PR CIT Vs Rehab Housing Pvt Ltd

On appeal, the High Court dismisess the Revenue's appeals considering that the issue at hand stands settled in several judgments, such as Commissioner of Income Tax II vs. Continental Warehousing Corporation (Nhava Sheva) Ltd., Commissioner of Income Tax vs. Anil Kumar Bhatia and Commissioner of Income Tax (Central), Nagpur vs. Murli Agro Products Ltd.

- Revenue's appeals dismissed: BOMBAY HIGH COURT

2019-TIOL-2772-HC-MUM-IT

PR CIT Vs Reliance Communications Infrastructure Ltd

Whether TDS u/s 194H is required to be deducted in respect of transactions between two parties on principal to principal basis, considering that the payment made is not for commission or brokerage - NO: HC

Whether disallowance u/s 14A merits being sustained where the assessee did not earn any exempt income during the relevant period - NO: HC

- Revenue's appeal dismissed: BOMBAY HIGH COURT

2019-TIOL-2441-ITAT-AHM

Parshwanath Corporation Vs DCIT

Whether power u/s 263 can be exercised by the CIT on claim of deduction u/s 80IB(10) if AO has made proper inquiry during assessment and assessee has made disclosures in tax audit report about projects and corresponding deduction claimed - NO : ITAT

- Assessee's appeal allowed: AHMEDABAD ITAT

2019-TIOL-2440-ITAT-DEL

DCIT Vs Great Eastern Energy Corporation Ltd

Whether payment of annual listing fees is admissible business deductible expenditure - YES : ITAT

- Revenue's appeal dismissed: DELHI ITAT

2019-TIOL-2439-ITAT-CHD

Parkash Kaur Vs ACIT

Whether in absence of contrary being proved by the Revenue and following order passed by Tribunal on identical issue in some case, penalty is restricted upto tax amount sought to be evaded in respect of difference of amount received from share profits and amount declared in revised return - YES : ITAT

- Assessee's appeal partly allowed: CHANDIGARH ITAT

2019-TIOL-2438-ITAT-AHM

Goyal And Company Construction Pvt Ltd Vs DCIT

Whether late deposit of employees contribution to Provident fund and ESIC after due date as specified under relevant Act but before due date of filing income tax return can be allowed - NO: ITAT

- Assessee's appeal partly allowed: AHMEDABAD ITAT

Manekia Networks LLP Vs UoI

GST - Challenge is the inability of the Petitioners to correct / revise human errors made while filing monthly returns i.e. GSTR-1, GSTR-2A and GSTR-3B electronically filed, so also the inability to correct the mistakes in its annual returns in the form of GSTR-9C under the CGST, 2017 and the MGST, 2017 – Petitioners seek a direction to the Respondents to allow them to carry out the necessary amendments in their monthly and annual returns – At the hearing, the petitioner restricts his grievance to the Respondent No.5 - Commissioner of Goods Service Tax and Central Excise, Mumbai Central not disposing of the Petitioner's representation dated 8 July 2019 – Thus, the petitioner only seeks a direction to Respondent No.5 to dispose the same in accordance with law, after hearing the Petitioner.

Held: Revenue counsel, on instructions, states that if the Petitioners file a copy of representation dated 8 July 2019 within a period of three days, then the same will be disposed of after following the principles of natural justice, on or before 24 December 2019 – Petitions are, therefore, disposed of with a direction to Respondent No.5 to dispose of the representation dated 8 July 2019 in above terms: High Court [para 4]

- Petitions disposed of: BOMBAY HIGH COURT

2019-TIOL-2776-HC-KAR-ST

Mallikarjun Lingappa Pujari Vs ACCE & ST

ST - An order was passed by the adjudicating authority determining the service tax of Rs.4,05,258/- with penalty of Rs.1,000/- under Section 77 and Rs.4,05,258/- under Section 78 of the Finance Act, 1994 with interest - The said service tax of Rs.4,05,258/- was ordered to be appropriated from an amount of Rs.5,44,510/- deposited by the assessee - The said order was challenged by the assessee before the Commissioner (A) in the matter of penalty levied under Sections 77 and 78 of the Act, 1994 - The Appellate Authority confirmed the penalty of Rs.1,000/- levied under Section 77 of the Act, 1994 and set aside the penalty imposed under Section 78 of the said Act by order dated 03.03.2010 - refund of excess amount was claimed on 12.08.2010 but the same was rejected on the ground of being time barred since date of original deposit was 06.09.2007 - appeal to CESTAT.

