GST Drafts, Rules and Format (26-09-2016)
Draft Format for invoice (pdf) + Draft invoice rules (pdf)
Draft Format for payment (pdf) + Draft payment rules (pdf)
Draft formats for registration (pdf) + Draft registration rules (pdf)
NOTIFICATION
stnot16_042
Rendering of Yoga Service - non-collection of service tax - Govt grants Section 11C benefits
CASE LAWS
2016-TIOL-2271-HC-MAD-CUS
BALAKRISHNA REDDY Vs ACC: MADRAS HIGH COURT (Dated: September 01, 2016)
Customs - Appellate jurisdiction - Proceedings were initiated against the appellant under the provisions of the Customs Act, 1962 and demands were confirmed - the OIO was modified by Commissioner (Appeals) to the effect that RF was reduced - The department agitated the same before the Revisionary Authority and cited it as ground for not implementing the order passed by Commissioner (Appeals), resulting in the instant WP, seeking direction to implement the same.
Held: There is no interim order granted by the Revisional Authority, as against the order passed by the Commissioner (Appeals); the mere pendency of the revision will not amount to stay of the order passed in the appeal - The Punjab and Haryana High Court, in the case of NVR Forgings v. Union of India, held that the impugned order therein passed by the Joint Secretary to the Government, who was also the Commissioner of Central Excise and Customs, and the order in the appeal as well as the Revisionary order has been passed by the Officers of the same rank, it would not be permissible in law to do so - applied to the facts of the present case, the Revisional Authority has no jurisdiction to entertain the Revision Petition, against an order passed by the Officer, who is in the same cadre - one more opportunity can be granted to the Department to pursue the revisional remedy and if they are unable to obtain any orders, either interim or final, then, they have to comply with the Order-in-Appeal - four weeks time is granted to the respondent / Department from the date of receipt of the copy of this order, to obtain appropriate interim or final orders from the Revisional Authority, failing which, the orders passed by the Commissioner of Appeals, dated 29.10.2015, shall be implemented within a period of ten days from the date on which the thirty days' period expires [Para 5, 6, 7]
WP disposed of
2016-TIOL-2270-HC-MAD-CUS
T RAJA Vs CC: MADRAS HIGH COURT (Dated: August 31, 2016)
Customs - CBLR 2013 - The petitioner's case is that, he is fully eligible for being recognized as a Customs Broker, in accordance with Rule 5 (f) (ii) of CBLR 2013; however, he was not allowed to sit for the written examination - The petitioner has filed this Writ Petition, praying for issuance of a writ of certiorarified mandamus to quash the circular dated 28.12.2015, issued by the third respondent, and to direct the respondents to accept his application, and to permit him for writing examination, conducted under the Regulation 6 of Customs Broker Licence Regulation, 2013 (CBLR).
Held: The Court, after considering the counter affidavit filed by the respondents, wherein, the qualification possessed by the petitioner was stated, and having found that the petitioner possesses the qualification issued by the Institute of Company Secretaries of India, as well as Institute of Costs and Works Accountants of India, was of the view that the petitioner becomes eligible to participate in the oral test, provided, he clears the written examination, for which, he had already appeared - Accordingly, a direction was issued to the respondents to open the sealed cover, and evaluate the petitioner's paper, and if the petitioner has secured the required cut off marks, then, he should be permitted to attend the oral interview (viva voce) - This order was complied with by the respondents, and the petitioner, having declared pass in the written examination, was also directed to attend the oral interview, and the result of the interview was kept under sealed cover - Pursuant to the interim direction issued on 19.08.2016, the respondents have declared the result; and it is stated that the petitioner has passed the oral examination - considering the peculiar facts and circumstances of the case, and taking note of the qualification possessed by the petitioner, this Court is of the view that the petitioner should be considered for the grant of Custom Broker Licence - However, this observation is made only by considering the peculiar facts of this case, and this shall not be treated as precedent [Para 5, 6, 7]
The petitioner has come out successful both in the written and oral examinations, and taking note of the qualification possessed by him, this is a fit case where, the respondents should exercise their discretion, and grant Custom Broker Licence to the petitioner, within a period of three weeks from the date of receipt of a copy of this order - the respondents have taken a stand in their counter affidavit that, the qualifications possessed by the petitioner are not mentioned in the Regulation 5 (f)(ii) of CBLR; which is countered with the view that when certain qualifications are listed out under the Regulations, it can be taken as an illustrative and not exhaustive - Therefore, the Authorities are required to examine the nature of qualification possessed by the candidates, and as to whether, it would fall within the scope and ambit of the required qualification as per the Regulations contemplated under CBLR - legal issues raised by the respondent are left open [Para 8, 10]
WP disposed of
2016-TIOL-2269-HC-AHM-IT
CIT Vs KHEDUT SAHAKARI KHAND UDYOG MANDLI LTD: GUJARAT HIGH COURT (Dated: July 11, 2016)
Income tax - Section 194C
Keywords - payment to transporters & tax at at source
Whether an assessee engaged in manufacturing of sugar, is liable to deduct TDS u/s 194C seperately on the payments made to its transporters - NO: HC
The assessee is engaged in the business of manufacturing of sugar from sugarcane. On verification of TDS, it was noticed that the assessee was not deducting tax on payment to transporters. The AO held that the assessee was responsible for making the payment and not deducting tax on such payments u/s 194C. On appeal, the CIT(A) confirmed the order of AO. On further appeal, the ITAT held that the assessee was not liable to deduct tax at source on payments made to mukadams and transporters.
