12 October 2018   

2018-TIOL-204-AAR-GST

NATIONAL ALUMINIUM COMPANY LTD : AUTHRITY FOR ADVANCE RULING (Dated: September 28, 2018)

GST - Applicant seeking a ruling in respect of entitlement to take credit of Input Tax paid on various goods and services used for maintenance of applicant's township, guesthouse, hospital, horticulture etc. in its ordinary course of business.

Held: Authority finds that some of the services are exclusively in relation to the residential colony, some in relation to plant, guest house and transit house, while some like urban plantation, provision of drinking water at picnic spot, raising of seedling and general plantation are neither for the plant nor for the residential colony - such activities are not in relation to the core business - inward supplies received by way of mangement, repair, renovation, alteration or maintenance services or goods received for furnishing the residential colony shall not qualify for Input Tax credit in terms of s.17(2) of the CGST Act/OGST Act - on the other hand, services partly received in relation to residential colony and partly in relation to the plant, proportionate ITC to the extent relatable to the plant are available whereas that availed in relation to residential colony shall not qualify as input - also there is no provision providing for ITC in respect of goods/services procured by an employer for supply to employees for discharging any statutory obligation - ITC is, therefore, not available to applicant in respect of services and goods procured for maintenance of hospital and pharmacy outlet - establishing, maintaining and furnishing guest houses including landscaping by way of gardening or otherwise is neither a per quisite nor a statutory obligation and credit of such services are blocked by s.17(5)(b) of the OGST/CGST Act - services for plantation both inside the plant area as well as outside the plant are definitely not in the course or furtherance of business - such plantation outside the plant area being for non-business use will not qualify for ITC in terms of s.17(1) of the CGST/OGST Act - Application disposed of accordingly: AAR

Application disposed of

2018-TIOL-2145-HC-AHM-IT

REKHADEVI OMPRAKASH DHARIWAL Vs TRO: GUJARAT HIGH COURT (Dated: July 2, 2018)

Income Tax - Writ - Attachment and auction notice - Bona fide buyer & Notice for recovery.

The assessee acquired a property through the power of attorney of the original owner named Mr Virenkumar C. Thakkar. The transaction was carried out after due diligence like public advertisement and title clear certificate. However, such property was attached towards the outstanding Income Tax dues of such original owner. Thereafter, the assessee made efforts to find out the details with regard to such attachment, however, ultimately, she received order declaring the sale of the property as null and void.

The assessee, thereafter, entered into the communication with the department on various occasions with a request to withdraw the order of declaring the sale as null and void. However, the Revenue issued a notice of auction to satisfy the outstanding demand against such original owner.

In writ, the High Court held that,

Whether without issuance of notice for recovery of arrears by the TRO, as provided by Rule 2 of the 2nd Schedule, to restrain the defaulter from selling property, attachment and auction notice sent to bona fide buyer to satisfy the outstanding demand against original owner is unsustainable - YES: HC

++ the 2nd Schedule of the Income Tax Act is the procedure for recovery of tax wherein Rule 2 provides for issuance of notice for recovery of arrears by the Tax Recovery Officer upon the defaulter requiring the defaulter to pay the amount specified in the certificate within fifteen days from the date of the service of the notice and intimating that in default, steps would be taken to realize the amount under this schedule Rule 16 provides for considering private alienation to be void in certain cases. This rule requires service of notice on defaulter under Rule 2 and after such service the defaulter or his representative in interest shall not be competent to alienate the property in the manner prescribed belonging to the defaulter without the permission of the TRO.It also prohibits for issuance of any process by the Civil Court against such property in execution of a decree for the payment of money. It also provides that where the attachment has been made under this schedule private transfer or delivery of the property attached shall be void as against all claims enforceable under the Attachment Act;

++ from the affidavit as well as from the additional affidavit the department has not been able to bring on record service of notice under Rule 2 of Schedule 2, only documents on record along with the additional affidavit are the order of attachment of immovable property whereas no notice as contemplated under Rule 2 is found on record. Moreover considering the affidavit filed on behalf of the Sub-Registrar, Memnagar-3, Ahmedabad City, it is clear that for the first time the order of attachment was given effect to by the SubRegistrar, Memnagar only on 26.06.2015, when the charge was registered in Index II. This obviously is almost six and a half years after sale deed in favour of assessee.

