments and may also jeopardise the ongoing investigation and siphoning off proceeds of crime - Assistant Director is no body either in terms of the provision of Section 5(1) of the Act or in terms of Rule 5 of the Prevention of Money-laundering (Taking Possession of Attached or Frozen Properties Confirmed by the Adjudicating Authority) Rules, 2013, which prescribes the manner of taking possession of immovable property. The provision of law manifestly, without any doubt, mandates that there must be material to found the belief, meaning thereby that such material has to be in existence at the time such belief is entertained and at the time of making the provisional order of attachment. So, for making the order of attachment, there has to be evidence in existence. Conversely, if there is no provisional order of attachment made, it connotes that as at present there is no evidence in existence - The satisfaction about the ingredients essential to making the provisional order of attachment must relate to the present time, not to presumptive future. It is not permissible for the designated officer of Directorate of Enforcement, acting under the provisions of Act, to ask the Tehsildar, Narbal, Budgam, Kashmir, not to issue revenue extracts vis- -vis the properties which, admittedly, have not been attached under Section 5 of the said Act and have, in fact, been left out of attachment - the impugned communication dated 18.03.2020 is not only antithetic to the essentials envisaged by the provision of law, but is also without jurisdiction, and, therefore, the communication in question is rendered wholly unwarranted and illegal. It, therefore, deserves to be quashed. Petition allowed.
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2021 (6) TMI 1044
Attachment of property involved in money laundering - proceeds of crime - interpretation of statute - expression reason to believe which is different from reason to suspect - HELD THAT:- Section 5(5) of the PML Act, 2002 makes it clear that order of attachment of competent authority shall be provisional in nature and said authority is under a statutory obligation to file a complaint before the adjudicating authority within 30 days from the date of attachment - Section 8(1) of the PML Act, 2002 makes it obligatory for adjudicating authority to examine the complaint and if he has reason to believe that any person has committed an offence, it may serve a notice to said person calling upon him to indicate the sources of income, earning or assets. It may also issue show-cause notice to such person. After obtaining reply, the adjudicating authority under Section 8(2) of the PML Act is required to consider the reply, hear the aggrieved person and after taking into account all relevant materials, pass an order recording a finding whether all or any of properties referred to in the notice issued under sub-section (1) are involved in money laundering. A microscopic and conjoint reading of Sections 5 and 8 of the MPL Act leaves no room for any doubt that orders of attachment issued by invoking Section 5 is 'provisional' in nature. Thus, the attachment order passed by the competent authority and reason to believe therefor is also tentative / provisional in nature subject to confirmation by the adjudicating authority. If Scheme ingrained in Sec.24 and 26 of the Act of 1988 is compared with the PML Act, it will be clear that the Scheme is almost pari materia. For this reason also, it is deemed proper to hold that adjudicating authority is best suited and statutorily obliged to consider the validity of provisional attachment order and the case put forth by the present appellants - there are substance in the argument of learned counsel for the appellants that despite specific pleading contained in para 5.7 of the writ petition, learned Single Judge has erroneously held that there is no such foundation in the pleadings of the writ petition. The appellants can very well to raise this relevant ground before the adjudicating authority and the said authority shall be obliged to take into account this ground while taking a decision. The order of provisional attachment is not a final order and the appellants have a remedy to raise all the pleas including that of jurisdiction of attaching authority and discrimination before the adjudicating authority - Appeal disposed off.
