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2019-TIOL-NEWS-201 Part 2 | Monday August 26, 2019
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Dear Member,
Sending following links. Warm Regards,
TIOL Content Team
TIOL PRIVATE LIMITED.
For assistance please call us at + 91 850 600 0282 or email us at helpdesk@tiol.in. |
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DIRECT TAX |
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2019-TIOL-382-SC-IT
PR CIT Vs Dlf Hotel Holding Ltd
Having heard the parties, the Supreme Court condoned the delay, however dismisses the SLP, since the tax effect involved in the matter is less than two crores as stipulated in the latest CBDT Circular dated Aug 08, 2019.
- Revenue's SLP dismissed: SUPREME COURT OF INDIA
2019-TIOL-381-SC-IT
PR CIT Vs Motisons Entertainment (India) Pvt Ltd
Having heard the parties, the Supreme Court condoned the delay, however, dismisses the SLP since the tax effect involved in the matter is less than two crores as stipulated in the latest CBDT Circular dated Aug 08, 2019.
Revenue's SLP dismissed: SUPREME COURT OF INDIA
2019-TIOL-1922-HC-MUM-IT
CIT Vs Cleartrip Travel Service Pvt Ltd
On appeal, the High Court holds that the issue raised in the present appeal is covered by the decision of this Court in assesee's own case in CIT v/s. M/s. Cleartrip Pvt. Ltd. and in PCIT v/s. M/s. Hotel Leela Venture Ltd. Hence not entertained and dismissed.
- Revenue's appeal dismissed: BOMBAY HIGH COURT
2019-TIOL-1921-HC-AHM-IT
Rajendra Suganchand Shah Vs ACIT
Whether once the AO has reviewed all the tangible materials furnished by the assessee during the original assessment, subsequently, issuance of notice u/s 148 for reopening of case on same materials is merely a change of opinion and hence not tenable - YES: HC
- Assessee's application allowed: GUJARAT HIGH COURT
2019-TIOL-1920-HC-MP-IT
Ramshree Education Of Technology Samiti Vs PR CIT
On appeal, the High Court holds that the order passed by the Revisional authority does not deal with the issue in right perspective and in consonance with the stipulation u/s 264. Therefore, the order is set aside and the matter is once again relegated to the Revisional authority for the decision afresh.
- Case Remanded: MADHYA PRADESH HIGH COURT
2019-TIOL-1919-HC-MUM-IT
PR CIT Vs Red Chillies Entertainment Pvt Ltd
On appeal, the High Court holds that the issues raised in the present appeal are covered by the decision of this Court in CIT v/s. Dharma Productions (P) Ltd and in assessee's own case does not give rise to any substantial question of law. Therefore, not entertained.
- Revenue's appeal dismissed: BOMBAY HIGH COURT
2019-TIOL-1629-ITAT-DEL
Shantanu Kumar Bose Vs ACIT
Whether to avail the benefit of deduction u/s 54F, even for reinvestment made for renovation of newly acquired residential unit, it is sine qua non that purchase is made within one year prior to the date of transfer of original asset - YES: ITAT
- Assessee's appeal dismissed: DELHI ITAT
2019-TIOL-1628-ITAT-DEL
Vijay Aggarwal Vs DCIT
Whether penalty u/s 271(1)(c) is liable to be imposed where the assessee claims rental income and interest on housing loan, based on incorrect facts - YES: ITAT
Whether an additional ground raised for the first time before the Tribunal itself is liable to be accepted where neither an application to such effect had been moved nor any question of law was brought out - NO: ITAT
- Assessee's appeal dismissed: DELHI ITAT
2019-TIOL-1627-ITAT-DEL
Ma Projects Pvt Ltd Vs DCIT
Whether additions made u/s 68 on account of unexplained share application money received, are sustainable, where the recipient company does not do any significant activities & does not have strong financials so as to receive an abnormally high price for its shares - YES: ITAT
- Assessee's appeal dismissed: DELHI ITAT
2019-TIOL-1619-ITAT-BANG
