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2019-TIOL-NEWS-110 Part 2 | Friday May 10, 2019
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Dear Member,
Sending following links. Warm Regards,
TIOL Content Team
TIOL PRIVATE LIMITED.
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TIOL TUBE VIDEO |
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DIRECT TAX |
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NOTIFICATION
it19not_nc_001
CBDT extends tenure of 14 persons in National Committee for Promotion of Social & Economic Welfare CASE LAWS
2019-TIOL-207-SC-IT
PR CIT Vs Texraj Reality Pvt Ltd
Having heard the parties, the Supreme Court condoned the delay and dismisses the SLP, thus concurring with the opinion of High Court on the issue of 'undisclosed income ascertained on basis of statement recorded u/s 133A.
- Revenue's SLP dismissed: SUPREME COURT OF INDIA
2019-TIOL-924-ITAT-AMRITSAR
Late Om Parkash Gupta Vs ITO
Whether to claim deduction u/s 54, all the ingredients of same should be satisfied as being owner of the subject property, having constructed the same would not entitle to claim deduction - YES: ITAT
- Assessee's appeal dismissed : AMRITSAR ITAT
2019-TIOL-923-ITAT-BANG
DCIT Vs Murugarajendra Oil Industry Pvt Ltd
Whether transport operators are outside the purview of Section 194C - YES : ITAT
- Revenue's appeal dismissed : BANGALORE ITAT
2019-TIOL-922-ITAT-MUM
DCIT Vs DNH Spinners Pvt Ltd
Whether addition for unexplained credit is warranted if the assessee has discharged its onus by providing all the basic documentary evidences before the AO who has made addition by merely relying on the statements recorded during survey - NO : ITAT
- Revenue's appeal dismissed : MUMBAI ITAT
2019-TIOL-921-ITAT-MUM
ACIT Vs Keyur Hemant Shah
Whether period of holding of property should be calculated from the date of allotment of property as person acquires a specific right in a property from that date - YES: ITAT
Whether agreement of sale with builder is mere improvement in existing rights to acquire a specific property and can not be date for calculation of period of holing to compute capital gains - YES : ITAT
- Revenue's appeal dismissed : MUMBAI ITAT
2019-TIOL-920-ITAT-MUM
Nandlal Tolani Charitable Trust Vs ITO
Whether standard deduction on rental income can be allowed while computing income of a trust/institution claiming exemption u/s 11 - NO : ITAT
- Assessee's appeal dismissed : MUMBAI ITAT | |
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GST CASE |
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2019-TIOL-31-NAA-GST
Kerala State Screening Committee On Anti-profiteering Vs Vtwo Ventures
GST - Anti-Profiteering - It is alleged that the respondent had profiteered on the supply of ‘luggage trolley bag/suitcases' viz. Weekender & Neolite as the benefit of reduction in the rate of GST w.e.f 15.11.2017 had not been passed on to the recipients - DGAP, in its investigation, reported that the respondent had actually increased the base price of the products ‘Tropic 45 Weekender Black' and ‘Neolite Strolly' when GST rate on the said products was reduced from 28% to 18% and which implied that the commensurate benefit of rate reduction had not been passed on to the recipients - report further mentions that the amount so profiteered in respect of supplies of the products during the period 15.11.2017 to 31.08.2018 works out to Rs.18,887/- - respondent submitted that in the period after 01.07.2017 when the rate of tax was increased to 28% (@18% in the pre-GST era) they had not increased the prices of the products and had absorbed the additional cost arising on account of implementation of GST; that upon reduction in the GST rate to 18% they had only corrected the excessive tax burden which was borne by them and thus the question of passing on the benefit of tax rate change to the recipients did not arise.