Held: Actual liability would be determined subsequent to the order of the Appellate Authority - On the liability created towards the penalty, the amount in balance deposited by the assessee would have been appropriated/adjusted - No question of refund would have arisen if no appeal was preferred by the assessee though relating to the penalty aspect - Actual liability is crystallized subsequent to the order passed by the Appellate Authority - The doctrine of merger being applicable to the case on hand to determine the actual liability and to raise the demand, the relevant date in terms of Section 11B(1) of the Act would be 03.03.2010, the date of passing of the order by the Appellate Authority - Therefore refund claimed on 12.08.2010 is not time barred - View of the respondent-revenue in denying the refund claimed by the appellant is unjustifiable and hit by Article 265 of the Constitution of India - excess amount deposited by the assessee appellant to be refunded in an expedite manner: High Court [para 12, 13]

- Appeal allowed: KARNATAKA HIGH COURT

2019-TIOL-3508-CESTAT-MUM

Salim Travels Vs Commissioner of CGST

ST - The assessee-company provides Rent a cab service - During the relevant period, the assessee did not file ST-3 returns & did not pay tax within the stipulated time frame - SCN was issued, followed by an O-i-O raising duty demand with interest - An amount of duty deposited before issue of SCN was appropriated - Penalties u/s 77 & 78 of the Finance Act were imposed - On appeal, the Commr.(A) quashed the penalty imposed u/s 77 while reducing the quantum of penalty imposed u/s 78 - Hence the present appeal by the assessee.

Held - As a registered assessee, the assessee was under statutory obligation to discharge the service tax liability & to file periodic ST-3 returns - The assessee admittedly did not comply - Three letters were addressed to the assessee in this respect, but they elicited no response - It is also seen that in some cases, the assessee collected service tax from recipients but did not deposit the same with the Government - Benefit of Section 73(3) is not available since no evidence backs the assessee's bona fide conduct regarding non-payment of service tax - The Commr.(A) recorded specific findings for reducing quantum of penalty imposed u/s 78 - Hence such a detailed & well-reasoned order warrants no interference with: CESTAT

- Assessee's appeal dismissed: MUMBAI CESTAT

Plansee India High Performance Materials Pvt Ltd Vs CCT

ST - The assessee is manufacturer of tungsten and molybdenum wires and was availing the credit of service tax paid on inputs and input service - It was seen that during the period 09/2013 to 12/2014, assessee had availed the credit of duty/service tax paid on various items which would not fit in definition under Rule 2(e) of Cenvat Credit Rules - The total amount taken as credit and alleged as irregular by department was Rs. 2,92,104/- - Notice was issued demanding reversal of such irregular credit availed - The repair service of car which is used to ferry the employees inside the factory and also used for material for work-in-progress is eligible as the same is indirectly related to manufacture - Similarly the repair of MD car is also in connection with the manufacture of final product and is eligible - Further, with regard to other services viz. photography for ground breaking function, hiring charges and cleaning and debris removal fall in definition of 'input service as the same is directly or indirectly related to manufacture of final product and thereby fall in definition of 'input service' - As far as rent-a-cab service is concerned, assessee did not press for the same being small amount - Except rent-a-cab on which the assessee has not pressed for cenvat credit, other services fall in the definition of 'input service' and the assessee is entitled to cenvat credit of the same - Accordingly, the appeal is partly allowed and cenvat credit on repair of vehicles and other services relating to photography, hiring charges of various items and cleaning and debris removal is allowed: CESTAT

- Appeal partly allowed: BANGALORE CESTAT

CENTRAL EXCISE

2019-TIOL-3506-CESTAT-BANG

Venkateshwara Power Projects Ltd Vs CCT & CE

CX - The assessee is engaged in manufacture of Sugar and Molasses and are availing cenvat credit on various inputs, input services and capital goods - During scrutiny of returns, it was noticed that the assessee has wrongly availed cenvat credit on service tax paid towards outward freight - On these allegations, a SCN was issued to assessee for demanding cenvat credit along with interest and imposition of penalty - From the very beginning, the stand of assessee is that the service tax paid pertains to the period from April 2007 to March 2008 but they have availed the credit in the month of November 2008 - This fact has been shown in ST-3 returns for the period September 2008 to March 2009 and the challans under which the service tax was paid also mention the period to which the said service tax pertains to - Besides this, assessee has also filed Chartered Accountant certificate to prove that the cenvat credit pertains to GTA relates to period April 2007 to March 2008 and prior to April 2008, the cenvat credit on GTA paid upto the buyer's premise was permissible as per the decision of Apex Court in case of Vasavdatta Cements Ltd. - 2018-TIOL-90-SC-CX - The assessee has also relied upon the decisions in case of The Andhra Sugars Ltd. - 2018-TIOL-45-SC-CX , Wipro Ltd. - 2018-TIOL-2795-CESTAT-BANG and IOCL wherein also it has been held that cenvat credit on outward transportation service availed for delivering the goods upto the customer's premise is admissible upto 31.03.2008 - As the assessee has proved by way of documentary evidence and the certificate of Chartered Accountant that the cenvat credit of service tax paid on GTA pertains to the period April 2007 to March 2008, therefore, the assessee is entitled to take cenvat credit of the same and there is no irregularity in availing cenvat credit - Therefore, by following the ratio of the decisions cited, the impugned order is not sustainable in law: CESTAT

