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GST Council - Simplified return format to contain sales invoices and provisional credit details; not to be made available to Composition dealers
GST Council approves simplified GST Return format; to take six months; GSTR-3B to continue till then + decides to set up GoM on issue of Sugar Cess & measures to raise funds on contingencies + to set up GoM to crystallise views on proposal to incentivise digital payments + also decides to acquire 100% shares of GSTN; Equity to be divided between Centre & States
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GST Council gives nod to New GST Return; takeover of GSTN by Govts; GoMs for sugar cess & incentive for digital payments
CASE LAWS
2018-TIOL-827-HC-P&H-IT + Story
OSHO FORGE LTD Vs CIT: PUNJAB AND HARYANA HIGH COURT (Dated: April 27, 2018)
Income Tax - Sections 143(3), 153A, 153B, 153D & 263
Keywords - Power of revision - Remand order
THE assessee company, engaged in forging tractor parts & auto parts, was subjected to search proceedings during the relevant AY, whereupon certain incriminating documents were seized. The asessee was served notice u/s 153A in response to which it filed returns declaring its income. The AO passed assessment order which made an addition to the assessee's declared income. Such ordeer was passed after seeking approval u/s 153D from the Addl. CIT & which was granted through a letter. Later, the CIT exercised power of revision and passed an order setting aside the assessment order & directed de novo assessment. Pursuant to such directions, the AO passed a fresh assessment order wherein the quantum of the addition made was increased substantially.
The assessee contested such order before the CIT(A), who allowed the appeal on grounds that grounds that no fresh approval was taken by the AO u/s 153D. When the Department appealed to the Tribunal, its appeal was allowed and the matter was restored to the CIT for adjudication on merits regardless of approval u/s 153D.
On hearing the matter, the High Court held that,
Whether the AO loses its jurisdiction u/s 153A merely because he assumes the jurisdiction u/s 153D - NO: HC
Whether if an assessment order u/s 153A is passed in compliance with Sec 153D, there is any need for fresh approval to comply with remand order u/s 263 - NO: HC
++ the main issue is as to whether under Section 153D of the Act there is a requirement of fresh approval for complying with the remand directions under Section 263, in a case where the assessment under Section 153A of the Act was originally framed after compliance of Section 153D of the Act? Such questions is answered against the assessee. Considering the provisions of Section 153D, no order of assessment u/s 153A and 153B can be passed by the A.O. without prior approval of the Joint Commissioner;
++ the assessment order dated 24.12.2010 was passed u/s 153A r/w Section 143(3) of the Act after obtaining approval u/s 153D of the Act. The approval was vide letter dated 24.12.2010. Thereafter the said order was taken up in revision. The order was set aside and the matter was remitted to the A.O. to pass a fresh assessment order. The approval under Section 153D was not set aside. There was no question thereupon of the A.O. seeking fresh approval under Section 153D. The order dated 18.03.2014 passed by the A.O. was in compliance with the remand directions. It was not a case of the A.O. assuming jurisdiction under Section 153A of the Act. That stage was over when order dated 24.12.2010 was passed. The A.O. was complying with the directions of the revisional authority. Section 153D of the Act is only applicable for passing an assessment order or re-assessment order. There is no requirement under Section 153D for prior approval for complying the remand directions. The approval dated 24.12.2010 in fact was to the effect that assessment of assessee can be passed under Section 153A. Remand direction was that the assessment under Section 153A should be framed again. There was no occasion of fresh assumption of jurisdiction to frame assessment. Rather it was in continuation of earlier proceeding which was duly approved. Even otherwise there is no question of seeking an approval from the Joint Commissioner or the Additional Commissioner Officer lower in rank than Commissioner for complying with the directions given by the Commissioner;
++ the CIT (Appeals) allowed the appeals of the assessee on the basis that compliance of Section 153D of the Act was mandatory. It is not the issue whether the provision is procedural or the requirement of approval is mandatory. The fact is that Section 153D of the Act had been duly complied with by the A.O. The contention raised that even an order of remand cannot be passed without complying with Section 153D of the Act is beyond the scope of the section. The Tribunal rightly held that Section 153D of the Act is for assuming jurisdiction to pass an assessment order under Section 153A of the Act and the A.O. would not lose the jurisdiction to frame assessment while complying with remand order.
Assessee's appeal dismissed
2018-TIOL-826-HC-DEL-IT + Case Story
RAJESH GUPTA HUF Vs PR CIT : DELHI HIGH COURT (Dated: February 26, 2018)
Income Tax - Sections 50C & 148.
Keywords - Capital Assets - Long term capital gains - Occupancy rights - Stamp duty value - Sale of agricultural land.
The assessee, an HUF, had filed return for relevant AY. During assessment, the AO made addition u/s 50C of Act for sale of agricultural land executed in relevant year as assessee sold its rights in the agricultural land for Rs. 30 lakhs but according to the AO, the value of land for the purpose of stamp duty was Rs. 70,40,000/-. Later, a notice u/s 148 of the Act was issued to the assessee. The assessee was asked to explain as to why Section 50C of the Act should not be invoked with respect to the consideration received on sale of agricultural land as assessed by the authorities for the purpose of stamp duty. The assessee replied that it claimed possession and occupation of the lands only as a tiller/Kashtkar and not as an owner. It argued that Section 50C was inapplicable as the owner of the lands was the State of Rajasthan. The AO rejected the explanation holding that the sale consideration was received by the assessee, and not the State of Rajasthan. It further observed that the assessee had failed to prove that the State of Rajasthan was the owner of the land. On appeal, the CIT(A) passed order in favour of assessee but Tribunal upheld the AO's order.