Kanakara Rajendra Prasad Reddy Vs JCIT
Whether when AO notices default u/s 269T of the Act, he has to comply with time limit laid down in Sec.275(1)( c) of the Act for levying penalty - YES : ITAT
Whether date of initiation of proceedings u/s 271E of the Act is the date on which the proposal to levy penalty is conveyed by the AO to the officer who is competent to impose penalty - NO : ITAT
- Assessee's appeal allowed: BANGALORE ITAT
2019-TIOL-1618-ITAT-AHM
Yogesh K Shah Vs DCIT
Whether impostion of penalty u/s 158BFA(2) is to be sustained if the assessee fails to disclose actual return of income for the block period - YES: ITAT
- Assessee's appeal dismissed: AHMEDABAD ITAT
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MISC CASES |
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2019-TIOL-1932-HC-PATNA-VAT
Cadbury India Ltd Vs State of Bihar
Whether without rectifying the defect in the quarterly returns by way of filing a revise return within the stipulated period, the assessee-dealer cannot be permitted for grant of Form-F for the respective quarters even though omissions are declared in annual return - YES: HC
- Assessee's writ petition dismissed: PARTNA HIGH COURT
2019-TIOL-1918-HC-MAD-VAT
Shir Varalakshmi Company Vs State Of Tamil Nadu
On appeal, the High Court holds that the present writ petition falls clearly within the four walls of Ramco Cements Ltd. matter as well as the order of another Single Judge in Southern Cotspinners Coimbatore Pvt. Ltd. Hence, following these decisions, the present writ petition is allowed.
- Assessee's appeal allowed: MADRAS HIGH COURT
2019-TIOL-1917-HC-MUM-VAT
Insta Exhibitions Pvt Ltd Vs State Of Maharashtra
Whether order passed by the Department without granting documents necessary to prove assessee's claim, amounts to violation of the principles of natural justice and hence calls for re-adjudication - YES: HC
- Case Remanded: BOMBAY HIGH COURT |
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GST CASES |
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HIGH COURT CASES
2019-TIOL-1937-HC-AHM-GST
Super Powder Coating Anodizing And Trading Vs UoI
GST - The petitioner is a dealer registered under the CGST Act 2017 - During the relevant period, it purchased Aluminum section classifiable under Heading 7604 of TGST Tariff - While the goods were in transit, the vehicle was intercepted - The driver of the vehicle was unable to furnish the e-way bill - Hence the vehicle was detained along with the goods - SCN was issued u/s 129(3) of the Act, raising duty demand - Immediately upon the seizure of the vehicle and the goods, SCN was issued proposing confiscation of the goods and imposing penalty u/s 130 of the Act - Hence the present writ was filed.
Held - Identical petitions were filed before this court, claiming that penalty could not have been imposed straightaway, without conduct proper enquiry - All such petitions have been heard & judgment was reserved - This petition too would finally be disposed off in terms of the judgment that may be delivered by this court - Nonetheless, the present circumstances warrant passing of interim orders for releasing the vehicles and the goods as well - Hence, the petitioner is directed to furnish bank guarantee of a certain amount, whereupon the authority concerned shall release the goods and the vehicle - The authority concerned is also directed to not proceed with the SCN issued for confiscation of the vehicles and the goods: HC
- Writ petition disposed of: GUJARAT HIGH COURT
2019-TIOL-1936-HC-MUM-GST
Sterlite Technologies Ltd Vs UoI
GST - The present petition was filed to challenge the non-disposal of the petitioner's application for amendment of registration under the CGST Act - It had filed such an application as per Rule 9 of the CGST Rules in November 2017, but the same had not been acted upon yet.
