CIT Vs Wire And Wireless (India) Ltd

Whether subscription fees paid by cable network operator under contract with licensor of various TV channels, attracts TDS liability u/s 194C - YES: HC

- Revenue's appeal dismissed: BOMBAY HIGH COURT

2019-TIOL-986-HC-MUM-IT

PR CIT Vs Kanaiyalal M Sheth

Whether losses suffered by an investor upon forfeiture of payment towards convertible warrant, amounts to capital loss - YES: HC

- Revenue's appeal dismissed: BOMBAY HIGH COURT

PR CIT Vs Khyati Realtors Pvt Ltd

Whether advances paid by a construction company for booking of commercial space is to be considered as business loss, once it becomes irrecoverable upon failure of such commercial venture - YES: HC

- Revenue's appeal dismissed: BOMBAY HIGH COURT

KS Sridhar Vs ITO

Whether Tribunal should take a sympathetic view of the matter and decide the Appeal proceedings on merit, instead of rejecting CoD application, if circumstances indicate so - YES: HC

- Case disposed of: MADRAS HIGH COURT

CIT Vs Jaypee Sports International Ltd

Whether the payer of lease rent is obligated to deduct tax at source u/s 194-I before remitting such payment - YES: HC

- Case remanded: ALLAHABAD HIGH COURT

Kanchan Agarwal Vs ITO

Whether re-assessment proceedings concluded in a hasty manner and that too without considering the preliminary objections filed by the assessee, merit annulment - YES: HC

Assessee's petition allowed: KARNATAKA HIGH COURT

CCGST & CE Vs Palak Designer Diamond Jewllery

GST - The applicant seeks review of judgment in 2019-TIOL-430-HC-AHM-GST on the ground that while the total tax demand was of Rs.13,03,57,862/-, only Rs.46,75,791/- has been secured by Court and no suitable directions have been issued to secure the remaining tax demand - It is the case of applicants that the relief claimed in petition may not be granted as mentioned in judgment - A perusal of judgment reveals that this Court has duly recorded the submission that in terms of SCN, the total tax demand comes to around of Rs.13 crores and hence the relief claimed in petition may not be granted and that, if at all, the Court is inclined to grant any relief as prayed for, the respondent may be directed to furnish the bank guarantee of at least Rs.1 crore - No case is, therefore, made out for review of the aforesaid judgment: HC

- Application rejected: GUJARAT HIGH COURT

2019-TIOL-996-HC-AHM-GST

Vasu Corporation Vs State Of Gujarat

GST - Upon the vehicle in question together with the goods being detained under section 129(1) of Gujarat GST Act, 2017, the petitioner has deposited the tax and penalty as contemplated under section 129 of the Act "under protest" - Despite the aforesaid position, respondents have continued with the detention of goods and thereafter, issued the impugned notice for confiscation - In the light of the fact that the petitioner has already deposited tax and the penalty under section 129(1A) of the GST Act, the respondents are directed to forthwith release the Truck along with the goods contained therein: HC

- Appeal disposed of : GUJARAT HIGH COURT

2019-TIOL-995-HC-AHM-GST

Ganesh Proteins Vs ACST

GST - The respondents have attached the bank accounts of petitioners as according to them, the liability of Rs.3,03,61,800/- is liable to arise by way of penalty under provisions of Gujarat VAT Act, 2003 and around Rs.2.5 crores under GST Act, 2017 - A perusal of provisions of section 45 of Gujarat VAT Act, 2003 reveals that the same empowers the Commissioner to provisionally attach any property belonging to dealer for purpose of protecting the interest of Government revenue - Whether the expression, "Government revenue" would include penalty which the dealer may or may not become liable to pay at a subsequent date - The matter requires consideration - Hence, Issue Rule returnable on 17th July, 2019 - By way of ad-interim relief, the operation of impugned order is hereby stayed - Consequently, the respondents shall forthwith release the bank accounts of the petitioners as well as the stock attached by said order: HC

- Appeal disposed of: GUJARAT HIGH COURT

2019-TIOL-994-HC-AHM-GST

Kush Traders Vs State Of Gujarat

GST - The attention of the court was invited to Notfn 27/2017-Central Tax to point out that the same provides that notwithstanding anything contained in rule 138 of CGST Rules, 2017, no e-way bill is required to be generated where the goods being transported are specified in annexure - The attention of the court was invited to item No.62 of the annexure to point out that fennel and cumin are notified thereunder, and hence, no e-way bill is required to be generated while transporting such goods - It was submitted that despite the aforesaid position, the goods and the conveyance of the petitioner have been detained on the ground that e-way bill has not been tendered and further notice for confiscation under section 130 of CGST Act, 2017 read with other relevant statutory provisions has been issued - Issue Notice returnable on 2nd May, 2019: HC