After hearing parties, the High Court held that,
Whether transfer of occupancy rights in land gives rise to capital gains, taxable u/s 50C - YES: HC
++ assessee’s contentions is wrong that the occupancy rights are not in the nature of capital assets and the transfer of which do not attract capital gains, as to exclude application of Section 50C. The rights (towards occupancy) are nearly permanent, having regard to the nature of holding. Moreover, the issue of transfer of lease rights (in the case of lease for 99 years, relating to agricultural land) was considered in R.K. Palshikar (HUF) v. Commissioner of Income Tax. The court observed in this case that " grant of the leases in question, in our view, amounts to a transfer of capital assets as contemplated under Section 12-B of the said Act." It is therefore held that no question of law arises. The appeal is consequently dismissed as unmerited.
Assessee's appeal dismissed
2018-TIOL-825-HC-DEL-IT
PR CIT Vs AEREN R INFRSTRUCTURE LTD: DELHI HIGH COURT (Dated: April 25, 2018)
Income Tax - Arbitral award - Consortium agreement - Capital stream & Stockin-trade.
The assessee company, involved in the business of real estate, had returned income for the relevant AY. In the course of assessment, the AO noted that the assessee had entered into a consortium agreement with its associates to purchase 10 acres of land from one JMA Buildcom Private Limited for Rs.15 crores. However, the seller defaulted in its commitment within the prescribed time limit and extended the same. Subsequently, a settlement was thrashed out and accordingly, an award was made. The said consortium amount received by the assessee was credited in its books of accounts as a capital receipt. But the AO held that since, the land would have been a part of the stock-in-trade, the said amount was revenue in nature. On appeal, the CIT(A) affirmed the AO's action.
On further appeal, the Tribunal held that the amount which was intended to be used as stock-in-trade were immobile and sterilised, hence rendered non-offerable. The Tribunal also believed that when such amount was received as part of the arbitration award, it fell into the purview of capital receipt.
On appeal, the High Court held that,
Whether compensation received as part of the arbitral award towards immobilisation of a capital asset is to be treated as revenue in nature - NO: HC
++ the judgment in the case of Universal Radiators pertinently examines both situations first, where a direct link exists between the products or the ultimate purpose which the assessee intends to put the equivalent and second, expanding the amounts and what is the eventual income on one hand, and on the other hand, conclusions on the stock-in-trade as well. Similar observations were also made by the Supreme Court in the case of Bombay Burmah Trading Corpn. at an earlier point of time;
++ in the present case too, the purpose of the ultimate use of the assessee's land when acquired was rendered irrelevant on account of JMA Build.com Private Ltd defaulting in its commitment. This rendered the amount expanded by the assessee immobile. The eventual receipt of the amounts determined as compensation/damages, therefore, clearly fell into the capital stream and not revenue as was contended by the Revenue in this case. Hence, no question of law arises because the findings of the ITAT are well reasoned and based upon appreciation on the point of law.
Revenue's appeal dismissed
2018-TIOL-31-HC-ALL-GST
SURENDRA STEEL SUPPLY COMPANY Vs STATE OF UP: ALLAHABAD HIGH COURT (Dated: April 11, 2018)
GST - Goods were being transported from Haryana where the petitioner's company is situated to Kanpur, under invoice No.5. CGST @ 9% amounting to Rs.96,579/- and SGST @ 9% amounting to Rs.96,579/- were duly paid by the petitioner which is clearly reflected from the tax invoice - Petition filed challenging the interception of vehicle and seizure made by the authorities for want of E-Way Bill.
Held: Court notes that despite there being no requirement, every day petitions are being filed challenging the interception and seizure made by the authorities for want of E-Way Bill - respondent Assistant Commissioner, Commercial Tax, Mobile Squad--XI, Kanpur, U.P. directed to appear before the Court to explain as to under which authority of law he intercepted the vehicle and passed the seizure order despite the fact that E-Way Bill No.01 was generated and produced – effect and operation of seizure order to remain in abeyance till 13.04.2018 - respondents are directed to release the seized goods and vehicle forthwith: High Court
Matter posted
2018-TIOL-30-HC-ALL-GST
SURENDRA STEEL SUPPLY COMPANY Vs STATE OF UP: ALLAHABAD HIGH COURT (Dated: April 16, 2018)
GST - Goods were being transported from Haryana where the petitioner's company is situated to Kanpur, under invoice No.5. - Petition filed challenging the interception of vehicle and seizure made by the authorities for want of E-Way Bill.
Held: Court had asked respondent Assistant Commissioner to explain as to under which authority of law he intercepted the vehicle and passed the seizure order despite the fact that E-Way Bill was generated and produced – effect and operation of seizure order was held in abeyance and respondents are directed to release the seized goods and vehicle forthwith – Matter heard – Counsel for state produced a copy of the order dated 14.04.2018 passed by Assistant Commissioner withdrawing the seizure notice u/s 129(1) of UPGST and penalty notice u/s 129(3) – same is taken on record – As no cause of action survives, petition is rendered infructuous, hence dismissed: High Court
Petition dismissed
2018-TIOL-1431-CESTAT-MUM + Case Story
BALLARPUR INDUSTRIES LTD Vs CCE: MUMBAI CESTAT (Dated: March 28, 2018)
CX - Non-prosecution - Reason stated for delay in filing application is very reasonable, therefore, delay condoned in filing the ROA application- Order passed by Tribunal without considering the grounds of appeal is required to be recalled - ROA application is allowed and the Appeal is listed for regular hearing on 23.04.2018: CESTAT [para 4]
Application allowed