Held - The petitioner is directed to serve a copy of the order to the authorities concerned, informing that the petition is fixed for hearing on September 05, 2019 - Should the respondent remain unpresented on such date, the matter would be disposed of after hearing the petitioner: HC
- Case deferred: HIGH COURT OF BOMBAY AAR CASES
2019-TIOL-261-AAR-GST
Macro Media Digital Lmaging Pvt Ltd
GST - Applicant is engaged in the business of printing of trade advertisement material using printing ink and base material and the content of which is provided by the recipient - applicant seeks to know the classification of the Trade advertisement material.
Held: Applicant being a printer of trade advertising material classifiable under heading 4911 of the Tariff Act is making a composite supply, where the service of printing is the principal supply - goods supplied having no use other than displaying the printed matter is ancillary to the principal supply of printing - service of printing is classifiable under SAC 9989 and taxable under Sl. No. 27(i) of 11/2017-CTR: AAR
- Application disposed of: AAR
2019-TIOL-260-AAR-GST
Siemens Ltd
GST - Applicant received Rs. 16.33 crores on 24.06.2011 as mobilisation advance which was 10% of the original contract value for design, supply, installation, testing and commissioning of the power supply and distribution system, third rail system and SCADA system for the entire line and depot of the Kolkata East-West Metro Rail Project - the lump-sum mobilisation amount so received is recoverable as adjustment towards the payment due for the tax invoices that the applicant raises on attaining contract progress milestones - of the total lump-sum, an amount of Rs.13.80 crores is stated to be outstanding as on 30.06.2017 and applicant wishes to know the GST implication on the lump-sum so received before the implementation of GST and its recovery by KMRCL against the applicant's sales invoices issued post introduction of GST - more specifically, the applicant wants to know whether GST shall be charged on the gross amount of the invoice or the net amount after adjusting the Lum-sum amount outstanding as on 30.06.2017.
Held: Since the question touches upon the issue of time and value of supply, questions raised are admissible u/s 97(2)(c) of the Act - Applicant is deemed to have supplied Works Contract Service to KMRCL on 01.07.2017 to the extent covered by the lump-sum amount that stood credited to its account on that date as mobilisation advance and GST is leviable thereon accordingly - Value of the supply of Works Contract service in the subsequent invoices as and when raised should, therefore, be reduced to the extent of the advance adjusted in such invoices - GST should, therefore, be charged on the net amount that remains after such adjustment: AAR
- Application disposed of: AAR
2019-TIOL-259-AAR-GST
TP Roy Chowdhury And Company Pvt Ltd
GST - Applicant is stated to be acting as a Stevedore and handles imported raw whole yellow peas and seeks a ruling as to whether such imported yellow peas are 'agricultural produce' and services by way of handling of the same is eligible for exemption under Sl. N o. 54(e) of 12/2017-CTR.
Held: Applicant supplies the service of loading, unloading etc. after the cargo of yellow peas imported from a foreign land, reaches the port of entry - produce has been procured from the farmers in foreign land and exported to India - CBIC Circular 16/16/2017 clarifies that the process of de-husking or selling of pulses is usually not carried out by farmers or at the farm level but by the pulse millers and, therefore, such products are not to be considered as 'agricultural produce' - the emphasis, therefore, is on the processes and services that are applied till the goods are at the farmer's hand - as soon as they leave the farmer's hand and the primary market, the services rendered thereafter are not to be considered related to cultivation of plant and classifiable under SAC 9986 - clearly, it is, whether processed in a mill is no longer in the domain of the primary market or at the farmer's hand - exemption under Sl. N o. 54(e) of 12/2017-CTR is not available to applicant's services: AAR
- Application disposed of: AAR
2019-TIOL-258-AAR-GST
Novel Engineering And Technical Works Pvt Ltd
GST - West Bengal Power Development Corporation Ltd. has awarded to Purba Medinipur Zilla Parishad the work of evacuation and disposal of settled ash from the ash ponds/decantation ponds of Kolaghat Thermal Power Station - PMZP is in the process of engaging agencies for execution of the aforesaid work which the applicant intends to execute - Applicant seeks to know the classification of the supply and whether it is exempt under Sl. no. 3 or 3A of 12/2017-CTR and whether it has any liability to pay GST when WBPDCL is paying tax on reverse charge basis in terms of Sl. no. 5 of 13/2017-CTR.