Held: It is evident from the records and the DGAP report that the respondent had increased the base prices despite the reduction in the rate of GST from 28% to 18% - Respondent has acted in contravention of the provisions of section 171 of the CGST Act, 2017 inasmuch as he did not pass on the benefit of reduction in the rate of tax to his recipients by way of commensurate reduction in the prices - respondent is, therefore, directed to deposit the profiteered amount of Rs.18,887/ as computed by the DGAP along with interest calculated @18% from the date when the above amount was collected from the recipients till the date the amount is deposited - since recipients are not identifiable, the amount is required to be deposited in the Central Consumer Welfare Fund and the Kerala State CWF in the ratio of 50:50 along with 18% interest - amount to be deposited within three months failing which the same shall be recovered by the Commissioner CGST/SGST as per the provisions of the Act, 2017 - since the respondent has deliberately and consciously acted, in contravention of the provisions of the CGST Act, 2017, by issuing incorrect tax invoices which is an offence u/s 122(1)(i) of the Act, they are liable for imposition of penalty - SCN to be issued - since the respondent has claimed that they had followed the pricing structure of the manufacturing company and that his distributor's margin has not increased and hence he had not derived any additional benefit consequent upon reduction in tax rate from 28% to 18%, the DGAP is directed to investigate the aspect of profiteering by the manufacturer: NAA
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Application allowed
: NAA |
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MISC CASE |
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INDIRECT TAX |
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SERVICE TAX
2019-TIOL-1336-CESTAT-HYD
Oil India Ltd Vs CCT
ST - The assessee company is engaged in exploration of mineral oil and natural gas - During the relevant period, the assessee availed the services of one M/s BJ Services in respect of drilling exploratory wells - M/s BJ paid the appropriate service tax amount - However, the assessee also paid service tax on the same service, under reverse charge mechanism - Upon realising the same, the assessee filed refund claim u/s 11B - The Revenue issued SCN proposing to deny refund on grounds that it was claimed one year from date of payment of service tax - On adjudication, the denial of refund claim was sustained on grounds of time bar - On appeal, such findings were upheld by the Commr.(A) - Hence the present appeal.
Held - The refund application was clearly filed beyond the one-year limitation period - The refund jurisdiction of the Central Excise and Service Tax officers emanates from Sections 12E & 11B of the CEA 1944 and Section 83 of the Finance Act 1994 - The Commr.(A) draws from Section 35 of the CEA 1944 the authority to decide upon appeals or take such decisions - The officers lack jurisdiction to decide matters falling beyond the scope of law - In such cases, the appropriate remedy is to file a civil suit u/s 72 of the Indian Contracts Act 1872 & the officers here lack the jurisdiction to decide upon such suits - Where the contractor already paid service tax & the assessee also pays the same despite not being liable to do so, such payment representing service tax is beyond the scope of the Finance Act 1994 - Hence the limitation provisions or those pertaining to jurisdiction of officers to sanction refund claims, will not apply in such case - Hence the orders in challenge are upheld as a refund claim u/s 11B of CEA 1944 r/w Section 83 of the Finance Act, 1994 is not maintainable for any amount paid beyond the scope of the Finance Act, 1994 itself: CESTAT -
Assessee's appeal dismissed
: HYDERABAD CESTAT
ST - Manpower Recruitment or Supply Agency services - Appellant having already paid the service tax with interest, are not contesting the demand of service tax - reasons stated by the appellant in seeking waiver of penalty that as per advice of their service recipient they were under bonafide belief that the services are not taxable, does not appear to be satisfactory - ingredients for invoking the extended period as well as for imposing penalty under Section 78 are same - as extended period was invoked on the ground of suppression of facts, therefore, as per sub-Section (4) of Section 73, the benefit of Section 73(3) is not available to the appellant - penalty rightly imposed u/s 78 of FA, 1994 - impugned order is upheld and appeal is dismissed: CESTAT [para 4]
- Appeal dismissed : AHMEDABAD CESTAT
CENTRAL EXCISE
ORDER
F.No. 267/58/2019-CX.8
Extension of time limit for filing of Monthly Return for production and removal of goods and other relevant particulars and CENVAT credit specified in Form ER-1 and specified in ER-2 CASE LAWS
