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2020-TIOL-NEWS-075 | Monday March 30, 2020 |
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Dear Member,
Sending following links. Warm Regards,
TIOL Content Team
TIOL PRIVATE LIMITED.
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DIRECT TAX |
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2020-TIOL-686-HC-MAD-IT
R Saroja Devi Vs ITO
Whether 374-days' delay in filing appeal is condonable where the appellant furnishes sufficient reasons to explain the same & which are not controverted by the Revenue - YES: HC
- Assessee's appeals allowed: MADRAS HIGH COURT
2020-TIOL-687-HC-KOL-IT
Sanjay Jhunjhunwala Vs UoI
Whether authorities should refrain from taking any coercive step in pursuance of the assessment order, in case of the prevailing situation of the pandemic COVID-19 - YES: HC
- Case deferred: CALCUTTA HIGH COURT
2020-TIOL-685-HC-MAD-IT
Polaris Financial Technology Ltd Vs ACIT
Whether re-assessment after four years from date of assesment is sustainable, if there are reasonable grounds to infer that there was under-assessment during the original assessment proceedings - YES : HC
Whether therefore, the AO gets special jurisdiction to such effect, if there exist some prima facie grounds that there was non disclosure of material facts by assessee - YES : HC
- Assessee Writ Petition Dismissed: MADRAS HIGH COURT
2020-TIOL-684-HC-MAD-IT
Manishkumar B Jain Vs ITO
In writ, the High Court permits two weeks' time to the assessee to submit the necessary objections to the notice of enhancement, whereupon the authority concerned would consider the same and pass order after due application of mind.
Assessee's writ petition disposed of: MADRAS HIGH COURT
2020-TIOL-683-HC-DEL-IT
Hawkins Cookers Ltd Vs UoI
Whether grant of approval u/s 35(2AB) cannot be denied on hyper technical ground of non-submission of physical Form 3CK on time, when online portal itself was not working - YES: HC
- Assessee's petition allowed: DELHI HIGH COURT
2020-TIOL-398-ITAT-DEL
Nimbus India Ltd Vs DCIT
Whether where the nature & source of the share capital received with premium is fully explained by the assessee, the onus to prove the identity, creditworthiness and genuineness of the share applicants gets discharged & thus no addition u/s 68 is sustainable - YES: ITAT
- Assessee's appeal partly allowed: DELHI ITAT
2020-TIOL-397-ITAT-DEL
Satya Kumar Sakhuja Vs ITO
Whether post approval granted by the CIT u/s 151 & post recording of reasons of reopening after the issue of notice u/s 148 makes the whole re-assessment proceedings illegal - YES: ITAT
- Assessee's appeal allowed: DELHI ITAT
2020-TIOL-396-ITAT-ALL
Shakuntala Kushwaha Vs ITO
Whether once transporters have shown freight & cartage charges paid to them in their income-tax returns, no further demand can be created against the payer u/s 201 - YES: ITAT
-Assessee's appeal allowed: ALLAHABAD ITAT
2020-TIOL-395-ITAT-AHM
Shree Rama Multi Tech Ltd Vs ACIT
Whether non-maintenance of the stock register, variation in gross profit and non-furnishing of certain vouchers or its explanation or non confirmation of sundry creditors cannot become the ground for rejecting the account books u/s 145(3) - YES: ITAT
Whether without pointing out any specific defect in the books of account, the AO cannot reject the account books u/s 145(3) - YES: ITAT
- Assessee's appeal allowed: AHMEDABAD ITAT
2020-TIOL-394-ITAT-MAD
AK Natarajan Vs ACIT
Whether interest expenses incurred on borrowings and claimed as revenue expenditure u/s 36(1)(iii) can be allowed as assessee is engaged in real estate business and is constructing flats for purpose of sale/renting - YES : ITAT
- Assessee's appeal allowed: CHENNAI ITAT
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GST CASES |
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2020-TIOL-694-HC-AHM-GST
Badal Shambhubhai Shah Vs Directorate General Of GST
GST - Short question that arises for consideration is whether after the expiry of period of one year from the date of passing of the provisional attachment order, under Section 83 of the Central Goods and Service Tax Act, 2017 , the attachment over the bank account of the petitioner can continue? - Assistant Solicitor General appearing for the respondent Nos.1, 2 and 3, in the peculiar facts of the case, submitted that the petitioner was arrested and on condition of deposit of Rs.50 Lakhs, bail was granted to the petitioner by the trial Court; that petitioner has challenged such condition of granting bail before this Court for modification and Criminal Misc. Application No.3070 of 2019 is pending; that keeping in mind the interest of Revenue, appropriate order may be passed.