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2021 (6) TMI 1039
Seeking pre-arrest bail - scheduled offences - first contention of respondent is that the offences under PML Act cause a serious threat not only to the financial system of the country but also integrity and sovereignty and for the offences under the PML Act, pre-arrest bail should not be granted - HELD THAT:- There cannot be any straitjacket formula for exercising jurisdiction under Section 438 Cr.P.C. and it all depends on the facts and circumstances of the case and where the fundamental right to personal liberty of accused is involved Courts cannot exercise jurisdiction mechanically - In the case on hand admittedly summons were issued to the petitioner in the year 2017 directing him to appear before the officials whereas the case of the petitioner is that he received summons in the year 2020 only and he mentioned reasons why he was not present before the officials and in support of the same the petitioner filed certain documents. Basing on the statement of one Ayush Goyal, who is nephew of the petitioner herein the petitioner was summoned and search was also conducted in the house of the petitioner during which certain articles were also seized and the petitioner's statement was recorded. Generally the Courts would hesitate to. grant anticipatory bail in case where there is reasonable apprehension that securing presence of the accused is difficult and there is every likelihood that he may influence witnesses and tamper the evidence - The respondents have not proceeded further against the petitioner and they have not taken any steps since 2017. It is stated by the learned counsel for the petitioner that the enquiry as far as nephew of the petitioner is concerned basing on whose statement the petitioner was summoned is also completed. Taking into consideration the allegations against the petitioner, where only summons were issued under Section 50 of PML Act in the year 2017, as the petitioner is not arrayed as an accused, the bail granted by learned I Additional Metropolitan Sessions Judge-Cum-II Additional District Judge, Visakhapatnam, and the health condition of the petitioner and his wife this Court is of the view that this is a fit case for grant of pre-arrest bail - petitioner shall be released on bail in the event of his arrest in connection with Enforcement Case Information Report vide No. ECIR/VKSZO/03/2017 on the file of Directorate of Enforcement, Sub-Zonal Office, Visakhapatnam on condition of executing self bond for ₹ 50,000/- with two sureties for a likesum each to the satisfaction of Directorate of Enforcement, Sub-Zonal Office, Visakhapatnam. Petition allowed.
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Service Tax
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2021 (6) TMI 1051
Constitutional Validity of Sections 65 (30a), 65(105) (zzq), 66 and 67 of Chapter V of Finance Act, 1994 - levy of service tax - composite contract - civil construction of materials supplied and labour - Contractors Association - aggrieved person or not - HELD THAT:- The Writ Petition was filed in the year 2010. Several developments took place with reference to the provisions of the amended Service Tax Act and now, the Goods and Services Tax Act, 2017 (GST Act) has replaced the Service Tax Act. In view of the developments, further adjudication need not be undertaken with reference to the grounds - This apart, Contractors Association cannot maintain a Writ Petition and the aggrieved members with reference to the provisions of the Act alone is competent to file a Writ Petition and thus, this Court is of an opinion that the Writ Petition itself is not entertainable, on the ground that the writ petitioners/Associations cannot be construed as aggrieved person. The aggrieved members of the petitioners/Associations are at liberty to file the Writ Petition, if any grievances exist - Petition dismissed as not maintainable.
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2021 (6) TMI 1043
Valuation - Tax levied on entire amount - reimbursement was not considered - break up of service charge received by the petitioner (reimbursable) not produced - HELD THAT:- Admittedly, the issue involved is factual and there is a clear finding in the impugned order to the effect that break up of service charge received by the petitioner during the period in question have not been produced by them - The reply filed also does not contain the bifurcation of the amounts liable to service tax and the reimbursable expenses, which are excludible. In the absence of such details, the Assessing Officer cannot be faulted in having brought to tax the entire amount. It is thus appropriate that the petitioner file statutory appeals in order that these factual aspects may be looked into. In line with the decision of the Supreme Court in a series of judgments, viz., IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION [ 2021 (3) TMI 497 - SC ORDER] , IN RE : COGNIZANCE FOR EXTENSION OF LIMITATION [ 2020 (5) TMI 418 - SC ORDER] and M/S. SS GROUP PVT. LTD. VERSUS AADITIYA J. GARG ANR. [ 2021 (1) TMI 804 - SUPREME COURT] extending the limitation for filing of appeals, petitioner is granted 30 days time from today to file appeals. This is for the reason that the present Writ Petitions have been pending on the file of this Court since 11.01.2021. Such appeals, if filed within the period as aforesaid, will be taken on file by the Appellate authority without reference to limitation, but ensuring all other statutory conditions and considered on merits and in accordance with law - petition disposed off.