Held: Execution of above work is an activity in relation to the functions entrusted to a Panchayat under Article 243G of the Constitution - Supply of goods, if any, is incidental to the main supply and does not constitute any significant percentage - Applicant's supply is a composite supply classifiable under SAC 995433 and is exempt under Sl. no. 3A of 12/2017-CTR: AAR
- Application disposed of: AAR |
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INDIRECT TAX |
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SERVICE TAX
2019-TIOL-2416-CESTAT-DEL GN Buildev Pvt Ltd Vs CCE
ST - The assessee was engaged in construction activity and was registered with Service Tax Department for providing the services of Commercial or Industrial Construction as well as of Construction of Residential Complex Service - They were filing ST-3 returns periodically for taxable services rendered under said categories - The dispute covers the period 2006-07 to 2010-11 - During audit, it was noticed that the assessee was discharging Service Tax liability under categories registered, after availing the benefit of exemption under Notfn 1/06-ST - The Sl. No.7 of the Notfn provided for abatement of 67% of gross amount received and the assessee remitted tax on the balance 33% - The assessee has admittedly provided construction services - After perusal of some of the contracts whose copies were submitted by assessee, the adjudicating authority himself has recorded the conclusion that the services provided by assessee will be classifiable under category of Works Contract Service w.e.f. 01.06.2007 - In view of decision of Apex Court in case of L & T 2015-TIOL-187-SC-ST, the demand of service tax for the period prior to 01.06.2007 is set aside - The Department appears to have taken the view that the activities are more appropriately classifiable under category of Works Contract Service, only during the course of audit of the records - There is no ground for alleging suppression - Further, the assessment of services in which the contracts are composite in nature came to be finally settled only by Supreme Court in case of L & T - The adjudicating authority obviously did not have the benefit of decision of Apex Court while passing the order in year 2013 - As such, the demand on the ground of time bar for the period beyond the normal time limit is set aside - As regards to claim of assessee that they will be entitled to benefit of Works Contract Service (Composition Scheme), after classification of activities of assessee under the WCS - The reason cited by adjudicating authority for not allowing the Composition Scheme is that the assessee has failed to fulfil the requirement of Rule 3 of Composition Rules - Rule 3 ibid specifies that the service provider is required to opt for payment of service tax under the Composition Rules by exercising such option in respect of a works contract prior to payment of service tax in respect of the said contract and the option so exercised shall be applicable for the entire works contract and shall not be withdrawn until the completion of the said works contract - For the demand of Service Tax falling within the normal time limit, the services, already classified by adjudicating authority under WCS, will be entitled to the benefit of Composition Scheme - The demand is to be re-calculated with cum-tax benefit and the assessee will be entitled to the consequential benefit: CESTAT
- Appeal disposed of: DELHI CESTAT
2019-TIOL-2415-CESTAT-ALL
Gulam Rasool Ansari Vs CCE & ST
ST - Demand of service tax stand raised against the assessee on the ground that they have paid to foreign commission agents and have not discharged the service tax on reverse charge basis - The Commissioner (A) in impugned order has observed that the assessee themselves termed such outward remittances as agents commission - Apart from making a bald statement that the said remittances were on account of lower quality of carpets exported by them, they have not produced any evidence to that effect and as such, their plea cannot be accepted - Assessee has not been able to bring any documentary evidence on record to show that such outward remittances were on account of claim made by foreign buyers on account of substandard quality - On being questioned as to whether there is any correspondence between the buyer and the seller and any claim made by foreign customers, assessee fairly agrees that there is no such documentary evidence either in the shape of papers or in the shape of electronic evidence - No infirmity found in the impugned order passed by Authority below: CESTAT