CX - Valuation - Section 4 of the CEA, 1944 - Dispute in the appeals is with reference to the clearances of goods manufactured in BSNL Telecom Factories and cleared to various BSNL Telecom Circles - Since no sale is involved, this dispute was decided by the Tribunal in the case of BSNL's earlier case in the year 2007 - 2007-TIOL-2402-CESTAT-KOL by taking the view that there is no requirement to add notional profit of 10%/15% and that the valuation may be decided under Rule 11 by adopting 'Challaning Rate' - accordingly, it appears that the valuations during the disputed period in this case, are also to be done on the basis of Challaning Rate - The adjudicating authority has pointed out that Challaning Rate, which is required to be adopted, should be on the basis of the value of material in the year in question and not on the basis of the earlier year' s raw materials - Tribunal finds that this view is fair - Appellant has no serious objection to adopting this view, but they have only requested that in many cases, when value is re-determined, on an all-over basis, excess duty stands paid and this payment in excess may be allowed to be adjusted towards short payment in many other cases - Tribunal finds that such request is also fair and equitable - matter remanded to the adjudicating authority for the purpose of re-calculation of the demand after allowing adjustment towards the excise duty excess paid and if any differential duty is to be paid by BSNL, the same may be recovered from BSNL - in the facts and circumstances of the case, no reason for imposition of any penalty on BSNL - appeals allowed by way of remand: CESTAT [para 8 to 11]
- Matter remanded : KOLKATA CESTAT
Balaji Urjanix Pvt Ltd Vs CCE & ST
CX - CENVAT credit availed on defective goods returned by the customer in terms of rule 16 of CER - Pursuant to audit objection, appellant reversed CENVAT credit - later, they filed a request letter seeking re-credit on the ground that they were not liable to reverse the same - since no response was received, they availed credit suo moto and which has been denied by the lower authorities - appeal to CESTAT.
Held: In the facts and circumstances, it is not the assessee but the officers are guilty in misguiding the assessee without giving any reason how the credit taken by the appellant is wrong - it is clear case of harassment to the assessee by the departmental officer - As regards suo moto re-credit, appellant was legally entitled for the Cenvat credit under Rule 16 for which no permission is required, even the suo moto re-credit is also is with reference to Rule 16 and since under Rule 16 no permission was required there was no need for waiting of formal permission from the department - impugned order set aside and appeal allowed: CESTAT [para 4.1, 5]
- Appeal allowed : AHMEDABAD CESTAT
CUSTOMS
Cus - The assessee has imported unpolished marble slabs without license as required under EXIM Policy framed under FTDR Act, 1992 - Therefore, the goods in question were liable to confiscation under Section 111 of Customs Act - The importer has done acts of omission or commission with respect to such imports are liable under Section 112 of Customs Act, 1962 - No force found in the arguments of assessee that they have placed orders for polished marble only and have received unpolished marble slabs because of an error by their supplier - From the documents placed, this is not evidenced - The documents are silent as to whether they placed an order for polished marble or otherwise - Until the Customs opened the container and examined, it was never discovered that they actually imported unpolished marble - An ex post facto undated letter from their supplier does not, in any way, alter the confiscability of goods which have been imported - If it is held to the contrary the entire system of restrictions on imports in country become meaningless - Anybody can import any prohibited good and simply produce an e-mail or a letter from their overseas supplier saying that prohibited goods were sent to them by mistake - Holding such a view would defeat all the legal provisions of country under various enactments with respect to restrictions on imports - Therefore, the goods in question are liable for confiscation under Section 111 of Customs Act - Redemption fine imposed by adjudicating authority was already reduced by first appellate authority which is a fair amount of redemption fine and no reason found to interfere with it - In so far as penalty under Section 112(a) is concerned, the penalties imposed on importer firm also need to be upheld - As far as personal penalty is concerned, same is set aside - As far as penalty on CHA, M/s Nanda International is concerned, Section 112 is not the provision under which penalty can be imposed for violations of CHA licensing regulations - Therefore, the penalty on CHA is unsustainable - The confiscation of goods and the redemption fine imposed on the importer are upheld - The penalty imposed on the importer is upheld: CESTAT
- Appeal partly allowed : HYDERABAD CESTAT
Cus - The matter at hand relates to short landing of goods - The Revenue's counsel claimed that as per the mandate of Section 129A of the Customs Act, 1962, any appeals involving such issue are not maintainable before the Tribunal.
Held: Considering the provisions laid down in Proviso (b) to Section 129A of the Customs Act, it is seen that the present appeals are not maintainable before the Tribunal - Hence they must be dismissed, albeit with the appellant being given the liberty to approach the appropriate forum: CESTAT
- Assessee's appeal dismissed : CHANDIGARH CESTAT
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