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2021 (6) TMI 1036
Refund of service tax or GST - seeking for a remand for the reason that the disputes relating to the tax paid on the very same service are pending before different jurisdictional authorities - HELD THAT:- It is seen that though tax paid is in the nature of service tax and GST, it is paid on the very same service. If the matter is adjudicated by a common authority, such authority would be able to look into all aspects and give a correct decision in the matter. Further, though they had sent a representation dt. 19.11.2019 to the Principal Chief Commissioner to provide clarity as to which jurisdiction would apply for refund in their case, they have not received any response till date - it is seen that appellant had paid both service tax as well as GST. This has occurred during the transition period to new tax regime of GST. As abundant caution they have made such claim of refund as paid by the earlier company as well as the Merged/new Company of TVS Logistics Services. The Commissioner (Appeals) in the impugned order OIA No.103/2020 dt. 15.12.2020 has also been at confusion to resolve the issue and has remanded the matter to be kept pending till the appeals pending before CESTAT are decided. In the present case, without appointing a common authority for adjudication of these refund claims, the matter cannot be resolved since tax is paid under two different tax laws, i.e. Finance Act, 1994 and G.S.T. Act, 2017. Taking note of this fact, in the interest of justice, the Principal Chief Commissioner of GST and Central Excise of Tamil Nadu is directed to nominate a common adjudicating authority for denovo-processing of all these three refund claims. Appeal allowed by way of remand.
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Central Excise
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2021 (6) TMI 1038
Maintainability of appeal - refund of Education Cess and Higher Education Cess - covered under Section 35L or under Section 35G of the Central Excise Act, 1944? - HELD THAT:- At present learned counsel representing the Appellant-Revenue facing difficulty regarding agreed proposal made before the CESTAT of applicability of the judgment of the M/S. SRD NUTRIENTS PRIVATE LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE GUWAHATI [ 2017 (11) TMI 655 - SUPREME COURT] and relying on the same the order was passed. Later the said judgment has been modified by the Hon ble Apex Court in the case of M/S. UNICORN INDUSTRIES VERSUS UNION OF INDIA OTHERS [ 2019 (12) TMI 286 - SUPREME COURT] . However, the counsel for the Appellant-Revenue requests for filing a petition for rectification before the CESTAT, the said prayer appears to be justifiable. This appeal, as requested by the counsel representing the Appellant-Revenue, is disposed of, with a liberty to take appropriate recourse of law for rectification of the order of the CESTAT.
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2021 (6) TMI 1034
SSI Exemption - benefit of N/N. 8/2003-CE dated 1.3.2003 - power driven submersible pumps and motors thereof falling under Chapter Heading 8413 and 8501 of the Central Excise Tariff - appellant did not have the BIS certification - Suppression of facts - extended period of limitation - HELD THAT:- It is undisputed that the appellant manufactured products which were not eligible for exemption Notification No. 8/2003-CE dated 1.3.2003, as amended, unless their products met the BIS standards. For the relevant period, the appellant had no certification from BIS and no such certificate has been produced till date. It has also not been established that an application for certification was pending before the BIS authorities and it has been issued subsequently. Therefore, it is not possible to agree with the contention of the learned Chartered Accountant for the appellant that the appellant was eligible for the benefit of exemption notification even though it had no BIS certificate, because the certificate was issued much later in 2014 which means that their products met the standards of BIS all through. Extended period of limitation - HELD THAT:- In this case, the demand was raised after the normal period of limitation. In order to invoke the extended period of limitation either fraud or collusion or wilful mis-statement or suppression of facts or violation of Act or Rules with an intent to evade payment of duty must be established - The fact that the goods were not certified by BIS was in the exclusive knowledge of the appellant and they have not disclosed it to the Revenue. This shows that the appellant had an intention to evade payment of duty. It also establishes that the appellant has suppressed the information from the Department. It is only an audit and verification of records which got these facts to light. It has been recorded by the Commissioner (Appeals) in the impugned order the transactions were recorded in the books of account of the assessee and all goods were cleared under an invoice. This also establishes that the appellant had no intention to evade payment of duty - the intent to evade payment of duty is missing and has not been established by the Revenue. Appeal allowed - decided in favor of appellant.
