Rajasthan State Electricity Board Vs DCIT

Whether the provisions of Sec 143(1A) get triggered only when the lesser amount disclosed in the return arises out of a deliberate action to evade tax lawfully - YES: SC

- Assessee's appeal allowed: SUPREME COURT OF INDIA

2020-TIOL-613-HC-MAD-IT

CIT Vs RR Donnelley India Outsources Pvt Ltd

Whether when the order of the Tribunal for remand has already been acted upon, there is no necessity of approaching writ courts for interference - YES: HC

- Case disposed of: MADRAS HIGH COURT

2020-TIOL-612-HC-DEL-IT

CIT Vs Tata Community Initiatives Trust

Whether it is not open to the CIT(E) to categorise the trust under any particular category, for purposes of granting registration u/s 12AA - NO: HC

- Revenue's appeal dismissed: DELHI HIGH COURT

2020-TIOL-371-ITAT-DEL

ACIT Vs Association of State Road Transport Undertakings

Whether Revenue can invoked proviso to Section 2(15) to deny the benefit of sec 11 to society without pin pointing as to which of its activities and receipts are in the nature of trade and commerce - NO : ITAT

- Revenue's appeal dismissed: DELHI ITAT

Advance Enzyme Technologies Ltd Vs ACIT

Whether benefit of weighted deductions claimed u/s 35(2AB) in respect of expenditure incurred for R&D facility recognized by the competent authority can be denied merely for reason that approval of expenditure in prescribed form has not been received - NO : ITAT

- Assessee's appeal allowed: MUMBAI ITAT

Aircel Cellular Ltd Vs DCIT

Whether when issues are not adjudicated upon merits, then such case calls for remand - YES: ITAT

- Case remanded: CHENNAI ITAT

Fom Aluminium Machines Pvt Ltd

GST - Applicant states that they are importers and traders of Aluminium working machinery; that they import machines from their parent company in Italy and market the same in the domestic area; that they have only one office in Peena, Bangalore, India and that they are engaged in sales, service and Admn. Personnel to run business - they seek a ruling as to whether their export of services attract IGST under RCM, whether their services are Intermediary services, whether IGST paid under RCM is eligible to ITC, whether there is a provision in GST returns to show the transactions and that they are not collecting IGST from their customers and the same is absorbed as cost-impact on the transaction value.

Held: In the instant case, the applicant is, undoubtedly, a supplier and hence the question of levy of IGST on export of services, under RCM does not arise; from the Agency agreement, it is evident that the applicant is the sole agent of their parent company for the SAARC area and gets commission for their sale orders and, therefore, the applicant is an agent of the parent company and, hence, the supply of services of the applicant squarely falls under the Intermediary service and the supply in the taxable territory is taxable under forward charge mechanism; IGST paid on clearance of imported goods is available as ITC to the applicant - in the instant case as the applicant is not importing any services and hence payment of IGST under RCM does not arise - other questions are not covered under the purview of s.97(2) of the Act and hence no rulings are given on the same: AAR

- Application disposed of: AAR

2020-TIOL-51-AAR-GST

Karnataka State Electronics Development Corporation Ltd

GST - Street lighting activity under the Energy Performance Contract amounts to composite supply where the principal supply is that of supply of goods - rate of tax applicable is @ 12% in terms of Sl. no. 226 of Schedule II to 1/2017-CTR - as the impugned supply is not a pure service, applicant is not entitled to the benefit of exemption under Entry 3 or 3A of Notification 12/2017-CTR - time of supply is the date of invoice and the consideration is equal to the value of invoice, the GST rate being 12%: AAR

- Application disposed of: AAR

2020-TIOL-50-AAR-GST

Vikram Traders

GST - Applicant has sought advance ruling in respect of 'eligibility to claim ITC on inputs attributable to the renting of immovable property' - Section 17(5)(c) & (d) of CGST Act, 2017 -  Safari Retreats Pvt. Ltd. Orissa High Court [2019-TIOL-1088-HC-ORISSA-GST] - As the issue is pending before the Supreme Court of India, in department appeal SLP no. 26696/2019 [2019-TIOL-489-SC-GST], the matter is sub-juice, hence application filed seeking a ruling on the subject matter cannot be entertained in view of s.97(2) of the Act, 2017 - application rejected in terms of s.98(2) of the Act: AAR 