Assessee's writ petition allowed

2018-TIOL-2144-HC-MAD-IT + Case Story

SUN DIRECT TV PVT LTD Vs ACIT: MADRAS HIGH COURT (Dated: October 10, 2018)

Income Tax - Writ - Section 148.

Keywords: Change of opinion - Communication of reasons - Limitation - Issuance of the notice - Reopening of assessment & Share subscription.

The assessee by this writ petition had challenged the reopening notice issued by the AO u/s 148. The grievance of the assessee was that the returns filed by it had been assessed initially u/s 143(1) and again as a special case u/s 143(3) by way of complete scrutiny of accounts. Therefore, according to the assessee, under those circumstances, the completed assessments were sought to be reopened after a lapse of six years without any basis or reasons by the AO.

The reasons stated by the AO to initiate reopening of assessment was that the assessee had received money from South Asia Entertainment Holdings Ltd in the name of share subscription along with share premium of Rs.203.98 Cr. According to the AO, since the chairman and founder of the Sun Group, Mr Kalanithi Maran and his wife, Mrs.Kaveri Kalanithi Maran were allotted shares only at Rs.10 per share without any premium, the share premium invested by M/s.South Asia Entertainment Holding Ltd was clearly excess value received and had to be treated as income of the Assessee and the same should be brought to tax. It was also contended that such high value of share premium was not a genuine transaction details of which was not fully disclosed by the assessee and therefore, such transaction was required to be assessed to tax u/s 68.

However, the contention of the assessee was that the AO had not disclosed the details from where share premium details were derived from. Therefore, according to the assessee, such non-disclosure of the source would clearly establish the fact that, such details were readily available in the financials and formed part of records during the course of original assessment and there were no new materials which came to the possession of the AO after completing and accepting the assessment. According to the assessee, the reason for reopening of the assessment was nothing but mere 'change of opinion' without any new material factors.

In writ, the High Court held that,

Whether if issuance of notice u/s 148 is only initiation of proceedings for reopening of the assessment already finalised, and not the final order, mere non-quoting of the reasons formed by the AO in such notice will not vitiate entire proceedings - YES: HC

++ the issuance of the notice under Section 148 of the Act is nothing but initiation of the proceedings for reopening of the assessment already finalised. Undoubtedly, such reopenings are to be done cautiously and the reasons for reopening is also mandatory. In the absence of any substantial reason, the Assessing Officer cannot reopen the assessment which was closed long back. Mere issuance of notice cannot be construed as a final order. Initiation of the proceedings are to be construed as informations to the Assessee and can never be concluded as a final proceedings. Thus, the issuance of notice is an information provided to the Assessee, enabling him to avail of all further opportunities contemplated under the Statutes. Thus, the Court cannot come to the conclusion that non quoting of the reasons formed by the Assessing Officer in the notice will vitiate the entire proceedings. If such a proposition is adopted, then it would be certainly difficult for the Executives to reopen the cases as per the provisions of the Act. The procedures are contemplated under the Act, enabling the Assessee to avail the opportunity and defend their case in accordance with law;

Whether such initiation of reopening process warrants interference by the High Court in a routine manner, especially in the absence of any valid legal grounds - NO: HC

++ the purpose of the Income Tax Act, more specifically, Sections 147 and 148 of the Act, is to ensure that the Assessees, who have suppressed the fact at the time of filing of their income tax returns or if the Department is in possession of certain new materials in respect of the assessment of a particular year, then the Assessee must be informed about the decision to reopen the assessment and after such information is provided, the procedures must be followed for the purpose of concluding the reassessment. In the present cases on hand, the proceedings have not reached its finality. It is only an initiation of proceedings under Sections 147 and 148 of the Act. The very initiation cannot be interfered with by the Courts in a routine manner. Judicial review against such initiations under the provisions of the Act, is certainly limited. The Court cannot intervene on such initiations in a routine manner in the absence of any valid and acceptable legal grounds. Thus, the exercise of judicial review in such matters regarding the initiation of the proceedings are to be exercised cautiously;