Held: Provision of Sub-section (2) of Section 83 of the Act, 2017 is very clear in this regard - No attachment over the bank account can continue after the period of one year from the date of passing of the order under Section 83 of the Act, 2017, unless such order is renewed or fresh order is passed by the authority - In view of the consensus arrived at between the parties, the respondent Nos.3 and 4-Banks are directed to lift the attachment over the accounts of the petitioner, placed by the respondent No.1, by virtue of order dated 10.01.2019 passed under Section 83 of the Act, 2017 - The petitioner shall handover original receipt of Fixed Deposit of Rs.50 Lakhs to be issued in his name to the respondent subject to outcome of Criminal Misc. Application No.3070 of 2019 - Petition disposed of: High Court [para 4, 9]
- Petition disposed of: GUJARAT HIGH COURT
2020-TIOL-693-HC-AHM-GST
Darsh Pharmachem Pvt Ltd Vs SUPERINTENDENT CGST
GST - Writ applicant tried to upload Form TRAN-1 for the purpose of claiming the ITC credit on-line - However on account of the technical glitches, the TRAN-1 was not accepted by the GST common portal - petition filed seeking directions to the respondent.
Held: Having heard the parties and having gone through the materials on record, Bench is of the view that the writ-applicant is entitled to seek the benefit of the Order No.01/2020-GST issued by the Government of India, Ministry of Finance dated 7th February 2020 - Bench directs direct the respondent No.2 to permit the writ-applicant to file form in TRAN-1 - exercise to be undertaken and completed within two weeks - petition disposed of: High Court [para 7 to 9]
- Petition disposed of: GUJARAT HIGH COURT
2020-TIOL-692-HC-AHM-GST
Dharma Lubes Pvt Ltd Vs State Of Gujarat
GST - Writ applicant availed the benefit of the interim-order passed by this Court and got the vehicle, along with the goods released on payment of the tax amount and the proceedings, as on date, are at the stage of show cause notice, u/s 129 of the CGST Act and which proceedings shall go ahead in accordance with law - It shall be open for the writ applicant to point out the pronouncement of this Court in the case of Synergy Fertichem Pvt. - 2019-TIOL-546-HC-AHM-GST and in particular rely on the observations made by this Court in paragraph Nos.99 to 104 of the said judgment - It is now for the applicant to make good his case that the show cause notice, issued in GSTMOV- 6, deserves to be discharged – Petition disposed of: High Court [para 5 to 7]
- Petition disposed of: GUJARAT HIGH COURT
2020-TIOL-691-HC-AHM-GST
Gokul Agro Resources Ltd Vs UoI
GST - Court vide judgement and order passed in the case of Mohit Minerals Pvt Ltd = 2020-TIOL-164-HC-AHM-GST declared the Entry No.10 of the Notification No.10/2017 -Integrated Tax (Rate) dated 28th June 2017 as ultra vires Section 5(3) of the Integrated Goods and Services Tax Act, 2017 as well as Article 14 of the Constitution of India - applicant submits that they had deposited a particular amount of IGST and as the Notification has been struck down, they are entitled to refund of the said amount of IGST - Applicant seeks a writ from the High Court to the authority for the purpose of refund.
Held: Since the Notification has been struck down as ultra vires , as a consequence of the same, the writ applicant seeks refund of the amount paid towards the IGST - However, for this purpose, the writ applicant will have to prefer an appropriate application addressed to the competent authority - If any such application is preferred for the refund of the amount, the authority concerned shall immediately look into the same and pass an appropriate order in accordance with law keeping in mind the decision of this Court rendered in the case of Mohit Minerals (supra) - The competent authority shall not raise any technical issue with regard to the claim for refund of the IGST amount - exercise is to be undertaken within a period of four weeks - application stands disposed of: High Court [para 6, 7]
- Application disposed of: GUJARAT HIGH COURT
2020-TIOL-690-HC-AHM-GST
Kanal Enterprise Vs State Of Gujarat
GST - Writ applicant pointed out that by virtue of the ad-interim relief granted, the attachment of the Bank account came to be lifted, however, the attachment over the goods continued to operate by virtue of the impugned order passed under Section 83 of the Act - The short point falling for consideration by the Bench is whether the impugned order of attachment of property under Section 83 of the Act could have been passed on the ground of proceedings instituted under Section 71(1) of the Act.