- Appeal allowed: BANGALORE CESTAT

Nashik Metal Pvt Ltd Vs CCE & C

CX - Clandestine removal - Silence on the part of the first appellate authority in countering the claim of retraction made by the appellants before him is not an appropriate response - The veracity of the various documents submitted by the appellant, as well as the claim of the statements having been retracted, can be decided only at the level of the appropriate authority - justice must be done by appropriate test of ascertainment of the submissions made by the appellants herein and this can be carried out only at the level of original authority – Matter remanded to the original authority: CESTAT [para 8]

- Matter remanded: MUMBAI CESTAT

Vitthalsai Ssk Ltd Vs CCE & ST

CX - The assessee entered into an agreement with Maharashtra State Cooperative Bank, through which it took over the closed Sugar unit of another entity for a period of two years - Such agreement was subsequently renewed for further period for 6 years, but was subsequently terminated by the bank - The cenvat credit for the same could not be utilized by the assessee - It then sought refund of the same which was granted by the Asst Commr. relying on the decision in the case Union of India Vs. Slovak India Trading Co. (P) Ltd. - Thereafter, such refund granted was disallowed by the Commr.(A) relying on the decision in Phoenix Industries Pvt. Ltd. Vs. CCEX, Raigad - Hence the present appeal by the assessee.

Held - In view of the findings of the High Court of Mumbai wherein it was held that the order of the Apex Court in Slovak India Trading Co. (P) Ltd. cannot be read as a declaration of law since SLP was dismissed, leaving the question of law open and the same has been answered by holding that refund is impermissible u/s 11B and Section 11B(2) where Cenvat credit could not be utilized due to closure of manufacturing activities - Hence the assessee's appeals have no merit: CESTAT

- Assessee's appeals dismissed: MUMBAI CESTAT

CUSTOMS

2019-TIOL-2777-HC-DEL-CUS

Sumat Pershad And Sons Vs CC

Cus - Commissioner vide the impugned order rejected the petitioner's claims to innocence and held that, in connivance with Sharafat Hussain and Vinod Kumar Pathror, the petitioner had succeeded in effecting imports of paper without paying appropriate duty thereon - Customs duty demand confirmed of Rs.5,40,11,525/- and penalties imposed along with confiscation of imported goods - Writ Petition filed against this order.

Held: Bench is of the firm view that there is no such fatal flaw, in the impugned Order-in-Original, as would justify its premature decapitation, at its hands, without requiring the petitioner to avail, in the first instance, the appellate remedy provided by the statute - Bench is, therefore, of the view that, as an efficacious alternate remedy is provided, to the petitioner, under Section 129B of the Act, by way of appeal to the Tribunal, and, therefore, any interference, with the impugned Order-in-Original, would, in the facts and circumstances of the present case, be unjustified - Without, therefore, expressing any opinion on merits, on any of the contentions advanced in this writ petition, Bench declines to interfere with the impugned Order-in-Original and, accordingly, dismisses the present writ petition in limine: High Court [para 36 to 38]

- Petition dismissed: DELHI HIGH COURT

2019-TIOL-3511-CESTAT-MUM

Vallabh Wool Industries Vs CC

Cus - Alert Circular dated 03.11.2008 was issued by Central Intelligence Unit (CIU) of JNCH that some importers including appellant were suspected to have been importing undervalued and mis-declared fabrics/yarn - During such investigation, it was found that appellant-importer had previously cleared several consignments of similar nature imported from China and due to such Alert Circular had stopped the practice - Detail investigation was carried out, show-cause notice was issued to the appellant, matter was adjudicated upon and confiscation order under Section 111(f) with option for redemption on payment of redemption fine of Rs. 10,00,000/- in terms of Section 125 of the Customs Act, 1962 with penalty of Rs. 5,00,000/- was imposed under Section 112(a) of the Customs Act, 1962 – as this order was unsuccessfully challenged, appellant is before CESTAT - Appellant submitted that owing to mis-declaration made by the exporter, appellant had neither released the import documents from the bank upon payment nor filed bills of entry for release of goods but penalty has been imposed on it prematurely since cause of action would have arisen after filing the bills of entry for clearance of goods.

Held: No material evidence on record has been placed by the respondent-department that would substantiate involvement of the appellant firm in the alleged transaction except that of the reply of the appellant regarding his source of acquirement of knowledge of discrepancy in the item supplied to the appellant firm – Suspicion, however, strong cannot take the place of proof to establish guilt of the appellant - penalty imposed on the appellant is unsustainable and the same is required to be set aside - Since appellant had not placed any claim over the imported goods, no finding is required to be given on the confiscation order and its redemption upon payment of fine since the same is not under challenge in the forum by the claimants - appeal is partly allowed to the extent of setting aside the penalty of Rs. 5,00,000/- imposed: CESTAT [para 5, 6, 7]

- Appeal partly allowed : MUMBAI CESTAT