Whether section 148 mandates communication of all the reasons for reopening of assessment at the time of issuance of notice - NO: HC

++ the requirement under Section 147 of the Act i.e., the reason to believe, does not mean that the authorities at the time of issuance of notice under Section 148 should furnish all the reasons and the decisions taken by the authorities to reopen the closed assessment which is certainly unwarranted. Such a procedure is not contemplated and not intended by the provision of law. By adopting the principles of constructive interpretation, any law enacted should achieve its purpose and the object sought to be achieved. If the argument of the assessee is considered, then the very purpose and object of the provisions and the amendments made thereunder will be defeated and the Authorities Competent would not be in a position to reopen any assessment at all;

++ the reason to believe has been incorporated for the subjective satisfaction of the Assessing Officer and not for the purpose of communicating all the reasons even at the initial stage of issuance of notice to the Assessee under Section 148 of the Act. The provision is a check for the Income Tax Officials. Such a check provided under the Statute to the Officials, cannot be taken undue advantaqge by the Assessee. The word "reason to believe" incorporated is to indicate the Officials that, they cannot reopen the assessment in a routine and mechanical manner. The Assessing Officer in the event of receipt of any new material or information regarding the suppression, must have a reason to believe and the reasons must be recorded in the files and thereafter issue notice to the Assessee and the Assessee on receipt of the notice is entitled to seek the reasons or otherwise from the respondent, enabling him to adjudicate the matter in the manner known to law. This being the interpretation to be adopted, the arguments as advanced on behalf of the assessee deserves no consideration at all;

++ the assessee has to exhaust the remedy provided under the Act, this Court cannot entertain the writ petition, when there is a remedy available to the aggrieved person under the Statute. The High Court cannot usurp the power of the Appellate Authorities in respect of the adjudication of the merits and the demerits of the matter. The High Court cannot appreciate the mixed question of law and facts, at the initial stage, when a notice under Section 148 of the Income Tax Act, 1961 was issued to the Assessee for reopening the assessment. Such complex facts and circumstances are to be adjudicated by producing documents and by adducing evidences by the parties concerned. Such an exercise can never be done by the High Courts under Article 226 of the Constitution of India. Thus, entertaining a writ petition at the notice stage, must be sparingly and cautiously done. The High Courts must be restrained from entertaining such writ petitions when the very notice itself is under challenge;

Whether when the notice was issued within the timeline provided by virtue of section 149(1)(b), challenge raised by the assessee on the point of limitation is not sustainable - YES: HC

++ the point of limitation raised deserves no consideration in view of the fact that the notice under Section 148 of the Act, was issued to the assessee within the time limit prescribed under Section 149(1)(b) of the Act. The date of communication of the reason cannot be the point of reckoning period of limitation. Thus, there is no infirmity in respect of the notice issued to the assessee under Section 148 of the Act. The power of reopening of the assessment is certainly wide in nature. If it is restricted, then the very purpose and object of the Income Tax Act will be defeated. The wide power provided to the authorities competent to reopening of the assessment and to ensure that all external materials and the informations received from various sources should also be dealt in accordance with the provisions of Law. Thus, it does not mean that the Income Tax Authorities may reopen at any point of time. In order to protect the Assessees a definite time limit has been provided under the Act itself. Thus in the event of receiving any informations or materials from any other sources can be a ground for reopening of the assessment and the period of limitation is four years and six years respectively and in respect of the present writ petition, it is six years;

++ the Assessing Officer has got wider power in respect of covering the escaped assessments for the purpose of reopening the assessment. The proviso to Section 147 states that "provided further that the Assessing Officer may assess or reassess such income, other than the income involving matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment". This also provides various circumstances enabling the Assessing Officer to assess or reassess such income other than the income involving the matters which are the subject matters of any appeal, reference or revision. The wideness of the power has been further clarified in the said proviso clause;

