2019-TIOL-NEWS-302, Dated: Tuesday, December 24, 2019

2019-TIOL-NEWS-302 | Tuesday December 24, 2019

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DIRECT TAX


	2019-TIOL-2921-HC-MUM-IT Rajan R Sippy Vs CIT Whether if the writ petition challenging the dismissal of revision application filed u/s 264 has been dismissed on merits, remedy of review cannot be utilized calling upon the High Court to exercise its appellate jurisdiction to re-hear the issues already argued - YES: HC - Assessee's review petition dismissed: BOMBAY HIGH COURT 2019-TIOL-2920-HC-AHM-IT Max Vigil Security Pvt Ltd Vs DCIT Whether if the Tribunal has merely applied an established precedent to the facts of the case & upheld the assessment order, just for that reason the remedy of appeal on the question of law does not lie before the High Court - YES: HC - Assessee's appeal dimissed: GUJARAT HIGH COURT 2019-TIOL-2919-HC-AHM-IT Rajesh Lalitkumar Soni Vs ITO Having heard the parties, the High Court considered the submissions of the assessee and issued serive of notice upon the Revenue. The Court also stayed the proceedings initiated pursuant to notice u/s 148. - Notice issued: GUJARAT HIGH COURT 2019-TIOL-2518-ITAT-DEL Anita Miglani Vs ITO Whether without giving reasons for adopting the figure of sale consideration by invoking section 50C, the LTCG exemption allowable u/s 54F cannot be denied - YES: ITAT - Assessee's appeal allowed: DELHI ITAT

MISC CASE


	2019-TIOL-545-SC-MISC-LB University Of Delhi Vs UoI Whether consideration for condonation of delay would depend on the status of the parties to litigation - NO: SC Whether 'sufficient cause' must be indicated to justify delay, which will depend on the backdrop of each case and will have to be weighed carefully based on the fact situation - YES: SC Whether 'claim of public interest' will sheild the casual approach & laches taken by the Applicant government body while seeking condonation of delay in filing of appeal - NO: SC - In favour of Respondent :SUPREME COURT OF INDIA 2019-TIOL-2922-HC-MAD-CT State Of Tamil Nadu Vs Romar Fashions Whether in absence of perversity in the findings, the remedy of revision is not available from the penalty decision of the final fact finding authority constituted under the TNGST Act - YES: HC Whether penalty u/s 12(5)(iii) of the TNGST Act is imposable if transactions relating to sale of REP licenses are not recorded in the books of accounts owing to confusion as to whether or not such sale attracts sales tax - NO: HC - Revenue's revision petition dismissed: MADRAS HIGH COURT

GST CASE

2019-TIOL-2935-HC-KERALA-GST

Larsen And Toubro Ltd Vs UoI

GST - The petitioner is an assessee under the Kerala VAT Act, who migrated to the GST regime upon enactment of the CGST Act - Pursuant to migration, the petitioner was entitled to carry forward tax paid on purchase of goods during the VAT regime to the GST regime and avail credit under the latter - As per procedure for transfer of credit, the petitioner filed declaration in Form GST TRAN-1 on or before 27.12.2017 for successfully migrating the credit to the GST regime - The present petition was filed on account of the petitioner's grievance in being unable to upload the necessary details on to the web portal of the GSTN, on account of technical glitches in the system - The petitioner met with the authorities concerned but did not get any relief, with the authorities holding that the petitioner did not comply with the procedural requirements before the cut-off date prescribed - Hence the petitioner could not carry forward the credit that accrued to him under the erstwhile regime into the GST regime.

Held - It is not in dispute that the petitioner did attempt to upload the necessary details in the system and it is also not disputed, based on perusal of system log, that the petitioner did attempt to log into the system - That the petitioner was unable to establish that the inability to upload the required details or revise the same on account of a system error, cannot be reason for denying the substantive benefit of carrying forward the credit earned under the erstwhile regime - Considering the point of law laid down by the High Courts in Blue Bird Pure Pvt.Ltd. V. Union of India and Others and Jay Bee Industries Vs. Union of India and Others and considering that the petitioner attempted to log into the system on or before 27.12.2017, the communications denying the transfer of accrued credit, merit being set aside - The authorities concerned are directed to facilitate revision of Form GST TRAN-1 electronically or manually on or before 31.12.2019 - While the authorities shall attempt to facilitate the revision of the TRAN-1 Forms electronically by making the necessary arrangements in the web portal an insistence on manual filing shall be only in circumstances where the electronic filing is not possible - In any case, the authorities are at liberty to verify the genuineness of the claim of the petitioner and the claim shall not be denied only on the ground that the same was not filed before 27.12.2017: HC