Having heard the parties, the High Court held that,
++ it is submitted bt the assessee's counsel that as such the issue involved in the present appeal is not res integra in view of the decision of this Court in Tax Appeal No. 211 of 2006, whereby this Court has held that: "....It is an admitted position that in the case on hand the assesses-cooperative societies used to purchase the sugarcanes from the farmers, on condition that the farmers shall supply the same at the gate of their respective factory. Meaning thereby, here, the supply of sugarcane at the gate of the factories of the assesses is not a separate work contract, but, it is essentially the part of the sale transaction. We are therefore of the opinion that the assesses are not liable to deduct TDS...." It is submitted that in the aforesaid decision this court has relied upon the decision rendered by this Court in the case of CIT vs. Krishak Bharati Co-operative Ltd., wherein this Court has held that to transport the gas was a part of sale transaction, and therefore, the assessee, therein, was not required to deduct TDS. The Revenue's counsel is not in a position to dispute the above and is not in a position to show and/or point out any contrary decision. Therefore, considering the decision of this Court in the case of Krishak Bharati Co-operative Ltd., the question which is raised in the present appeal is required to be answered in favour of the assessee. In view of the above, the order passed by the ITAT is confirmed.
Revenue's appeal dismissed
2016-TIOL-2268-HC-MP-CT
CCT Vs AUTO SALES: MADHYA PRADESH HIGH COURT (Dated: September 7, 2016)
Madhya Pradesh GST Act - Section 12
Keywords - A.P.I chasis - benefit of exemption notification & reduced rate of tax.
Whether where it has been factually found by the Commercial Tax Appellate Board that the dealer has sold chasis of three wheeler vehicle, it is open to the said dealer to claim sales tax exemption on the chasis sold by him, by virtue of the Government notification which provides exemption to the said item - YES: HC
The assessee is a registered dealer doing the business of sales of Auto, Traillers, chasis etc. During the subject year, the State Government in exercise of powers u/s 12 of M.P GST Act, issued notification by which partial exemption of sales tax by reducing the rate of sales tax to 3% was granted on sale of "all types of four wheeler and three wheeler, Commercial Motor Vehicles". The assessee effected the sale of A.P.I. three wheeler chasis complete with the speedometer, spare wheel rims without tyre and tube with wind screen glass. The AO during assessment, imposed sales tax at the rate of 3% in the light of said notification. Subsequently, an audit objection was raised with regard to reduced rate of sales tax of three wheeler chasis. In view of aforesaid audit objection, the AO reopened the matter and held that the A.P.I. chasis was not covered under the notification. Accordingly, the sales tax at the rate of 12% was imposed on the assessee. On appeal, the matter was remitted to the AO to pass fresh order of assessment, whereupon, the AO passed a fresh order of assessment and again held that the A.P.I. chasis was not covered under the notification. On further appeal, the Commercial Tax Appellate Board held that the assessee had sold chasis of three wheeler and, therefore, treating it to be a chasis of auto rickshaw and consequently the imposition of tax at the rate of 12% was not correct.
Having heard the parties, the High Court held that,
++ in the opinion of this Court, the question which has been referred for re-consideration is not a pure question of law but is a mixed question of law and fact. A perusal of the order passed by the Commercial Tax Appellate Board, shows that the Board itself has found that the assessee has not sold auto rickshaw but has sold the chasis of three wheeler and, therefore, the Board itself has answered the aforesaid question in favour of the assessee. If the assessee has sold the chasis of three wheeler vehicle, the same would fall within the purview of notification dated 13.6.1989.
Reference in favour of Assessee
2016-TIOL-2267-HC-MAD-IT
PR THANGAVELU Vs CIT: MADRAS HIGH COURT (Dated: September 12, 2016)
Income tax - Differential amount - Kar Vivad Samadhan Scheme & refund
Whether an assessee is entitled to refund of the differencial amount, paid by him as per the direction of the Court and payable by him under Kar Vivad Samadhan Scheme Rules as per the revised Form 2A - YES: HC
The assessee had preferred the present petition seeking direction upon the CIT to refund a sum of Rs.76,292/- being the difference between Rs.1,08,558/- paid by the assessee as per the direction of this Court and Rs.32,266/- payable by the assessee under Kar Vivad Samadhan Scheme Rules, 1998 as per the revised Form 2A issued by the CIT after giving effect to the final order.