++ when the corruption is spreading like a Cancer in our Great Nation, such provisions are to be interpreted constructively by not allowing the offenders to escape from the clutches of law. The scientific way of transactions by using the modern technologies are to be keenly addressed by the officials also. The corrupt activities are being injected deep into the system and it is very difficult for the authorities to cull out the modus operandi of such corrupt activities. Investigations are to be modernised and the method of investigations are to be improved, so as to match the level of corruption and the modus operandi of corruptions in certain areas. The huge transactions like that of the present cases on hand, the authorities must be in a position to investigate the issues thoroughly and by using an intelligent way of investigation. Under these circumstances, the Courts cannot interfere in a routine manner in respect of the notice issued under Section 148 of the Act. Whenever such allegations are raised against the Assessee, who was holding a high position of Union Minister, then the Department shall be allowed to investigate the matter with all fairness and by adopting an intelligent way of investigating the issues.

Assessee's writ petition dismissed

2018-TIOL-2143-HC-MUM-IT

SK WHEELS PVT LTD Vs STATE OF MAHARASHTRA: BOMBAY HIGH COURT (Dated: October 6, 2018)

Maharashtra Sales tax - Writ - applicability of discussed decisions - benefit of interState sale - cancellation of buyer's registration - prima facie view

The assessee is a dealer/trader of cigarettes. During the year under consideration, it had made interstate sale of cigarettes amongst others to two parties in Delhi and one in Haryana, and claimed benefit of interstate sale by submitting Form 'C' received from those three parties. However, the assessment order was framed confirming a total demand of Rs.33.63 Crores, by denying the benefit of 'C' form on the ground that the Registration of the buyers in Delhi was canceled and in Haryana the Tax Authorities had reported that they had not issued the 'C' form. When the assessee appproached the Appellate authority along with an application for stay, it was granted so, on conditional deposit of Rs.22.19 lakhs. This conditional pre-deposit was upheld by the Tribunal on further appeal.

The assessee therefore preferred the present petition challenging the order passed by the Tribunal to be non speaking order. On facts, it was the case of assessee that the Authorities in Delhi and Haryana had issued 'C' form under the Act, at a time when they were registered dealers with the authorities in their respective States. Thus, their subsequent cancellation was not justified ground for denial of interState benefit.

On Writ, the HC held that,

Whether decision relied upon by the parties during the course of hearing, must be dealt with by the concerned Authorities and a prima facie view merits to be framed with regard to the applicability/non-applicability of such decision to the facts of the case - YES: HC

++ it is seen that the order of the Tribunal records that the assessee places reliance upon the decision of Delhi High Court in case of Jain Manufacturing (I) P. Ltd., in the context of its case. However, the Tribunal does not deal with the same in the context of assessee's facts. This Court is conscious of the fact that at the stage of consideration of application for stay and directing the predeposit, a detailed order may not be necessary. However, the authorities concerned must deal with the decision relied upon by the parties and give a prima facie view with regard to the applicability of the decision to the facts of the case. Non-consideration of the decision, even prima facie, at the stage of stay, is an order without giving any reason, resulting in a flaw in the decision making process. The consideration of the decision of Delhi High Court in Jain Manufacturing (I) Pvt. Ltd., which in turn, relied upon the decision of the Supreme Court, is relevant in the present facts. This for the reason that if the issue in the context of the facts in this case is covered by the decision of the Delhi High Court, then it may have a bearing on the determination of the amount predeposit and/or grant of un-conditional stay. Therefore, the matter is restored to the the Tribunal for fresh disposal.

Case remanded

2018-TIOL-2142-HC-AHM-IT

CIT Vs SHAIFALI STEELS LTD: GUJARAT HIGH COURT (Dated: October 09, 2018)

Income tax - mismatch in closing stock - unexplained investment

A) The AO during the course of assessment, had made an addition of Rs.5.28 crores to the income of assessee on account of mismatch in closing stock. When the assessee approached the CIT(A), the additions made by AO got deleted, which decision was upheld by the Tribunal on further appeal.