- Writ petition disposed of : KERALA HIGH COURT

2019-TIOL-2934-HC-KERALA-GST

Kalpaka Distributors Pvt Ltd Vs UoI

- Writ petition disposed of : KERALA HIGH COURT

INDIRECT TAX

SERVICE TAX

2019-TIOL-3625-CESTAT-ALL

Vadera Interiors And Exteriors Vs CCE

ST - The assessee was registered with department under category of Commercial or Industrial Construction and Works Contract Services and was discharging its service tax liability accordingly - During audit of records for the period 2009-2010, audit took a view that said activities were liable to tax under works contract services - Correspondence was exchanged between assessee and department in December, 2010 when query was raised by department which was immediately replied - Nothing happened thereafter for almost 4 years when the department vide summon dated 08.05.2014 called for certain information and later a SCN was issued invoking extended period demanding service tax on services under works contract - The Commissioner bifurcated the period of demand in two parts i.e. prior and post 01.07.2012 i.e. after introduction of negative list vide notfn 25/2012 - He dropped the demand of service tax in respect of construction of school building for the period prior and after 01.07.2012 by treating the same to be non-commercial activity - He also dropped the demand of service tax on short terms loan - The Commissioner classified services in respect of sewerage treatment plant under erection commissioning and installation - The demand stands confirmed under a category different than the one proposed in SCN - In the absence of any proposal in notice to confirm the demand under the category of erection commissioning and installation services, it was not open to the Revenue to go beyond the SCN - This was so held by Tribunal in case of Gambhir Construction Company, which stands followed in the case of M/s. Sonu Construction - As such, no reasons found to uphold the impugned demand - Apart from above, the demand stands raised by invoking the longer period of limitation - As per facts on record, after the audit objection, a lot of correspondence was exchanged between the assessee and the Revenue in the month of December, 2010 - In such a scenario raising of demand in September, 2014 by invoking the longer period of limitation cannot be held to be proper and justifiable - Accordingly, the demand to be barred by limitation also - The impugned order is set aside and appeal is allowed on merits as also on limitation: CESTAT

- Appeal allowed: ALLAHABAD CESTAT

2019-TIOL-3624-CESTAT-HYD

Varun Motors Vs CCT & C

ST - The assessee is a proprietary concern who sell motor cycles of bajaj group and also maintain them in their workshop - As they undertake the activity of maintenance and repairs of vehicles they obtained service tax registration and have been paying service tax on this service - They also avail the benefit of CENVAT credit under CCR, 2004 - A SCN was issued to assessee seeking to deny them CENVAT credit taken during the period 2009-10 to 2012-13 on health and life insurance policies of their workers - Prior to 01.04.2011, there was no specific exclusion of any service from the definition of "input service" - It is a settled legal position that during that period any service which was used in the course of business qualified as "input service" for that business - On this ground alone, the impugned order needs to be set aside - Even otherwise, they are also covered by Employees State Insurance Act and therefore the Commissioner (A) has erred in holding that they are not so covered by ESI Rules - The impugned order is set aside: CESTAT

- Appeal allowed: HYDERABAD CESTAT

CENTRAL EXCISE

2019-TIOL-2925-HC-MAD-CX

Jai Hind Wire Rod Mills Ltd Vs CCE

CX - The writ petition has been filed to direct the respondent to finalise the assessment of petitioner - Industrial Unit as directed by Supreme Court in its decision in Supreme Steels and General Mills with consequential relief of refund of Rs.48,46,471.00 with interest at 18% per annum - The respondents may pass appropriate order in terms of the ratio of Supreme Court within a period of 3 months from the receipt of this order and finalize the pending proceedings in accordance with law - Accordingly, the Writ Petition stands disposed of: HC