Having heard the parties, the High Court held that,
++ it is noted that Section 93 of the Finance Act states that any amount paid in pursuance of the declaration made u/s 88, shall not be refundable under any circumstances. However, in the instant case, the factual position is clear that the amount paid by the assessee is Rs.1,08,558/-. Further, no amount was paid in pursuance of the declaration made u/s 88, but it was paid as per the interim direction issued by the Court in the earlier Writ Petitions. It is settled legal principle that amount which is tendered pursuant to the interim direction, shall abide by the final order in the Writ Petition. Therefore, even assuming that the expression paid is used, it would still be construed as the payment effected by the assessee without prejudice to the outcome of the writ petition. If such interpretation is not given, then the very purpose of granting interim orders would stand defeated;
++ under normal circumstances, the CIT would be justified in stating that no refund is payable on any amount paid pursuant to the declaration made u/s 88, in the light of the statutory embargo u/s 93. However, the facts of the present case are different and amount has been paid based on interim direction. The further fact which has to be taken note of is that the assessee succeeded in the earlier petitions, which were allowed and the said order was implemented by giving effect to the stay order and the Department passed consequential order, wherein it has been stated that there is a reduction in the demand of Rs.2,97,627/-. That apart, the case also having been settled under the KVSS, the assessee is entitled for refund of the excess amount paid as per the actual amount payable as per the revised demand pursuant to the order passed in the earlier Writ Petitions. Accordingly, the CIT is directed to refund the excess amount paid by the assessee, viz., Rs.76,292/-.
Assessee's petition allowed
2016-TIOL-2266-HC-AHM-IT
N K INDUSTRIES LTD Vs TAX RECOVERY OFFICE: GUJARAT HIGH COURT (Dated: September 21, 2016)
Income tax - Section 226(3).
Keywords - indirect recovery - tax arrear of other assessee - withdrawal of specific performance & waiver of debt.
Whether it is open to the Tax Recovery Officer to recover the tax arrears of 'B' directly from 'A', merely on the basis of agreement between 'A' and 'B' wherein 'A' owed payment of certain sum to 'B', without taking into account the subsequent agreement between the parties whereby the debt has been waived off by the creditor - NO: HC
The assessee during the subject year, had entered into agreement with one M/s. Banpal Oil Chem Pvt. Ltd for assignment of lease and sale of factory premises situated at Chandisar, Palanpur, alongwith factory building constructed thereon and the entire plant and machinery situated, wherein, the sale consideration was indicated at Rs. 11.11 crores. Under the agreement, M/s. N.K.Industries Ltd. had paid a sum of Rs. 10.75 crores to M/s. Banpal Oil Chem Pvt. Ltd. However, later on, multiple issues arose between the parties due to which, the sale deed could not be executed. The case of the assessee was that, M/s. Banpal Oil Chem Pvt. Ltd could not clear the property of all its titles and accordingly, various legal proceedings ensued. Thereafter, the parties executed a settlement agreement revising terms of agreement, under which, the assessee was required to pay a larger amount as compared to what was envisaged in the original agreement and the parties would withdraw multiple proceedings from different courts. Despite this settlement agreement, the issues were not completely resolved. The assessee therefore, withheld the balance payment of Rs. 2.42 crores in favour of M/s. Banpal Oil Chem Pvt. Ltd., and finally executed an agreement with M/s. Banpal Oil Chem Pvt. Ltd., under which, they decided to call off the deal. The assessee therein was stated to withdraw the suit filed for specific performance of the agreement, whereas, M/s. Banpal Oil Chem Pvt. Ltd was stated to refund the consideration of Rs. 10.75 crores already paid and obviously, M/s. N.K.Industries Ltd. would not have to pay the remaining consideration.
However, before this latest agreement was executed, the assessee filed appeal before the High Court, contending that Income Tax department had tried to interject stacking its claim to a sum of Rs. 2.31 crores deposited by M/s. N.K.Industries Ltd., merely on the basis that M/s. Banpal Oil Chem Pvt. Ltd was a tax defaulter and any amount payable to M/s. Banpal Oil Chem Pvt. Ltd could be claimed directly u/s 226(3). The Single Judge however, observed that the amount was deposited only to ascertain the bona fides of M/s. N.K.Industries Ltd. and ultimately, in the suit for specific performance, such amount becomes payable to M/s. Banpal Oil Chem Pvt. Ltd the department could seek recovery thereof. By the impugned order, the Tax Recovery Officer called upon the assessee to pay a sum of Rs. 1.13 crores to the department by way of tax dues of M/s. Banpal Oil Chem Pvt. Ltd.