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2021 (6) TMI 1026
Classification of goods - ayurvedic medicaments - classified under Chapter 30 of the Central Excise Tariff Act 1985 or as cosmetics under Chapter 33 of the Tariff Act? - amendments made in the provisions of the Tariff Act w.e.f. 28.02.2005 - Effect on change in the classification of the products in dispute - discharge of burden to prove that the products are classifiable under Chapter 33 of the Tariff Act - applicability of Clause 3(c) of the General Rules. Whether the amendments made in the provisions of the Tariff Act w.e.f. 28.02.2005 have effected any change in the classification of the products in dispute as claimed by the department? - HELD THAT:- A perusal of Chapter Note 1(d) of Chapter 30 prior to 28.02.2005 shows that the said Chapter would not cover preparations of Chapter 33 even if they have therapeutic or prophylactic properties. Even after amendment, Chapter Note 1(d) shows that Chapter 30 would not cover preparations of Headings 3303 to 3307 even if they have therapeutic or prophylactic properties. Thus, even before the amendment or after the amendment Chapter 30 would not cover preparation of Chapter 33 or preparation of Headings 3303 to 3307 of Chapter 33. It has, therefore, to be first established that the preparations fall in Chapter 33 or Headings 3303 to 3307 of Chapter 33. The Heading of Chapter 33 both before the amendment and after the amendment is essential oils and resinoids oils; perfumery, cosmetic or toilet preparations. The Headings 3303 to 3307 or 33.03 to 33.07 of Chapter 33 deal with cosmetic products. It would, therefore, have to be first established by the department that the products of the appellant fall under Chapter 33 as cosmetics. The requirement prior to 28.02.2005 was that the products should be suitable for use as goods of these Headings and put up in packings with labels, literature or other indications that they are for use as cosmetics - the requirement of a product to be suitable for use as cosmetics or toilets preparation continues. Much emphasis has been placed by the Learned Authorised Representative of the Department that for a product to be cosmetics the requirement that the packing should have a label mentioning that the product is for use as cosmetics or toilet preparation is no longer the requirement after the amendment. This may be so but the department has still to prove that the product is either cosmetic or toilet preparation. Whether the department has discharged its burden to prove that the products are classifiable under Chapter 33 of the Tariff Act? - HELD THAT:- It is seen that the Adjudicating Authority had noted that the products of the appellant contained ingredients which were ayurvedic in as much as they were mentioned in ayurvedic texts. The Department, however, failed to establish conclusively that the products manufactured by the appellant were cosmetics and only an inference that the products were cosmetics has been drawn because of the amendments made on 28.02.2005. Whether the products of the appellant are classifiable as medicament under Chapter 30 or as cosmetics under Chapter 33 of the Tariff Act? - HELD THAT:- Its need to be noted that the Commissioner while adjudicating on the seventh show cause notice examined in detail whether the products manufactured and cleared by the appellant were medicaments. The Commissioner after noticing that medicaments were substances having therapeutic or prophylactic uses, held that the preparations of the products manufactured and cleared by the appellant meet the requirements of medicaments prescribed under chapter 30 of the Tariff Act - The Commissioner thereafter examined whether the products were used for therapeutic/prophylactic purposes or beauty enhancement and on examination of the documents and submissions advanced on behalf of the appellant concluded that the products manufactured and cleared by the appellant were not meant for daily use or as a substitute for regular cosmetic products. The contention on behalf of the appellant that they were meant for therapeutic/prophylactic purposes was, therefore, accepted. The aforesaid findings of the Commissioner are based on appreciation of the legal and factual position emerging from examination of the products manufactured and cleared by the appellant. The Commissioner also observed that the products were neither meant for daily use nor they were cosmetics and were ayurvedic medicines classifiable under Chapter 30 of the Tariff Act. Whether Clause 3(c) of the General Rules can be applied in this case as held by the Adjudicating Authority? - HELD THAT:- Clause 3 (c) of the General Rules would apply only when the goods cannot be classified by the reference to (a) or (b). So far as appellant is concerned there is no doubt that the products would be classifiable under (b). Thus, clause (c) of the General Rules would have no application in the facts and circumstances of the present case - there is no manner of doubt that the products manufactured and cleared by the appellant are not cosmetics under Chapter 33 or 34 of the Tariff Act and are medicaments falling under Chapter 30 of the Tariff Act. Appeal allowed - decided in favor of appellant.