B) The AO during the course of assessment, also made an addition of of Rs.79 lakhs towards unexplained investment in share capital. When the assessee approached the CIT(A), the additions made by AO got deleted, which decision was upheld by the Tribunal on further appeal.

On appeal, the HC held that,

Whether when discrepancies pointed out in the closing stock have been duly explained with neccesary evidences, and this factum was appreciated by the Appellate authorities, then no addition is sustainable - YES: HC

Whether when identity, genuineness & creditworthiness of the investors stand proved by the assessee to the satisfaction of Appellate Revenue Authorities, no additions can still be made on account of unexplained investment - YES: HC

++ as far as mismatch of stock is concerned, it is seen that the Tribunal while confirming the view of CIT(A), has noted that the CIT(A) had called for three remand reports, wherein the assessee had explained the discrepancy pointing out that the statement given to the bank pertained to the stock which was already shown in the books of accounts. It was also pointed out that a portion pertained to cause of jobwork done by third party for which material was sent to them. This was included in the statement supplied to the bank. The entire issue is thus fact based. The CIT(A) and the ITAT had thus appreciated the material on record to delete the addition;

++ as far as unexplained investment is concerned, it is seen that the Tribunal while confirming the view of CIT(A), has noted that the CIT(A) had called for remand reports, wherein the assessee had proved the identity, genuineness and creditworthiness of the investors. It can thus be seen that the CIT(A) was on facts, convinced that the assessee has not made any unexplained investment in the shares. Therefore, no there is no infirmity in deletion.

Revenue's appeal dismissed

2018-TIOL-2141-HC-DEL-IT

PR CIT Vs REEBOK INDIA COMPANY: DELHI HIGH COURT (Date: September 25, 2018)

Income Tax - Section 36(1)(iii)

Keywords - business purpose - outstanding advances - proportionate interest - unsecured loans

The assessee is a leading, footwear and apparel company. During the year under consideration, the AO observed that the assessee had claimed to have paid interest, inter alia, on unsecured loans amounting to Rs.502.69 crore. He also noticed that there were outstanding advances to the tune of Rs.172.59 crore on which no interest was charged by the assessee. The AO therefore made proportionate disallowance of interest of Rs. 23.60 crore by multiplying the amount of advances given with the amount of Finance cost and then dividing it with the amount of unsecured loans. When the addition was challenged before the ITAT, it was held that when an assessee had paid interest on unsecured loans and did not earn any interest on advances given, proportionate interest paid on unsecured loans taken for business purpose could not be disallowed.

On appeal, the HC held that,

Whether expenditure voluntarily incurred & meeting 'commercial expediency' test is an allowable deduction, irrespective of the fact that a third party also gets benefitted by said expenditure - YES: HC

Whether money borrowed even when advanced to a subsidiary for some business purpose, would qualify for deduction of interest - YES: HC

++ the factum that the loans amounting to Rs.502.69/-crores were outstanding, was undisputed. Payment of interest was also not disputed. The Tribunal was of the view that the assessee had paid interest on capital borrowed for business purpose and in the absence of any allegation and finding that the assessee had diverted unsecured loans for non-business purpose no disallowance could be made. As per Section 36(1)(iii), interest paid for capital borrowed for purpose of business has to be allowed as a deduction;

++ the Apex Court in case of S.A. Builders Ltd. Versus Commissioner of Income Tax (A) Chandigarh And Another - 2006-TIOL-179-SC-IT, had interpreted section 36(1)(iii) to observe that interest paid on capital borrowed for the purpose of business is to be allowed as a deduction in computing taxable income. The expression "for purposes of business or profession" occurring u/s 36(1)(iii) is wider in scope than the expression "for purpose of earning income, profits or gains". Accordingly, expenditure voluntarily incurred & meeting "commercial expediency" test is to be allowed as a deduction. It is immaterial if a third party also benefits by the said expenditure. The expression "commercial expediency" is again of wide import and is satisfied once it is established that there was a connection and nexus between the interest paid claimed as expenditure and the business of the assessee;