Held: A plain reading of Section 83 of the Act would indicate that the powers can be invoked during the pendency of proceedings under Sections 62, 63, 64, 67, 73 and 74 of the Act - There is no power vested in the authorities to invoke the provisions of Section 83 during the pendency of the proceedings instituted under Section 71(1) of the Act - In fact, there cannot be any proceedings, which could be instituted under Section 71 of the Act inasmuch as Section 71 of the Act talks about access to the business premises - In such circumstances, the impugned order of attachment under Section 83 of the Act is hereby quashed and set aside - Application stands disposed of: High Court [para 5 to 7]
- Application disposed of: GUJARAT HIGH COURT
2020-TIOL-689-HC-KERALA-GST
Paxal Chemical Industry Pvt Ltd Vs Assistant State Tax Officer
GST - Writ Petition is directed against the action initiated by the respondents detaining the consignments covered by invoices - vehicle was intercepted and it was found that the documents tendered by the driver of the transportation of the consignments from Gujarat to Kollam were defective, resulting into detention order - Petitioner submits the same to be a human error as E-Way bill reflected entry of Kollam - Counsel for respondent submitted that opening line of the Sec.129 of the Goods and Services Tax Act states that in case of any violation, goods are liable to be detained.
Held: Bench is of the view that the court would not be an appropriate authority to adjudicate the controversy to either of the human error or intentional or willful; that it would be the domain of the adjudicating authority - For the time being, the goods detained can be released, subject to the compliance of conditions referred to in Sec.129(1) of the Act and Rule 43 of 2017 - In case the petitioner furnishes the bank guarantee along with other charges, as per the provisions of Sec.129, on deposit of the requisite Bank Guarantee, the goods and the vehicle detained are ordered to be released; subject to the outcome of the controversy by adjudicating authority - It is made clear that the respondents will not en-cash the bank guarantee till the controversy involved is adjudicated by the concerned authority - Petition disposed of: High Court [para 5]
- Petition disposed of: KERALA HIGH COURT | |
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MISC CASE |
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INDIRECT TAX |
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SERVICE TAX
2020-TIOL-676-HC-DEL-ST
Kultar Exports Vs CCE
ST - Notification No.41/2007-ST dated 6.10.2007 as amended - Did the CESTAT fell into error in holding that the Appellant was not entitled to refund on account of bar of limitation in the facts and circumstances of the case?
Held: It is trite, that while interpreting exemption notifications, such notifications have to be interpreted, stricto sensu - the Supreme Court in the case of Saraswati Sugar Mills - 2011-TIOL-73-SC-CX has affirmed this principle - therefore, the clause 2(e) of the Notification No.41/2007-ST must be applied strictly, and the Appellant cannot selectively seek relief of the said notification - the CESTAT has passed a laconic, well-reasoned and thorough order upholding the order of the Commissioner (Appeals), which merits absolutely no interference by this Court - therefore, the question of law raised in this appeal is answered against the Appellant and in favour of the Respondent and this appeal is hereby dismissed: HIGH COURT [para 17, 18, 19, 20]
- Appeal dismissed: DELHI HIGH COURT
CENTRAL EXCISE
2020-TIOL-517-CESTAT-KOL
Ballavpur Paper Manufacturing Ltd Vs CCGST CE
CX - Rule 2(l) of CCR, 2004 - Service Tax paid on Container Cleaning and Washing of Unloaded Containers, Pest Control services, Port/logistics Services and Porter & Coolie charges are Input Services - Credit admissible - services used after clearing final products, credit of tax paid is inadmissible - Appeal partly allowed: CESTAT
- Appeal partly allowed: KOLKATA CESTAT
CUSTOMS
2020-TIOL-677-HC-MAD-CUS
3F Industries Ltd Vs ACC
Cus - The petitioner imported RBD Palmolein (edible grade) and filed two ex-bond bills of entry on 3.8.2001 and 4.8.2001 for clearance of the product for home consumption - a new rate of duty was prescribed on 3.8.2001, as per Notification No.36 of 2001, published in the Gazette on 6.8.2001 - the Customs Department re-assessed the ex-bond bills of entry on the basis that the revised rate would be applicable to the imports, whereas, the petitioner contended that the original rate would be applicable as revision of duty will, according to it, come into effect only from date of publication of such revision, being 6.8.2001 - however, the differential duty amounting to a sum of Rs.1.09 crore had been remitted by the petitioner under protest in September 2001 on various dates - on challenge, the issue was decided in favour of the petitioner on 4.6.2015 in W.P.No.15635/01 - refund of the duty remitted was claimed by the petitioner on 3.2.2016 - though the refund was sanctioned, the same was credited to the Consumer Welfare Fund on the ground of unjust enrichment - the sole basis appears to have been that the amount claimed as refund was not charged to the profit and loss account but retained in 'receivables' account - on remand by Tribunal, the Assessing Officer, vide impugned order, rejected the claim of the petitioner.