- Appeals rejected: ALLAHABAD CESTAT
CENTRAL EXCISE
2019-TIOL-383-SC-CX
Mdp Infra (India) Pvt Ltd Vs CC, CE & CGST
CX - The assessee-company is registered and paid service tax under Works Contract Service - During the relevant period, the assessee paid service tax with interest on several works contracts - Prior to 1.4.2015, the assessee availed exemptions for civil works related to State & Union Govt establishments used for administrative purposes - The exemption was availed under Notfn No 12/2012 and 25/2012 - As the Notfn dated 20.06.2012 was withdrawn from 01.04.2015, the exemption available on the assessee's nature of work was not available - Hence the assessee paid interest for the relevant period - The exemption was later restored vide Notfn No 9/2016-ST for the services provided under a contract which has been entered into prior to 01.03.2015 and whereon appropriate stamp duty, where applicable, has been paid prior to that date - The exemption was restored till 31.03.2020 - The assessee sought refund as per section 173S of the CEA 1944 - The Revenue issued SCN proposing to reject such refund claim - The assessee filed reply to SCN - Subsequently, an O-i-O was passed rejecting the refund claim on grounds of being time barred u/s 11B - Such findings in the O-i-O rejecting the refund claim were sustained by the Commr.(A) as well as by the Tribunal - Later, the High Court too dismissed the assessee's appeals, by first rejecting the assessee's submissions of having paid the duty under a misconception - It also held that the assessee was aware of the eligibility for exemption and knowingly paid duty and interest - Hence there was no dispute which was found to have impeded the assessee from claiming the refund within limitation period - Hence the present appeal by the assessee.
Held - Delay is condoned - Matter be tagged with SLP(C) No. 25251/2018 - Notice issued: SC
- Notice issued: SUPREME COURT OF INDIA
2019-TIOL-2414-CESTAT-ALL
Gupta Engineers And Contractors Vs CCE & ST
CX - The assessee was providing construction services to M/s Bhopal Development Authority and M/s Greater Noida Development Authority - Revenue views that the services provided by assessee would be properly classifiable under 'Works Contract Services' - During adjudication, assessee accepted that their services would be classifiable under works contract but claimed benefit of Notfn 30/2012-ST - The Lower Authority denied the benefit of notification in question on the ground that Bhopal Development Authority and also Greater Noida Development Authority cannot be considered to be body corporates - The Appellate Authority is not disputing the fact that Bhopal Development Authority as also Greater Noida Development Authority are Body Corporate - However, he is further observing that they have not been established Body Corporate under Clause (7) of Section 2 of Companies Act, which is requirement of the notification in question - Admittedly, the two service recipient are body corporate as held in two decisions and it is also not the revenue's case that they have been specifically excluded from definition by Central Government, by way of issuance of notification - No reasons found to uphold the impugned orders - However, the facts is as to whether the assessee has paid 50% of the duty or not, is required to be checked by the Original Adjudicating Authority to whom the matter is being remanded: CESTAT
- Appeals disposed of: ALLAHABAD CESTAT
2019-TIOL-2413-CESTAT-MUM
Balkrishna Industries Ltd Vs CCE & ST
CX - Assessee is a tyre manufacturing Company having export turnover of more than 90 % of its product - The CENVAT credit was denied on certain heads and ultimately Commissioner (A) confirmed such denial in respect of Air Travel Agent Service, Modernisation, Repair and Renovation of factory premises, Event Management and Hotel bills - Appeal memo contains the written submissions of assessee made before Commissioner (A) wherein the assessee had placed detail of all documents including the invoice details of M/s Advent Engineering Pvt. Ltd. and the nature of work is also stated that there to be documentation and drawing charges and those were not considered by lower authorities - This being the facts on record, with the consent and concurrence of department this appeal is remanded back for re-adjudication on the basis of documents produced/to be produced before the adjudicating authority where assessee has to establish the nexus between the input and output services since the observation of Commissioner (A) on Air travel that requirement of foreign trip was not justified for which credit was denied is unacceptable in as much as denial of credit on purchase of drawing and designing for renovation work is also not in conformity to the definition in CCR, 2004 - Therefore, the order passed by Commissioner (A) is not sustainable - The appeal is allowed by way of remand to the original adjudicating authority: CESTAT