++ money borrowed even when advanced to a subsidiary for some business purpose, would qualify for deduction of interest. However, if the money borrowed is utilised by the assessee for personal benefit and not for business purpose, interest paid on that money would not satisfy the test of "commercial expediency". In the context of the present case the unsecured loans were not used for personal purpose. Merely because non-interest-bearing advances were given to third parties, would not justify a finding that the test of "commercial expediency" was not satisfied. Interest free advances were preferred to the parties connected with the business of the assessee. Money taken on loan was not diverted for non business purpose. Therefore, findings of the Tribunal are in accordance with the law.

Revenue's appeal dismissed

2018-TIOL-2139-HC-P&H-CX

CX - The amount involved in present appeal is Rs. 26,68,741/- - In terms of Instructions issued by the Central Board of Indirect Taxes & Customs dated 11.07.2018, the monetary limit fixed for filing appeals in the High Court stands raised to Rs.50 lakhs, which is applicable even in pending cases - As the amount of tax involved in the present appeal is less than Rs. 50 lakhs, the same may be permitted to be withdrawn - However, it is made clear that withdrawal of the present appeal will not be taken as upholding the order passed by Tribunal - The legal issues raised therein are left open to be considered in an appropriate case: HC

Appeal dismissed

2018-TIOL-2138-HC-AHM-CX

CX - In the appeal memo itself filed by department before the Tribunal, a ground was taken that the assessee had put on record source of ascertainment of wrong adjustment of Rs.10,46,184/- only as against charge of wrong adjustment to the tune of Rs.1,43,72,143/- - Appellant is correct in pointing out that the valuation of penalty under dispute was more than Rs.50 lakhs - Section 35D of CEA, 1944, pertains to procedure of Appellate Tribunal - The jurisdiction of a single member to decide any appeal before the Tribunal would be limited to the cases where the amount of fine and penalty involved does not exceed Rs.50 lakhs - In the present case therefore the single member had no jurisdiction to decide the appeal - Impugned order is therefore set aside only on this ground: HC

Appeal disposed of

2018-TIOL-2137-HC-MAD-CX

CX - Assessee has produced a letter received from Deputy Commissioner (Legal), instructing to withdraw the appeals based on Board's monetary policy circular - He would state that on account of the monetary limits involved in these appeals, which is lesser than the threshold fixed by Board's Circular dated 11.7.2018, he has been instructed to withdraw the appeals - Be that as it may, it is seen that appeals have been filed by Revenue, which arose out of an order passed by Tribunal - The Original Authority rejected the refund claim of Rs.36,96,374/- and Rs.42,13,167/- - Thus, the monetary limits being well below the amount fixed in instruction dated 11.7.2018, Department cannot pursue these appeals - The letter produced by the assessee is placed on record - These civil miscellaneous appeals are dismissed as withdrawn: CESTAT

Appeals dismissed

2018-TIOL-2136-HC-MUM-CX

CX - The petitioner was aggrieved with the order passed by Additional Commissioner confirming a demand - This grievance was sought to be addressed by an rectification/review application before Additional Commissioner of Central Excise - The above application has not yet been disposed of - It was in early June 2016 that the Officers of the Respondents enquired of the petitioner whether or not an appeal had been filed from the Order dated 30th November 2015 - Both the Commissioner (A) as well as Tribunal rejected the Petitioner's Appeal on the ground that there is no power in Commissioner (A) to condone the delay beyond the aggregate period of 90 days provided under Section 35 of the Act - This is not correct in view of the decision the Supreme Court in M.P. Steel Corporation 2015-TIOL-89-SC-CUS - In the light of order of Supreme Court in M.P. Steel Corporation, the Tribunal ought to have considered whether or not the Petitioner has made out a case which would entitle it to the benefit of the principle available under Section 14 of the Limitation Act, 1963 - That is to examine the facts and determine whether the delay in filing appeal to the Commissioner (A) could be condoned on application of said principle - The impugned order of Tribunal is quashed and set aside - However, court have not examined the Petitioner's case on merits with regard to the applicability principle laid down in Section 14 of the Limitation Act, 1963 - It is for the petitioner to make out appropriate case before the Tribunal, which would be considered and disposed of by passing an appropriate order thereon: HC