- Application rejected: AAR

UoI Vs PD Sunny

Miscellaneous - COVID-19 threat - social distancing - High Courts had directed the government agencies and authorities not to take coercive measures or any exercise against any individual or body of individuals which may force them to approach the Courts for legal remedies and also to avoid any public gathering pursuant to any such proceedings like auction etc.; that all recovery proceedings, auction proceedings etc. deferred for a period of two weeks i.e. till 06.04.2020 - Special leave petitions filed by Union of India against these orders of the Allahabad High Court and the Kerala High Court.

Held: Notice issued - In the meantime, there shall be ex-parte ad-interim stay of the impugned judgment and order(s) passed in the aforesaid writ petitions and of further proceedings before the High Court(s), in view of the stand taken by the Government of India that the Government is fully conscious of the prevailing situation and would itself evolve a proper mechanism to assuage concerns and hardships of everyone: Supreme Court

- Ad-interim stay ordered: SUPREME COURT OF INDIA

2020-TIOL-627-HC-KERALA-MISC

PD Sunny Vs Shiram Housing Finance Ltd

Misc - Court has come across many cases involving filing of appeals before statutory authorities and recovery of dues of Income Tax, Kerala VAT, General Sales Tax, recovery of tax on vehicles under the Kerala Motor Vehicles Taxation Act, 1976, recovery of Property Tax under Kerala Building Tax Act, 1975, Municipal/Corporation Tax including notices issued under the provisions of Revenue Recovery Act, 1968 and proceedings u/s 194N of the Income Tax Act - Entire world is facing the threat of CORONA virus named by the World Health Organisation as COVID-19 and pandemic - People are requested to stay away from any potential source of virus and since Kerala has 42 lakhs people over the age of 60 and 5.4 lakhs over 80, with higher population density than the western nations, health crises of unprecedented proportions cannot be ruled out - In all the High Courts, including this High Court, decision has been taken leaving open to the Judges to reduce the number of cases in order to prevent further spread of the aforementioned disease - However, it is found that handling the files by the High Court staff as well as the Advocate General staff is done without proper precautions as they are handled with bare hands instead of using protective measures like gloves etc. - Bench is of the view that this present scenario of outburst of deadly corona virus is very precarious and sensitive as the lawyers and the staff rendering assistance to this Court and the Judges are vulnerable, thus in order to prevent such rampant spread by taking preventive measures, Bench deems it appropriate to issue general directions to the departments concerned like the banks, financial institutions, Income tax authorities, authorities dealing with the erstwhile KVAT, GST, recovery of tax on motor vehicles and building tax to defer the recovery proceedings or coercive measures till 06.04.2020 - It is made clear that this order will not be an impediment for any of such defaulters to avail the Amnesty scheme as and when such scheme is promulgated or in vogue - it is also made clear that the borrowers of the bank, if they want to pay off the dues of the bank, it will be open to them to abide by any of the RBI directives or any other directive which is likely to come into place de hors this order - in matters pertaining to seizure and detention of goods and vehicles under the provisions of section 129 of the GST Act, 2017, many affected parties have been approaching this court challenging the jurisdiction of the adjudicating authority for one reason or another - since the goods are to be released by furnishing bank guarantee including the penalty and interest, if the party so desires, they can always move an application for release of the goods by furnishing bank guarantees which shall not be encashed even if the adjudication proceedings are culminated in such time period specified for filing appeal under section 107 has not lapsed - in such circumstances, the adjudicating authorities are directed not to pass any adverse order till 06.04.2020 - persons having same cause of action need not file writ petitions till the recovery proceedings are kept in abeyance - registry is directed to list all the matters pending in this regard batch-wise post 06.04.2020 - order to be communicated to the concerned departments, including the banks for compliance and implementation - direction is to be also communicated to the CBDT and Customs for implementation and compliance: High Court

- Matter posted: KERALA HIGH COURT

2020-TIOL-486-CESTAT-DEL

GR Construction Vs Commissioner, CGST

ST - During the relevant period, duty demand was raised against the assessee with interest and penalty - On adjudication, the same was confirmed on grounds that the assessee provided construction services to the main contractor and as such, is liable to pay service tax - The assessee claimed that the main contractor had discharged the entire service tax liability on the full amount including the service tax liable to be paid by the assessee as sub-contractor - However, the lower authorities observed that the assessee was unable to establish that the service tax liability was discharged by the main contractor - Hence the present appeal.