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CST, VAT & Sales Tax
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2021 (6) TMI 1050
Validity of assessment order - recovery of tax dues - attachment of property - no opportunity was given to the writ petitioner before passing the order of attachment of his property - principles of natural justice - HELD THAT:- This Court is of the considered opinion that the order of attachment was set aside on the ground that no opportunity was provided to the writ petitioner. This Court directed the authorities to provide an opportunity and pass an order afresh. This will not disentitle the authorities to proceed with the matter on merits with reference to the tax arrears to be recovered from the assessee. This Court has not adjudicated the issues on merits. A simple direction was issued to provide an opportunity. Thus, for all purposes, the authorities competent are empowered to proceed with the actions in accordance with law and taking shelter on such direction issued in W.P.No.1305 of 2016, the petitioner cannot claim any exoneration from the liability regarding payment of arrears of tax. By litigating the order of attachment, the tax arrears as per the original assessment order cannot be exempted nor the petitioner be exonerated from the liability of tax to be paid. Thus, this Court is of an opinion that the said order passed in W.P.No.1305 of 2016 is for the purpose of providing an opportunity to the writ petitioner regarding the order of attachment. However, the order of attachment was passed based on the original assessment order and the petitioner claims that they had not received the original assessment order and therefore, the respondent issued a fresh notice in proceedings dated 22.04.2016, stating all the facts including the facts regarding the final assessment made by the competent authority and the order of assessment dated 28.02.2008. Thus, the petitioner was well within his knowledge about the order dated 28.02.2008 - the orders impugned states that the petitioner had no intention to file specific objection or appear for personal hearing or to pay the admitted tax as per their legal due to the Government. The findings in the impugned orders reveal that the petitioner was not only evasive, he had no intention to defend the case by availing the opportunity provided by the authorities competent. Contrarily, he is attempting to avoid payment of arrears of tax as demanded by filing litigation or other. This Court is of an opinion that the assessment orders impugned now under challenge in the present writ petitions are appealable orders under the provisions of the Act - this Court is not inclined to entertain the writ petitions on merits - Petition disposed off.
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2021 (6) TMI 1042
Principles of Natural Justice - fruit pulp industries - classified under Entry No.102(2) of the IV Schedule to the A.P. VAT Act, 2005 or not - validity of assessment order and penalty order - HELD THAT:- The admitted facts in these cases are that aggrieved by the initial Assessment Order No.29664, dated 30.07.2016 imposing tax on the sale of goods @ 14.5% for the tax period April, 2013 to January, 2016 and also against imposing of penalty vide Assessment Order No.48458, dated 31.12.2016, the petitioner filed appeals Nos.83/2017-18 (CTR) and 84/2017- 18 (CTR). The Appellate Deputy Commissioner passed order dated 08.11.2017, a perusal of which shows that the Appellate Authority was convinced that the disputed goods sold by the appellant (writ petitioner) were used exclusively by the fruit pulp industries for the treatment of material i.e., fruits and food etc., and it cannot be considered as unclassified item, as they fall under Entry No.102 vide Sl.No.2 of the IV Schedule of the A.P. VAT Act, 2005 - the Appellate Deputy Commissioner remitted the appeal back to the Assessing Authority with a direction to verify the veracity of the documents that will be produced by the appellant before him and then pass fresh orders as per the provisions of APVAT Act, 2005 and the appellant shall produce the documentary evidence before the Assessing Authority covering the disputed turnover for verification as and when called for by him. It is clear from the appellate order that the Appellate Deputy Commissioner has fixed the rate of tax at 5% and remanded the matter only to verify the records to be produced by the appellant and to come to a conclusion with regard to actual turnover. Post remand scenario - HELD THAT:- Admittedly the 1st respondent issued notice dated 12.12.2017 calling the petitioner to produce relevant documents/information in support of their contentions within seven days from the date of receipt of the said notice. Having received the notice on 15.12.2017, the petitioner filed some record relating to purchases and trading account for the years 2013-14, 2014-15 and 2015-16 vide covering letter dated 27.12.2017 and has not filed further information. The impugned Assessment Order and Penalty Order is set aside with a direction to the 1st respondent to issue a fresh show cause notice to the petitioner to his principal business address by giving reasonable time therein for filing records and there upon - petition allowed.