Appeal disposed of: GUJARAT HIGH COURT

SERVICE TAX

CENTRAL EXCISE

2019-TIOL-990-HC-MUM-CX

Hindustan Petroleum Corporation Ltd Vs CCGST & CE

CX - Both these appeals have been filed under Section 35G of CEA, 1944 challenging the orders dated 22nd September, 2017 and 17th May, 2018 passed by Tribunal - It is an undisputed position that the decision of Coordinate Bench in GL & V India Pvt. Ltd. - 2015-TIOL-1210-HC-MUM-CX would conclude the issue in favour of Revenue and against the assessee - In fact, the decision of Madras High Court in M/s. Strategic Engineering Ltd. which held that the amendment made to Rule 14 of CCR, 2004 on 1st April, 2012 w.e.f. 17th March, 2012 was clarificatory in nature and therefore, retrospective is no longer good law - This as a subsequent decision of Madras High Court in Sri Kumaran Alloys (P) Ltd. - 2018-TIOL-1820-HC-MAD-CX held its decision in M/s. Strategic Engineering Ltd. to have been rendered per incurrim - In any event, the decision of Coordinate Bench of this Court in GL & V India Ltd. would govern the court and court is obliged to follow the same - So far as the appeal filed by assessee in case of Vandana Vidyut Ltd. is concerned, the same would not in any manner reduce the binding nature of decision rendered by Coordinate Bench of this Court in GL & V India Ltd. - The decision which is in jeopardy if at all, in view of Apex Court's admission in Vandana Vidyut Ltd. is the decision of Chhattisgarh High Court and not of this Court in GL & V India Ltd. - In any case, reliance upon the decision of Apex Court in West Coast Paper Mills Ltd. - 2004-TIOL-14-SC-LMT-LB is inappropriate - It further held that when the Apex Court upheld the view of Tribunal, the order of Tribunal merged with the order of Apex Court dismissing the appeal from the Tribunal - Therefore, till such time the Apex Court decides the appeal, the order of the Tribunal could be said to be jeopardy - Facts here are entirely different - In any case, court is bound by the decision of this Court in GL & V India Ltd. which is not shown to have been challenged in appeal - Therefore, not even remotely in jeopardy - Following the decision of this Court in GL & V India Ltd. the substantial question of law in both the appeals are answered in the affirmative i.e. in favour of the Revenue and against the assessee: HC

- Appeals dismissed: BOMBAY HIGH COURT

Marketplace Technologies Pvt Ltd Vs CCGST & CE

CX - The assessee is engaged in development of software - It paid service tax under the head 'Technical Software Services" and "Maintenance or Repairs Services" - Assessee had inter alia purchased certain software on payment of service tax aggregating to Rs.31.77 lakhs as a part of its trading activity - The aforesaid software were admittedly not used as an input but sold as part of its trading activities - Nevertheless, assessee had taken Cenvat Credit being the service tax paid on software purchased from M/s. Redington India Ltd. and M/s. Hewlett Packard India Ltd. for trading - Later on, an audit objection being raised, they paid the entire amount of Cenvat along with interest to the Revenue - However, on 26th September, 2014, a SCN was issued seeking to impose penalty under Section 78 of FA, 1994 r/w Rule 15 (3) of CCR, 2004 - The SCN as well as the orders of authorities under the Act have on facts held that there was suppression of facts on the part of assessee to evade payment of tax - In fact, the Tribunal in the impugned order rejects the assessee's contention that taking of a credit on the software, which was admittedly not used as input was a clerical mistake - This as it noted was not for the first time that such a mistake was claimed by assessee - There were occasions earlier where the assessee has taken Cenvat Credit in respect of software which were admittedly not used as inputs - Thus, this finding of fact rendered by all the three authorities under the Act is not shown to be perverse - On the aforesaid finding of facts, the issuing of SCN and imposition of penalty is justified and in accordance with the clear mandate of the law: HC