Held: The Authority [Assessing Officer] has not addressed the matter in proper perspective - he first refers to the order of CESTAT as 'an opinion' that he then, 'takes into consideration for deciding the issue on hand' - he then states at para 24 that 'the decision of the CESTAT is neither supported by any statutory provision nor by any case law' - these statements are unacceptable and unbecoming of an Assessing Authority, who is to give effect to the order of the superior Authority and not stand in judgment over the same - in fact, the order of the CESTAT has, admittedly, been accepted by the Department - the observations of the Full Bench of the Supreme Court in Kamlakshi Finance Corporation - 2002-TIOL-484-SC-CX-LB regarding judicial discipline would be applicable on all focus in the present case - the Assessing Officer has not adverted to the issue on hand as directed by the CESTAT - the CESTAT has, in conclusion, noted the submission of the petitioner that the entire sales of Palmolein oil had been completed in August 2001 itself, and the differential duty remitted, under protest, in September, 2001 - it is in this context that the CESTAT states that documents in support of the aforesaid submission be examined by the Authority to convince himself that the incidence of duty has not been passed on to the consumer - regrettably, the Assessing Authority has completely lost sight of this exercise and has proceeded merely on the basis of accounting entries, the methodology of accounting followed by the petitioner and as to whether the duty had been reflected in the 'receivables' or 'profit and loss' accounts - the facts as noted by the Authority are itself clear to establish the position that incidence of duty has not been passed on to the customer - bearing in mind the aforesaid position as well as the fact that, admittedly, the sales had been completed in August 2001 whereas the differential duty was remitted only in September 2001, it appears clear to the Court, as seen from the records of the Assessing Officer and his observations in the impugned order, that the incidence of duty has not been passed on in this case - there is thus no necessity for remand as this exercise and the result thereof is quite apparent from the existing records and the observations of the officer himself - in the light of the above, the impugned order is set aside and the writ petition is allowed - in view of the decision of the Supreme Court in the case of Mafatlal Industries Ltd. And Others - 2002-TIOL-54-SC-CX-CB, only a refund that is claimed on the ground that a provision in terms of which it is levied is unconstitutional would stand outside the purview of section 27A of the Customs Act, 1962 [Act] - the dispute in the present case is as to whether notification dated 3.8.2001 enhancing the rate of tax would be effective from date of notification or from date of publication thereof in the Official Gazette, which was 6.8.2001 - the payment of duty is itself is not in question and it is only the rate thereof that is in dispute - such difference in the rate of duty as between the period prior to date of notification and thereafter, is only one of interpretation by the authorities - the refund claim in this case was filed on 3.2.2016, the Application was returned as defective and the application re-presented on 14.3.2016 - these dates are not in dispute - thus, in the light of the above, and the clear stipulation in section 27A of the Act, interest at the rate of 6% shall be paid by the respondents on an amount of Rs.1.09 crore computed from 14.3.2016 till date of payment - the writ petition is allowed in the aforesaid terms: HIGH COURT [para 5, 6, 7, 8, 10, 11, 18, 21, 23]
- Writ Petition allowed: MADRAS HIGH COURT
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HIGHLIGHTS (SISTER PORTAL) |
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