Held - Admittedly, prior to declaration of law by the Larger Bench of the Tribunal in favor of the Revenue, there were several judgments laying down that if the main contractor has paid the entire service tax liability in respect of a particular contract, the demand against the sub-contractor would not survive - The Apex Court in such a scenario has held that no mala fide can be attributed to the assessee and the extended period of limitation would not be available to the Revenue - However, the lower authorities have expressed their doubt about the payment of the entire service tax by the principal contractor, which fact requires verification and examination by the lower authorities - Hence for verifying the fact of payment of entire service tax by the main contractor, the matter is remanded to the lower authorities to such end: CESTAT

- Case remanded: DELHI CESTAT

CENTRAL EXCISE

2020-TIOL-487-CESTAT-HYD

Lokesh Machines Ltd Vs CCE

CX - The assessee-company manufactures Crank cases and availed Cenvat credit in respect of duty paid on inputs/capital goods and cleared their finished goods at full rate of duty - During the relevant period, the assessee entered into agreement with M/s Mahindra & Mahindra and the same was assumed by the Revenue to be on job work basis because all raw materials were supplied by M/s M&M - As per the agreement, M/s M & M would give its own Radial Drilling Machine for enabling machining of certain tractor components & that the price of individual components would be finalized after development of tractor components based on machine-hour rate, operation time, overhead, profits to be worked out on the basis of volumes projected by M/s M & M - The Revenue opined that since the goods manufactured by M/s M&M were captively consumed, the assessable value was to be arrived at on costing basis as per Rule 8 of the Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000 read with Rule 10A, as per which costing should include an additional 10% of production cost - SCNs were issued proposing to recover duty in respect of clearances made to M/s M&M for various period, u/s 11A(1) of the CEA 1944, along with interest & penalty - On adjudication, the demands were confirmed - Thus the present appeals.

Held - Perusal of the agreements reveals that there is no scope for treating the assessee as an agent of M/s M&M in any respect and for any purpose whatsoever - It is also clear that M/s M&M had agreed to purchase the components from the assessee and further, it has also an insurance clause requiring insuring of premises as well as the equipment with premia being paid by the assessee - It is not disputed that the assessee in fact discharged the duties before supplying the goods in question to M/s M&M, which is based on the purchase price, as given in the agreements - This shows that the subject goods were manufactured by the assessee at a cost and thereafter cleared on payment of duty - It is not the Revenue's case that the assessee only received job work charges - It also did not establish that the goods manufactured by the assessee were supplied free of cost to M/s M&M - Any amount of supervision per se may not be sufficient to treat the assessee as a job worker - Hence the subject O-i-Os are not sustainable: CESTAT

- Assessee's appeals allowed: HYDERABAD CESTAT

TP - Once very basis for levy of penalty u/s 271AA on basis of non furnishing of records u/s 92E, stands clarified by concluding absence of international transaction, no penalty is leviable: ITAT

TP - Where companies which are not making loss persistently cannot be excluded from final list of comparables merely because they have incurred loss in relevant AY - YES: ITAT

TP - Exclusion of certain comparable companies is sustainable if such companies are functionally dis-similar to assessee-company and if no segmental data is available to bifurcate income & expenses in respect of ITeS & technical services: HC

TIOL CORPLAWS

Partnership Act - Firms with registration certificate of Deputy Commissioner of Industries (Firms & Societies), Delhi are partnership firms which can file suit u/s 80 of CPC against govt company: HC

IBC - If resolution plan with respect to insolvent company has been approved by NCLT then such company cannot be prosecuted for any offence committed prior to commencement of CIRP: HC