- Appeal dismissed: BOMBAY HIGH COURT

Norton Intec Rubbers Pvt Ltd Vs CEGAT

CX - The issue revolves around the order dated 06.11.2001, dismissing the petitioner's appeal for non-compliance of said order made under Section 35-F of Central Excise Act - The petitioner submitted that pending these writ petitions, the Supreme Court in case of M/s.Nebulae Health care Ltd - 2015-TIOL-261-SC-CX had rendered a decision in favour of petitioner herein and as such, the orders impugned in present writ petitions require reconsideration - It is made clear that this Court has not expressed any of its views with regard to applicability of decision rendered by Apex Court to the petitioner's case and that the Tribunal would be in its own liberty to arrive at a conclusion - Matter is remanded back to the first respondent for fresh consideration - The petitioner is at liberty to file an application, raising additional grounds before the first respondent touching upon the subsequent development - On receipt of such representation, the first respondent shall pass appropriate orders on its own merits and in accordance with law: HC

- Writ petitions disposed of: MADRAS HIGH COURT

CUSTOMS

2019-TIOL-991-HC-MAD-CUS

CC Vs Diamond Engineering Chennai Pvt Ltd

Cus - The Revenue is in appeal against the order in - 2013-TIOL-221-CESTAT-MAD - The order passed by Tribunal is remanding the matter for consideration of adjudicating authority to examine the documents on the basis of which amendment is sought and also to ensure as to whether those documents were available at the time of filing of shipping bills or not, and if those documents were available at the time of filing of the shipping bills, then the respondent/importer is entitled for conversion of shipping bills from Advance Licence Scheme to DEPB Scheme - The Revenue has filed this appeal raising the substantial questions of law not touching upon the merits of the matter, but as regards the applicability of Circular No.36/2010 - The Tribunal has relied upon the decision of High Court of Kerala in case of Leo Tex and Amritsr Swadesh Textile Corpn. P. Ltd. - In the light of the same, there is no substantial question of law involved in this appeal - Accordingly, the appeal fails and the same is dismissed: HC

- Appeal dismissed: MADRAS HIGH COURT

2019-TIOL-1272-CESTAT-KOL

HPCL Vs CC

Cus - The assessee is engaged in business of refining of crude oil and marketing various petroleum products thereof - For supply of LPG to domestic customers, they received products from their own refineries - In addition, they also imported certain goods - The dispute is regarding the claim of assessee for benefit of Customs Notifications specifying effective rate of duty for import of LPG - The goods imported by them through Haldia Port were classified under 27111200 as Propane (LPG) and under 27111300 for Butane (LPG) - The goods were cleared on payment of duty and subsequently, refund claims were filed in respect of 15 Bills of Entry filed for goods imported - In refund claims, assessee claimed the benefit of concessional rate of duty/"nil" rate of duty - The lower authorities have rejected the refund claims by taking a view that concessional rate of duty will be applicable only to LPG classifiable under 27111900 - Since the Notification during the period of dispute did not specify other two sub-headings, the refund claims were rejected - W.e.f. 02.05.2005, there is no dispute since all the three subheadings have found place in the Notification - Therefore, the question before this Bench is whether concessional rate of duty can be extended for Propane and Butane by considering them as LPG, even when sub-headings were not listed in the Notification - The Notfn 21/02-Cus, during the period of dispute, has extended the benefit of concessional rate of duty to LPG to specify the sub-heading as 27111900 - A plain and simple reading of entries would lead to conclusion that concessional rate will be applicable to only those LPG falling under sub-heading 27111900 - The goods imported have been described as Propane/Butane (LPG) and the respective sub-headings have been declared in Bills of Entry - The decision of Tribunal in case of AEGIS LOGESTICS LTD. - 2014-TIOL-2994-CESTAT-MUM gives a clear guideline that both Propane & Butane can be considered as form of LPG - But since the Notification has specified only LPG falling under 27111900 for the concessional rate, it leads to conclusion that Propane and Butane imported by assessee will not be entitled to the concessional rate, even if, they are considered as forms of LPG - By strict interpretation of Notfn, assessee cannot be considered as satisfying the parameters of exemption clause in the Notfn - Consequently, the benefit of ambiguity of wordings cannot be extended to assessee - The assessee has argued that the amendment to Notfn carried out through amending Notfn 37/2005-Cus, should be considered as retrospective - The wording of Notfn gives no clue or indication to the effect that substitution of entry is to be retrospectively - The amending Notfn is dated 02.05.2005 and hence the benefit will be applicable only from that date - The assessee will be entitled to the benefit only prospectively w.e.f. 02.05.2005: CESTAT

- Appeal rejected: KOLKATA CESTAT