Petition disposed of

2018-TIOL-2135-HC-MUM-CX

CX - During stock-taking in factory of assessee, a shortage of raw materials found from that recorded in the books - At the time of stocktaking, a Panchnama was drawn in the presence of partners and the Manager of assessee-firm, whose statement was also recorded under Section 14 of the Act - Neither in the Panchanama nor in the statements, did assessee's partner and manager dispute the shortage of 200.278 MT of raw material found in stock - In fact, assessee paid the Cenvat Credit availed on such shortage within three days of the detection of shortage - Both the Commissioner (A) and the Tribunal found on facts, that there was a shortage found and accepted at the time of stock-taking - It held that the defence on the part of assessee is an after thought - This by recording the fact that at the time when the shortage was found, the panchanama was drawn and statements were recorded of the partner and manager of assessee-firm, and no objections to the estimation of shortage was taken - At no stage, prior to the filing of the reply to SCN, was this question raised - In fact, the shortage found on stock-taking, was accepted by assessee and duties thereon, were also paid - At the time when the objection was taken, it would not be possible to reverse the clock and direct physical stock-taking to determine the shortage on the date when raw material was found short - Thus, the view taken by Tribunal on facts, is a possible view and no interference would be warranted: HC

Appeal dismissed

2018-TIOL-2134-HC-MUM-CUS

Cus - The impugned order of Tribunal allowed the assessee's appeal by holding that refund of SAD of Customs, is not hit by limitation provided in Notfn 102 of 2007 as amended by Notfn 93 of 2008 - This, by following the decision of Delhi High Court in Sony (I) Pvt. Ltd., 2014-TIOL-532-HC-DEL-CUS - The facts and the law applicable in this case are identical to the one in DSM Sinochem Pharmaceuticals (I) Pvt. Ltd.,) 2017-TIOL-2334-HC-MUM-CUS namely - Whether the refund application for Special Additional Duty made by assessee for the period post amendment to Notfn 102 of 2007 by Notfn 93 of 2008, providing for the period of one year of limitation for refund of additional duty of customs from the date of payment applies or not - This issue was subject matter of consideration by this Court in DSM Sinochem Pharmaceuticals (I) Pvt. Ltd. - This Court, by an order set aside the order of Tribunal in case of DSM Sinochem Pharmaceuticals (I) Pvt. Ltd. in the facts situation which are identical - It held that the Delhi High Court decision in case of Sony India Pvt. Ltd. will not apply as it concerned itself with import of goods prior to the amendment of Notfn 102 of 2007 as amended by Notfn 93 of 2008 - Besides, the issue also stands covered in favour of Revenue by the decision of this Court in CMS Info Systems Ltd. 2017-TIOL-79-HC-MUM-CUS - Therefore, impugned order set aside - Subsequent to the amendment to Notfn 102 of 2007 by Notfn 93/ 2008, a refund claim for SAD cannot be granted, if not made within one year of payment: HC

Appeal allowed

2018-TIOL-2133-HC-P&H-ST

ST - The amount involved is Rs.25,76,454/- - In terms of Instructions issued by Central Board of Indirect Taxes & Customs dated 11.07.2018, the monetary limit fixed for filing appeals in the High Court stands raised to 50 lakhs, which is applicable even in pending cases - As the amount of tax involved in the present appeal is less than Rs.50 lakhs, the same may be permitted to be withdrawn - However, it is made clear that withdrawal of the present appeal will not be taken as upholding the order passed by Tribunal: HC

Appeal dismissed