- Writ Petition disposed of: MADRAS HIGH COURT

2019-TIOL-3623-CESTAT-BANG

Dalmia Laminators Ltd Vs CCT

CX - CENVAT - Rule 2(l) of CCR, 2004 - Service Tax paid on outward freight, whether Input Service - Apex Court in the case of Ultratech - 2018-TIOL-42-SC-CX has held that after the amendment in the definition of 'up to the place of removal' in the year 2008, the place of removal will always be factory gate and the assessee is not entitled to cenvat credit on GTA up to the buyer's premises - after the decision of the Apex Court, various Benches of the Tribunal have remanded the case back to the original authority on the basis of the Board Circular No. 1065/4/2018-CX dated 08/06/2018 - as the matter needs to be remanded to the original authority to verify certain factual aspects such as whether the sale is on FOR basis, whether the freight is integral part of the sale price, whether the duty paid on the value inclusive of freight amount etc., matter is remanded: CESTAT [para 6]

- Matter remanded: BANGALORE CESTAT

CUSTOMS

2019-TIOL-2924-HC-DEL-CUS

MD Overseas Ltd Vs UoI

Cus - The disputes in the five writ petitions revolved around Notfns 24/2015-2020 and 25/2015-2020 issued by DGFT and Public Notice 20/2001-2020 and the applicability of said Notfns and Public Notice to the gold coins imported by petitioner - On the ground that the import of gold coins by them had not been effected in accordance with the aforesaid Notfns 24/2015-2020 and 25/2015-2020 , SCNs were issued to petitioners proposing confiscation of gold coins and imposition of penalty - Vide the judgment under review, court quashed the impugned Notfns - The Notfns and Public Notice 20/2015-2020 would not apply to the coins imported by various petitioners, as the said gold coins had left the Republic of Korea on 25th August, 2017 - Under the impression that the SCN, proposing confiscation of gold coins and imposing of penalty, issued on 8th September, 2017, had been challenged only by the petitioner in Jindal Dyechem Industries (P) Ltd. the said SCN is set aside - It was also observed that as the other two petitioners, namely, the present review petitioner M/s. M.D. Overseas Ltd. and M/s. Kundan Care Products Ltd., had not impugned the SCNs issued to them, court was not in a position to quash the SCN in their cases - The confusion appears to have arisen owing to challenging by the petitioner of Notfns and Public Notice and the SCN issued in terms of the said notfns and Public Notice, vide the present writ petition - It was owing to this duplication of proceedings that this Court, under the impression that the SCN was not challenged, expressed its inability to quash the same - As it happens, however, the SCN issued to the petitioner has, in fact, been challenged by petitioner, in which the Review Petition has been filed - As such to maintain parity with the relief granted to M/s. Mink Tradecom Pvt. Ltd., it would be apposite that the SCN issued to the petitioner be also quashed - The SCN issued to the petitioner is quashed and set aside: HC

- Review petition allowed: DELHI HIGH COURT

2019-TIOL-2923-HC-DEL-CUS

Kundan Care Products Ltd Vs UoI

Cus - The disputes in the five writ petitions revolved around Notfns 24/2015-2020 and 25/2015-2020 issued by DGFT and Public Notice 20/2001-2020 and the applicability of said Notfns and Public Notice to the gold coins imported by petitioner - On the ground that the import of gold coins by them had not been effected in accordance with the aforesaid Notfns 24/2015-2020 and 25/2015-2020 , SCNs were issued to petitioners proposing confiscation of gold coins and imposition of penalty - Vide the judgment under review, court quashed the impugned Notfns - The Notfns and Public Notice 20/2015-2020 would not apply to the coins imported by various petitioners, as the said gold coins had left the Republic of Korea on 25th August, 2017 - Under the impression that the SCN, proposing confiscation of gold coins and imposing of penalty, issued on 8th September, 2017, had been challenged only by the petitioner in Jindal Dyechem Industries (P) Ltd. the said SCN is set aside - It was also observed that as the other two petitioners, namely, the present review petitioner M/s. Kundan Care Products Ltd. and M/s. M.D. Overseas Ltd. had not impugned the SCNs issued to them, court was not in a position to quash the SCN in their cases - The confusion appears to have arisen owing to challenging by the petitioner of Notfns and Public Notice and the SCN issued in terms of the said notfns and Public Notice, vide the present writ petition - It was owing to this duplication of proceedings that this Court, under the impression that the SCN was not challenged, expressed its inability to quash the same - As it happens, however, the SCN issued to the petitioner has, in fact, been challenged by petitioner, in which the Review Petition has been filed - As such to maintain parity with the relief granted to M/s. Mink Tradecom Pvt. Ltd., it would be apposite that the SCN issued to the petitioner be also quashed - The SCN issued to the petitioner is quashed and set aside: HC

- Review petition allowed: DELHI HIGH COURT

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