- Matter remanded: MUMBAI CESTAT
CUSTOMS
NOTIFICATION
dgft19pn027 Amendment in Para 6.34(14) of Chapter 6 of Handbook of Procedure 2015-20 CASE LAWS
2019-TIOL-384-SC-CUS
Adma Agro India Pvt Ltd Vs UoI
Cus - The petitioner-company challenged the vires of Notfn No 32/2015-2020 dated August 30, 2018 issued by the Central Government restricting the import of peas classified under Exim Code 0713 10 00 (including Yellow peas, Green peas, Dun peas and Kaspa peas) till September 30, 2018 as well as notification dated 28th December, 2018 restricting such imports from 1st January, 2019 to March 31, 2019 - Later, the High Court observed that import of yellow peas in the interregnus period when notfn of withdrawal of ban on import was issued on 29.08.2018 till 30.08.2018 when the restriction on import was again imposed - The Court opined that the withdrawal of the notification in compliance with the order of the Madras High Court could not be termed as a promise held out by the Govt that the import of peas would henceforth be free - The notification was found to have clearly stated as to why it had been issued - Hence the court opined that the matter fell within the realm of policy making and it was not for the court to substitute its opinion in place of the wisdom of the policy makers - The policy was found to be applicable to all importers alike & there was nothing arbitrary or capricious about a policy made in public interest - The Court observed that the authorities concerned had taken due care as per Para 1.05 of the HBP - Hence it held that the Notfn in challenge suffered from no legal infirmity so as to warrant interference - The Court also rejected the petitioner's contention that it had entered into a contract on the date when the restrictions had been removed and that it was entitled to import such goods - It was clarified that the relevant date for import purposes was that date of import as described in the notfn and the date on which the petitioner entered into contract was irrelevant - Hence the writ petitions were dismissed with such observed - Thus, the present SLP.
Held - Notice be issued, returnable in two week's time: SC
- Notice issued: SUPREME COURT OF INDIA
2019-TIOL-1934-HC-DEL-CUS
Gunjan Sharma Vs CC
Cus - It is the case of assessee that despite there being no material to connect the assessee with the consignment containing offending goods, he was served a SCN, proposing penalty under Section 114AA and 117 of Customs Act, 1962 and later, the respondent imposed a penalty of Rs. 30,00,000/- upon them under Section 114AA and 117 of Customs Act, 1962 - A Customs House Agent's duty is that of a mere agent rather than as a Revenue officer who is empowered to investigate and enquire into the veracity of documents - As to whether in reality, such an exporter in a given case exists can hardly be the subject matter of "due diligence" expected of a Customs House Agent unless there are factors which ought to have alerted him/her to make a further inquiry - In the absence of any indication that the Customs House Agent concerned was complicit in the facts of a particular case, it cannot ordinarily be held liable - In view of statement given by assessee under Section 108 of Customs Act, which has not been retracted till date, this Court is of the view that assessee has admitted his lapse in not verifying essential facts - The end of justice would be met if a penalty equivalent to the duty involved is imposed upon the assessee, that is Rs.1,77,401/-: HC
- Appeal disposed of: DELHI HIGH COURT
2019-TIOL-2412-CESTAT-MAD
Arulmigu Meivazhi Ponnaranga Devalayam Vs CCE & ST
Gold Act - These two appeals have been filed by appellants contesting the Order of Commissioner under erstwhile Gold (Control) Act, 1968 - In view of judgement in case of Sushila N. Rungta (D) 2018-TIOL-399-SC-MISC, the current proceedings which were initiated prior to the repeal of the Gold (Control) Act, in matters pertaining to the period prior to 1990, no longer survive - Hence, both the appeals are allowed and the impugned orders are set aside: CESTAT
- Appeals allowed: CHENNAI CESTAT |
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HIGH LIGHTS (SISTER PORTAL) |
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