Having heard the parties, the High Court held that,
++ a perusal of the order of Tax Recovery Officer would show that though the tax arrears of M/s. Banpal Oil Chem Pvt. Ltd are much higher, this figure of Rs.1.13 crores is arrived at by deducting Rs. 10.75 crores already paid by M/s. N.K.Industries Ltd. to M/s. Banpal Oil Chem Pvt. Ltd. out of the original sale consideration of Rs. 11.11 crores mentioned in the agreement to sale and does not take into consideration the revised terms contained in the later agreement. Be that as it may, the case of the department is that what ever the amount M/s. N.K.Industries Ltd. may have to pay to M/s. Banpal Oil Chem Pvt. Ltd, the department can seek direct recovery thereof in terms of section 226(3) in form of tax arrears of M/s. Banpal Oil Chem Pvt. Ltd. However, the record would suggest that the assessee is no longer a debtor of M/s. Banpal Oil Chem Pvt. Ltd. Though previously the two sides had entered into an agreement under which the assessee would pay a certain sum for purchase of immovable properties of M/s. Banpal Oil Chem Pvt. Ltd subsequently, due to multiple disputes, the agreement was not acted upon;
++ in can thus be seen in the latest agreement that M/s. N.K.Industries Ltd. has waived its rights and also waived execution of the sale deed. In turn, M/s. Banpal Oil Chem Pvt. Ltd agreed to return consideration of Rs. 10.75 crores already paid by assessee and the assessee withdrew the suit for specific performance from the civil court. We notice that in the earlier portion of this agreement there is a wrong reference to the terms of the previous agreement. This, however, would not be of any consequence since the latest agreement is clear in all material terms and essentially brings about an end to the relationship between M/s. N.K.Industries Ltd. and M/s. Banpal Oil Chem Pvt. Ltd. That being the position, the Tax Recovery Officer was not correct in contending that M/s. N.K.Industries Ltd. owed any amount to M/s. Banpal Oil Chem Pvt. Ltd which can be recovered directly for the tax dues of M/s. Banpal Oil Chem Pvt. Ltd. It is however made clear that if the department has any recovery to be made either against M/s. Banpal Oil Chem Pvt. Ltd or M/s. N.K.Industries Ltd., it is always open for them to proceed in accordance with law.
Assessee's petition allowed
2016-TIOL-2533-CESTAT-MUM
VIDARBHA IRON & STEEL CO LTD Vs CCE: MUMBAI CESTAT (Dated: July 26, 2016)
ST - Manpower Recruitment & Supply Agency - Creditors filing petition for winding up company - As per compromise scheme approved by High Court, factory along with machinery was given under leave & licence to Ferro Alloys Corporation Ltd. ( FACOR) in order to not deprive the employees of their job and livelihood - Salary of employees received from FACOR for payment to staff – Issue involved is squarely covered by the judgment in appellants own case reported as 2015-TIOL-1710-CESTAT-MUM and 2015-TIOL-1992-CESTAT-MUM where it is held that ST demand not sustainable as there is nothing on record to show that the appellant functioned as a commercial concern engaged in supply of manpower to FACOR: CESTAT [para 3, 5]
Appeal allowed
2016-TIOL-2532-CESTAT-HYD
SRI RAYALSEEMA GREEN STELOY LTD Vs CCE: HYDERABAD CESTAT (Dated: July 17, 2016)
Central Excise - Cenvat Credit on structural items as capital goods - Admissibility - MS items like Angles, Channels, Beams, Joists, Flats, H.R. Coils etc used by appellant in fabrication of structural supports, sheds to capital goods during the relevant period between September, 2004 and May, 2006 - Whether amendment of Explanation to Rule 2(k) of CCR 2004 is retrospective in nature - On facts held that appellant availed credit on bonafide belief that credit is admissible during the period in question in view of the issue being contentious and several rulings in favor of assessee - Penalty imposed in the circumstances is unjustified as such is set aside while confirming the demand and interest - Revenue appeal to the extent is rejected. (Para 5, 6).
Appeals disposed of
2016-TIOL-2531-CESTAT-HYD
ASHOK INTERNATIONAL Vs COMMISSIONER, C & CE: HYDERABAD CESTAT (Dated: July 11, 2016)
Central Excise - Export of Agricultural produce - Refund claim- Cess paid under protest - Unjust enrichment - Applicability - Invoices denoted the value of exports as one composite figure with a breakup of its various components - Cess is paid on FOB value of agricultural produce exported under the Agricultural and Processed Food Products Export Cess Act, 1985- Held: refund of Cess is not hit by doctrine of Unjust enrichment - Appeal allowed with consequential reliefs. (Para 4-6)
Assessee Appeal allowed