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2021 (6) TMI 1041
Validity of attachment notice - recovery of arrears of sales tax - Deputy Tahsildar - proper authority to have issued the impugned notices or not - ownership of the properties - registration of the firm with the Registrar Firms has taken place post purchase of the property - Puducherry Revenue Recovery Act, 1970 - HELD THAT:- The provisions of Section 25 onwards deal with the service of demand prior to effecting recovery of arrears from sale/disposal of immovable property. Section 25 deals with service of demand prior to attachment of land and mode of service thereof. Section 26 stipulates the procedure when a defaulter neglects to pay despite service of demand, Section 27, with the mode of attachment of immovable property, Section 28 with the management of the property which is under attachment, Section 29 with notice to be given on the assumption of management and so on and so forth, the succeeding provisions not being relevant for the purpose of this writ petition - All powers from Section 25 onwards, which are to be exercised by a Collector or other officer empowered by the Collector would, by application of Section 42 of the PVAT Act, be carried out by the designated officers of the Commercial Taxes Department. Mr.Kumaran would attempt to state that the procedure under the PVAT Act is two pronged and Section 37(3), which refers to recovery of arrears as though it were an arrear of land revenue would permit officials of the PRR Department also to take action for recovery. This submission is misconceived in light of the specific mandate under Section 42, which states that for the purpose of recovery of any amount due under this Act, it is only the specified officers of the Commercial Taxes Department who have the requisite powers. As a consequence, the issuance of the present impugned notices by the Deputy Tahsildar is contrary to the provisions of the Act. Petition allowed - decided in favor of petitioner.
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Indian Laws
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2021 (6) TMI 1053
Smuggling - Heroin - Evidentiary value of statement given by the petitioner under Section 67 of the NDPS Act - statements given by an accused to police officers under various acts including the NDPS Act - HELD THAT:- The material on record, at this juncture, shows the involvement of the petitioner as a part of the drug syndicate. Heroin was concealed in capsules ingested by persons. It shows that the operation was extremely well planned. A total of 770 grams of Heroin was recovered on 20.08.2019 from Noorzai Gul Amin, 220 grams of Cocaine was recovered on 19.12.2019 from House No. 1238, Islampur Village, Sector-38, Gurugram and 3.4 Kgs. of Heroin was recovered on 22.08.2019 from House No. A-27, 1st Floor, Anand Vihar on the basis of the disclosure statement of the petitioner. Photographs of Heroin and capsules, image of passports, image of Currency and chats between Naimitullah Mangal and the petitioner herein and their photographs were found from the phone of the petitioner which demonstrates the complicity of the petitioner in the crime. The well organized operations of this syndicate shows the possibility of the petitioner indulging in the same activity again if he is released on bail. The discrepancy in the seal movement register and its effect would be considered/analysed at the stage of trial and that discrepancy alone is not sufficient for this Court to come to the conclusion that the entire case of the prosecution is false at this stage. This Court is, therefore, not inclined to grant bail to the petitioner herein - bail application is dismissed.
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